Guardians ad litem are well known to attorneys and litigants in family
court. In a family court proceeding where children are involved, the GAL
serves as the “eyes and ears” of the court to make recommendations
and represent the best interests of the children. GALs are also used in
Probate Court proceedings seeking appointment of a guardian, conservator,
or the involuntary commitment of an individual. In these proceedings,
the GAL is often an attorney who also serves as the attorney for the alleged
incapacitated individual.
The appointment of a guardian ad litem (GAL) is provided in S.C. statutory
law, specifically S.C. Code §§ 62-1-403, 62-5-407, and 62-7-305.
S.C. Code Ann. §§ 62-1-403, 62-5-407, 62-7-305 (2014). However,
none of these sections state the duties and responsibilities of the GAL
in Probate Court proceedings. Fortunately, some guidance is available.
In the context of family court proceedings, the South Carolina Supreme
Court has stated:
The duty of a guardian ad litem or next friend is to look after the infant's
interest and to act for him in all matters relating to the suit as he
might act for himself if he were of capacity to so do. The guardian ad
litem should make a defense of the interests of the infant as vigorous
as the nature of the case will admit. His duty requires him to acquaint
himself with the rights, both legal and equitable, of his wards, and take
all necessary steps to defend and protect them, and to submit to the court
for its consideration and decision every question involving the rights
of the infant affected by the suit. If in consequence of the culpable
omission or neglect of the guardian ad litem the interests of the infant
are sacrificed, the guardian may be punished for his neglect, as well
as made to respond to the infant for the damage sustained.
Fleming v. Asbill, 326 S.C. 49, 54, 483 S.E.2d 751, 754 (1997). It is the duty of the court,
the GAL and the GAL’s attorney to ensure the rights of the minor
or incompetent person are protected.
Cumbie v. Cumbie, 245 S.C. 107, 112–13, 139 S.E.2d 477, 480 (1964). In child custody
cases, the GAL “functions as a representative of the court”
and provides “an objective view.”
Patel v. Patel, 347 S.C. 281, 287, 555 S.E.2d 386, 389 (2001). The Supreme Court set
forth basic duties of a GAL:
[A] GAL shall: (1) conduct an
independent, balanced, and impartial investigation to determine the facts relevant to the situation of the
child and the family, which should include: reviewing relevant documents;
meeting with and observing the child in the home setting and considering
the child's wishes, if appropriate; and interviewing parents, caregivers,
and others with knowledge relevant to the case; (2) advocate for the child's
best interests by making specific and clear recommendations, when necessary,
for evaluation, services, and treatment for the child and the child's
family; (3) attend all court hearings and provide accurate, current information
directly to the court; (4) maintain a complete file with notes rather
than relying upon court files; and (5) present to the court and all other
parties clear and comprehensive written reports, including but not limited
to a final report regarding the child's best interest, which includes
conclusions and recommendations and the facts upon which the reports are
based. In consideration for their services, GALs should receive reasonable
compensation.
Patel v. Patel, 347 S.C. 281, 288-89, 555 S.E.2d 386, 390 (2001). These were later codified
at S.C. Code Ann. 63-3-830.
See
Latimer v. Farmer, 360 S.C. 375, 387 602 S.E.2d 32, 38 (2004).
Looking to the role of a GAL in Probate Court proceedings, the duties set
forth for the representation of children may easily be adapted. The GAL
should represent the individual’s interests in the manner in which
the individual would act for herself, as well as conduct an independent
investigation of the facts and advocate for the individual’s best
interests. The GAL should attend all court hearings and provide information
directly to the court, as well as maintain their own file regarding the
matter. One way this duty is carried out is through the report the GAL
submits to the Court. In adult guardianship petitions, this is through
the visitor’s report, Form 531.The combination of the duty to represent
the individual’s interests as they would act for themselves and
the duty to advocate for the individual’s best interests may give
rise to a conflict of interest. In such cases, the individual should be
represented by an attorney to advocate for their wishes while the GAL
reports and advocates for the individual’s best interests. When
these conflicts arise, the Guardian ad litem may ask the Probate Court
to sever their roles and appoint an attorney to represent the alleged
incapacitated.
In Need of Legal Assistance?
It is important to remember that seeking a guardianship, conservatorship
or involuntary commitment is a formal proceeding in the Probate Court
where the advice and representation of a probate attorney is recommended.
If you believe you or a loved one may be in need of an adult guardianship,
conservatorship, or involuntary commitment, please
contact Finkel Law Firm, LLC to schedule a consultation.