If you have watched law shows on television, you may have heard the phrase “guardian ad litem”, or “GAL”, and wondered what it meant. A guardian ad litem, or “guardian for the suit,” is an attorney who is appointed during the course of certain of lawsuits for a very limited purpose. The GAL’s function is to represent those persons, such as children or incapacitated persons, who are unable to speak for themselves. When the lawsuit concludes, so does the job of the GAL. A GAL may be appointed to represent the children in a divorce case, for example, or for an older person whose family or friends believe he or she needs a conservator to help manage financial decisions. Although the word “guardian” is part of the term, the GAL does not exercise any control over the person he or she is appointed to represent. The function of the GAL is to conduct an inquiry into the facts and circumstances and make a recommendation to the presiding judge about the best course of action for the person.
Virginia law recognizes two categories of GALs:
- those appointed to represent a child under the age of 18 years in an action that involves the child as other than the plaintiff or defendant, and
- those appointed to represent the interests of incapacitated persons.
An attorney in good standing with the Virginia State Bar who wishes to act as a GAL in either instance must first meet specific education and experience requirements.
Guardian ad litem for children in Virginia
The Virginia Code directs the Judicial Council of Virginia, working with the Virginia State Bar and the Virginia Bar Association, to adopt standards for attorneys appointed as guardians ad litem for children. Within two years before requesting appointment as a GAL, each prospective GAL must complete a seven hour MCLE (Mandatory Continuing Legal Education) course. The prospective GAL must either participate as an attorney in four cases involving children (excluding traffic cases) in the juvenile and domestic relationship court, or assist a GAL in two cases involving children in that same court. He or she must then provide a “Nomination Certificate” either from the juvenile and domestic relations judge that he or she appeared before, or from the GAL that he or she has assisted. The prospective GAL must file a letter with the Executive Secretary of the Supreme Court of Virginia asking to be certified as a qualified GAL and detailing his or her compliance with all the pre-requisites. Thereafter, the GAL’s name will appear on a list provided to the courts of qualified guardians ad litem. In order to maintain the qualification, six hours of MCLE on topics dealings with the representation of children as a GAL must be taken by the GAL every two years.
Guardian ad litem for incapacitated persons in Virginia
Qualifying as a GAL to represent incapacitated persons is very similar. Within the two years before requesting certification, the prospective GAL must complete a six hour MCLE course dealing with the following topics:
- an overview of the law concerning the guardianship of incapacitated persons;
- the responsibilities of GAL representation;
- the responsibilities of guardians and conservators;
- an overview of the physical and mental conditions that may result in incapacity;
- community resources to assist incapacitated persons;
- the ethics of serving as a GAL for an incapacitated person.
The GAL must gain experience in this area by providing assistance to the GAL for an incapacitated person, by serving as counsel for the petitioner in two circuit court cases involving an incapacitated person or by being appointed by a circuit court judge to serve as a guardian or conservator for an incapacitated person. He or she must provide a “Nomination Certificate”, either from the circuit court judge that he or she has appeared before or from the GAL whom he or she assisted. A letter may then be submitted to the Executive Secretary of the Supreme Court asking for certification. Following the certification, six hours of MCLE on topics dealing with the special needs of incapacitated person are required every two years.
Normally, a guardian ad litem does not serve the child or incapacitated person over a long period of time. Nonetheless, Virginia takes great care to ensure that persons acting in that capacity are well qualified for the important work they do in order to ensure that children and persons in need of special assistance are well protected.
About the Author: Tammy Ruble is an attorney with the personal injury law firm of Allen, Allen, Allen & Allen. She serves as a resource on issues in her special fields of expertise which include the crafting of Complaints and documents relating to infant settlements, wrongful death settlements, due diligence, and discovery.