Guardian Ad Litem
Probate
What Is A "Guardian Ad Litem" (GAL) & Why Do I Need To Care?
A “Guardian Ad Litem”, or GAL, is a technical-sounding, legalese term, referring to someone appointed by a Court, usually to review the fairness of some type of Probate Court Petition, or a settlement, a distribution, which could be in Probate, Circuit, or District Court.
A “Guardian Ad Litem” is really not a “Guardian”, in the Probate Court sense of someone appointed to look out on a long-term basis, for someone else’s medical, housing, and other personal interests. A GAL is sometimes referred to as “the eyes and ears of the Court”, and instead of serving as Guardian for another individual, the GAL investigates the merits of a Petition, settlement, distribution, etc., and then sends a report to the appointing Judge, to tell them whether they believe the Petition or other request should be granted or denied, in full or in part.
MCR 2.420 governs the appointment of GAL’s in situations involving a settlement on behalf of a minor, or a legally incapacitated person. This Court Rule requires the appointment of a GAL, where the minor/incapacitated person’s representative also has a claim, and the settlement allocates money to both persons; the Court needs input on the issue of whether that is fair or appropriate. Let’s use an example to illustrate the application of MCR 2.420, and the appointment of a GAL.
- EXAMPLE: Father is killed in an auto accident, and a Wrongful Death action is filed. The parties settle, and the proposed distribution has money going both to the surviving spouse (aka Mother), and to their 7 year old son. A GAL will be appointed to represent the interests of the minor child, to ensure that the allocation of money to him v. that which was allocated to Mother, is fair. I have served as a Court-Appointed Guardian Ad Litem, in Wayne, Oakland, and Macomb County Probate Courts. Additionally, I have been requested by various Michigan attorneys to serve as a GAL, and have had those requests honored by local judges.
My Job As GAL
My job as the GAL, is to determine the fairness of the Petition, settlement, distribution, etc. I will report to the Court on my opinions on those subjects. While in theory, a personal visit is not required, either by MCR 2.420 or by MCR 5.121 (the Probate Court Rule dealing with Guardians Ad Litem, or GAL’s), I have found it to be a good practice. Sometimes I pick up on facts, which bear on my work as a GAL, that is not evident from the Motions/Petitions to Approve Settlement.
Recently, I paid a visit to a young man, permanently incapacitated in an auto accident; his attorneys settled a No-Fault claim, in which most of the money was used to pay doctors’ bills, but some of the money was used to pay the mother for “attendant care” services she provided to her son. I learned that she intended to use this money to help purchase a home, which could be modified (at the expense of the no-fault insurance company), to make it accessible for her now-incapacitated son. For this and other reasons, I issued a report, endorsing the fairness of the settlement, and it was promptly approved by the Court.
Dealing With Someone Else as GAL
Sometimes, a GAL is appointed, and we are the folks who have to deal with that court-appointed GAL. Remember, GAL’s are usually appointed from a list of attorneys known to the presiding Judge, and that Judge will often lend great credence to the findings the GAL makes in his/her report. There is nothing to be gained, by making a GAL’s life difficult (e.g., missed appointments, strained communications on sensitive subjects, etc.) GAL’s need to be “handled” deftly, and appropriately.
Thus, if a GAL is appointed on one of our cases, I will handle communications with the GAL, until he/she tells me they need to contact you. At that point, I will advise you closely, on how best to deal with the GAL in your situation. Any attorney should do that, for his/her client; if yours does not do that, ask them why they do not.
In any event, once you are properly prepared, you will know how best to deal with the GAL, in your case.
GAL's Bill For Their Work
This is often a bitter pill to swallow; with all of the costs of litigation, that come off the top of a settlement, here comes someone else, with “their palms turned up”. Sometimes, the GAL is appointed by the Probate Court, yet the bill still comes. In past times, local probate courts paid for GAL billings at low rates set by the particular courts; however, with governmental budgets being as tight as they are, many local courts require a GAL to bill “the estate” (be it a Guardianship, Conservatorship, or Decedent’s Estate), where they think that estate has money to pay the GAL. Unfortunately, it is inevitable, when a Court appoints a GAL.
Obviously, you will want to make sure that the GAL bills fairly for their work. When I serve as a GAL, I issue an itemized billing, either to the Probate Court “fiduciary” (Guardian, Conservator, or Estate Personal Representative), or to the attorney making the distribution of a Circuit Court settlement.
GAL Services For Other Attorneys
I have been a personal injury attorney since 1987, handling all types of accident claims, including No-Fault insurance matters. I will do my utmost to help facilitate your settlements, where I can.
Give me a call, Jon Frank, at (586) 727-1900, or email me at jon@jonfranklaw.com.
Settling a claim for a minor? Do you/your attorney have a GAL appointed?
Call Jon Frank immediately for expert GAL assistance.
Frequently Asked Questions. Honest Answers.
Nobody “wants” a Guardian Ad Litem, or GAL on their case; they get appointed by judges, and yes, you may well be forced to deal with a Guardian Ad Litem, or GAL. This is especially true, if there is a minor, or incapacitated person involved.
If you must deal with a GAL on your case, you need to learn to deal DIPLOMATICALLY with this person, who got appointed, because the judge wanted/respects that GAL’s opinion. That GAL could be the difference between getting what you want in court, and falling short. The GAL will charge for their services, and you might be responsible for paying those fees, like it or not.
My “rule of thumb” is that if a case requires the appointment of a GAL, you would do well to have your own lawyer on that same case (if only to manage communications with the GAL, to put your case in its best light).
GAL’s are always appointed to be “the eyes and ears of the Court”; as I often say, “the Judge isn’t coming out to see you, to determine how to rule. She/he is sending me (or the GAL, if that is someone else).”
Because judges often simply incorporate the findings of the GAL, into their formal court orders, “the care and feeding” of GAL’s is most important. You want to get the GAL on your side, and so you need to know how to communicate to him/her, what information to get to them, when, etc.
You also do not want to alienate the GAL, or make them think your position is dishonest, or lacks merit in any other respect. I have served as a GAL in both Probate and Circuit Court matters, in Michigan, and I can help you navigate your case to a successful conclusion.
