Watching a parent’s physical and/or mental health deteriorate as they age can be extremely difficult for an adult child. As much as you may want to preserve your parent’s independence, there may come a point at which you believe you need to step in and petition for guardianship to protect your parent. During the guardianship process, the court will likely assign a Guardian Ad Litem. For those who are unfamiliar with the concept, a Grand Forks elder law attorney at German Law Group explains the role of a Guardian Ad Litem in an adult guardianship process.
What Is an Adult Guardianship?
In the U.S., a presumption exists in the law that an adult is capable of making his/her own decisions and handling his/her own affairs unless a court determines otherwise. Both the natural aging process and conditions such as Alzheimer’s, however, can rob an adult of the ability to make decisions and/or manage his/her own affairs. If a court is convinced that an adult is not capable of safely caring for himself/herself, and/or is no longer capable of managing his/her own financial affairs, the court will appoint a Guardian. State law governs the guardianship process as well as determines what types of guardianships are available.
North Dakota recognizes two types of guardianship. In a full guardianship, the Guardian has the authority to make almost all decisions for the incapacitated person. This might include things such as where the ward (incapacitated person) lives, what doctor the ward will treat with, what bills of the Ward’s to pay, and what assets of the ward to sell. In a limited guardianship the Guardian only has the authority to make the decisions the ward cannot make based on the findings of the court.
The Role of a Guardian Ad Litem
To become someone’s Guardian, you must start the process by filing a petition with the appropriate court. Both the proposed ward and immediate relatives must be formally notified that someone is seeking guardianship over the Respondent and everyone entitled to notice may also formally object. One of the first steps the court will take after a petition for guardianship is filed is to appoint a Guardian Ad Litem.
A Guardian Ad Litem (GAL) is a lawyer appointed by a North Dakota District Court to advocate for the best interests of the proposed ward. In essence, a GAL acts as the “eyes and ears” of the court by providing a neutral assessment of the needs of the proposed ward. Before the hearing to determine the need for a guardian, the GAL will interview the Respondent, inform him of his rights, and investigate the appropriateness of guardianship. To do that, a GAL might also interview family members, friends, and caregivers of the proposed ward. A GAL will also typically review medical records and take any other steps reasonably necessary to form an opinion as to the need for a Guardian. The findings of the GAL are then put together in a report that is submitted to the court.
Although a GAL is an attorney, in the context of a guardianship proceeding a GAL does not argue for or against the guardianship. The sole purpose of a Guardian Ad Litem in an adult guardianship proceeding is to look out for the best interests of the proposed ward and to help the court make a determination as to the need for a Guardian. While a court won’t automatically adopt the recommendation of a GAL, most judges will rely heavily on the findings detailed in the report submitted by the Guardian Ad Litem
Contact a Grand Forks Elder Law Attorney
Please join us for an upcoming FREE seminar. If you have additional questions about or concerns about the adult guardianship process, contact a Grand Forks elder law attorney at German Law Group by calling 701-738-0060 to schedule an appointment.
- When a Parent Needs Medical Treatment and the Adult Children Cannot Agree, What Happens? - February 25, 2021
- The Best Way to Leave Your Estate to Your Spouse - February 23, 2021
- Protecting Your Wishes in Your Will - February 11, 2021