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California courts may appoint guardians ad litem as helping hands to act for those unable to make their own decisions in litigated cases because they are minors or incapacitated adults.  For background, see our prior post.

Senate Bill 1279, effective January 1, 2023, clarifies and improves the rules governing the selection of guardians ad litem, commonly known as “GALs.”  Sponsored by the Trusts and Estates Section of the California Lawyers Association, the bill amends Code of Civil Procedure section 372 and Probate Code section 1003.  The legislation is of broad import to California litigators regardless of practice area.

How does SB 1279 change GAL appointment in civil cases?

The statutory scheme for GAL appointment depends on the context.  CCP section 372 applies in civil cases while Probate Code section 1003 applies in probate cases.  Lawyers who don’t grasp this distinction may use the wrong Judicial Council form when requesting appointment of a GAL.

SB 1279 requires closer attention to the need for appointment of a GAL when a minor already has a court-appointed guardian or an adult already has a court-appointed conservator.  In those situations, a GAL may be unnecessary because the guardian or conservator of the estate can act as a surrogate decision maker on behalf of the minor or incapacitated adult.

In some circumstances, however, the guardian or conservator may not be well suited to advocate for the minor or incapacitated adult such that a separate GAL should be appointed.

Section 372, as amended, now requires those applying for the appointment of a GAL to do all of the following: (1) tell the court of the existence of a guardian or conservator of the estate, if any; (2) give immediate notice and a copy of the application to the guardian or conservator; and (3) set forth the reasons why the guardian/conservator is inadequate to represent the interests of the person who allegedly needs a GAL.   

SB 1279 gives the guardian/conservator five court days to file an objection to the GAL application.

Hence, when a judge receives a GAL application disclosing the existence of a guardian or conservator of an estate, the judge should wait at least a week to give the guardian/conservator time to oppose the application, and in any event should weigh the need for a GAL.

Section 372 now expands the circumstances under which a GAL may be appointed for an adult by defining when a person “lacks legal capacity to make decisions.”  Before SB 1279, the statute defined this term to include a “person for whom a conservator may be appointed.” 

Amended section 372 adds a reference to Probate Code section 1801 as the touchstone for evaluating whether the allegedly incapacitated adult qualifies for a conservatorship, thus providing a signpost for litigants and judges unfamiliar with conservatorship law.  SB 1279 also adds two categories of persons deemed lacking in capacity to make decisions: (1) a person who lacks capacity to understand the nature or consequences of the action or proceeding, and (2) a person who lacks capacity to assist the person’s attorney in the preparation of the case.

This gives the court broader and clearer guidelines to apply when considering whether to appoint a GAL.

Lastly, SB 1279 requires courts to consider conflicts of interest when appointing GALs.   The statute requires the proposed GAL to disclose to the court and all parties to the action or proceeding: (1) any known actual or potential conflicts of interest that would or might arise from the appointment, and (2) any familial or affiliate relationship with any of the parties.

Hence, if a cousin or a business partner seeks to be named GAL for minor or incapacitated adult, the relationship must be disclosed in the application for appointment. 

Likewise, if a GAL learns that a potential conflict of interest has become an actual conflict of interest or that a new potential or actual conflict of interest exists, the GAL shall promptly disclose the conflict of interest to the court.  This will permit the judge to revisit whether the GAL should continue to serve and help the judge review any actions taken by the GAL.

As of this writing, the Judicial Council has not updated Form CIV-010 to incorporate the amendments to section 372, so applicants should add the newly required disclosures to the old form, by attachments or otherwise.

How does SB 1279 change GAL appointment in probate cases?

While the Code of Civil Procedure provides many of the rules for California trust and estate litigation, the Probate Code has its own statute and form (Judicial Council Form DE-350, also not yet revised as of this post) governing GAL appointment in probate matters.  The applicant is referred to as the “petitioner.”

Under Probate Code section 1003, GALs may be appointed for minors, incapacitated adults, unborn children, and other unascertained persons.  The latter two categories consist of undetermined individuals who may have a beneficial interest in a trust or estate at a future point.

For example, a trust may provide for the lifetime benefit of Ebenezer Scrooge’s nieces and nephews, with the remainder going to each of their children.  The nieces and nephews may clash with their children over the investment of the assets.  In a “Christmas Miracle,” the litigation is resolved with help from a mediator late on Christmas eve. 

While the deal may work for nieces/nephews and their children, it might disadvantage the minor and unborn grandchildren of nieces/nephews who otherwise would receive assets under the trust if they survive their parents.  Thus, if the settlement agreement is presented to a probate judge for approval, it may be appropriate to appoint a GAL to consider, likely with the help of a licensed attorney, the settlement from the standpoint of such minor and unborn grandchildren. 

SB 1279 adds conflict of interest disclosures to Probate Code section 1003 that parallel those added to Code of Civil Procedure section 372.

In addition, while Probate Code section 1003 identified “an incapacitated person” as someone for whom a conservator may be appointed, SB 1279 replaces “incapacitated person” with “a person who lacks legal capacity to make decisions.” 

This more specific definition would seem to invoke Probate Code sections 810-812, which provide a framework for mental capacity assessments of adults.  However, Form DE-350 does not require the petitioner to provide detailed information about the alleged incapacity such that the reviewing judge may need to request and review additional evidence before acting on the petition.  Such careful review is well warranted.  The appointment of a GAL deprives an incapacitated person of the freedom to control litigation that may affect them profoundly.