Guardians ad litem serve an important purpose.  They are officers of the court appointed to look after the interests of those who cannot look after their own interests, such as minors or the incapacitated.  Though they may be lawyers, they are not the lawyers for their wards.  This distinction is meaningful.

In trust and estate disputes, a non-litigating estate planning lawyer often gets appointed as guardian ad litem for minor beneficiaries or the unborn, unknown descendants.   That guardian ad litem also often makes a written report to the court.  Those who have experienced them know that trust and estate disputes can be incredibly contentious.  Is that guardian ad litem – who may have spent a career trying to avoid being in a courtroom – ready to get put on the witness stand?

Many guardians ad litem may say, “wait,

In a probate court case, attorney Richard S. Weiss was sanctioned by the court.  Weiss was required to resign his appointment as guardian for an elderly woman, required to forgo fees that he claimed to have earned, and required to pay certain sums to the guardianship estate.  Weiss had probably hoped that was the end of the fallout from the conduct that led to the sanctions.  It was not.  The Massachusetts Board of Bar Overseers had not yet weighed in . . . .

Perception — or perhaps more precisely, misperception — fuels so much fiduciary litigation.  For example, an elderly grantor may have perfectly legitimate reasons for conveying property to someone outside the family.  Even if the grantor’s reasons aren’t good, she is within her rights to make a completely unreasonable transfer so long as nothing afoul is afoot (e.g., lack of capacity, undue influence, fraud, etc.).

But, when a blood relative learns of this transfer, a sense of entitlement kicks in, and we’re on our way to litigation.  The problem for these elderly grantors, who are under so much pressure to explain or change their decision, is that they oftentimes say or do anything to try to make everyone happy.  That never works.  And that was the sort of situation recently before the Kentucky Court of Appeals.