The Uniform Trust Code has no time for guardians ad litem

Charles E. Rounds, Jr.
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In the trust context, when virtual representation is not an option, then the services of a court-appointed guardian ad litem may be required to represent the interests of the unborn and unascertained. Otherwise, the decrees that issue from the court may not be final and binding on all parties. The UTC does not create an office of guardian ad litem, nor apparently purport to regulate GALs. UTC § 305 does provide for appointment of a “representative.” A representative, however, is not a GAL. The official commentary supporting § 305 endeavors to explain why: “However, this section substitutes ‘representative’ for 'guardian ad litem' to signal that a representative under this Code serves a different role. Unlike a guardian ad litem, under this section a representative can be appointed to act with respect to a nonjudicial settlement or to receive a notice on a beneficiary’s behalf. Furthermore, in making decisions, a representative may consider general benefit accruing to living members of the family.” Unexplained is the UTC’s perception of what the “role” of a guardian ad litem actually is. Whatever it is, it is apparently not the same as that of a UTC § 305 “representative.” The subject of the guardian ad litem, as well as virtual representation in lieu of the appointment of one, is taken up generally in §8.14 of Loring and Rounds: A Trustee’s Handbook (2019), which section is reproduced in its entirety in the Annex below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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