What is the Role of the Guardian ad Litem?
A Guardian Ad Litem (sometimes referred to as GAL) is someone appointed by the Surrogate’s Court for those individuals who cannot come to Court or cannot protect their rights and interests on their own. Guardian Ad Litems step into the shoes of the individual to appear on their behalf, but does otherwise not have any legal power to manage a person’s affairs. A Guardian ad Litem is appointed pursuant to SCPA 403
Why Do I Need a Guardian ad Litem?
A Guardian Ad Litem can be appointed in cases involving children, incapacitated persons, incarcerated people, or for individuals who are unknown or cannot be located.
There are different instances when a child, incapaciated person, incarcerated person, or unknown individuals may need someone to represent his/her interests.
In Surrogate’s Court there are several instances where a Guardian ad Litem may be necessary. Here are some examples:
- When a child inherits money either from a Will or through Administration, the Court may appoint a Guardian Ad Litem to protect the child’s interest in that Court proceeding.
- When there is a kinship hearing, a GAL is appointed to represent the unknowns or knowns whose whereabouts are unknown.
- In an accounting proceeding, where there are unknowns. Although the fiduciary is required to undertake due diligence to look for unknowns, if after a diligent search, the fiduciary cannot find the unknowns, then the Court will appoint a GAL to review the file and step into that missing person’s shoes to make sure his/her interests are protected.
- In a Probate or Administration proceeding, where there is a person who is in prison or jail or incapacitatedl
Another example would be in the context of a divorce proceeding. There may be times when a Guardian Ad Litem is appointed by the Court for the minor children in order to protect that child’s interests since he/she cannot do so on his/her own.
Yet another example is in landlord/tenant court. In the case of an incapacitated person, there may be circumstances when the incapacitated person is not able to appear in court or does not understand how to protect his/her rights as a result of a physical or mental impairment or advanced age. An example would be within an eviction proceeding. If an incapacitated person is facing eviction but does not have the requisite capacity to represent his/her interests in Court, a the Court may appoint a GAL to stand in that person’s place in order to protect his/her interests and advocate for them. The GAL may try to obtain grants or other benefits for the person to assist with arrears, re-certification problems, or to arrange for a heavy duty cleaning.
The GAL submits a written report regarding his/her findings to the Court and any recommendations. The powers of a GAL stop at the conclusion of the matter.
How is a GAL Appointed?
A GAL is appointed by the Court. There is a registration process that anyone interested in becoming a GAL must first undergo. Once approved, the Guardian ad Litem will be placed on an approved list. The individual will submit an application, resume, and references and will need to attend a GAL training course.
Can I Do Away with a GAL?
In general, once the GAL is appointed, he/she will only be removed upon discharge by a Judge. If you feel that the GAL is not acting appropriately, you would need to bring a motion before the Judge requesting that the GAL be discharged and expressing your reasons. If a child attains the age of majority during the course of the proceeding, the GAL may be discharged. Similarly, for incapacitated individuals, should their status change whereby they are no longer deemed incapacitated, the GAL would be discharged. If the incarcerated person leaves prison, then the Guardian ad Litem can be discharged. If the person who is missing is found or becomes known, then that person can appear and the Guardian ad Litem can be discharged.
The attorneys at RK Law PC have served as Guardian ad Litems and are familiar with the process, as well as familiar with knowing when the Guardian ad Litem has to be appointed.
This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.