What Is an Attorney Ad Litem in Florida?

An attorney ad litem in Florida is a lawyer the court appoints to represent someone who cannot effectively advocate for themselves, usually a child in a dependency case or an adult facing a guardianship proceeding. The role is defined by whose voice the lawyer carries into court: an attorney ad litem advocates for what the client actually wants, while a guardian ad litem advocates for what the court considers the client’s best interests. Those are not always the same thing, and Florida law treats them as separate jobs.

What the Lawyer Actually Does

The attorney ad litem functions as the client’s lawyer in the ordinary sense. That means interviewing the client, reviewing the case file, consulting with professionals already involved, attending hearings, presenting evidence, and making legal arguments. The lawyer keeps the client informed about what is happening and explains what different outcomes would mean. In dependency proceedings, a child entitled to an attorney ad litem has the right to immediate and unlimited access to that lawyer.¹

The complication is clients with limited ability to express clear preferences. A teenager in foster care can usually say what they want. A three-year-old or an adult with severe cognitive impairment cannot. Attorneys ad litem navigate that gap constantly, guided by professional conduct rules on representing clients with diminished capacity. ABA Model Rule 1.14 directs the lawyer to maintain a normal attorney-client relationship as far as reasonably possible, and only to take “reasonably necessary protective action,” such as consulting family or seeking appointment of a guardian, when the client faces a risk of substantial harm and cannot adequately protect their own interests.² For older children who can articulate what they want, the path is simpler: the lawyer advocates for the client’s expressed wishes.

Attorney Ad Litem vs. Guardian Ad Litem

This is the distinction most people are trying to sort out. A guardian ad litem recommends what the guardian believes is in the client’s best interests. An attorney ad litem advocates for what the client wants. In Florida, “guardian ad litem” is defined broadly to include the Statewide Guardian Ad Litem Office, certified volunteers, staff members, and contract attorneys working on behalf of that program.³

The practical difference shows up when a client wants something the adults around them think is a bad idea. Say a 16-year-old in foster care wants to return to a parent’s home, and the guardian ad litem believes the home is unsafe. The guardian ad litem tells the court the child should stay in placement. The attorney ad litem tells the court the child wants to go home and makes the legal arguments supporting that outcome. The judge hears both and decides.

In termination of parental rights proceedings, the court must appoint a guardian ad litem to represent the child’s best interests.⁴ Whether the child also gets an attorney ad litem depends on the circumstances.

When Florida Courts Appoint One in Dependency Cases

Under Florida Statute 39.01305, the court must appoint an attorney for a dependent child in specific situations:

The child lives in or is being considered for a skilled nursing facility.
The child has been prescribed a psychotropic medication but declines to take it.
The child has a diagnosed developmental disability.
The child is being placed in or considered for placement in a residential treatment center.
The child is a victim of human trafficking.

These categories reflect situations where the child’s needs are complex enough that a guardian ad litem alone may not provide sufficient advocacy.⁵

Beyond the mandatory categories, the court can appoint an attorney ad litem at any stage of a dependency proceeding under Rule 8.217 of the Florida Rules of Juvenile Procedure, either on its own or at the request of a party.⁶ The court must also appoint an attorney for a child when a caregiver objects to a change in the child’s physical custody placement, under Section 39.522(3)(c).

Access to records is part of what makes the role work. An attorney ad litem in a dependency case can inspect and copy any official record pertaining to the child without a separate court order, which matters because dependency court files are otherwise sealed.⁷

When Florida Courts Appoint One in Guardianship Cases

When someone files a petition to have another person declared incapacitated, the court must appoint an attorney to represent the alleged incapacitated person. This is not optional. Florida Statute 744.331 requires appointment in every case involving a petition for adjudication of incapacity, and the person can substitute their own attorney for the court-appointed one if they prefer.⁸

An important safeguard: the attorney representing the alleged incapacitated person cannot also serve as that person’s guardian or as counsel for the guardian or the petitioner seeking the guardianship. The lawyer’s loyalty runs to the person whose rights are on the line.

How the Appointment Happens

In dependency cases, the court does not simply pick any available lawyer. Before appointing a compensated attorney under Section 39.01305, the court must first ask the Statewide Guardian ad Litem Office to recommend an attorney willing to represent the child without additional compensation. If that office can provide someone within 15 days, the court appoints that attorney. If not, the court may appoint a compensated attorney sooner.⁵

In guardianship cases, the court appoints either the office of criminal conflict and civil regional counsel or a private attorney from the court’s attorney registry, with private appointments rotating to distribute workload and avoid conflicts.⁸

Who Pays

When an appointed attorney in a dependency or termination of parental rights case is entitled to compensation, Florida Statute 39.0134 sets payment at the rates established under Section 27.5304.⁹

Parents are not necessarily free of the cost. A parent whose child is found dependent, or whose parental rights are terminated, is liable for reasonable attorney’s fees and costs if they received court-appointed counsel, along with the indigency application fee. The court can fold these payments into the case plan during dependency proceedings, though a case plan cannot stay open solely to collect attorney fees. Collected fees go into the Indigent Civil Defense Trust Fund.⁹

Rights the Client Keeps

People sometimes assume that once someone is declared incapacitated, they lose all legal standing. Florida law says otherwise. A person determined to be incapacitated retains specific rights, including the right to counsel, access to the courts, annual review of the guardianship plan, and the right to be restored to capacity at the earliest possible time.¹⁰ The right to counsel means the person can seek legal representation to challenge the guardianship or request modification of their rights at any point, not just during the initial proceeding.

That is the thread running through the whole role. The attorney ad litem does not replace the client’s judgment. The job is to carry whatever voice the client has into a courtroom that would otherwise decide without hearing it.

1
FindLaw. Florida Statutes Title V Judicial Branch 39.4085
2
American Bar Association. Rule 1.14: Client with Decision-Making Limitations
3
Florida Senate. Florida Code 39.820 – Definitions
4
Florida Senate. Florida Code 39.807 – Right to Counsel; Guardian Ad Litem
5
Online Sunshine. Florida Statutes 39.01305 – Appointment of an Attorney for a Dependent Child with Certain Special Needs
6
Supreme Court of Florida. In Re: Amendments to the Florida Rules of Juvenile Procedure – 2021 Fast-Track Report
7
Florida Senate. Florida Statutes 39.0132 – Oaths, Records, and Confidential Information
8
Florida Senate. Florida Code 744.331 – Procedures to Determine Incapacity
9
Online Sunshine. Florida Statutes 39.0134 – Appointed Counsel; Compensation
10
Florida Senate. Florida Code 744.3215 – Rights of Persons Determined Incapacitated