In a case entitled Nichols v. Fahrenkamp, the Fifth Appellate District decided a case involving negligence of a guardian ad litem in probate court. 2018 IL App (5th) 160316. It was decided July 9, 2018.
The facts are that David Fahrenkamp, a lawyer, was appointed guardian ad litem for a minor in probate court who at the age of 11 received six hundred thousand dollars ($600,000.00) in settlement for injuries in a motor vehicle accident. The mother had been appointed guardian of the estate and person and David Fahrenkamp was the guardian ad litem. In 2012, the child then no longer a minor, sued her mother for seventy-nine thousand five hundred and seven dollars ($79,507.00) that she had allegedly taken from the estate improperly. That litigation was filed in 2012 and the trial occurred in 2017. Paragraph 3 of this appellate court opinion quotes that trial judge as saying “And where was the GAL [guardian ad litem] in all of this?” Mr. Fahrenkamp was not named as a defendant in that 2012 lawsuit.
Judgment was entered against the mother for sixteen thousand three hundred and sixty-five ($16,365.00) plus ten thousand dollars ($10,000) in attorney’s fees and the return of a 2007 vehicle. All of which was less than the seventy-nine thousand five hundred and seven dollars ($79,507.00) the child was seeking from the mother. Therefore, on August 16, 2013, the child sued the defendant claiming that he had failed to protect her interests by allowing her mother to convert her settlement funds for the mother’s personal benefits.
The defendant, the guardian ad litem, filed a motion to dismiss claiming that he had immunity. The trial court granted that Motion for Summary Judgment but that trial court “recognized that Illinois law had not yet answered the question of whether a guardian ad litem was subject to a grant of immunity under the circumstances presented by plaintiff’s claims. The trial court recognized, however, that a guardian ad litem, appointed by the court in a probate proceeding, is under a duty to help safeguard and protect the interests and welfare of the minor.” Paragraph 6.
In granting the summary judgment motion, the trial court relied on Heisterkamp v. Pacheco, 2016 Il App (2d) 150229. In that case, Dr. Fran Pacheco was appointed a then 604B expert to perform a custody evaluation. The appellate court held that custody evaluators and guardians ad litem when acting within the scope of their employment to give advice regarding the best interest of the minor “must be cloaked with the same immunity as the court.” Paragraph 8.
The Nichols Court drew a distinction between a guardian ad litem in a custody case and in a probate case. The Nichols Court affirmed that in Paragraph 16 of its opinion giving child representatives in dissolution cases absolute immunity “so that they can fulfill their obligations, without worry of harassment or intimidation from dissatisfied parents.”
“Under the circumstances presented here, there is no reason for granting that kind of immunity. Rather, the situation is more akin to a fiduciary relationship between a guardian and a ward as a matter of law. [Citation Omitted]. Such a relationship between a guardian and a ward is equivalent to the relationship between a trustee and a beneficiary…. The guardian must be held to have dealt with the minor’s property for the benefit of the minor.” Paragraph 16.
In Paragraph 13, the court quoted a Federal case Dixon V. United States, 197 F. Supp. 798 (W.D.S.C. 1961), that a guardian ad litem “should be as careful not to do anything, or allow anything to be done, to the prejudice of his ward’s interest, as the court from which he receives his appointment. If in consequence of the culpable omission or neglect of the guardian ad litem the interests of the infant are sacrificed, the guardian may be punished for his neglect as well as made to respond to the infant for the damage sustained.” Paragraph 13.
At Paragraph 15, the court said that “Fahrenkamp was not simply a neutral party, appointed by the court to act as a professional expert. Fahrenkamp was a licensed attorney, an officer of the court, who should have understood the need to protect the assets of his ward. In his role as guardian ad litem, he was to advise the court, but only after making careful inquiry for the purpose of protecting the minor plaintiff’s interests. In his role as advisor to the court, Fahrenkamp was not the mother’s rubber-stamp, but instead the plaintiff’s watchdog, authorized by the court to protect the minor’s assets.”
Those of us who do guardian ad litem work and child representative work in the divorce division, including parentage cases, do have absolute immunity. However, those who do the guardian ad litem work in probate court are, pursuant to the Nichols case, held to a higher standard and do not have immunity. If in the probate case, a person wishes to take money from the minor ward, the guardian ad litem is now charged with the serious duty of making an investigation to determine whether the withdrawal of the funds from the estate of the minor is in the best interest of the minor and is appropriate. Failure to do so now submits this guardian ad litem in probate court to an action by the minor ward to recover improperly removed funds. It is imperative that probate GAL’s are aware of this distinction.
As an aside, is what Mr. Fahrenkamp failed to do insured by his malpractice carrier?
By Gary L. Schlesinger and Rachael Bernal
Published in Trial Briefs – The newsletter of ISBA’s Section on Civil Practice & Procedure, September 2018, vol. 65, no. 3