Discretionary appointment of attorney ad litem

Minor guardianship matters appear to be governed by the same code provisions as that applicable to adults, since Del. Code tit. 12, § 3901 defines “Person with a disability” to include anyone who “[b]y reason of being under the age of 18 is legally unable to manage their own property or make decisions concerning the care of their own person” in addition to adults who are incapacitated due to a mental or physical condition.   

In guardianship proceedings, Del. Code Ann. tit. 12, § 3901(c) specifies only that an adult alleged disabled person is “entitled to representation by counsel,” but there is no provision in the code about appointment of counsel for minor guardianship respondents.

However, Delaware Chancery Court Rule 176(a) (entitled “attorney ad litem”) specifies that upon the filing of a petition for appointment of a guardian, “[t]he Court, in its discretion, may appoint an attorney ad litem to represent a minor.” Del. Ch. Ct. R. 176(a).  The role of the attorney ad litem is to represent the guardianship respondent’s best interests. 

This section of the rule also describes what should occur if a conflict of interest arises:  “If the attorney ad litem determines the wishes of the person alleged to be disabled diverge from his or her best interests, the attorney ad litem shall advise the Court.  The Court may appoint a second attorney to represent the person with an alleged disability as if engaged by such person and may hold a hearing to determine whether a guardian should be appointed.” Id.