Last edited: December 2005
Summary and Analysis
In Hawaii the law mandates the appointment of a guardian ad litem (GAL) in all child
protective proceedings. Haw. Rev. Stat. § 587-34(a) (2005). The court has the discretion to
also appoint counsel for the child in cases where the child and the child's GAL “are not in
agreement” and where the court finds the appointment would be in the best interests of the
child. Haw. Rev. Stat. § 587-34(c) (2005). In practice, the majority of cases are handled
solely by GALs.
There is no requirement that GALs must be attorneys. Indeed, children in Hawaii are served
by GALs who are attorneys and non-attorneys alike. The composition of GALs varies by
island. For instance, in Oahu, it appears that most GALs are attorneys, while in Kauai most
GALs are non-attorney “volunteers.” In addition, the state maintains volunteer GAL
programs that conduct mandatory training of both lay volunteers and attorneys.
GALs are required to make written reports to the court and all parties every six months (or
as otherwise ordered by the court) regarding how the court should proceed in the best
interests of the child, and to make face to face contact with the child every three months. Id.
By statute the GAL is also required to inform the court of the “child's perceived interests” if
they differ from those the GAL is advocating. Id. As a matter of practice, many GALs
routinely include the child’s wishes in their reports, regardless of whether they conflict with
the GAL’s recommendations.
Hawaii’s Office of Disciplinary Counsel has declared that GALs—even those who are
lawyers—are not subject to the Hawaii Rules of Professional Conduct because GALs do not
act in the attorney role. Haw. R. of Prof. Conduct, R. 1.14 (2005). Nevertheless, court
orders appointing GALs usually subject GALs to confidentiality requirements.
The law instructs the court to determine the amount of reasonable compensation of GALs
(and appointed counsel) based on the rate of $40 an hour for out-of-court services, and $60
an hour for in-court services with a maximum fee of $1500 for predisposition work, and
$500 for work associated with post-disposition reviews. Haw. Rev. Stat. § 571-87(b) (2005).
Sources of Law
Hawaii Statutes § 587-342 (Guardian ad litem; court appointed counsel)
(a) The court shall appoint a guardian ad litem for the child to serve throughout the
pendency of the child protective proceedings under this chapter. The court may appoint
additional counsel for the child pursuant to subsection (c) or independent counsel for any
other party if the party is an indigent, counsel is necessary to protect the party's interests
adequately, and the interests are not represented adequately by another party who is
represented by counsel.
(b) A guardian ad litem shall:
(1) Be allowed access to the child by the caretakers of the child whether caretakers are
individuals, authorized agencies, or health care providers;
(2) Have the authority to inspect and receive copies of any records, notes, and
electronic recordings concerning the child that are relevant to the proceedings filed
under this chapter without the consent of the child or individuals and authorized
agencies who have control of the child; and
(3) Be given notice of all hearings and proceedings, civil or criminal, including, but not
limited to, grand juries, involving the child and shall protect the best interests of the
child therein, unless otherwise ordered by the court.
(c) A guardian ad litem appointed pursuant to subsection (a) shall report to the court and all
parties in writing at six month intervals, or as is otherwise ordered by the court, regarding
such guardian ad litem's activities on behalf of the child and recommendations concerning
the manner in which the court should proceed in the best interests of the child; provided
that such guardian ad litem shall make face to face contact with the child in the child's
family or foster home at least once every three months. A guardian ad litem shall inform the
court of the child's perceived interests if they differ from those being advocated by the
child's guardian ad litem. If the child and the child's guardian ad litem are not in agreement,
the court shall evaluate the necessity for appointing special counsel for the child to serve as
the child's legal advocate concerning such issues and during such proceedings as the court
deems to be in the best interests of the child.
(d) When the court determines, after such hearing as the court deems to be appropriate, that
a party is incapable of comprehending the legal significance of the issues or the nature of the
child protective proceedings, the court may appoint a guardian ad litem to represent the
interests of the party; provided that a guardian ad litem appointed pursuant to this section
shall investigate and report to the court in writing at six month intervals, or as is otherwise
ordered by the court, regarding the current status of the party's disability, including, but not
limited to, a recommendation as to available treatment, if any, for the disability and a
recommendation concerning the manner in which the court should proceed in order to best
protect the interests of the party in conjunction with the court's determination as to the best
interests of the child.
(e) A guardian ad litem or counsel appointed pursuant to this section for the child or other
party may be paid for by the court, unless the party for whom counsel is appointed has an
independent estate sufficient to pay such costs. The court may order the appropriate parties
to pay or reimburse the costs and fees of the guardian ad litem and other counsel appointed
for the child.
Hawaii Statutes § 571-873 (Appointment of counsel and guardian ad litem;
(a) When it appears to a judge that a person requesting the appointment of counsel satisfies
the requirements of chapter 802 for determination of indigency, or the court in its
discretion appoints counsel under chapters 587 and 346, part X, or that a person requires
appointment of a guardian ad litem, the judge shall appoint counsel or a guardian ad litem
to represent the person at all stages of the proceedings, including appeal, if any. Appointed
counsel and the guardian ad litem shall receive reasonable compensation for necessary
expenses, including travel, the amount of which shall be determined by the court, and fees
pursuant to subsection (b). All of these expenses shall be certified by the court and paid
upon vouchers approved by the judiciary and warrants drawn by the comptroller.
