Is a Guardian ad Litem needed in a trust matter if all the parties are not mentally disabled, or minors or a unborn remainders of a trust, If all parties are adults and are represented by there own attorneys, is there a need to appoint a Guardian ad Litem. Is the Guardian ad Litem suppose to take sides or does the Guardian ad Litem stay impartial between the parties? Why would a judge appoint a Guardian ad Litem, if all parties are not mentally disable or a minors or a unborn remainders of turst?
Is this a purely theoretical question, or has a judge ordered a GAL in a case where you are an interested party? Generally, a judge appoints a GAL because a statute requires it or because the judge believes that the GAL will give the judge a view of the case that the judge needs but which is not otherwise available.
I am licensed to practice law in Michigan and Virginia and regularly handle cases of this sort. You should not rely on this answer. You should consult a lawyer so you can tell the lawyer the entire situation and get legal advice that is precisely tailored to your case.
Elder Law Attorney
What do you mean by "parties?" Are all beneficiaries adults or just the person filing the petition and the person responding? All qualified trust beneficiaries are entitled to notice. Here is Michigan's definition of qualified trust beneficiary:
(g) "Qualified trust beneficiary" means a trust beneficiary to whom 1 or more of the following apply on the date the trust beneficiary's qualification is determined:
(i) The trust beneficiary is a distributee or permissible distributee of trust income or principal.
(ii) The trust beneficiary would be a distributee or permissible distributee of trust income or principal if the interests of the distributees under the trust described in subparagraph (i) terminated on that date without causing the trust to terminate.
(iii) The trust beneficiary would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
Section (i) identifies people who are current beneficiaries, i.e. entitled to receive a share right now. Under (ii) above, trust beneficiaries also include people who would receive if one of the people in (i) pass away, which may include a minor or a person under a disability. All qualified trust beneficiaries (QTBs) are entitled to notice and participation in a hearing that may affect their interest and if there is a minor or person under a disability who is also a QTB, the Court will appoint a GAL.
There is a provision in the trust code which allows for "representation" of the people in (ii) by the people in (i) so the people in (ii) can bind the people in (i) if the people in (ii) don't receive notice in some circumstances, but that is a longer story.
Additionally, in some trust matters, the heirs of the settlor of the trust are required to be served and if one of them is a minor, the court will also assign a GAL.
Point is, if the court HAS to appoint a GAL under the law, it will, but the court also has discretion to appoint a GAL any time it wants if it feels it is necessary to protect an interested person as stated in the prior post. If it does appoint one, the order appointing the GAL is required to say for what purpose pursuant to MCR 5.121(A)(1).
This answer is intended to provide legal information, not legal advice. Legal advice should be provided by licensed attorney only after full disclosure of all facts. If you desire a no-obligation consultation to obtain legal advice, please contact me at 586-268-4463.
Yes, the guardian ad litem (GAL) is to remain impartial. However, that does not mean that a GAL won't necessarily "take sides," as the GAL is supposed to advise the judge and make recommendations as to a course of action. If the GAL finds one party or certain parties to be dishonest or otherwise behaving improperly, the GAL may very well advise against that parties' requested relief.
Whether a judge appoints a GAL depends on the facts of each particular case.