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What Is The Role Of A Guardian Ad Litem In Probate Litigation?


In probate litigation, there are often situations where a court will appoint a guardian ad litem (GAL). A GAL is basically an individual who represents the interests of someone who cannot legally speak for themselves, such as a deceased person (i.e., a decedent), a minor, or a living incapacitated adult. A GAL is not a “guardian” in the sense that they exercise general decision-making authority for the other person. The GAL’s role is limited to representing and safeguarding the person’s interest in a particular legal proceeding.

Here is an example of a common GAL scenario. This is taken from an ongoing Florida probate case, Lif v. Estate of Lif. The decedent in this case, whose first name is Isaac, died in 2019. Isaac’s second wife, Carmen, was appointed personal representative of his probate estate. The estate contained substantial assets, including approximately $30 million in artwork.

Litigation followed between Carmen and Isaac’s daughter from a prior relationship, Sara, who is also a beneficiary of the estate. Before the probate court, Sara accused Carmen of exercising undue influence over her father while he was still alive. Sara also alleged misconduct in Carmen’s administration of the estate following his death.

As such, Sara asked the court to appoint a GAL. Florida probate rules expressly permit such appointments when the personal representative “is or may be interested adversely to the estate.” In other words, if the personal representative has any potential conflict of interest, a GAL can be appointed to address that problem. Following several delays due to the COVID-19 pandemic, the probate court eventually agreed to Sara’s request and appointed a GAL to serve “until the issues of undue influence, conflict of interest, and property distribution were resolved.” The court later specified the GAL’s exact duties in these areas.

Carmen asked the Florida Third District Court of Appeal to quash the appointment of the GAL, arguing the probate court had effectively removed her as personal representative without respecting her due process rights. The Third District disagreed. It explained that appointing a GAL does not remove a personal representative. Rather, the GAL’s role is to carry out certain “specific duties authorized by the court,” which in this case relate to those areas where Carmen might have a conflict of interest. The GAL can only “supplant” the role of the personal representative in these specific areas. In all other respects, Carmen’s authority and responsibilities as personal representative remained intact. Furthermore, if there was any conflict between the GAL and the personal representative, it was the role of the probate court to handle such disagreements.

Contact Florida Probate Litigation Attorney Mark Manceri Today

Sorting out conflicts over the administration of an estate can take many months and even years. As the case above illustrates, it may be necessary for a court to take certain interim steps to protect an estate during the course of the litigation. That is why if you are an interested party it is important to work with a qualified Pompano Beach estate and trust litigation attorney. Contact attorney Mark R. Manceri today if you need to speak with a lawyer right away.



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