The Guardian and the Guardian Ad Litem in Estate Planning

Many families and parents of young children begin their estate planning by choosing a guardian to protect their children and their financial interests should something happen to the parents. But what is a guardian? How does a guardian differ from a guardian ad litem? Today we are going to take a look at guardians, guardians ad litem, and the roles they play in the estate planning process.

Guardians

Guardians are people who have the legal authority to make decisions for legally incapacitated persons, known as wards. Wards can be children who are not old enough to make decisions for themselves or people of adult age who are not legally capable, such as adults with cognitive disabilities or elderly adults who have lost their abilities to handle their own affairs because of medical conditions, such as Alzheimer’s disease.

Only a court can appoint a guardian, but parents who make an estate plan can choose who the guardian will be by naming their choice of guardian in a last will and testament.

As long as the chosen guardian is willing and able to serve in this role, a court will typically approve of the parent’s guardian selection. On the other hand, if the parents fail to choose a guardian, or the guardian they choose is no longer willing or capable of caring for the child, the court will choose a guardian on its own.

Guardians ad Litem

A guardian ad litem is different from a guardian, although the names sound similar. In Latin, the phrase ‘ad litem’ can be translated as meaning ‘for the suit.’ So, a guardian ad litem, or GAL, is a guardian who only plays a role in the particular lawsuit or issue present before the court.

Unlike a legal guardian, a GAL does not have custody of the ward, nor does the GAL have the ability to make decisions on the ward’s behalf. Instead, the GAL is appointed by the court to act as an advocate for the ward while the court considers any issues that affect that ward.

For example, in a case involving an elderly person who has lost his or her cognitive abilities, the court must determine who should become that person’s legal guardian. During the course of the lawsuit, the court will typically appoint a GAL to advocate for the elderly person’s interests. Once the court makes its decision, the GAL’s duties are over.

Similarly, in cases involving the appointment of a guardian or the adoption of a child, the court will usually name a GAL to act as the child’s advocate throughout the proceeding.