Uniform practice and procedure regarding the appointment of guardians ad litem

Provides the descriptions, qualifications, and application process for Juvenile Court GALs.

I. Introduction

This Uniform Practice and Procedure sets forth the categories, descriptions, qualifications and application process for the appointment of guardians ad litem in the Juvenile Court Department.  This Uniform Practice and Procedure is effective on July 6, 2015.

II. Categories and descriptions

A. Guardian Ad Litem/Extraordinary Medical Treatment.  A guardian ad litem in this category is appointed to make recommendations regarding the authorization of extraordinary medical treatment.  Extraordinary medical treatment includes administration of medical treatment and/or procedures not considered routine, refusal of medical treatment and/or procedures on religious or other grounds, administration of antipsychotic medication, and forgoing or discontinuing life sustaining medical treatment pursuant to G.L. c. 119, § 38A .

B. Guardian Ad Litem/Treatment Monitor.  A guardian ad litem in this category is appointed after the judge has approved an extraordinary medical treatment plan (“plan”) to monitor compliance with the plan and the effects of treatment.

C. Guardian Ad Litem/Education Surrogate.  A guardian ad litem in this category is appointed to stand in the place of the parent(s) to make all special education decisions on behalf of the child including, but not limited to, assessment of the Individualized Educational Plan (“IEP”), participation in all Team meetings, acceptance or rejection of the proposed IEP (in whole or in part), and filing complaints with the Department of Elementary and Secondary Education when necessary in accordance with the Individuals with Disabilities Education Act (IDEA 2004), Federal Regulation 34 CFR 300 and Massachusetts Regulation 603 CMR 28.  A guardian ad litem in this category must satisfy the criteria set forth in Federal Regulation 34 CFR 300.519 , to act as Special Education Surrogate Parent.

A guardian ad litem appointment under this section does not include the authority to litigate educational issues in federal or state courts.  

Note:  These appointments are limited to Care and Protection cases in which custody of the child has been transferred to the Department of Children and Families.

D. Guardian Ad Litem/Legal Rights.  A guardian ad litem in this category is appointed to enforce and defend the child’s legal rights and does not include appointment as the child’s attorney.  The scope of the appointment may include the authority to:

1. Legal Rights/Privilege. Assert or waive a statutory privilege (e.g., psychotherapist-patient privilege pursuant to G.L. c. 233, § 20B , social worker-client privilege pursuant to G.L. c. 112, §§ 135A & B , etc.); 
2. Legal Rights/Claims. Protect the child’s legal claims including, but not limited to, the authority to consult with counsel or other experienced professionals in the field(s) to determine whether or not the child may have a tort, estate or other claim and if there is a reasonable basis to retain counsel, to retain counsel to initiate litigation on the child’s behalf, where appropriate, and to approve settlements arising out of any claims and/or litigation on the child’s behalf unless otherwise ordered by the judge. This appointment includes petitioning the appropriate court for the appointment of a conservator to manage the child’s assets. A GAL in this category is not authorized to litigate any matters or file an appearance as an attorney for the child in any proceeding.  A GAL in this category may not obligate the Commonwealth financially or in any other manner.  A GAL in this category is not entitled to receive any funds or compensation from the resolution of any such claims(s) or litigation;
3. Legal Rights/Advisor.  Advise the child on matters arising in delinquency and youthful offender cases (e.g., waiver of right to a jury trial, tender of plea), in the absence of a parent or interested adult, to the same extent and in the same manner as the parent(s) or interested adult whose responsibility it is to consult and advise the child. Therefore, the appointment does not extend to the actual assertion or waiver of the child’s constitutional rights. The child asserts or waives his or her rights after consultation with the GAL.

E. Guardian Ad Litem/Evaluator. A guardian ad litem in this category is appointed to report on a narrowly defined issue where the judge deems an updated court investigation is not appropriate and where the appointment does not fall into one of the other categories of GAL appointments.

F. Guardian Ad Litem/Diminished Capacity. A guardian ad litem in this category is appointed, at the request of the attorney for an adult party, in civil matters to direct the attorney in the representation of the adult party after the judge has determined that the adult is unable to assist his/her attorney in the preparation and/or presentation of the case. This appointment does not extend to the actual assertion or waiver of the adult’s constitutional rights (See Massachusetts Rules of Professional Responsibility S.J.C. Rule 3:07, Rule 1.14).

III. Qualifications for guardian ad litem categories

A. Extraordinary Medical Treatment.  An attorney who is a member in good standing of the Massachusetts Bar with five (5) years experience in child welfare protective cases or five (5) years experience representing adults in extraordinary medical care matters.

B. Treatment Monitor.  An attorney who is a member in good standing of the Massachusetts Bar with three (3) years experience in child welfare protective cases or with three (3) years experience representing adults in extraordinary medical care matters.

