Discretionary appoitnment of attorney ad litem

Key_development Question_mark

03/28/2023, Legislation, Guardianship/Conservatorship of Children - Child (incomplete)

In cases involving an appointment of a conservator or other protective order for a minor, “[i]f, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to serve as guardian ad litem for the minor, giving consideration to the choice of the minor if fourteen years of age or older.”  N.D. Cent. Code Ann. § 30.1-29-07(1).  The statute states that:


The duties of a guardian ad litem include:

a. Meeting, interviewing, and consulting with the person to be protected regarding the conservatorship proceeding, including explaining the purpose for the interview in the language, mode of communication, and terms the person is most likely to understand, the nature and possible consequences of the proceeding, the rights to which the person is entitled, and the legal options available, including the right to retain an attorney to represent the person;

b. Advocating for the best interests of the person to be protected. The appointed attorney serving as guardian ad litem may not represent the person in a legal capacity;

c. Ascertaining the views of the person to be protected concerning the proposed conservator, the powers and duties of the proposed conservator, the proposed conservatorship, and the scope and duration of the conservatorship;

d. Interviewing the person seeking appointment as conservator;

e. Obtaining any other relevant information;

f. Submitting a written report to the court containing the guardian ad litem’s response to the petition and an assessment of the protected person's ability to attend the hearing either in person or by remote means; and

g. Attending the hearing unless excused by the court for good cause.




Also, in March 2023, North Dakota enacted SB 2222, which adds a new section to chapter 30.1-29 that creates a procedure for appointment of an emergency conservator.  The provision appears to apply to both minors and incapacitated persons.  A person interested in the estate of the person to be protected may file a petition to initiate such proceedings and request appointment as the conservator.  Upon filing of the petition, "the court shall appoint a guardian ad litem to advocate for the best interests of the estate of the person to be protected in the proceeding and any subsequent proceeding."  Unlike the other sections of this chapter, the provision does not specify that the GAL is an attorney. 

Appointment of Counsel: discretionary Qualified: yes