An Arizona guardianship and conservatorship case involving a Disney heir seems to have stumbled to a conclusion. It took six hotly contentious years and (reportedly) millions of dollars in legal fees. The case involves interesting legal issues and intense family drama. One side issue: the appointment of a “guardian ad litem”.
What is a guardian ad litem?
The term “ad litem” means “for the purpose of the litigation.” A guardian makes decisions for someone who is unable to do so for themselves. A guardian ad litem, then, usually controls a lawsuit for a litigant who lacks capacity.
Some lawyers describe a guardian ad litem as the “eyes and ears of the court.” This, however, misreads the role. A guardian ad litem might negotiate a settlement, sign agreements, hire lawyers — and actually direct the litigation.
Appointment of a guardian ad litem (often identified by the acronym GAL) is itself a process. The court must first determine that the person can not handle their own litigation. Then the order appointing a guardian ad litem must include specific terms and direction.
Guardians ad litem in guardianship cases
It can be especially difficult to figure out the role of a guardian ad litem in guardianship and conservatorship cases. Before the court can appoint a guardian or conservator, it must find that a functional limitation exists. How can the judge appoint a guardian ad litem before making that determination?
This has long been a conundrum for guardianship proceedings. Beginning in 1974, Arizona law required appointment of an attorney before a guardian or conservator could be named. That attorney, said the law, would have “all the powers and duties of a guardian ad litem.” The law didn’t explain what those powers and duties might be. The law changed years ago, but the confusion continues.
Current Arizona law allows appointment of a “representative,” without calling the appointee a guardian ad litem. The court-appointed representative has the power to “receive notice, give consent and otherwise represent, bind and act on behalf of” a person who is incapacitated (or a minor). Meanwhile, court rules permit appointment of a GAL — but without explaining what that appointment means. One might almost infer that lawyers — and judges — like the imprecision.
But wouldn’t it be great if someone could serve as the “eyes and ears” of the court? Yes, indeed. That’s exactly why the Arizona law includes such a person. Every guardianship (and most conservatorship) petition requires the appointment of an “investigator,” who must interview the participants and file a report with the court.
Bradford Lund’s story
Enter Bradford Lund, the Disney heir involved in the recent court decision. The probate judge ultimately determined that the evidence did not support appointment of a guardian or conservator. The outcome was hotly contested, and bitterly fought. Family members appealed, challenging other family members (and Mr. Lund himself). There were a dozen or so lawyers involved. Very active lawyers represented Mr. Lund throughout the proceedings.
Early in the court case the probate judge appointed a guardian ad litem — partly to determine whether Mr. Lund’s lawyers were actually representing him, or acting on behalf of someone else. To support the appointment, the probate judge found that it would be “prudent” to name a a neutral person. But the judge had not yet found that Mr. Lund was incapacitated, incompetent or otherwise unable to handle his own litigation. In fact, his lawyer was even active in the appointment of the guardian ad litem.
After years of litigation, the court-appointed investigator and Mr. Lund’s physician both filed reports saying they thought he did not need a guardian or conservator. At that point, the GAL asked for his appointment to end.
The probate judge disagreed, and the guardian ad litem’s appointment continued for another five years. During that time, he filed multiple petitions — including one asking for appointment of a limited conservator to make financial decisions for Mr. Lund. Eventually, Mr. Lund himself objected to the continued involvement of the GAL, and asked that the proceedings be terminated altogether.
The court ended the GAL’s appointment.That didn’t end the GAL’s involvement, though. The petitioners filed a motion seeking permission to call the GAL as a witness. They argued that the GAL had important information about Mr. Lund’s ability to handle his own finances. The judge denied their request.
The court case lurches to an end
After six bitter years of what the judge called “scorched earth litigation never before seen in the Probate Court,” the probate judge dismissed the petition altogether. The petitioners had not shown that Mr. Lund was incapacitated or needed protection.
The petitioners appealed, arguing that the probate judge had made a number of errors. Though it was not the central argument, one item in the appeal was whether it had been appropriate to terminate the appointment of the guardian ad litem.
The Arizona Court of Appeals upheld all the probate court’s rulings in connection with Mr. Lund’s guardianship and conservatorship proceeding. Along the way, the appellate court wrote about the appointment of a guardian ad litem, and whether it had been appropriate to dismiss the appointed GAL.
Appointment of a GAL requires two findings, according to the appellate court. If the person in question is not incapacitated (or incompetent), a guardian ad litem should not be appointed. Similarly, if their interests are adequately represented, a GAL is not needed. In Mr. Lund’s case, his representation was vigorous and he was not incapacitated. The probate judge correctly dismissed the GAL and precluded his later testimony. Guardianship and Conservatorship of Lund, December 26, 2017.
There’s one interesting question not addressed by the Court of Appeals. Should a guardian ad litem ever have been appointed in the first place? Or did the GAL’s appointment violate Mr. Lund’s due process rights, as he ultimately argued (five years into the proceedings)? Those questions will have to wait for another day, and another case.
