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III. Role of Guardian ad Litem

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   A. Neb. Rev. Stat. § 43-272(3) authorizes a guardian ad litem in juvenile proceedings to fulfill a “dual role” with respect to the juvenile, that is, to serve as:

   1. An advocate for the juvenile who is deemed as the parent of the juvenile and charged with a duty to investigate facts and circumstances, determine what is in the juvenile’s best interests, report to the court and make recommendations as to the juvenile’s best interests, and take all necessary steps to protect and advance the juvenile’s best interests; and

   2. Legal counsel for the juvenile.

   B. Where a lawyer has already been appointed to represent the legal interests of the juvenile, for example in a delinquency case, another lawyer appointed to serve as a guardian ad litem for such juvenile shall function only in a single role as guardian ad litem for the juvenile concerning the juvenile’s best interests, and shall be bound by all of the duties and shall have all of the authority of a guardian ad litem, with the exception of acting as legal counsel for the juvenile.

   C. Accordingly, the following shall apply:

   1. In serving as advocate for the juvenile to protect his or her best interests, the guardian ad litem shall make an independent determination as to the juvenile’s best interests, by considering all available information and resources. The guardian ad litem’s determination as to best interests is not required to be consistent with any preferences expressed by the juvenile.

   2. Upon making such determination, the guardian ad litem shall make such recommendations to the court and shall take the necessary actions to advocate and protect the best interests of the juvenile.

   3. As legal counsel for the juvenile, the guardian ad litem shall be entitled to exercise and discharge all prerogatives to the same extent as a lawyer for any other party in the proceeding.

   4. Where the juvenile expresses a preference which is inconsistent with the guardian ad litem’s determination of what is in the best interests of the juvenile, the guardian ad litem shall assess whether there is a need to request the appointment of a separate legal counsel to represent the juvenile’s legal interests in the proceeding. In making such assessment, the guardian ad litem shall consider:

   a. The juvenile’s age,

   b. The juvenile’s capacity,

   c. The juvenile’s level of maturity, and

   d. The nature of the inconsistency between the juvenile’s expressed preference and the guardian ad litem’s determination as to the juvenile’s best interests.

   5. After making such assessment, the guardian ad litem shall request the court to make a determination whether special reasons exist for the court to appoint separate legal counsel to represent the legal interests of the juvenile where the guardian ad litem determines all of the following:

   a. That the juvenile’s expressed preference represents a communication that is made by a juvenile of sufficient age, capacity, and maturity;

   b. That the juvenile’s expressed preference is of significance to other matters or issues in the case affecting the juvenile, and is within the bounds of law and reality; and

   c. That the guardian ad litem believes that it would be a conflict of interest for the guardian ad litem to continue to act as legal counsel for the juvenile in light of the preference expressed by the juvenile.

   6. In any situation where the guardian ad litem has been appointed to represent more than one juvenile within the same case, the guardian ad litem shall ascertain throughout the case whether the guardian ad litem’s advocacy of the legal and best interests of any one juvenile would be adverse to or conflict with the legal and best interests of any other juvenile represented by the same guardian ad litem. Where the guardian ad litem reasonably believes that to continue as guardian ad litem for all of the juveniles would be problematic in this specific regard, the guardian ad litem shall apply to the court for the appointment of a separate guardian ad litem and/or legal counsel for the juvenile(s). Where any juvenile has expressed a preference or position regarding a certain matter or issue, the guardian ad litem shall utilize the standards set forth in guideline III.C.5 above.

   7. If the court exercises its statutory authority to appoint separate legal counsel, such counsel shall represent the juvenile’s legal interests. The guardian ad litem shall continue to advocate and protect the juvenile’s social and best interests as defined under the Nebraska Juvenile Code.

This page was last modified on Sunday, November 11, 2012