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St. Mary's Law Journal

Abstract

The former statute governing the appointment of a guardian ad litem was ineffective and did not serve as adequate guidance for trial courts or appointees. It failed to outline the specific role a guardian ad litem was to play during a suit and was also unsuccessful at outlining what aspects of litigation a guardian ad litem could and could not participate in during trial or settlement. The former version of the rule allowed for a reasonable fee to compensate the guardian ad litem for services but failed to state specific parameters for judges to determine what “reasonable” means. On the direction of the Texas Supreme Court, a task force reviewed the issues and drafted an amendment to Texas Rule of Civil Procedure 173. Revised Rule 173 makes it clear to guardians ad litem that they are appointed to represent the minor or incapacitated adult’s interests and are not appointed as their attorney. Where the former Rule 173 lacked specific guidelines to adequately direct appointed guardian ad litem and the trial courts, the revised rule clarifies the role of the guardian ad litem and indicates that he or she is to act as advisor to the court. The role of the guardian ad litem is separate from the role of an attorney ad litem. A guardian ad litem is appointed to represent the interests of the minor child or incapacitated adult and is not appointed as the attorney for such party. The amendment to Rule 173 essentially withdraws all the current language and replaces it with seven individual sections. The amendment provides a specific framework for guardians ad litem and trial courts to follow. It substantially limits ad litem participation in the litigation and provides guidelines for awarding ad litem compensation.

Publisher

St. Mary's University School of Law

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