Not all probate cases in New York involve the estate of someone who has died. Some probate cases, generally referred to as “living probate,” involve incapacitated people who are unable to care for themselves or their affairs. In such cases, it isn’t uncommon for a Surrogate’s Court—the New York version of a probate court—to appoint a guardian ad litem. In probate cases, the guardian ad litem serves a very specific purpose. Here are several questions about guardians ad litem in probate proceedings in the state of New York.
What is a guardian ad litem?
A guardian ad litem is someone who has the responsibility to represent the interests of an incapacitated person, or a person who is under the age of 18. Guardians ad litem, or GALs, only serve for a limited time. In probate cases where the Surrogate’s Court is trying to determine who should manage the responsibilities of an incapacitated person, the GAL serves only as long as the probate proceeding lasts. (The Latin term “ad litem” means “for the purposes of the suit.”) The guardian ad litem is a short-term guardian who has a very specific responsibility when the Surrogate’s Court hears an adult guardianship case.
Who appoints the Guardian ad litem in probate cases?
The Surrogate’s Court appoints a guardian ad litem. Guardians ad litem are officers of the court. In New York, all guardians ad litem must be attorneys admitted to practice law in the state.
Can I appoint my own guardian ad litem?
Possibly. In some situations, a person who is at least 14 years old, or a child’s parent or guardian, can nominate a person to serve in the role of guardian ad litem. However, anyone nominated must be approved by the probate court before he or she can serve.
What’s the difference between the guardian ad litem and a legal guardian?
The two serve somewhat similar purposes, but there are significant differences. A guardian ad litem has the responsibility to represent an incapacitated person’s interests in the probate proceeding. A guardian, on the other hand, is responsible for managing an incapacitated person’s affairs on a daily basis.
For example, let’s say your elderly mother is suffering from Alzheimer’s disease. You file a petition with the Court asking it to name you as your mother’s guardian. Before the court names a guardian, it will hold a hearing. It might also appoint a guardian ad litem who will represent your mother’s interests during that hearing. Once the hearing is concluded and the court has selected the guardian, the guardian ad litem’s duties are over, and the guardian’s duties begin.
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