A guardian ad litem (GAL) gets paid from the ward’s estate in most cases. How does this work? Well, if you are involved in a guardianship or conservatorship proceeding in South Carolina, chances are you will at some point meet a GAL. This court-appointed individual is an attorney, but he or she does not always directly represent the allegedly-disabled individual. Therefore, there can be a lot of confusion about the GAL’s role in the proceeding, as well as how this person gets paid. An experienced guardianship attorney can help to demystify the process and provide clarity from start to finish. Call the Elliott Frazier Law Firm, LLC today for more information.
Understanding the Various Parties to a Guardianship
Whether a financial conservatorship or a personal guardianship, there are several key players in the process that you should know about.
- Judge. Naturally, there is a probate court judge. These judges have very broad discretion and can make sweeping decisions based on their own experiences, observations, and the law. There are rarely juries involved in most probate proceedings, so the judge is even more crucial than in other proceedings.
- Petitioner. This is the individual who is seeking to be appointed to make decisions for the allegedly disabled or incapacitated individual. This person has the burden of proving that the disabled adult requires a guardian and that the petitioner is qualified to fill the role.
- Respondent/ward. The respondent is the actual disabled person who may require a guardian. Once a determination is made that the person is indeed incapable of making their own decisions, they will become known as the “ward” of the court.
- GAL. The GAL’s job is to act as the eyes and ears of the court, reporting observations and interviews to the judge. The GAL normally does not take sides and should serve as a neutral party to protect the rights and interests of the disabled person.
- Respondent’s attorney. In some cases, the alleged disabled person may choose to have their own attorney. In most cases, this is not the GAL, though it can happen in certain scenarios.
How Everyone Is Paid
In this type of probate court proceeding, if there is clear evidence that the proceeding is necessary, and the case has been brought in good faith, then all parties involved, including the successful petitioner, the GAL, and even the respondent’s own counsel can all petition the court to be paid from the ward’s estate.
For this reason, judges can be quite paternalistic, often dismissing attorneys who over-bill, striking fees or worse. The court’s primary concern is making sure that the estate is protected and the senior is not exploited outside or inside the courthouse.
Resources to Consider Before a Guardianship
Guardianship proceedings can take a toll on families and be quite expensive to the disabled person’s estate. Therefore, if there are other options, they need to be considered. These may include any existing powers of attorney, getting the disabled adult to consent to a guardianship or conservatorship, or looking for limited guardianship rights that may be less intrusive, but still helpful.
If you’ve tried everything else and still think a guardianship or conservatorship is the only answer, the Elliott Frazier Law Firm may be able to help. Give us a call to speak with a lawyer today, and find out more about your options.