New Amendment Expands Role of Guardian Ad Litem

 Posted on January 06, 2015 in Family Law

In most legal matters, the law focuses on empowering all members of society to make legal decisions that are best for themselves. However, sometimes the rights of many are restricted because they lose their ability to make decisions for themselves; the courts then step in and take action on their behalf to ensure that their interests are protected. This can lead, unfortunately, to a population that is left unable to act in their own legal best interests. This happens largely when a man or woman becomes incompetent either through age and/or disability, and the courts provide these wards with a guardian ad litem to represent them in legal family law issues concerning them.

It is important at any age, and with any disability, that citizens of our society still have their rights adequately represented. In family disputes, minors are provided with their own guardians ad litem to make sure that, though they are considered “incompetent” because they have not reached the age of majority, their rights are still protected even in the face of family disputes.

The Role of Guardian Ad Litem

Generally the role of guardians ad litem is limited in scope due to a reduced amount of legal disputes in which minors would find themselves. The situation becomes more complicated in the case of men and women who become wards due to age and/or disability, and have had a lifetime of contracts and legal relationships in which they are embroiled. Tying up loose ends due to age and/or disability is rarely easy, and in the past, guardians’ responsibilities were left solely to the governing of the wards’ estate and those issues surrounding them.

The Recent Amendment to Expand Guardian Powers in Family Law Issues

In a recent amendment to the current Probate Act, guardians were given the power to go beyond control of the wards’ estates but are now permitted to file a petition for marriage, dissolution of marriage, or adoption depending on the best interests of the ward. The new act dictates the following:

• If the ward filed for marriage, dissolution of marriage, or an adoption before being found incompetent, the guardian may continue with the petition.

• The guardian may still file for marriage, dissolution of marriage, or adoption if the court finds by clear and convincing evidence that it would be in the best interest of the ward.

Why is This Important?

This is an important expansion of the role of guardians and the rights of their wards. As a vulnerable member of society, there are times where a marriage, divorce, or an adoption can impact the life of the ward. For example, a ward who has been found to be incompetent can easily be manipulated or taken advantage of by a competent spouse. There are also significant benefits for a ward to be married to a spouse who has agreed to take care of the ward; marriage also provides financial benefits and tax breaks.

Best Interests of the Ward

To determine whether these actions are in the best interest of the ward, the court may weigh the following:

• The necessity of the action;

• The consequences of the action;

• Possible risks of the action;

• Alternatives to the action and their risks; and

• The views of the family and friends of the ward on the proposed action.

Experienced Family Law Attorneys in DuPage County

When a family member becomes a ward of the state due to age and/or disability, there may not always be enough time before he or she is declared incompetent to easily resolve pending legal issues. An experienced family law attorney at Mevorah & Giglio Law Offices can help untangle many of these complex issues and help provide you insight into the role of guardian ad litem to protect your loved one. Contact our DuPage County family law attorneys today for a free and confidential consultation.