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When Your Civil Client Needs A Guardian Ad Litem

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In criminal courts, the concept of adjudicative competency has been clearly defined for decades. US Supreme Court decisions have standardized the definition of competency across states, every state has provisions for defendants who are deemed incompetent, and psychologists have conducted exhaustive research on the topic.

When it comes to civil cases, however, much less is known. State laws do not provide a definition for competency to participate in a civil proceeding, and there is little research on the phenomenon. Yet, there are many times where an individual may get wrapped up in a civil case (divorce, probate matters, law suits, etc.) where they may not be competent to assist their attorneys or to understand what is happening in court and make rational decisions based on that understanding.

This is where Guardians Ad Litem come into play. “Ad Litem” means “for the suit” in Latin, and a Guardian Ad Litem (GAL) is an attorney who is appointed to represent an incompetent individual’s interests in a specific legal case. The GAL is not the person’s attorney—he or she would still need a divorce lawyer or a civil defense lawyer. The GAL’s job is to help protect the individual’s rights and help the individual make legal decisions about the case. Other attorneys do the actual litigation.

So, who qualifies for a GAL? In many juvenile cases, GALs are appointed as a routine matter of course. Adults, on the other hand, must meet certain criteria in order to be eligible for a GAL.

Colorado uses what are called Sorensen criteria. This refers to the case of IN RE: the Marriage of David E. Sorensen, 166 P.3rd 254 (Colo. App. 2007). The case revolved around a dissolution of marriage proceeding and formed the basis for criteria regarding whether or not a person needs a Guardian Ad Litem in such a case in the state of Colorado.

Sorensen requires a judge to make a determination about whether the person is incompetent under the following criteria:

  1. “Is mentally impaired so as to be incapable of understanding the nature and significance of the proceedings,

  2. Is incapable of making critical decisions,

  3. Lacks the intellectual capacity to communicate with counsel, or

  4. Is mentally or emotionally incapable of weighing the advice of counsel on the particular course to pursue in his or her own interest.

The four above-mentioned criteria originated in People in Interest of M.M., supra, 726 P.2nd at 1120.

Similar to criminal competency requirements, a Sorensen decision requires the court to find that the person has some sort of mental impairment, although “mental impairment” is not strictly defined. Once a person has a mental impairment, he or she must meet the rest of the Sorensen criteria in order to have a GAL appointed. When the GAL is onboard, that individual works with the impaired client to weigh legal options and make the best-informed decisions about the case as is possible.

Many times, forensic psychologists are hired to conduct competency evaluations for civil cases—I have done quite a few of these, personally.

If you are an attorney looking for someone to conduct one of these evaluations, make sure you find a person who is aware of the Sorensen criteria and has thought through the issues related to civil competency and how they differ from criminal competency. Often, psychologists who do not specialize in competency evaluations are hired. Most of the time, though, a family doctor does a ten-minute evaluation and writes a letter in support of a GAL.

In many cases, these good-hearted but naive professionals form ill-advised opinions based on their own personal feelings and beliefs about what makes a person competent in court. They tend to write brief, unhelpful reports and get completely overwhelmed by opposing counsel on the witness stand. It is worth taking your time (and spending a little more money) finding an experienced forensic psychologist in this area.

Max Wachtel