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Appointment of “Guardian Ad Litem” Terminated by Court

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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.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.