Guardian ad Litem vs. Guardian: Two Very Different Jobs in Florida

Terrence's notice, and why the terms trip people up

Terrence is a composite, not a Truestead client, but his confusion is common. At 44, living in Gainesville, he opened a court notice about his father's incapacity case and saw the words guardian ad litem attached to a stranger's name. His first thought was that a court had just handed his father over to someone he'd never met.

Under Florida's Guardianship Code, Chapter 744, a guardianship is a court process that appoints someone to make decisions for a person a judge finds incapacitated, and it is only supposed to be used when less restrictive tools won't do the job. A guardian ad litem is not that person. The two roles sound alike and both show up on the same case docket, but they do very different work.

What a guardian ad litem actually does

A guardian ad litem (often shortened to GAL) is someone the court appoints to represent an interest in one specific proceeding, not to run someone's life. Florida law defines the role broadly: a person appointed by the court to represent a ward, a minor, an unborn or unascertained person, someone with a developmental disability, or anyone else whose interests the court decides need independent attention.

The best way to think of a GAL is as an investigator or evaluator, not a lawyer and not a decision-maker. In an adult incapacity case, a GAL might interview the alleged incapacitated person, talk to family members and doctors, review medical records, and report back to the judge on what seems to be in that person's best interest. The judge still decides the case. The GAL's report is information the court considers, not a ruling.

You'll also see guardians ad litem in other kinds of Florida cases: family law disputes, dependency (child welfare) cases, personal injury lawsuits involving a minor or incapacitated plaintiff, and probate matters. In every one of those settings, the GAL's job is tied to that particular case, and it ends when the case (or that phase of it) ends.

The attorney for the alleged incapacitated person: a different, and separate, protection

This is the piece that often gets missed, and it matters a great deal in Terrence's father's case. Florida law gives the alleged incapacitated person the right to counsel and a hearing before any guardian is appointed. If the family doesn't hire an attorney for him, the court appoints one.

This court-appointed attorney is legally distinct from a guardian ad litem. The attorney's job is to represent the expressed wishes of the alleged incapacitated person, to the extent that's consistent with the rules governing Florida lawyers, not to independently decide what's in that person's best interest. A GAL, by contrast, is often asked to weigh in on best interest, not just relay what the person says he wants. Both roles can exist in the same case at the same time, doing different jobs.

The court also appoints a three-member examining committee early in the case to evaluate the alleged incapacitated person and report on capacity. That's a third, separate layer, distinct from both the GAL and the attorney.

What an actual guardian is, and how it differs

A guardian is the person or professional the court appoints after a judge has found someone incapacitated and has considered whether a less restrictive alternative, such as a durable power of attorney, a health care surrogate designation, a trust, or a pre-need guardian designation, would work instead. Guardianship is meant to be a last resort, not a first move.

Guardianship can be plenary (covering essentially all rights) or limited (covering only specific rights the court identifies), and it can apply to the person, the property, or both. A guardian of the person handles things like where the ward lives and medical decisions. A guardian of the property manages money and assets.

• Family members serving as guardians must complete a court-approved training course.
• Professional guardians must register with the Office of Public and Professional Guardians.
• Every guardian must file an initial plan and inventory with the court, then annual reports afterward, so the court can keep checking that the guardian is acting appropriately.
• A nonresident of Florida may serve as guardian only if related to the ward within the degrees the statute specifies, such as a spouse, parent, adult child, or certain other close relatives.

Guardian advocate and court monitor: two more roles you might hear about

Two other terms sometimes surface in these cases and are worth knowing, even briefly. A guardian advocate is a role used specifically for adults with a developmental disability under a different Florida process, one that generally doesn't require a full incapacity finding the way traditional guardianship does. It's a separate track with its own procedures.

A court monitor is someone the court appoints under Florida law to investigate, review documents, or interview the ward and report findings back to the judge, on the court's own initiative or at an interested person's request. A monitor is another independent check, similar in spirit to a GAL, but it can be used at any stage of an ongoing guardianship, not just at the start, to make sure the guardian is doing the job properly.

So who should Terrence actually be talking to?

Back to Terrence. Once he understood that the guardian ad litem in his father's case was there to investigate and report to the judge, not to take over his father's affairs, his next question was the right one: who is actually deciding what happens to Dad, and who should our family be talking to?

The honest answer is that at this stage, several different people have a legitimate role: the GAL investigating the case, the attorney representing his father's expressed wishes, the examining committee assessing capacity, and eventually, if the court finds incapacity and no less restrictive option works, a guardian. Families in Terrence's position generally benefit from having their own Florida attorney, someone who can explain what's unfolding, make sure less restrictive alternatives are genuinely considered, and represent the family's perspective at the hearing, since the GAL and the court-appointed attorney are not there to represent the adult children.

This article is for general informational purposes only and does not constitute legal advice, nor does reading it create an attorney-client relationship. Florida estate, elder, probate, and real estate law are fact-specific and change over time. Consult a licensed Florida attorney about your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.