Saturday, April 28, 2012

Guardian ad litems and Informed Consent

One of the issues that is very frequently expressed when you talk with those who have been exposed to a Guardian ad litem in a child custody situation is: "I didn't know what to expect." Or ... "At first I thought it was me, that I was missing something or didn't understand." Another common statement is: "I thought it was my fault." Then ..."It gradually dawned on me that there was something wrong on the GAL's end." All of these comments speak to confusion, surprise, lack of understanding and, finally, recognition and anger on the part of clients that can be common ingredients in a troubled Guardian ad litem experience.

Yes, there is information on a state web site, which spells out what a Guardian ad litem is supposed to do. It is an empty standard without any enforcement, and it is frequently discovered by the client after the process has started, after a commitment has been made, and open-ended  contracts signed.  And ... you find yourself trapped!. Lawyers frequently fail to explain what the boundaries of a GAL are and what they do.  GAL's themselves mostly just jump in and start working and may just give cursory instruction as to what they do. The client is left with huge confusion, imagining that this lack of orientation is simply the standard- if primitive- way of doing business with the judicial system. The sad thing is they are absolutely right.  

To avoid the client's sense of confusion and entrapment, to avoid the shock of an unpleasant surprise, the Judicial Branch should mandate a policy of informed consent as a foundation for a client's relationship with a GAL.

Informed consent must meet certain minimal standards. "It is based on a clear appreciation and understanding of the facts, implications and future consequences of an action." as defined in Wikipedia.  In the client/GAL relationship, the client needs a practical road map of how the GAL's actions will proceed.  Who is the GAL representing: the clients, the child, a lawyer, or the judge?  What are the boundaries of GAL confidentiality in general, and does it apply to so-called group supervision with other GAL's?  Are there any confidentiality boundaries that can't be broken?    Where do a GAL's  'ex parte' communications with the judge, both those announced and secret ones fit?  How about GAL fees?  How often will bills be rendered?  Will chargeable GAL activities be identified or itemized clearly or not?   Is their a "cap" on a GAL's fees?  How can one appeal a bill?  There also needs to be the revelation by a GAL: "I operate without any oversight."

These are only a small part of the topical issues that any GAL's client might need to understand in order to give "informed consent" for a GAL to proceed.  Most important to clients as the case proceeds is: How do I get rid of this GAL?  The pragmatic answer is: "You probably can't", coupled with "how much money do you have to initiate a motion to remove a GAL?"  What will it cost to do an appeal?  How many cases make it to appeal and how successful are appeals?    

For a court to appoint a GAL without any "informed consent", in our opinion, can be seen as an act of unrestrained judicial force.  It thrusts an unregulated GAL, with no oversight, into the center of families, already experiencing the interpersonal pain of a divorce.  At present, there is no quality assurance for this GAL.  It is a totalitarian act and needs the most thoughtful, careful (and transparent) justification for such a use of power in each case, if there is a desire to avoid abuse - or the appearance of abuse.

We are in touch with growing numbers of GAL clients who are bearing witness to the serious personal devastation caused by no anticipatory guidance for the GAL process. No informed consent!

11 comments:

  1. The simple fact is that if you knew in advance the answers to the questions you raise here, no one in their right mind would agree to having a GAL. There would be a massive economic recession in the GAL industry!

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  2. Informed consent for clients is not in a GAL's best interest!

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    1. As posted in the Blog probably not. It would be in the interest of the consumer. Trade groups like the Guardian ad Litem Institute would probably not be in favor of it as it would corner their GALs. The Institute is for the interest of their GALs.

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  3. Informed consent forms are used almost always in the medical world before a doctor (or other medical personnel) does even a simple procedure. Usually there is a written consent form that spells out the possible risks to the patient. The patient has to sign thereby agreeing to the procedure and understanding the risks. There is also an opportunity for the patient to raise questions, apart from what is on the consent form.

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  4. Maine Guardian ad litem should consider doing a model consent form for lawyers and GALs. However, if the form was reality based, no one would sign it!

    Things like "I have no oversight". Or "Your confidences may be shared with other GALs in group supervision, and you'll never know." Or the judge and I may do 'ex parte' and you won't know if I decide it is in the child's best interest." Or "When it is in my best interest, I can say it is also in the child's best interest, and I'm the one who decides." Or "My bills are opaque, done when I wish to do them, and I don't identify charges." Or don't be surprised, if I don't follow statutes."

    Brain surgery is easier. Care to sign our form?

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  5. Is this a joke?

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    1. The idea of Informed Consent is not a joke. When you visit a doctor and you are told that you need a medical procedure it is explained to you what will happen and what if any pitfalls there maybe. It is also written out for you to sign.

      Currently GALs are not required to do anything at all. There are some who will go over in detail what their role is. That being said not everything is covered and as the client signing on to a GALs services you may be unaware of the cost and far reaching power that a GAL has into your life.

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  6. No, this is absolutely serious. The Chief Justice of Maine's Supreme Court has said that the Judicial branch has no oversight over GALs . None. When asked about specifics of GAL problems she said "Not following statues" was a serious problem and a complaint from clients. The billing issues are widespread problems complained of by many clients. One GAL proudly reported, "I've never done an itemized bill in 13 years." Nice? 'Ex parte' is complained of by lawyeers from one end of the country to the other.

    And ... there is more.

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    1. Sadly this is true. Back in March the Chief Justice indicated that there is a huge problem with GALs and that there has been for quite some time.

      On billing there are several GALs that we are aware of (and I am sure there are more) where their billing practice is almost medieval. There is no clarity or transparency. In one case that is mentioned here the GAL indicated that this was the way the bill was done as he/ she did it this way to avoid conflict. In addition he/ she also indicated that the clients were kept in the dark until the divorce hearing about the bill as this was in the "best interest" of the parties involved. If I were on the receiving end of a huge bill that was vague I would be very upset.

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  7. What would you expect from a system with no government oversight? The billing practices of some GALs aren't medieval, they verge on fraudulent. They violate any concept of 'consumer protection', and they are implicitly endorsed by the courts when they disallow requests for additional data about unidentified charges on a GAL's bill "in the child's best interest".

    What do we call this form of blind tax on a consumer? Robbery? "Taxation without representation?" Guardian ad litem income support? Insanity?

    Where are the American patriots of 1775 when we need them?

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