In MGL 208 Sec 15 states: "If during the pendency of an action for divorce the defendant is incapacitated by reason of mental illness, the court shall appoint a suitable guardian to appear and answer in like manner as a guardian for an infant defendant in any civil action may be appointed." This could mean anything. Are there "Standards" for GAL/Next Friends? Isn't it really just a ore-packaged Limited Guardianship subject to MUPC? Or is a court appointed Next Friend totally undefined, unaccountable, and "irremovable"? I tried to Terminate my Next Friend via Medical Certificate, and the Judge said he "couldn't". I asked him how I DO petition/motion to get my rights back, and he literally just Shrugged. Are Next Friends covered under the Bar's Rules of Conduct? Am I a "client"? Thanks.
Divorce / Separation Lawyer
I have actually served as a guardian ad litem in this capacity for persons who were either physically or mentally disabled or disadvantaged or unable, in a way that was appreciable to everyone in the courtroom, to understand asset division and the long term effects of divorce - beyond the actual judgment. Generally, I have served to "approve" agreeements that were entered on behalf of the persons I have represented. The relationship is not attorney/client: it is one of substituted judgment on behalf of the person I have been appointed for: is this agreement in the best interest of the person whose interests I am representing on behalf of the court. The fact that one has been appointed in your case should not prevent you from putting on your own case or testifying as to what you want to see happen in your divorce. I would be interested to know under what facts the judge denied your request for the termination of the guardian ad litem - did you have a motion before the court? Was the request denied because it was not properly before the court? Of any of the people I have represented in this capacity - none produced medical certificates or had objections to tthe appointment. I would see an attorney about this and level with the attorney about the facts and circumstances surrounding the appointment and what behavior casued the court to think you might be advantaged by someone else's substituted judgment on your behalf.
Family Law Attorney
The GAL/Next Friend steps in your shoes, and has the rights you have and what a guardian normally would have. If an attorney was appointed in this role, no, you are not a client. The relationship is guardian/ward and under that relationship, the guardian has a duty to act in your best interests, and to act responsibily and prudently as to your assets and finances, but does not take direction from you in the way an attorney does. I am not sure is the new MUPC governs this, because this type of guardian is outside the scope of usual guardinaships. This type of guardianship is usually limited to the issues of the matter in which he/she was appointed, whereas the garden variety of guardian has a much broader role in the life of the ward.
My experience is that anyone appointed by a court can be removed by that same court. I am surprised at your description of the judge's reaction. It would seem to move you should be able to file a motion to terminate the GAL, with sufficient proof that the reason for the appointment in the first place, your incapacity, is no longer an impediment to you representing yourself.
To questioners from West Virginia & New York: Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.
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Divorce / Separation Lawyer
I can see why the Judge may be hesitant to give legal advice from the bench (not that I haven't seen them do it before in a case actually similar to yours) but you should be able to motion the court to remove the guardian. As Attorney Callahan stated if a lawyer was appointed as your GAL, no Attorney/Client relationship was created.
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