As a percentage of our overall claims, matters concerning Guardian ad Litems (GAL) are relatively low. Similarly, we do not have many of these claims reported to Lawyers Mutual in any given year. Even of those reported, we are often able to either repair the issue completely, or at least mitigate and resolve any damage to the minor, incapacitated individual or similar person the GAL is representing. However, as a subgroup of our claims, there has been an increase in issues concerning GALs over the last two years. Without going into specifics, since some of these issues concern on going claims, this article points out what we have been seeing lately which could impact your service as a GAL.
Are you holding funds in trust for the individual? If so, double check to see if those funds were tendered to you to hold under specific conditions and make sure those conditions have been met. Have those conditions changed over time so that they are no longer in the best interest of the individual you represent to the point that you should seek court approval to alter those conditions to better serve the individual? Are the funds invested in income producing accounts and are they invested reasonably?
If you are responsible for real estate or personalty assets, are those assets properly protected? Conduct a review of the assets to make sure they are properly protected. If the asset is realty in a flood plain or in an area subject to frequent hurricanes, is there a flood policy in place? Is there an effective property owner’s policy in place? Are there insurance products which provide for better coverage than the policy currently in place? Are the premiums being timely paid so that there is no lapse in coverage? If the individual has been placed in a nursing home or similar institution and the insurance company is unwilling to insure a vacant property, can you get coverage from another carrier? Similarly, if the insurance company is no longer willing to insure the vacant property with full coverage, can you obtain a renters policy or similar coverage to make sure the personalty within the property is protected as well?
Are you looking over the shoulders of others? Perhaps you as GAL are not directly responsible for some of these duties. However, others might be and you should double check to make sure they are performing their duties. For example, perhaps some of the assets are income producing properties and the day-to-day management of the assets is a property manager’s responsibility, not yours. Are they doing their job? If they are the ones responsible for making sure the realty is properly insured, have you checked to see that the coverages are current to protect those assets? Are they periodically inspecting the property to make sure there is no on-going issue that needs to be reported to an insurance carrier, law enforcement, city government or other entity? If vacant, are the properties periodically checked to make sure there is no persistent issue occurring that could give the insurance company grounds to deny coverage due to late reporting? Are you reviewing the monthly bills such as utilities to see if there is some type of abnormal spike which may indicate there is an issue with the property that needs to be investigated?
Are the contracts and other documents in the best interest of the individual? When entering into contracts or similar documents for the individual, thoroughly review the documents to make sure they are in the best interest of the individual and not drafted just to benefit another party. Be an inquisitive advocate. This issue is not necessarily limited to property assets. It can also include being the advocate for a minor child involved in domestic issues with his or her parents or guardians.
This list of issues is by no means exhaustive. However, it does provide you with a snapshot of what some of your fellow attorneys are currently having to address as issues in their roles as GAL. Hopefully, these questions will give you guidance for potential “potholes” you need to side-step in your role as GAL. Thank you for serving.
About the Author
Wayne Stephenson joined Lawyers Mutual in 1989. He has also worked with First Title and Investors Title as both an underwriting and claims attorney. He specializes in real estate matters. You can reach Wayne at 800.662.8843 or at firstname.lastname@example.org.