Understanding the Roles of Court Appointed Attorney vs. Guardian Ad Litem

A conservatorship is a legal process whereby a court may appoint a conservator to protect and manage the person and/or estate of an individual who lacks the ability or capacity to do so themselves (the “conservatee”).

A conservatorship attempts to strike a balance between protection of the conservatee’s person and/or estate with their freedom to make their own choices and live their lives as they would like.

Because a conservatorship necessarily entails the removal of rights for the conservatee, the courts and California Legislature go to great lengths to protect a proposed or current conservatee, including by appointing a court-appointed lawyer.

The Probate Code grants courts wide discretion to appoint court-appointed counsel for conservatees and proposed conservatees, if they are already represented by legal counsel and “the appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests.”

As a result of the controversial Britney Spears’ conservatorship, conservatorships have been at the forefront of Californians’ minds. Consequently, the California Legislature enacted several reforms affecting conservatorships, which took effect on January 1, 2023.

Among these is the requirement that the court appoint either a public defender or private counsel (i.e., a court-appointed attorney) if the conservatee or proposed conservatee has not retained legal counsel and does not plan to do so.

In addition to their duties to appear at hearings and provide a report to the court and parties involved, court-appointed lawyers are required to zealously advocate on behalf of their clients.

The California Legislature recently amended the Probate Code to make clear that “the role of legal counsel of a conservatee, proposed conservatee, or a person alleged to lack legal capacity is that of a zealous, independent advocate representing the wishes of their client, consistent with the duties set forth in Business and Professions Code section 6068 and the California Rules of Professional Conduct.” Legal counsel must also maintain attorney confidentiality and not disclose their client’s secrets.

Court-appointed counsel’s duty is only to the conservatee, not to other individuals who may have competing interests.

Similar to a court-appointed attorney, a guardian ad litem (or “GAL”) is a legal representative appointed by the court to represent an individual who lacks capacity to do so themselves, such as a minor or person who can’t understand the nature or consequences of the court proceeding.

However,  individuals appointed to represent the interests of a minor or incompetent person as guardian ad litem owe responsibilities primarily to the court that appointed them, and not directly to the clients themselves.

Unlike in court-appointed attorney appointments, California courts generally have wide discretion over when to appoint a guardian ad litem.

In a recent amendment to the Civil Code that took effect on January 1, 2023, the Legislature expanded and clarified the situations in which a guardian ad litem may be appointed, such as when a person “lacks the legal capacity to make decisions.”

Additionally, a person seeking to be appointed as guardian ad litem must disclose to the court and all interested parties any known potential or actual conflicts of interest arising from their appointment, as well as any familial or affiliate relationships with any of the parties.

In addition to changes in the law made by the Legislature, the role of guardians ad litem has been described and defined by caselaw, especially the ability of guardians ad litem to enter into contracts on behalf of their clients (typically minor children).

Because minor children lack the capacity to legally enter into contracts, several courts have looked at whether a guardian ad litem has the capacity to settle a lawsuit on behalf of their client and under what circumstances they have the right to do so.

Generally, guardians ad litem may not settle litigation without the endorsement of the court. They may, however, “control the procedural steps incident to the conduct of the litigation, and, with the approval of the court, [to] make stipulations or concessions that are binding on the minor, provided they are not prejudicial to the latter’s interests.”

In the case of Chui v. Chui (2022) 75 Cal.App.5th 873, the court described the authority of a guardian ad litem to act on behalf of their client as flowing from the authority of the court itself, as the court is responsible for the welfare of the minor and the guardian ad litem is “but the agent to whom the court, in appointing him (thus exercising the power of the sovereign [s]tate as parens patriae), has delegated the execution of the trust.”

What is a court-appointed attorney? What is a guardian ad litem? Are the roles really that different? On the surface, the meaning of court-appointed counsel appears to be similar to the meaning of guardian ad litem. Both appear at court hearings on behalf of the individual they represent, and both make reports to the court about the welfare and wishes of that individual.

But there are significant differences between the two that are largely derived from the policies behind their respective appointments:

The court-appointed lawyer is appointed to serve as an independent advocate for an individual and must therefore advocate according to their client’s instructions, regardless of whether the court-appointed lawyer independently believes that such instructions are in the client’s best interests, while a guardian ad litem is primarily an extension of the court and their interest is in protecting an individual.

For example, a guardian ad litem must act in the best interest of their ward, even if those “best interests” conflict with the expressed wishes and/or instructions of their ward. Moreover, a guardian ad litem may also consider the interests of others, such as whether consenting to an agreement would provide a “general family benefit.” Theoretically, such interests may even conflict with the best interests of the guardian ad litem’s ward.

In addition, court-appointed attorneys have fiduciary duties to their clients and are bound by state and local rules to maintain professional liability insurance, while guardians ad litem enjoy “quasi-judicial immunity,” or protection from liability for any mistakes made in good faith during the course of their representation.

This, however, does not mean that a guardian ad litem will have immunity from fiduciary misconduct claims if they bring harm to the ward intentionally or as the result of gross negligence.

Finally, there are statewide standards for the qualifications and continuing education of counsel serving as court-appointed attorneys. Guardians ad litem, on the other hand, are not required to be licensed attorneys.