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Abstract

Illinois has a very comprehensive regulatory system for guardianships, which are recognized and regulated by several different statutes including the Illinois Probate Act and the Illinois Marriage and Dissolution of Marriage Act. Unfortunately, notwithstanding this comprehensive regulation, courts have struggled with the question of whether guardians ad litem should be immune from possible liability for injuries caused to their wards. Under the Marriage Act, an attorney appointed as a guardian ad litem is expected to perform duties on behalf of the court while the language of the Probate Act suggests that a guardian ad litem is appointed to represent the minor as an advocate. This distinction could result in holding that a guardian ad litem appointed under the Marriage Act could be immune from liability, while one appointed under the Probate Act could be subject to liability. Also, given that judges have inherent authority to appoint guardians ad litem without reference to any specific statute, whether the appointed guardian could be subject to possible liability for negligence could also depend on an analysis of the actual duties assigned to the guardian. Adding to the confusion, in a case called Nichols v. Fahrenkamp the Illinois Supreme Court recently made the analysis more difficult to understand. This Article explores the issue of whether guardians ad litem should be subject to liability and whether the Illinois Supreme Court reached the correct result in Nichols. The Article concludes that although the facts before the court did not quite support the court's conclusion, the court made some good suggestions that can help clarify this area of the law in the future.

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