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What is a Guardian ad litem?

Aug 14, 2012 Recently a client ask me what is the purpose of a Guardian ad litem. I was in the process of drafting a petition of guardianship for her adult disabled son and I had to explain that part of the court process was to appoint a Guardian ad litem in the case. My client naturally wanted to know what does the Guardian ad litem do and what is the cost. This is a common question and I thought I would post an explanation so others could read and understand. Virginia courts can appoint Guardian ad litems in several different kinds of cases but I want to address the appointment of a Guardian ad litem in a petition for guardianship and conservatorship over an alleged incapacitated person.

In every petition for guardianship and conservatorship, Virginia law requires the appointment of an attorney to serve as Guardian ad litem in the case. The Guardian ad litem is an independent attorney who acts on behalf of the court. The purpose of the Guardian ad litem is to investigate the matter for the court. Specifically, the Guardian ad litem must advise the court whether the alleged incapacitated person is incapacitated under Virginia law and if incapacitated whether the suggested guardian and or conservatator is appropriate. The Guardian ad litem must visit and interview the alleged incapacitated person as well as interview the proposed guardian(s) and conservator(s). The Guardian ad litem must assure that the alleged incapacitated person is advised of all legal rights. Often we ask the Guardian ad litem to actually serve the petition and the notice of the hearing on the alleged incapacitated person.

Finally, the Guardian ad litem must submit a written report to the court recommending whether or not the person is incapacitated and whether a guardian and conservator is needed to protect the person. If the Guardian ad litem thinks it is appropriate he or she can ask the court to appoint legal counsel to represent the interests of the alleged incapacitated person. The Guardian ad litem must be present at all court hearings. The court in the end makes the decision of whether the person is incapacitated and in need of a guardian and or conservator and who should be appointed.

If an attorney wants to be selected as a Guardian ad litem there is a certification process with training that is required. Usually, the Guardian ad litem is paid from the assets of the incapacitated person. In those cases where the incapacitated person has no assets the Commonwealth of Virginia has a special fee program that provides the Guardian ad litem payment but at a low rate.

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