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Juvenile Court Appointment of Guardian Ad Litem Reversed

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When someone appearing in a court proceeding is unable to make decisions for himself or herself, the court may sometimes appoint a guardian ad litem. Lawyers usually shorten the appointee’s title to GAL. The need for a GAL and the GAL’s proper role have been topics of controversy in a number of cases.

Most jurisdictions draw a clear distinction between a GAL (who may or may not be a lawyer, depending on the court’s wishes and local laws and practice) and an attorney for the ward, minor or disabled person. Generally, the GAL’s role is to make decisions for the person. An attorney’s role, on the other hand, would be to represent the client, to counsel him or her, and to assist in producing witnesses and evidence if he or she wishes to take a particular position.

GALs are most often appointed in guardianship and conservatorship proceedings. In civil litigation involving a minor or disabled adult, or even in divorce proceedings where one spouse is mentally disabled, a GAL may be appointed to make decisions about the course of the case.

Because courts tend to be paternalistic toward children and the mentally disabled, the appointment of a GAL may be almost routine in many types of cases. As a recent California case pointed out, however, a judge needs to follow proper procedures even when taking steps to protect a litigant.

Kim S. is the grandmother of four-year-old Joann E. (the court does not provide last names in this juvenile proceeding) and her guardian. When the state decided that Kim’s mental illness made it impossible for her to properly raise Joann, a juvenile proceeding was initiated to remove Joann.

Because of Kim’s obvious mental illness, the juvenile judge decided to appoint a GAL to make decisions for her in connection with the juvenile proceedings. The appointment was made without a hearing, any testimony or an opportunity for Kim to be heard as to whether she needed a GAL.

After a different judge removed Joann from Kim’s care Kim appealed. One of her arguments was that the judge had no right to appoint a GAL without first holding a hearing and giving her a chance to object.

The California Court of Appeal agreed. Because it appeared that the judge simply decided, based on the written reports, that someone other than Kim should be in charge of her case, Kim’s due process rights were violated. Since Kim’s rights were abridged at the outset, the entire process thereafter was suspect, and the trial court must restart the juvenile proceedings. In re Joann E., December 16, 2002.

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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.