(A) Once a guardian ad litem is appointed by the court, pursuant to Section 62-5-303B or Section 62-5-403B, the responsibilities and duties of the guardian ad litem include, but are not limited to:
(1) acting in the best interest of the alleged incapacitated individual;
(2) conducting an independent investigation to determine relevant facts and filing a written report with recommendations at least forty-eight hours prior to the hearing, unless excused or required earlier by the court. The investigation must include items listed in subitems (a) through (i) and also may include items listed in subitems (j) through (m), as appropriate or as ordered by the court:
(a) obtaining and reviewing relevant documents;
(b) meeting with the alleged incapacitated individual, at least once within thirty days following appointment, or within such time as the court may direct;
(c) investigating the residence or proposed residence of the alleged incapacitated individual;
(d) interviewing all parties;
(e) discerning the wishes of the alleged incapacitated individual;
(f) identifying less restrictive alternatives to guardianship and conservatorship;
(g) reviewing a criminal background check on the proposed guardian or conservator;
(h) reviewing a credit report on the proposed conservator;
(i) interviewing the person whose appointment is sought to ascertain the:
(i) proposed fiduciary's knowledge of the fiduciary's duties, requirements, and limitations; and
(ii) steps the proposed fiduciary intends to take or has taken to identify and meet the needs of the alleged incapacitated individual;
(j) consulting with persons who have a significant interest in the welfare of the alleged incapacitated individual or knowledge relevant to the case;
(k) contacting the Department of Social Services to investigate any action concerning the alleged incapacitated individual or the proposed fiduciary;
(l) determining the financial capabilities and integrity of the proposed conservator including, but not limited to:
(i) previous experience in managing assets similar to the type and value of the alleged incapacitated individual's assets;
(ii) plans to manage the alleged incapacitated individual's assets; and
(iii) whether the proposed conservator has previously borrowed funds or received financial assistance or benefits from the alleged incapacitated individual;
(m) interviewing any persons known to the guardian ad litem having knowledge of the alleged incapacitated individual's financial circumstances or the integrity and financial capabilities of the conservator, or both, and reviewing pertinent documents;
(3) advocating for the best interests of the alleged incapacitated individual by making specific recommendations regarding resources as may be appropriate and available to benefit the alleged incapacitated individual, the appropriateness of the appointment of a guardian or conservator, and any limitations to be imposed;
(4) avoiding conflicts of interest, impropriety, or self-dealing. A guardian ad litem shall not accept or maintain appointment if the performance of his duties may be materially limited by responsibilities to another person or by his own interests;
(5) participating in all court proceedings including discovery unless all parties waive the requirement to appear or the court otherwise excuses participation;
(6) filing with the court and delivering to each party a copy of the guardian ad litem's report; and
(7) moving for any necessary temporary relief to protect the alleged incapacitated individual from abuse, neglect, abandonment, or exploitation, or to address other emergency needs of the alleged incapacitated individual.
(B) Notes of a guardian ad litem are discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
(C) The report of the guardian ad litem shall include all relevant information obtained in his investigation. The report shall contain facts including:
(1) the date and place of the meeting with the alleged incapacitated individual;
(2) a description of the alleged incapacitated individual;
(3) known medical diagnoses of the alleged incapacitated individual including the nature, cause, and degree of the incapacity and the basis for the findings;
(4) description of the condition of the alleged incapacitated individual's current place of residence including address and factors affecting safety;
(5) identification of persons with significant interest in the welfare of the alleged incapacitated individual;
(6) any prior action by the Department of Social Services or law enforcement concerning the alleged incapacitated individual or the proposed fiduciary of which the guardian ad litem is aware;
(7) a statement as to any prior relationship between the guardian ad litem and the petitioner, alleged incapacitated individual, or other party to the action;
(8) a description of the current care and treatment needs of the alleged incapacitated individual; and
(9) any other information relevant to the matter.
(D) The report shall contain recommendations including:
(1) whether a guardian or conservator is needed;
(2) the propriety and suitability of the proposed fiduciary after consideration of his geographic location, his familial or other relationship, his ability to carry out the duties of the proposed fiduciary, his commitment to promoting the welfare of the alleged incapacitated individual, his financial capabilities and integrity, his potential conflicts of interests, the wishes of the alleged incapacitated individual, and the recommendations of the relatives of the alleged incapacitated individual;
(3) approval or disapproval by the alleged incapacitated individual of the proposed fiduciary;
(4) an evaluation of the future care and treatment needs of the alleged incapacitated individual;
(5) if there is a proposed residential plan for the alleged incapacitated individual, whether that plan is in the best interest of the alleged incapacitated individual;
(6) a recommendation regarding any rights in Section 62-5-304A, which should be retained by the alleged incapacitated individual;
(7) whether the matter should be heard in a formal hearing even if all parties are in agreement; and
(8) any other recommendations relevant to the matter.
(E) The court in its discretion may extend or limit the responsibilities or authority of the guardian ad litem.
HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.
Editor's Note
Prior Laws: Former Section 62-5-106 was titled Termination of conservatorship, and had the following history: 2008 Act No. 303, Section 1, eff June 11, 2008. See now, Code 1976 Sections 62-5-101, 62-5-306, 62-5-307, and 62-5-428.