C. Education Surrogate. An individual who is not employed by an agency involved in the care or education of his/her assigned student, who does not have personal or professional interests that conflict with the assigned student's interest and who has or is willing to obtain adequate knowledge in special education and IEP process or a member in good standing of the Massachusetts Bar with three (3) years experience representing the interests of children in educational matters.

D. Legal Rights/Privilege and Legal Rights/Claims.  An attorney who is a member in good standing of the Massachusetts Bar with three (3) years experience in child welfare protective cases.

E. Legal Rights/Advisor.  An attorney who is a member in good standing of the Massachusetts Bar with three (3) years experience in child welfare protective cases or with three (3) years experience in delinquency and/or youthful offender cases.

F. Evaluator.  An individual with a Masters degree or higher degree who holds a Massachusetts license in social work, counseling psychology or clinical psychology or a registered nurse with at least three (3) years experience in child welfare protective cases, or an attorney who is a member in good standing of the Massachusetts Bar with at least five (5) years experience in child welfare protective cases.

G. Diminished Capacity.  An individual with a Masters degree or higher degree who holds a Massachusetts license in social work, counseling psychology or clinical psychology.

IV. Continuing educational requirements for all guardian ad litem categories

Any person qualified by the Administrative Office of the Juvenile Court (“AOJC”) to be appointed as a guardian ad litem, regardless of category, shall participate in six hours of continuing legal education per year.  The AOJC shall approve all continuing legal education programs and reserves the right to identify certain programs as mandatory.  Any person eligible for appointment as a guardian ad litem is responsible for providing certification of completed legal education hours to the AOJC no later than June 30 of each year.  Failure to provide certification will result in the person being ineligible to receive further appointments.

V. Guidelines

Every guardian ad litem shall comply with the Juvenile Court Guidelines for Guardians Ad Litem promulgated by the AOJC.

VI. Application process

A. Application Submissions.  Anyone seeking to be eligible for appointment as a guardian ad litem shall submit the following to the AOJC:

1. A letter of interest addressing his/her qualifications
2. Application to the Juvenile Court Department for Appointment as Guardian Ad Litem, on a form approved by the Chief Justice of the Juvenile Court, noting categories and county divisions in which he/she seeks to accept appointments [Note:  “County Division” includes all court locations within the County Division]
3. Current resume, including relevant educational training or classes attended or taught
4. Three references from persons who can speak to the applicant’s qualifications
5. Notarized Consent to Criminal Offender Record Information Check

B. Applicants Who Received Previous Appointments.  The First Justices of all divisions in which the applicant previously accepted appointments as a guardian ad litem will be consulted during the application process regarding the past performance and quality of written reports.  An applicant who has met the qualifications for appointment but whose work has been unsatisfactory or has submitted unsatisfactory reports in the past may be placed on a probationary status by the First Justice in accordance with section VI(D) of this Uniform Practice and Procedure.  

C. Length of Eligibility for Appointment.  Applicants who are qualified by the AOJC to serve as a guardian ad litem shall be eligible to receive appointments in a division for a five-year period, commencing on the date on which he/she receives approval by the AOJC.  At the end of the five-year period, anyone wishing to continue to receive appointments as a guardian ad litem shall re-apply under the same application process.

D. Probationary Period.  All guardians ad litem are subject to being placed on probation during their five-year period of eligibility for failure to comply with the Juvenile Court Guidelines for Guardians Ad Litem.  If the quality of the work performance or written report is determined unsatisfactory by one or more judges in a division, the First Justice may place the guardian ad litem on probation.  The First Justice shall identify the deficiencies in the work and/or report to the guardian ad litem.  A guardian ad litem who is placed on probation will be so notified by the First Justice and shall be required to participate in remedial training as determined by the First Justice and the AOJC.  The First Justice shall notify the AOJC when a person is placed on probation and establish a method to monitor progress based on the deficiencies identified and the remedial training required. The First Justice shall notify the AOJC when the person has successfully completed the probationary period.  

Pursuant to Supreme Judicial Court Rule 1.07, failure to correct deficiencies in work performance or written reports or continued noncompliance with Juvenile Court Guidelines may result in the First Justice reporting the guardian ad litem to the AOJC, requesting removal from the list of guardians ad litem eligible for appointment.  Nothing within this Uniform Practice and Procedure precludes a First Justice from requesting removal of a guardian ad litem from the list without placing the guardian ad litem on probation.

VII. Review and approval of applications

Applications submitted in accordance with this Uniform Practice and Procedure will be reviewed within 60 days by the AOJC. Each application shall be reviewed and a determination made as to whether the person qualifies for inclusion on the list(s). Each person shall be notified of the results of the review.  

Date published:	January 1, 2015
Last updated:	July 6, 2015