State-mandated service may not be as available as it's supposed to be

SHERIDAN — On paper, the state of Wyoming has some of the strongest guardian ad litem laws in the country. The only problem, lawyer Jonathan Martinis said, is there seems to be a world of difference between the law itself and how it is applied in many courts across the state.

“I do a lot of guardianship work across the country, and I can tell you that Wyoming’s law is actually very good,” Martinis said. “You have one of the only laws in the country that absolutely guarantees someone facing a guardianship petition the right to a guardian ad litem…and an attorney…But the problem is…what has been an open secret in Wyoming for a very long time: those rights are very often not provided.”

Martinis and fellow lawyer Melissa Theriault shared the preliminary results of their research on the state’s guardian ad litem program during a meeting of the Wyoming Governor’s Council on Developmental Disabilities in Sheridan Aug. 12.

The council commissioned the research earlier this spring in an effort to better understand the current system and any deficiencies in it, the council’s executive director, Shannon Buller, said.

Guardianship is a court proceeding in which one person — the guardian — may be granted authority over another person: the ward. This usually happens in a case when a ward is unable to take care of themselves for a variety of reasons, ranging from advanced age and disease to physical and developmental disabilities.

At the hearing on the petition for guardianship, a judge will decide if a guardian is needed and if the proposed guardian should be appointed. The court appoints a guardian ad litem to attend the hearing. The guardian ad litem is appointed to help determine the wishes of the ward and what is in the ward’s best interests.

Or at least that’s the way it’s supposed to work as outlined in Wyoming statute, Martinis said. The truth of the situation is a little more messy.

“Our findings so far are pretty scary,” Martinis said. “We’ve looked at 256 files (from 2021) in several counties. Of those 256 (guardianship) cases, only 102 appointed a guardian ad litem. That’s 40%, so you have a 60% chance of not getting what the statute in Wyoming requires you to get. And even worse: Of those 256 cases, we only found two so far where a person (ward) had an attorney. That’s 0.7%”

In addition, the lawyers determined “your rights, when it comes to guardianship, are largely dependent on what county you live in,” Martinis said, with some counties being much more consistent than others in meeting the state requirements.

For example, Albany and Natrona counties both had few guardianship cases where a guardian ad litem was actually appointed, Martinis said.

In a total of 38 Albany County cases, a guardian ad litem was only appointed in eight. In 73 Natrona County cases, only 18 guardians ad litem were appointed.

On the positive side, in Sheridan and Johnson counties, a relatively high number of guardianship cases received a guardian ad litem, Martinis said. In 19 Sheridan County cases, 17 guardians ad litem were provided. In 15 Johnson County cases, 13 guardians ad litem were appointed.

“That’s good for Sheridan and Johnson, but very, very bad for people with disabilities facing guardianship if they don’t live in Sheridan or Johnson,” Martinis said.

Buller made it clear, in an interview with The Sheridan Press, there was “no malice” behind a failure to provide guardians ad litem in some counties throughout the state. Rather, she said it came down to a lack of resources and available guardians ad litem in many communities.

Buller said she expected the council’s work examining and rethinking the guardian ad litem program to take at least five years. After research is completed and the scope of the problem is determined, the council will work to determine solutions including potential changes to legislation.

The guardian ad litem problem is just one issue the council is examining as it re-evaluates guardianship cases, Buller said.

“It is very standard, again not out of malice, that when kids (with developmental disabilities) get ready to leave high school, they are told they should get a guardian, and they might not need a guardian or they might need a limited guardian — someone to just help them with finances or to help with medical decisions,” Buller said. “So we’re working on that end also and trying to educate people on the importance of not rushing into guardianship…because it takes months and months and hours and hours to unring that bell…What we’re trying to do is make sure people are represented so they can say ‘No, I don’t need one.’”

The Governor’s Council on Developmental Disabilities is a governor-appointed group comprising people who have developmental disabilities; family members of people with developmental disabilities and state agency representatives.

These individuals work together to promote choice, independence and inclusion for all Wyoming residents with developmental disabilities. The council next meets in early November.