Most California trust and estate disputes involve adults who can make their own choices about what to seek and how hard to litigate, such as the common scenario of siblings competing for assets.  But many disputes, or at least potential disagreements, involve people who can’t fend for themselves, such as mentally incapacitated adults, children, or even unborn potential beneficiaries who are a glimmer in the mind’s eye.

In such a situation, a probate judge may need to appoint a guardian ad litem or “GAL” to act as a surrogate decision maker.  In prior posts, we’ve touched on situations where appointment of a GAL may be helpful or required.  Here we aim to hit the nail on the head.

What is a Guardian Ad Litem?

A GAL is a person appointed by a court to look after the interests of another person, usually known as the “ward,” in a particular legal proceeding where assistance is required.

In California civil cases, a guardian ad litem may be appointed under Code of Civil Procedure section 372 for a minor or for an adult “who lacks legal capacity to make decisions” by the court in which the proceeding is pending.

While appointment of a GAL is usually unopposed, an allegedly incapacitated adult may object.  Probate Code sections 810-813 will guide the court in assessing mental capacity with the statutory presumption being that “all persons have the capacity to make decisions and to be responsible for their acts and decisions.”

As section 372 indicates, if a vulnerable adult already has a conservator of the estate, such a conservator may litigate on behalf of the conservatee without a GAL.  Likewise, a generally-appointed guardian may act for a minor.  However, a GAL may be appointed even for adults with conservators and minors with guardians, thus giving the court situational flexibility.

California Judicial Council Form CIV-010 must be used to seek the appointment of a guardian ad litem in a civil case.  A “relative or friend” of an adult lacking competence to make decisions may apply for appointment of a GAL or the court may act on its own motion.

Probate Code section 1003, however, controls the appointment of guardians ad litem in proceedings under the Probate Code.  Section 1003 permits any interested person to seek the appointment of a guardian ad litem “at any stage of a proceeding.”

A probate judge may appoint a GAL for minors, incapacitated persons, unborn persons, unascertained persons, persons whose identity or address is unknown, or a class of persons who are not ascertained or not in being – the question being whether the representation of an interest would be inadequate without a GAL to advocate for the interest.

Applications to appoint a guardian ad litem in California probate court must be made using Judicial Council Form DE-350/GC-100, not the form for civil cases.

When is a GAL appointed in a California trust or estate dispute?

There are many situations where a guardian ad litem may be appointed.

Consider a trust administration scenario.  Mom and Dad created a trust naming their two children as equal remainder beneficiaries upon their passing.  If Trevor stayed close to home and has become successor trustee, what is he to do if sister Sara cut ties with the family and cannot be found?  If Trevor wants to distribute the family bowling alley in Sacramento County to himself, and other assets to Sara, a GAL might be appointed to ensure that the nonprorata distribution is fair to her so she can’t object later.

A GAL might be appointed for a senior with substantial mental function deficits so that he or she can assert a financial elder abuse claim against a family member or caregiver.

In a prior post, we discussed the role of court appointed counsel in conservatorship cases and noted that a GAL might be appointed for a proposed conservatee so as to assess in an independent way whether conservatorship is in the best interests of the would be conservatee.

Or, what if administration of a family trust is ensnared in a conflict over the interpretation of the trust instruments?  A compromise may adversely affect the interests of minor or unborn grandchildren or great-grandchildren.  Who will ensure that their interests are protected?  Enter a neutral GAL who is not a family member and has no stake in how the trust is interpreted or restructured.

Indeed, Probate Code section 15405 specially allows for a guardian ad litem to provide consent on behalf of a beneficiary in the context of petitions to modify or terminate trusts, “if it would be appropriate to do so,” adding that the GAL “may rely on general family benefit accruing to living members of the beneficiary’s family.”

Note that a GAL may be unnecessary for a mentally incapacitated adult who previously signed a durable power of attorney for financial affairs that is broad enough to allow the designated agent to act on behalf of the principal with respect to the trust or estate matter.  Thus, for example, if husband has major cognitive deficits associated with Alzheimer’s disease, his wife as agent under power of attorney may be able to act for him.  Still, if wife has a conflict of interest, or if the reach of the power of attorney is uncertain, the prudent course may be to ask the court to appoint a guardian ad litem.

What considerations factor into seeking appointment of a GAL?

The need for a guardian ad litem may be obvious in some situations and a closer call in others.  In the former situation, the court may require appointment of a GAL even if the parties are silent.  Often, however, the issue may be more subtle, leaving a tactical choice as to whether to seek a GAL.

Once appointed, a GAL in a sense is a “guardian of the galaxy,” especially when the represented interests – like those of unborn descendants – are nebulous.  Without a client to give direction, the GAL has to reach his or her own conclusions as to what is in the best interests of the person(s) he or she is to champion.

As an appellate court observed in Leonardini v. Wells Fargo Bank (1955) 131 Cal.App.2d 9, a guardian ad litem has “no power to consent to an act hostile and adverse to the interests of her wards, in the absence of some showing that such invasion of the wards’ rights might be beneficial to them.”  As a practical matter, however, there may be many reasons why a GAL might give ground.

GALs generally cannot represent themselves in California courts unless they are licensed attorneys.  Given that a nonlawyer GAL will need counsel, many parties choose to nominate an attorney who practices in the trusts and estates area, and who will be familiar to the local probate judge, to serve in the role.

Once appointed, the GAL may end up taking a position adverse to other family members, as by pushing for the funding of a share for minor and unborn beneficiaries.

Under Probate Code section 1003(c), however, the reasonable fees and legal expenses of the guardian ad litem are payable in the court’s discretion from the estate or trust, so a GAL who is overly litigious runs the risk of not being paid.  Though perhaps a guardian of the galaxy, the GAL may not be rewarded for taking the family trust on a costly journey to Alpha Centauri.

Jeffrey Galvin is an attorney with Downey Brand LLP, based in Sacramento. He litigates trust and estate cases in Northern California, including disputes involving trust and probate administration, contests of trusts and wills, and financial elder abuse claims.