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A GAL/Next Friend appointed by the Family Court for an adult is what? The person's counsel? Guardian? Both? Neither?

Boston, MA |
Filed under: Family law

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.

Attorney Answers 3

Posted

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.

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Posted

I was appointed a Next Friend because I was pro se, and my ex and her attorney wanted to deal with someone more professional. Normally a judge wouldn't put someone under guardianship because they're just "irritating", but the judge did, solely because I do have some mental health treatment in my past for depression and anxiety. So I was given a Next Friend for a year, over my objections. But we worked well, he thought I was capable enough, but judge's orders...I didn't mind the Next Friend's legal expertise until he railroaded me into a Separation Agreement that was really against by interests. Judge McSweeny couldn't have cared less about my serious problems with the language - he likes ANY agreement. At the last minute, I tried to pull the plug on the Agreement going through with a medical certificate of competency, but Judge McSweeny denied the motion without stated cause and entered the agreement as final. You see, guardianship is supposed to protect MY rights. That's it. But in my case, guardianship was used by a bunch of different people for their own interests. This is really a basic constitutional issue, so unfortunately, no one wants to touch it... Thanks.

Posted

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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Posted

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.

If you are in Massachusetts, my answering of your question does not constitute an attorney/client relationship and are for informational purposes only. If you wish to contact me to discuss your question further I offer a 30 minute free consultation and can be reached at 413-522-6263. If you are not in Massachusetts I am not giving you legal advice as I am not licensed in your state and my comments should be viewed as for informational purposes only.

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