It is fairly common for people in North Carolina who don’t have a legal background to get confused by legal terms such as “guardian ad litem,” “guardian,” and similar phrases or terminology. Understanding what a guardian is, and does, is essential when you create an estate plan, but taking the time to differentiate a guardian from a guardian ad litem can also help you understand why both play specific roles in the law. To shed light on what a guardian ad litem is, what a guardian is, and how the two are different, let’s take a look at some important issues.
A guardian is someone who has the legal authority to make decisions on someone else’s behalf because that person, known as a ward, is not capable of making those choices on his or her own. Guardians most often come into the picture when dealing with children whose parents have died, or adults who have been rendered incapacitated as the result of an injury, accident, or serious medical condition.
Only a North Carolina court can appoint a guardian, even though parents of children do have some say in who the court, or more specifically, the Clerk of the Court, chooses.
Once chosen, the Guardian will have the legal authority to make all of the decisions the average adult makes on a daily basis. For example, guardians will choose where the ward lives, guard the ward’s personal property, and take any necessary legal actions to protect the ward’s legal interests.
Guardian ad Litem
A guardian ad litem, unlike a guardian, does not have the legal authority to make decisions on behalf of someone else. Instead, the guardian ad litem’s sole responsibility is to advocate on behalf of an incapacitated person whenever a court considers any issues involving that person.
So, for example, if a court is ever asked to consider who should have custody over a minor child, the court might appoint a guardian ad litem to serve as that child’s advocate. The guardian ad litem will be there solely as an advisor to the court, providing the court with information it needs to make the best decision on behalf of the child. The guardian ad litem does not serve either of the parents involved in the custody dispute, and is only there to represent the child’s interests.
Further, the duties of the guardian ad litem terminate once the legal issue before the court has come to an end. So, if the court appoints a guardian ad litem to advocate on behalf of the child who is the center of a custody dispute, the guardian ad litem will no longer have any responsibility once the court makes its final decision.