As amended through February 6, 2024
Rule 173 - Guardian Ad Litem173.1. Appointment Governed by Statute or Other Rules
This rule does not apply to an appointment of a guardian ad litem governed by statute or other rules.173.2. Appointment of Guardian ad Litem(a)When Appointment Required or Prohibited. The court must appoint a guardian ad litem for a party represented by a next friend or guardian only if: (1) the next friend or guardian appears to the court to have an interest adverse to the party; or (2) the parties agree. (b)Appointment of the Same Person for Different Parties. The court must appoint the same guardian ad litem for similarly situated parties unless the court finds that the appointment of different guardians ad litem is necessary.173.3. Procedure(a)Motion Permitted But Not Required. The court may appoint a guardian ad litem on the motion of any party or on its own initiative.(b)Written Order Required. An appointment must be made by written order.(c)Objections. Any party may object to the appointment of a guardian ad litem.173.4. Role of Guardian ad Litem(a)Court Officer and Advisor. A guardian ad litem acts as an officer and advisor to the court.(b)Determination of Adverse Interest. A guardian ad litem must determine and advise the court whether a party's next friend or guardian has an interest adverse to the party.(c)When Settlement Proposed. When an offer has been made to settle the claim of a party represented by a next friend or guardian, a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the party's best interest.(d)Participation in Litigation Limited. A guardian ad litem: (1) may participate in mediation or a similar proceeding to attempt to reach a settlement;(2) must participate in any proceeding before the court whose purpose is to determine whether a party's next friend or guardian has an interest adverse to the party, or whether a settlement of the party's claim is in the party's best interest;(3) must not participate in discovery, trial, or any other part of the litigation unless: (A) further participation is necessary to protect the party's interest that is adverse to the next friend's or guardian's, and(B) the participation is directed by the court in a written order stating sufficient reasons.173.5. Communications Privileged
Communications between the guardian ad litem and the party, the next friend or guardian, or their attorney are privileged as if the guardian ad litem were the attorney for the party.173.6. Compensation(a)Amount. If a guardian ad litem requests compensation, he or she may be reimbursed for reasonable and necessary expenses incurred and may be paid a reasonable hourly fee for necessary services performed.(b)Procedure. At the conclusion of the appointment, a guardian ad litem may file an application for compensation. The application must be verified and must detail the basis for the compensation requested. Unless all parties agree to the application, the court must conduct an evidentiary hearing to determine the total amount of fees and expenses that are reasonable and necessary. In making this determination, the court must not consider compensation as a percentage of any judgment or settlement.(c)Taxation as Costs. The court may tax a guardian ad litem's compensation as costs of court.(d)Other Benefit Prohibited. A guardian ad litem may not receive, directly or indirectly, anything of value in consideration of the appointment other than as provided by this rule.173.7. Review(a)Right of Appeal. Any party may seek mandamus review of an order appointing a guardian ad litem or directing a guardian ad litem's participation in the litigation. Any party and a guardian ad litem may appeal an order awarding the guardian ad litem compensation.(b)Severance. On motion of the guardian ad litem or any party, the court must sever any order awarding a guardian ad litem compensation to create a final, appealable order.(c)No Effect on Finality of Settlement or Judgment. Appellate proceedings to review an order pertaining to a guardian ad litem do not affect the finality of a settlement or judgment.