Appointing a GAL? The Language You Use Is Important!

Judges in Illinois often appoint a guardian ad litem in a wide range of cases, including those involving minors in guardianship or juvenile matters. These appointments are often made in probate to protect the interests of a minor who may be entitled to property. Finally, it is common that the courts make such appointments in cases involving adults with disabilities. I must admit that I never gave much thought about the form of the appointment order. Sometimes, it is nothing more than a docket entry by the judge. However, a recent case in our supreme court suggests that both judges and practitioners ought to pay careful attention to the purpose of this appointment.

This topic has been discussed in the ISBA's Child Law Section's newsletter in an article written by Judge Martin Mengarelli. I recommend it to those interested in this issue.

In 2019, the Illinois Supreme Court decided a case involving the scope of orders for attorneys appointed as a guardian ad litem. Justice Garman delivered this opinion in the case of Alexis Nichols F/K/A/ Alexis Brueggeman V. David Fahrenkamp et al., 2019 Il 123990. The plaintiff suffered injuries in a motor vehicle accident and received a settlement. Due to her age as a minor, the probate court appointed her mother as guardian to administer her estate and appointed the defendant as her guardian ad litem.

Several years after the probate case, the plaintiff minor sued the mother claiming that a portion of the settlement funds was for her mother's benefit alone. This litigation resulted in a partial recovery for the minor. However, the balance of the plaintiff's claims was excluded by the court because the GAL had approved the expenditures. Subsequently, the plaintiff initiated this lawsuit against the GAL, alleging legal malpractice because he approved the expenses that were allegedly not in the plaintiff's best interests.

The defendant GAL asserted that a guardian ad litem had quasi-judicial immunity and thus was not liable for negligence. The Circuit Court agreed and entered summary judgment for the GAL. The Appellate Court reversed this decision finding the GAL must protect his ward's assets and interests and thus had a duty to act as an advocate on behalf of the minor.

The supreme court, in its opinion, discussed the origin of quasi-judicial immunity in the common-law and noted that it extended beyond the judges themselves to other actors in the judicial process. The court suggested that there was no uniformity in either case law or statutes regarding the functions or immunities of the GAL. Thus, it reasoned that rather than looking at the title to determine immunity, the court should look at what role the GAL was asked to perform.

The opinion discussed the function of a guardian ad litem in the Illinois marriage and dissolution of marriage act because the defendant suggested that it characterizes his appointment. 750 ILCS 5/101 et sec. (West 2016). In this act, the legislature provided three mechanisms to address the interests of minors: the child's attorney, child representative, and the guardian ad litem. The court reasoned that among these three positions, the GAL is most associated with the judicial process.

The court then looked at In re Mark W., 228 Ill. 2d. 365, 375 (2008), where the circuit court had the authority to appoint a GAL to report on the best interests of the mentally disabled parent whose child was alleged to be abused and neglected. This case was filed under the Juvenile Court Act and the court described the GAL role as,"'the eyes and ears of the court' and not as the ward's attorney."

The plaintiff, however, urged the supreme court to adopt the language in the probate act, which required the GAL to appear in the case and defend the ward. In contrast, the defendant suggested his duties arose from the marriage and dissolution act, which required that he make a recommendation as to the minor's best interests.

In resolving the issues, the supreme court noted that in the early cases under the probate act of 1975, the GAL acted much like a traditional attorney. However, recent amendments to the marriage act and other cases suggest that the meaning of the GAL is evolving. In the 1995 amendment to the probate act involving adults with disabilities, the act provides the court may appoint a GAL "to report to the court concerning the respondent's best interests consistent with the provisions of this section." 755 ILCS 5/11a-10a. The court noted that this leaves only section 11 – 10.1 of the probate act with an inconsistent obligation for appointed GAL's. In that section, the court may appoint a GAL in minor guardianship cases to "represent the minor in the proceeding." 755 ILCS 5/11-10.1. The supreme court suggested that the role of the Guardian ad Litem in the case law in the 21st century has become that of a reporter or witness, not that of an advocate.

The court indicated that since the text of the various acts does not use the term GAL in the same way, the appointment, in this case, does not identify the defendant's role. The trial court's order states only that "[t]he court being fully advised in the premises does hereby appoint David Fahrenkamp as Guardian Ad Litem for the minor child, ALEXIS BRUEGGEMAN." The meaning of the appointment was resolved when the supreme court ruled as follows, "Nevertheless, we may still conclude that Fahrenkamp's role, in this case, corresponded to a guardian ad litem under the current version of the Marriage Act and In re Mark W."

The supreme court then held that a guardian ad litem who submits recommendations to the court on the child's best interest is protected by quasi-judicial immunity.

This case presents a clear direction for both judges making GAL appointments and to any attorney who may be practicing as a GAL. The nature of the appointment and duties requested by the court will determine whether the GAL is protected by quasi-judicial immunity. In Fahrenkamp, the supreme court concluded, "When a circuit court appoints someone to a position like guardian ad litem, it should specify that appointee's role in the order of appointment." (emphasis added)

Therefore, in some cases, it would appear to be preferable to practitioners that the GAL order is clear that their role is to submit recommendations to the court regarding the ward's best interests. This language would identify the role that is being undertaken by the attorney, and provide the protection from liability the respondent enjoyed in this case.