There several types of Guardian ad Litem (GAL) appointments that occur in the Probate and Family Court.
A Guardian ad Litem/Investigator is an impartial professional (often an attorney) appointed by the court to investigate and report to the court on contested issues in domestic relations cases involving minor children, such as custody and visitation. The GAL investigates the matter by interviewing the children and parents as well as third parties involved with the family, such as teachers and doctors. The GAL will also request that authorizations be signed in order to review relevant documents such as school and medical records. After gathering all relevant information, the GAL then prepares and files a written report of the facts found during the investigation which may or may not include recommendations for resolution of the matter, such as suggestions for counseling or visitation. While the judge is not required to adopt the recommendations of the GAL, the court generally places great weight upon the report.
A second type of GAL often appointed in domestic relations cases is the GAL/Next Friend. This type of GAL is not an impartial investigator. Instead, the GAL/Next Friend represents the best interests of the minor children involved in the proceeding. The GAL/Next Friend is not, however, an attorney for the children. While an attorney is required to advocate for the expressed preferences of his or her client, the GAL/Next Friend advocates for what he or she believes to be in the best interest of the children. In order to do this, the GAL/Next Friend meets with the children and family, as well as professionals involved with the family and also reviews school and medical records.
If minor children involved in a domestic relations case are in therapy, the issue sometimes arises as to whether their confidential communications in therapy may be disclosed in court. For example, the GAL/Investigator or GAL/Next Friend may wish to speak with the therapist and/or review therapy records. In order to so, the Court must appoint a third type of GAL, a GAL to exercise or waive the children’s psychotherapist/patient privilege. The role of this GAL is confined to deciding whether the need to access the privileged communications in the case outweighs the children’s right to keep communications with their therapist confidential. This GAL will meet with the children, speak briefly to the therapist and prepare a short report for the Court recommending either to exercise or waive the privilege.
A GAL may also be appointed in non-domestic relations cases in the Probate and Family Court. The Court may appoint a GAL in a case involving guardianship or conservatorship of an incapacitated or protected adult, in order to investigate the conditions under which said person is living and to report and make recommendations to the Court. Additionally, in a probate matter (such as matters involving estates or trusts) the Court may appoint a GAL for a minor or an incapacitated or protected person if such person has an interest in the proceeding. In cases involving elders or disabled adults who have allegedly been abused, the Court may appoint a GAL for said person in a proceeding to determine if that person has the capacity to consent to the provision of protective services.