The Latin phrase ad litem means "to litigate" or "to represent in litigation."
In every guardianship case, the Probate Court in Texas is required by law to appoint at least one ad litem attorney. However, Texas law recognizes two different types of ad litems- 1) the attorney ad litem, and 2) the guardian ad litem. Each of these has a very distinct function in guardianship cases.
The attorney ad litem is appointed to represent the legal interests of a Ward or a proposed Ward, while the guardian ad litem is appointed to represent the best interests of the Ward or proposed Ward.
Example: Father is 88 years old and has suffered from Alzheimer's for 3 years, and Mother has cared for him in their home during that time. However, Mother recently passed away, and Son has agreed with his siblings to provide Father's care and to serve as his guardian. Son files an application to become Father's guardian, but when questioned about this, Father strongly objects to needing a guardian.
In the Example above, when Son filed his application with the Probate Court to become his father's guardian, the Court was required to appoint an attorney ad litem to represent father's legal interests. The attorney ad litem is required to explain the consequences of a guardianship to Father, and if Father objects, the attorney ad litem must fight against the guardianship with the Court. Because Father has taken the position that he objects to the guardianship, his attorney ad litem must take the same position and argue to defend Father's legal position or interest.
However, in cases such as this where the Father objects to the guardianship, the Court will likely appoint a guardian ad litem to represent Father's best interest. In the Example above, the guardian ad litem would investigate the issues surrounding father's condition and make a determination as to Father's best interest. Given Father's Alzheimer's and inability to care for himself, the guardian ad litem might report to the Court that Father needs a guardian, even though Father believes he does not.
Because a guardianship proceeding has the effect of essentially stripping someone of their rights to make decisions for themselves related to their personal and financial well-being, the Probate Code and the Courts will take appropriate steps to ensure that a proposed Ward is well-represented by competent attorneys before the Court makes the decision to strip that person of their rights.
Because the implications of a guardianship proceeding can be so great, the role of the ad litem attorneys in these cases can be critical. For those people participating in the guardianship case, it is important to understand the differing roles of the ad litems so that you can distinguish their functions in the case.
Each of the attorneys at Ford+Bergner LLP has served as both attorney ad litem and guardian ad litem in many cases. We take this responsibility seriously, and we recognize the value to our clients from our experience serving as an ad litem. If you have any questions related to the role of the ad litem in guardianship cases, please do not hesitate to contact us.