Vail Law: At law, a GAL is looking out for the interests of others (column)
What’s a GAL?
Without the caps, the Urban Dictionary defines the word “gal” as “another word for girl.”
But the world of the Urban Dictionary is not the world in which I live and, although the word “gal” does not seem particularly sexist to me, one can never be too careful.
In my world — the world of law and its many acronyms — a “GAL” is a Guardian ad Litem.
A “guardian” is one who protects or looks out for another. “Ad litem” means “for purposes of the suit,” in this case, a lawsuit rather than the kind of suit you wear. Putting it all together, a GAL, or Guardian ad Litem is one who looks out for another for purposes of a particular lawsuit.
More specifically, a Guardian ad Litem is a person appointed by a court to protect the interests of a minor or someone incompetent in a particular matter. State law and local court rules govern the appointment of Guardian ad Litems. Typically, the court may appoint either a lawyer or a court appointed special advocate (often a volunteer) to serve as Guardian ad Litem in juvenile matters, family court matters, probate matters and domestic relations matters.
All this deserves a little parsing. First, a “minor” is a person under the age of majority, a person who has not yet reached his or her 18th birthday. At law, a minor is, in most circumstances, legally “incompetent.” That’s more harsh sounding that it really is or is meant to be, as any number of boys and girls who have not yet turned 18 are astoundingly competent. Instead, it reflects a legal status. At law, those younger than 18 are presumed to be incapable of taking adult-like acts or making adult-like decisions. For example, in most instances, a minor can neither enter into nor be bound by a contract. So “incompetent” simply indicates that the minor is lacking a certain requisite legal status.
Similarly, an “incompetent” may be an adult who, owing to some mental, physical, or medical condition is incapable of caring for him- or herself. At law, an “incompetent” is a person who is not able to manage his or her affairs due to mental deficiency (lack of I.Q., deterioration, illness or psychosis) or sometimes physical disability. It should be emphasized that the word — whatever its pejorative connotations in the non-legal world — is not meant to be disparaging in any way; it is, rather, simply a term-of-art description of an aspect of one’s legal status.
Being incompetent can be the basis for appointment of a guardian or conservator.
This raises two more points: First, how is it determined (other than being a minor, which is statutorily prescribed) that one is incompetent to manage his or her own legal affairs? Second, what the heck is a “conservator” and how is a conservator different than a guardian?
It’s about competency
A person may be found to be incompetent after a “competency hearing” before the court. As in any other hearing, evidence is presented before the court after which, based upon the evidence presented, the court may make a determination of a person’s competency or incompetency. The key to such determination is the person’s capacity to comprehend the consequences of his or her actions, the nature of the court proceedings and the ability to act in his or her own interest.
A “conservator” is a person appointed by the court to take care of someone’s finances when he or she cannot make these types of decisions because of an illness, injury or disability. A guardian, on the other hand, is a person appointed by the court to make healthcare and other mostly non-monetary decisions for someone who cannot make these types of decisions because of an injury, illness, disability or legally prescribed incapacity.
A Guardian ad Litem looks out for, and is an advocate for, the interests of his/her ward. A “ward” — perhaps not totally unexpectedly — is a person, especially an infant or incompetent, placed by the court in the care of a guardian. “Infant,” by the way, does not mean one in swaddling. Rather, it is another term-of-art which simply means a minor.
As authorized by law, the Guardian ad Litem may present evidence and ensure that, where appropriate, witnesses are called and examined, including, but not limited to, foster parents and psychiatric, psychological, medical or other expert witnesses.
In the case of a Guardian ad Litem on behalf of a child in a domestic proceeding, one can think of the proceedings going forward with three separate interests and three separate “camps.” The first two camps may be the mother and the father, each with their own independent counsel. The third might be the child represented by the GAL. Each interest will be separate and distinct and advocated on behalf of each of interested parties by their respective representatives.
A Guardian ad Litem represents and looks out for the interest of his or her ward and advocates on his or her behalf. And in the last analysis, that’s what makes the guardian ad litem — whether a he or a she — one heck of a GAL.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.
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