What is a guardian ad litem and what are their responsibilities under Tennessee law?

T.C.A. § 34-1-107 provides that when a party files a petition for the appointment of a fiduciary (usually for a guardianship or conservatorship) the court is required to appoint a guardian ad litem to represent the respondent.  Tennessee law provides that the guardian ad litem owes a duty to the court to “impartially investigate the facts and make a report and recommendations to the court.” T.C.A. § 34-1-107(d)(1).  The guardian ad litem is not an advocate for the respondent but has a duty to determine what is best for the respondent’s welfare.  The guardian ad litem is required under T.C.A. § 34-1-107(d)(2) to do the following:

(2) In each proceeding, the guardian ad litem shall:

(A) Verify that the respondent and each other person required to be served or notified was served or notified;

(B) Consult with the respondent in person as soon as possible after appointment;

(C) If possible, explain in language understandable to the respondent the:

(i) Substance of the petition;

(ii) Nature of the proceedings;

(iii) Respondent's right to protest the petition;

(iv) Identity of the proposed fiduciary; and

(v) Respondent's rights as set forth in § 34-3-106; and

(D) Make a report and recommendations to the court concerning the issues of:

(i) Whether a fiduciary should be appointed for the respondent;

(ii) If a fiduciary should be appointed, whether the proposed fiduciary is the appropriate person to be appointed; and

(iii) Any other matters as directed by the court.

Additionally, in any proceeding for the appointment of a conservator fiduciary the guardian ad litem has a duty to “investigate the physical and mental capabilities of the respondent.”  T.C.A. § 34-1-107(d)(3).  Further, if the proceeding requests the appointment of a fiduciary to manage the individual’s property then the guardian should also investigate the following:

(4) In a proceeding seeking the appointment of a fiduciary to manage the respondent's property, the guardian ad litem shall investigate the:

(A) Nature and extent of the respondent's property; and

(B) Financial capabilities and integrity of the proposed fiduciary. In evaluating the financial capabilities of the proposed fiduciary, the guardian ad litem may take such actions as directed by the court and as the guardian ad litem deems necessary, which may include but are not limited to:

(i) Obtaining and reviewing the proposed fiduciary's credit report;

(ii) Inquiring into whether and to what extent the proposed fiduciary has previous experience in managing assets of the same or similar type and value as the respondent's assets;

(iii) Inquiring into how the proposed fiduciary plans to manage the respondent's assets;

(iv) Inquiring into whether the proposed fiduciary has previously borrowed funds from the respondent or received any financial assistance or benefits from the respondent; and

(v) Interview any persons with knowledge and review any documents pertinent to the financial capabilities and integrity of the proposed fiduciary.

The guardian ad litem is required to make a written report to the court showing the results of the guardian ad litem investigation.  This report must specifically state the following:

(1)(A) The respondent wants to contest:

(i) The need for a fiduciary;

(ii) Merely the person to be the fiduciary; or

(iii) Neither;

(B) If the respondent wants to contest any portion of the proceeding and the guardian ad litem's opinion is that there should be a fiduciary appointed, the guardian ad litem shall identify the adversary counsel or indicate there is none and request the appointment of an attorney ad litem;

(2) A fiduciary should be appointed and, if so, whether:

(A) The proposed fiduciary should be appointed; or

(B) Someone else, identified by the guardian ad litem, should be appointed;

(3) The proposed property management plan should be adopted and, if not, what changes should be considered.

(4) The respondent will attend the hearing and, if, in the opinion of the guardian ad litem, it is not in the respondent's best interest to attend, why.

The guardian ad litem serves a very important function as the eyes and ears of the court in conservatorship and other proceedings.  The statutory requirements must be properly followed in order to fulfill the required duties of the guardian ad litem.