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VMM FAMILY INSTITUTE WEEKLY INSIGHTS: GUARDIAN OR GUARDIAN AD LITEM?

Families sometimes are confronted with and often confused by the difference between the terms guardian and guardian ad litem.

GUARDIAN

When determining whether an individual suffering from a mental illness requires the appointment of a guardian, it is important to focus on whether the individual symptoms or behaviors impair the ability to provide for his or her personal needs or property management.

Guardianships are governed by Article 81 of the Mental Hygiene Law. There are many pros and cons to the appointment, depending on the nature of the consequences of the individual’s functional limitations. Many issues, including the civil rights of an alleged incapacitated person, are raised during an appointment of a guardian. Guardianships are a last resort vehicle to help incapacitated individuals.

GUARDIAN AD LITEM

A guardian ad litem (GAL) may be needed under Civil Practice Law and Rule (CPLR) Article 12. A GAL can be appointed and may advise and assist in a legal capacity. However, a GAL cannot contract for the alleged incapacitated person; only a guardian can do that. Both vehicles are important and necessary for families, but come with many legal, social and ethical considerations.

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