An attorney was appointed as guardian ad litem (GAL) for a minor plaintiff.  There was a settlement for injuries she suffered in a motor vehicle accident.   The mother had been appointed by the court as the guardian of the minor’s estate.

Eight years went by after the settlement.   The plaintiff minor sued her mother. 

 The minor alleged that her mother had used nearly $80,000 of the settlement funds for her own benefit.   The plaintiff then sued the GAL for failing to adequately monitor and audit the mother’s requested expenditures.

The Circuit Court granted the attorney’s motion for summary judgment.  The minor appealed.

The Appellate Court reversed and remanded.   The court said the GAL’s role was a general one.  His duty was to act in the ward’s best interest by making recommendations to the court.  The court concluded that the GAL had no duty to perform the specific tasks of verifying the mother’s requests.  Or to perform audits of the settlement account.   Or to act as an accountant to review receipts, unless specifically instructed by the court to do so.

However, the Appellate Court held that the GAL was obligated to protect and defend the interests of the minor plaintiff, regardless of whether the court order contained any specifics. In doing so, “[i]t was his duty to have understood the cause and the rights of the parties, and to have called [to] the attention of the court” any irregularities in the withdrawals of plaintiff’s settlement proceeds.

The attorney appealed.

The Supreme Court of Illinois found that GALs who submit recommendations to the court on a child’s best interests are protected by quasi-judicial immunity, as judges are.   The test to be applied is the “functional test”.  It is used to determine whether an actor’s role is sufficiently connected to the judicial process to merit this absolute immunity. That test considers“(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.”   

Nichols v. Fahrenkamp, Illinois Supreme Court, 2019 IL 123990, Thursday, June 20, 2019, 5th Dist., Appellate court reversed; circuit court affirmed.

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