Probate Law & Family Law- The Role of the Guardian ad Litem

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.

Serving the people and businesses of South Carolina for over forty years.