“What is an Attorney Ad Litem? Why Did the Judge Appoint Another Attorney in My Case?”
These two questions come up nearly every time we have a probate heirship or a guardianship case. Typically, clients are concerned about what they perceive as intrusive questions and information that must be provided to this additional attorney. Also, they are concerned about adding to the cost of their case.
While it may seem like the appointment of yet another attorney is cumbersome, the truth is that having an attorney ad litem on board helps ensure that there are no problems down the road. The attorney ad litem is an added layer of protection for you when you are responsible for handling the assets in an estate.
The added cost is, truthfully, a small price to pay to make sure that everything is handled properly so that you do not have a problem later on. The reason they are seeking information is to make sure there are no surprises down the road. Surprisingly, there are many cases where there is an heir that surfaces unexpectedly. In addition, there are serious repercussions when a guardian is appointed improperly.
Attorney Ad Litem Definition
The term “ad litem” means to “litigate” or “represent in litigation.” According to Texas law, an attorney ad litem is “an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.”
Attorney Ad Litem (or Guardian Ad Litem) for Texas Guardianship
Texas probate law requires the judge to appoint at least one ad litem attorney. There are two categories of ad litem attorney: (1) the attorney ad litem; and (2) the guardian ad litem. Eachone serves a specific function in guardianship cases.
The judge appoints the attorney ad litem to represent the “legal interests” of a Ward or proposed Ward of an estate. The guardian ad litem represents the “best interests” of the Ward or proposed Ward. Essentially, the attorney ad litem represents the wishes of the proposed Ward and the guardian ad litem represents what would be best for the proposed Ward.
In a case where there is a clear need for a guardian, such as when a minor child turns 18, or when a person is obviously incapacitated due to illness or injury, an attorney ad litem will probably be the only ad litem appointed by the judge.
In other cases, when a proposed Ward objects strongly to the guardianship or when there is less clear evidence of incapacity, or if another person contests the appointment of the applicant as a guardian, then the judge can appoint a guardian ad litem in addition to the attorney ad litem. The role of guardian ad litem is to make a recommendation to the court as to what the best option is for the proposed Ward.
Attorney Ad Litem for Heirship Proceedings
When a person dies without a valid will, the probate court proceeding for distributing the assets of the deceased is called an Heirship. An heirship is the process of determining the legal heirs to an estate. Because it is critical to make a correct determination, the probate judge appoints an attorney ad litem to represent unknown, missing and incapacitated heirs.
The attorney ad litem is charged with locating any heirs that are not readily apparent. In addition, the attorney ad litem represents minors and incapacitate persons, protecting their interests.
Attorney Ad Litem for Family Law Cases
In cases involving children, Texas Family Law defines an Attorney Ad Litem as “an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.”
When there is a case of child abuse or neglect, where there is court action taken by CPS to terminate parental rights, or to make CPS the conservator, a court must appoint an Attorney Ad Litem to represent the child.
In specific instances in custody or divorce matters, the court may choose to appoint either a Guardian Ad Litem or an Attorney Ad Litem to represent the child. As in probate cases, the guardian ad litem is charged with determining what is in the child’s best interest and the attorney ad litem represents the child’s wishes.
Family law cases involving children can become extremely contentious. Therefore, appointing a person to handle the child helps make sure the child is adequately represented. In the heat of the moment, opposing parties can lose sight of how actions can effect children. Ad litem representation provides a layer of protection.
In addition to his active probate practice, Attorney Bob Leonard is a trained ad litem, qualified to be appointed in Tarrant County and Parker County probate and guardianship matters. To become eligible to be appointed an attorney ad litem in Texas Probate courts an attorney must complete a State Bar approved training course. the initial certification. This for two years. Once an attorney has been certified for two consecutive two-year periods, subsequent certifications are for (4) years.