(b) The court shall determine the amount of reasonable compensation to appointed
counsel and guardian ad litem, based on the rate of $40 an hour for out-of-court services,
and $60 an hour for in-court services with a maximum fee in accordance with the following
(1) Cases arising under chapters 587 and 346, part X:
(A) Predisposition $1,500;
(B) Postdisposition review hearing $ 500;
(2) Cases arising under chapters 560, 571, 580, and 584 $1,500.
Payments in excess of any maximum provided for under paragraphs (1) and (2) may be made
whenever the court in which the representation was rendered certifies that the amount of the
excess payment is necessary to provide fair compensation and the payment is approved by
the administrative judge of such court.
Hawaii Rules of Professional Conduct, Rule 1.144 (Client Under a Disability)
(a) When a client's ability to make adequately considered decisions in connection with the
representation is impaired, whether because of minority, mental disability, or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.
(b) A lawyer may seek the appointment of a guardian or take other protective action with
respect to a client, only when the lawyer reasonably believes that the client cannot adequately
act in the client's own interest.
 The normal client-lawyer relationship is based on the assumption that the client, when
properly advised and assisted, is capable of making decisions about important matters. When
the client is a minor or suffers from a mental disorder or disability, however, maintaining the
ordinary client-lawyer relationship may not be possible in all respects. In particular, an
incapacitated person may have no power to make legally binding decisions. Nevertheless, a
client lacking legal competence often has the ability to understand, deliberate upon, and
reach conclusions about matters affecting the client's own well-being. Furthermore, to an
increasing extent the law recognizes intermediate degrees of competence. For example,
children as young as five or six years of age, and certainly those of ten or twelve, are
regarded as having opinions that are entitled to weight in legal proceedings concerning their
custody. So also, it is recognized that some persons of advanced age can be quite capable of
handling routine financial matters while needing special legal protection concerning major
 The fact that a client suffers a disability does not diminish the lawyer's obligation to treat
the client with attention and respect. If the person has no guardian or legal representative,
the lawyer often must act as de facto guardian. Even if the person does have a legal
representative, the lawyer should as far as possible accord the represented person the status
of client, particularly in maintaining communication.
 If a legal representative has already been appointed for the client, the lawyer should
ordinarily look to the representative for decisions on behalf of the client. If a legal
representative has not been appointed, the lawyer should see to such an appointment where
it would serve the client's best interests. Thus, if a disabled client has substantial property
that should be sold for the client's benefit, effective completion of the transaction ordinarily
requires appointment of a legal representative. In many circumstances, however,
appointment of a legal representative may be expensive or traumatic for the client.
Evaluation of these considerations is a matter of professional judgment on the lawyer's part.
 If the lawyer represents the guardian as distinct from the ward, and is aware that the
guardian is acting adversely to the ward's interest, the lawyer may have an obligation to
prevent or rectify the guardian's misconduct. See Rule 1.2(d).
Disclosure of the Client's Condition
 Rules of procedure in litigation generally provide that minors or persons suffering mental
disability shall be represented by a guardian or next friend if they do not have a general
guardian. However, disclosure of the client's disability can adversely affect the client's
interests. For example, raising the question of disability could, in some circumstances, lead to
proceedings for involuntary commitment. The lawyer's position in such cases is an
unavoidably difficult one. The lawyer may seek guidance from an appropriate diagnostician.
Hawai‘i Code Comparison
There was no counterpart to this rule in the Disciplinary Rules of the Hawai‘i Code. EC 7-11
stated that the "responsibilities of a lawyer may vary according to the intelligence,
experience, mental condition or age of a client. . . . Examples include the representation of
an illiterate or an incompetent." EC 7-12 stated that "[a]ny mental or physical condition of a
client that renders [the client] incapable of making a considered judgment on [the client's]
own behalf casts additional responsibilities upon [the client's] lawyer. Where an incompetent
is acting through a guardian or other legal representative, a lawyer must look to such
representative for those decisions which are normally the prerogative of the client to make.
If a client under disability has no legal representative, [the client's] lawyer may be compelled
in court proceedings to make decisions on behalf of the client. If the client is capable of
understanding the matter in question or of contributing to the advancement of [the client's]
interests, regardless of whether [the client] is legally disqualified from performing certain
acts, the lawyer should obtain from [the client] all possible aid. If the disability of a client and
the lack of a legal representative compel the lawyer to make decisions for his [or her] client,
the lawyer should consider all circumstances then prevailing and act with care to safeguard
and advance the interests of [the lawyer's] client. But obviously a lawyer cannot perform any
act or make any decision which the law requires his [or her] client to perform or make, either
acting for [the client] if competent, or by a duly constituted representative if legally
Additional Resources and Links
Charlotte A. Carter-Yamauchi, Hawaii Legislative Reference Bureau, Issues Relating to
Guardians Ad Litem (2003).5
Local Contact Information
Guardian Ad Litem / Staff Attorney
Legal Aid Society of Hawaii
924 Bethel Street
Honolulu, HI 96813
1 This page is also available as a .pdf Document, and Word Document.
2 HAW. REV. STAT. § 587-34 (2005), available here, and also as .pdf Document, and also as Word Document.
3 HAW. REV. STAT.§ 571-87 (2005), available here, and also as .pdf Document, and also as Word Document.
4 HAW. R. OF PROF. CONDUCT, R. 1.14 (2005), available here, and also as .pdf Document, and also as Word
5 Available as .pdf Document.