When the court appoints a guardian ad litem in a guardianship proceeding to protect the interests of a proposed ward, questions inevitably arise about how these representatives are compensated and what services fall within their scope of duty.
What happens when there’s a dispute over the fees a guardian ad litem has charged? What standards do Texas courts apply when determining “reasonable compensation” for these appointed representatives? How do courts distinguish between services provided as a guardian ad litem versus those provided as an attorney ad litem when the representative happens to be a licensed attorney?
The Texas Court of Appeals recently addressed these questions in In re Guardianship of Tyler Murray, No. 13-23-00213-CV (Tex. App.—Corpus Christi-Edinburg Feb. 27, 2025). This case provides an opportunity to consider guardian ad litem fees and the limitations on recovering fees for services that fall outside the scope of a guardian ad litem appointment.
Facts & Procedural History
In July 2019, the trial court appointed Attorney Harvey to serve as guardian ad litem for the ward, an incapacitated person in the guardianship proceeding. The court specifically directed Harvey “to represent” and “defend the interests of the Ward.”
Following his appointment, Harvey conducted various activities related to his role, including interviewing the ward, family members, and employees of Adult Protective Services, as well as traveling to Houston to meet with the ward’s medical staff.
In November 2019, the trial court awarded Harvey $11,150 in “reasonable and necessary attorney’s fees for legal services and costs.”
The person who served as guardian of the person and estate of the ward, along with the bank, appealed this award. They argued that Harvey was not entitled to attorney’s fees because he was appointed only as a guardian ad litem, not as the ward’s attorney.
In the initial appeal (Murray I), the Court of Appeals reversed the award and remanded the case to the trial court. The appellate court instructed the trial court to compensate Harvey specifically for his role as guardian ad litem pursuant to §§ 1054.055 and 1155.151(a-1) of the Texas Estates Code.
On remand, the trial court held an evidentiary hearing in February 2023 regarding Harvey’s application for guardian ad litem fees and appellate attorney’s fees. Harvey testified that he performed 44.6 hours of work at $250 per hour between July and November 2019, totaling $11,150. Following this hearing, the trial court awarded Harvey guardian ad litem fees in the amount of $11,500.
The appellants filed an appeal to challenge the awarded guardian ad litem fees as excessive and lacking sufficient evidentiary support, which lead to the current court case.
Guardian Ad Litem Appointment and Compensation in Texas
The Texas Estates Code includes specific provisions for the appointment and compensation of guardians ad litem in guardianship proceedings.
Section 1054.051 of the Code defines the role of a guardian ad litem as representing “the interests of an incapacitated person.” This representative is appointed by the court to investigate whether a guardianship is necessary and to evaluate alternatives that would serve the proposed ward’s best interests.
Section 1155.151(a-1) of the Texas Estates Code addresses compensation, stating: “In a guardianship proceeding, the cost of any guardians ad litem, attorneys ad litem, court visitors, mental health professionals, and interpreters appointed under this title shall be set in an amount the court considers equitable and just.” Additionally, Section 1054.055 specifically provides that a “guardian ad litem is entitled to reasonable compensation for services provided in the amount set by the court, to be taxed as costs in the proceeding.”
These provisions mean that guardian ad litem fees are mandatory when properly incurred, and the trial court has discretion to determine what constitutes “reasonable compensation” and an “equitable and just” amount. However, this discretion is not unlimited, and appellate courts may review fee awards for abuse of discretion.
Distinguishing Guardian Ad Litem from Attorney Ad Litem Services
A central question in Murray involved distinguishing between services provided as a guardian ad litem versus those provided as an attorney ad litem. This distinction matters because it defines the scope of compensable services under different statutory provisions.
What Constitutes Guardian Ad Litem Services?
Under Texas law, a guardian ad litem represents the best interests of the proposed ward. Their duties typically include:
- Investigating whether a guardianship is necessary
- Evaluating alternatives to guardianship
- Making recommendations to the court about what would serve the ward’s best interests
The guardian ad litem does not serve as the ward’s attorney. Instead, they function as an officer of the court, providing independent analysis to help the court make decisions that align with the ward’s best interests.
How Does an Attorney Ad Litem Role Differ?
By contrast, an attorney ad litem is appointed to “represent and advocate on behalf of” the proposed ward, under Section 1002.002 of the Texas Estates Code. The attorney ad litem functions as the ward’s legal counsel, representing the ward’s expressed wishes rather than what the representative believes to be in the ward’s best interests.
As the San Antonio Court of Appeals noted in In re Guardianship of Glasser, 297 S.W.3d 369, 375 (Tex. App.—San Antonio 2009, no pet.), “The attorney ad litem performs the services of an attorney—he does legal and factual research, gives advice and makes recommendations to his client, and conducts litigation.”
When Guardian Ad Litem Work Crosses into Attorney Ad Litem Work
The line between these roles can blur, particularly when the guardian ad litem happens to be a licensed attorney. In Murray, the appellants argued that Harvey had performed legal services beyond the scope of his guardian ad litem appointment and failed to segregate these services from his guardian ad litem duties. The parties were not able to resolve this dispute with mediation outside of court.
The court rejected this argument, finding that Harvey did not actively serve as the ward’s attorney ad litem. Specifically, the court noted that Harvey was not the ward’s legal counsel, did not appear in litigation proceedings on behalf of the ward, and did not facilitate the ward’s appearances in the guardianship proceedings. Furthermore, the ward did not seek any affirmative action from the trial court through Harvey as a court-appointed attorney ad litem.
Instead, the court found that Harvey’s activities fell within his role as guardian ad litem—investigating the ward’s circumstances and making recommendations to the court based on the ward’s best interests. The fact that Harvey possessed legal knowledge and expertise did not transform his guardian ad litem services into attorney ad litem services.
The Intersection of Guardian Ad Litem Fees and the Ward’s Estate
An underlying concern in disputes over guardian ad litem fees is the impact on the ward’s estate. Section 1155.151(a)(2) of the Texas Estates Code provides that the services of guardians and attorneys ad litem are payable out of the ward’s management trust if the trial court determines that payment for these services is in the ward’s best interest.
This provision creates a potential tension between compensating court-appointed representatives adequately and preserving the ward’s assets. Courts must balance these interests when determining what constitutes “reasonable compensation” and an “equitable and just” amount for guardian ad litem services.
The Murray case illustrates the risks of seeking excessive guardian ad litem fees or fees for services beyond the scope of the appointment. These risks include:
- Reversal of fee awards on appeal
- Potential liability for appellate costs
- Inability to recover fees for defending fee awards on appeal
- Damage to professional reputation
For guardians ad litem, the case underscores the importance of maintaining detailed records of services provided, ensuring that all activities fall within the scope of the appointment, and requesting fees that can be justified as “reasonable compensation” for the services rendered.
The Takeaway
This case clarifies that guardian ad litem fees are subject to a different standard than attorney’s fees. This is true even if the guardian ad litem is an attorney. For those involved in guardianship proceedings in Texas, this case highlights the importance of clear appointment orders, detailed documentation of services, and careful attention to the statutory provisions governing ad litem compensation under the Texas Estates Code.
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Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
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