Memo from OJD: For Immediate Release
Updated: Aug 5, 2021
Appointment and Payment of Guardian of the Person/Guardian ad Litem in a Delinquency Proceeding
This memo is intended to provide guidance on two important questions: First, under what circumstances may the court appoint an attorney guardian. Second, when is IDS authorized to compensate a court appointed attorney guardian?
A juvenile is appointed a defense attorney in all proceedings in juvenile delinquency court, representing the child’s expressed interests. Not infrequently in juvenile delinquency proceedings, a judge will also appoint an attorney to act as a guardian of the person or a guardian ad litem (“GaL”) for the juvenile. An attorney appointed to act as a guardian, whether of the person or ad litem, does not serve to defend the expressed interest of the juvenile; therefore, it is important to note that whenever the court appoints an attorney to act as a guardian, it should also appoint a juvenile defense attorney.
As a preliminary matter, it is important to define guardian of the person and guardian ad litem. A guardian of the person serves under the supervision of the appointing court and enjoys statutorily defined authority. See NCGS 7B-2001, “Appointment of guardian.” This limited grant of authority includes the care, custody, and control of the juvenile or may arrange a suitable placement for the juvenile and other related responsibilities. A GaL, on the other hand, serves in the best interest of the juvenile.
I. When may the court appoint an attorney to serve as a guardian for the juvenile?
The trial judge has broad authority to appoint a guardian for a juvenile. NCGS 7B-2001 authorizes the court to appoint a guardian “[in] any case when no parent, guardian, or custodian appears in a hearing with the juvenile or when the court finds it would be in the best interests of the juvenile.”
There is no provision on the delinquency side of the juvenile code that authorizes the court to appoint a guardian ad litem to act as a “best interests” attorney. However, Rule 17(b)(1) allows the court to appoint a guardian to defend a child in any action.
II. When is IDS authorized to compensate a court appointed attorney guardian?
NCGS 7B-2000 states that “[c]ounsel for the juvenile shall be appointed in accordance with rules adopted by the Office of Indigent Defense Services, unless counsel is retained for the juvenile, in any proceeding in which the juvenile is alleged to be (i) delinquent or (ii) in contempt of court when alleged or adjudicated to be undisciplined.”
IDS is only authorized to compensate an attorney guardian who the court has appointed pursuant to NCGS 7B-2001. There are no State funds to pay for attorney appointed to serve as GaL pursuant to Rule 17. In those cases, the GaL serves pro bono or the fees are taxed to the parties as part of the costs.
Given IDS’s limited authority to compensate attorneys, it is important to distinguish which type of attorney guardian the court is appointing for the juvenile. IDS recommends the following in cases where the court believes a juvenile needs an attorney as guardian:
When the juvenile needs assistance—e.g., help with matters such a as those listed in NCGS 7B-2001, s/he needs a guardian of the person. IDS recommends that:
a. The juvenile’s defense attorney should encourage the court to appoint a family member or other appropriate non-lawyer person to act in this capacity. It is IDS’s opinion that only when no family member or other appropriate person can be identified, should the court consider appointing an attorney.
b. If the court appoints an attorney guardian pursuant to NCGS 7B-2001, it should note the rationale for appointment in the order, which the attorney should attach to his/her fee application GoPs should use form AOC-G-200 rather than form AOC-J-411. This will ensure efficient processing by IDS financial services.
When the juvenile is unable to act in his best interest, the court may appoint a substitutive guardian, i.e., a Rule 17 guardian ad litem. IDS is not authorized to compensate attorneys appointed to serve in this capacity.
Although the court may feel compelled to appoint an attorney for a reason outside of the specific grant of authority in NCGS 7B-2001, note that there are no exceptions outside of the statutory authorized purposes. If an attorney is appointed as an attorney in a delinquency matter for a purpose other than the juvenile’s expressed interest advocate, he should clarify his role with the court to determine whether IDS will be authorized to compensate him.