Common Pitfalls for Guardian Ad Litems (and How to Avoid Them)

Article By: Brian M. Bentrup

What happens if a minor or disabled person cannot advocate for himself or herself? How does the legal world address this issue? In Illinois and many other jurisdictions, a judge will appoint an attorney from an approved list who has gone through the appropriate training to represent that person. That person is called a guardian ad litem (GAL) .

GALs serve an essential role in the legal system. If you are not familiar with what a GAL is, he or she is an attorney who helps protect the interests of those who are unable to adequately protect their own rights and interests in a case. It is not practical or possible for a judge to visit with every minor or an alleged disabled adult over whom a guardianship is sought to ensure their rights and interests are adequately protected. Instead, the judge will appoint a GAL to visit with the respondent or minor, and prepare a written report to the court. The GAL is the “eyes and ears of the court” and is an extension thereof.

The GAL is on an approved GAL list and has gone through the requisite training for the relevant county. In Cook County in particular, an aspiring GAL must complete five (5) pro bono appointments through Chicago Volunteer Legal Services, complete an application, and meet with the probate judges on the 18^th floor of the Daley Center. Despite this training and experience, there are still myriad pitfalls for an appointed GAL.

1. Bias

Bias is a common pitfall that can befall a GAL. GALs are appointed to be a neutral and disinterested third-party tasked with ascertaining what is the minor or alleged disabled adult’s best interest, but it is possible for other factors to enter the GAL’s calculus. This is particularly possible in a zero-sum game, such as a parenting allocation type situation. In that case, any gain or “win” by one parent is a loss by the other parent. There is only one child and there is only so much time in a day. If one parent gets sole custody, the other parent cannot have it; if one parent gets additional time, it must come at the expense of the other parent’s time.

A GAL’s recommendation carries a great deal of weight with a judge. If the GAL is expressly or implicitly exhibiting a preference or bias in favor of one parent to the detriment to the other, it presents an ethical issue. A GAL may be impermissibly bringing in his or her own context or background that is clouding his or her judgment, or displaying favoritism. The GAL must stay truly neutral, assess the facts as they are, ascertain the child’s best interest, and make an appropriate recommendation.

• Appearance of Impropriety

A GAL should also be wise to protect himself or herself. The GAL is required to use all practical efforts to meet with and speak with a child or alleged disabled person. GALs may be required to conduct a home visit and a portion must occur in private with the minor or alleged disabled person without other family, friends or relatives involved or within earshot. How can a GAL protect himself or herself when meeting a vulnerable person alone without witnesses? The dangers are especially salient when, for example, a GAL recommends sole custody and all parenting time to one parent and the other parent finds it unacceptable. The GAL is exposed to potential allegations of improper conduct during that private one-on-one meeting. It would not be unheard of for a parent to make these allegations against a GAL, warranted or unwarranted, who stated on the record that the parent in question is abusive, neglectful or is otherwise unfit to have custody and/or parenting time expanded. One compounding factor particularly in the family law context is that this experience is often one of the roughest times in the lives of those involved. This is an incredibly high-stress and high-stakes process that puts everyone on edge. It can have the effect of making individuals act irrationally. It is unclear how individuals in these situations may respond and it is entirely likely the one or more persons may behave irrationally. It is also not uncommon for drug or alcohol abuse to be part of the allegations in a family law context.

Thus, while visits to a facility may be unavoidable for alleged disabled adults, a home visit for a minor or an alleged disabled adult in their own home may be a vestige of the past. It is prudent to schedule all GAL interviews at the attorney’s office with a paralegal or legal secretary present at that meeting, not only for the protection of the GAL, but also for the protection of the child. 

• Safety of the GAL

This is more of an add-on to Pitfall #2 above, but there are cases in which a GAL has been exposed to unsafe people, conditions or environments. Beyond the protection of the GAL against unethical allegations, the GAL must also protect his or her person. GALs have been threatened by disgruntled parents, intimidated, and, in worst-case scenarios, have been murdered. Of course, this is rare, but the GAL must take all precautions to avoid placing themselves in these situations. Again, drug and alcohol abuse is not uncommon in child custody matters and may affect how individuals behave. For the same reason, GALs should avoid one-on-one home visits, GALs should not conduct interviews alone if there is a fear for safety. In this case, the GAL should raise such concerns to the judge. Meetings can instead be done at coffee shops, fast-food restaurants, malls, a local bar association office, or other public places frequently populated. Zoom, FaceTime, Microsoft Teams are all safe substitutes provided the court finds no issue and the GAL can be assured there is no one off camera that is dictating or influencing the minor’s or alleged disabled person’s responses.

• Duty of Confidentiality and Inadvertent Disclosures

GALs have access to a great deal of information. A GAL can obtain medical records, psychological evaluations, criminal records and complaints, school reports, individualized education programs, and collateral reports. GALs also have subpoena powers provided leave of court is obtained. GALs can also rely on information that would be otherwise inadmissible at trial or under the rules of evidence.

By statute, GAL are required to prepare a written report and judges will want an oral summary in open court. This is the GAL’s defense of his or her ultimate recommendations, but it also contains a lot of sensitive personal information. A Physician’s Report form is required for any adult guardianship. The Physician’s Report does not get filed with the court, but the GAL Report will often include a summary of the doctor’s medical conclusions, including the doctor’s ultimate recommendation. A GAL may also rely on a parent’s criminal background or substantiated abuse or neglect allegations.

It’s not hard to see why individuals would not want the information in the GAL Report to become public record. The GAL can ask for leave to file under seal, but judges often see this as necessary. There is no duty of confidentiality in GAL interviews and it would likewise be best practice to make this disclosure in the initial meeting. It is also best practice for the GAL to only include relevant information that is material to the recommendation.

About the Author:

Brian M. Bentrup is a graduate of Loyola University Chicago where he triple-majored in Economics, Political Science, and Psychology. In 2015, he obtained his law degree from The John Marshall Law School. In law school, Brian was selected to be an extern for the Honorable Laura C. Liu in the Mortgage Foreclosure and Mechanics Lien Division as well as the Illinois Tenant Union.

Brian joined Pluymert, MacDonald, Hargrove & Lee, Ltd. in January 2018. His practice includes estate planning, probate and trust administration, and residential and commercial real estate. Brian also focuses on guardianships of minors and disabled adults and has been named to the approved Guardian ad Litem lists for Cook County, DuPage County, Kane County and Lake County. Brian dedicates time to pro bono work with Chicago Volunteer Legal Services representing or advocating on behalf of minors and disabled adults.

Brian is a member of the American Bar, Illinois State Bar, Cook County Bar, DuPage County Bar, and Chicago Bar Associations. He is also a member of the Justinian Society of Lawyers and the Phi Alpha Delta Law Fraternity.

Brian is licensed to practice in Illinois and Missouri. When not practicing law, Brian enjoys spending time with his wife, daughter and son, and exploring new and different culinary experiences.