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Protecting the interests of a ward, or proposed ward is a Texas court’s primary interest. In order to protect those interests, the court may appoint individuals with distinct duties to represent a ward or proposed ward. Two of those individuals are called a guardian ad litem and an attorney ad litem. What are their roles and who do they differ? Let’s see.
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What is a Guardian Ad Litem?
To best understand the role of a guardian ad litem, it is best to look to the Texas Family Code for a definition. Section 107.001 of the Code defines a guardian ad litem as,
A person appointed to represent the best interests of a child. The term includes:
(A) a volunteer advocate from a charitable organization described by Subchapter C who is appointed by the court as the child’s guardian ad litem;
(B) a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests;
(C) an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or
(D) an attorney ad litem appointed to serve in the dual role.
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Duties of a Guardian Ad Litem
According to Section 107.002 of the Texas Family Code, a guardian ad litem may: conduct investigations: review medical records, medical care, and school records; interview the ward or proposed ward –4 years old or older in an appropriate manner – and individuals with knowledge of the ward’s history; consider the ward’s expressed objectives; encourage settlement and the use of alternative forms of dispute resolution; and any other duty ordered by the court.
A guardian ad litem is also entitled to receive copies of pleadings; attend court procedures; participate in case staffings by the Department of Child Protective Services; review and sign orders considering the ward or proposed ward; testify in court proceedings to the best interests of the ward; and the bases for the guardian ad litem’s recommendations to the court. Although the guardian may attend court proceedings, this is not to be confused with representing the ward or proposed ward’s legal interest.
In sum, the guardian ad litem’s purpose is to push for a ward or proposed ward’s best interest. The guardian will push for the ward or proposed ward’s best interest without representing the ward in a legal manner.
What is an Attorney Ad Litem?
In order to represent a child, ward, or proposed ward’s legal interests, the court will often appoint an attorney ad litem which the Texas Family Code defines as, “an attorney who provides legal services to a person, including a ward, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.” (For a more in-depth discussion see Attorney Ad Litem Article).
Duties of an Attorney Ad Litem
According to Section 107.003 of the Texas Family Code, a court-appointed attorney ad litem shall interview the ward – 4 years or older— and each person who has significant knowledge of the ward’s history and condition; carefully consider the impact on the ward in formulating the attorney’s presentation of the ward’s express objectives of representation to the court; investigate facts and legal records; do whatever necessary to expedite proceedings in favor of ward’s best interest; review medical records and seek medical care for the ward.
In short, the attorney ad litem will represent the legal interests of the ward or proposed ward. The attorney ad litem must advise the ward or proposed ward; represent the ward’s expressed objectives throughout the course of litigation.
Significant Differences Between an Attorney Ad Litem and a Guardian Ad Litem
Through the discussion above, one may be able to recognize one main difference between an attorney ad litem and a guardian ad litem. An attorney ad litem may be able to serve dual roles by also serving as a ward, or proposed ward’s guardian ad litem; while a guardian ad litem may not serve dual roles as an attorney ad litem. The attorney ad litem protects the legal interests of the ward or proposed ward, while a guardian ad litem does not interfere in the ward or proposed ward’s legal interests, but will encourage for the “best interest” of the ward or proposed ward.
