The objective of this article and accompanying self-study test is to familiarize attorneys and bench officers on the nature and function of guardians ad litem in California, the scope of minors' compromises, and pending legislative revisions in the law related to these topics. By reading the article and taking the accompanying test, readers will learn about this important legal field and gain insight on how to effectively handle cases concerning minors. (In an article published tomorrow, readers will learn about minor's compromises and changes to the guardian ad litem statutes proposed by Sen. Bill No. 1279.)
Understanding the Function of Guardians Ad Litem
California generally requires a "minor who is a party in a lawsuit [to] appear 'by a guardian ad litem appointed by the court in which the action or proceeding is pending." (Williams v. Superior Court, 147 Cal.App.4th 36 (2007), internal citations omitted; Code. of Civ. Proc. (CCP) sec. 372; Fam. Code sec. 6500 [a minor is a person under 18 years of age].) A guardian ad litem, or GAL, may also be appointed for an "incapacitated person." (Probate Code (PC) sec. 1003; CCP sec. 372 [authorizing GAL for "a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed"].) The GAL is appointed "to protect the minor's [or ward's] interests in the litigation." (Williams.)
The GAL "is not a party to the action, but is the party's representative and is an officer of the court." (Williams; Alex R. v. Superior Court, 248 Cal.App.4th 1 (2016).) The GAL's "role is limited to protecting the [ward's] interests in the litigation, and the role is closely supervised by the judge." (Williams, emphasis in original; see In re Guardianship of Christiansen, 248 Cal.App.2d 398 (1967) ["The guardian is the counsel assigned by operation of law to conduct the suit"].) The GAL does not have "authority to make decisions for the child [or ward] outside the scope of the litigation" even to promote the interests of the ward or minor. (Williams.)
Powers of Guardians Ad Litem Subject to Court Approval
Within the litigation, the GAL has "broad powers: 'the power to control the lawsuit, including controlling procedural steps necessary to the conduct of the litigation . . . and controlling trial tactics.'" (In re Jessica G., 93 Cal.App.4th 1180 (2001); In re Christina B., 19 Cal.App.4th 1441 (1993) ["The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardian's charge in mind"]; CCP sec. 372.) The appointment of a GAL "is no small matter" as this process "dramatically change[s] the [parent's] role in the proceeding by transferring the direction and control of the litigation" to the GAL. (In re Jessica G.) Like the appointment of a conservator, appointment of a GAL for a person lacking capacity impacts "a person's dignity and concomitant interest in being heard" by assigning control of the parties' affairs to another. (Conservatorship of Moore, 185 Cal.App.3d 718, 729 (1986).)
The GAL's exercise of these powers is nonetheless usually subject to court approval. (CCP sec. 372(a); PC sec. 3600, et seq.; Berry v. Chaplin, 74 Cal.App.2d 652 (1946) [the "court may set aside or disregard concessions of the guardian which have not already been judicially approved and which are shown to the court to have been improvidently made" or overly "prejudicial to the rights and interests" of the ward without corresponding benefit]; Regency Health Services, Inc. v. Superior Court, 64 Cal.App.4th 1496 (1998) [probate court has supervisory authority to ensure GAL does not take actions "inimical to the legitimate interests of the ward"].) Though the GAL acts as a "protector" for the ward, the trial court is ultimately "'the guardian of the minor' . . . and the guardian ad litem is appointed, if at all, 'merely to aid and to enable the court to perform that duty of protection.'" (Chui v. Chui, 75 Cal.App.5th 873 (2022); Cole v. Superior Court of San Francisco, 63 Cal. 86 (1883).) As with minors, the trial court and GAL are responsible for "protect[ing] the rights of [an] incompetent person." (In re Christina B.)
Guardians Ad Litem as Agents of the Court
The GAL plays an important function in assisting the trial court in protecting the interests of wards and minors. The GAL "is an officer of the court appointing [the GAL] and is essentially an agent of the court." (County of Los Angeles v. Superior Court, 91 Cal.App.4th 1303 (2001).) A GAL "is appointed merely to aid and to enable the court to perform [its] duty of protection" of the interests of minors and wards. (Williams; Chui [GAL is "appointed to act as the court's aid or agent"].) As an officer and agent of the court, the GAL is responsible for assisting the court in "achieving a just and speedy determination of the action." (Williams.) Hence, GALs are often appointed by trial courts to address obstacles to speedy resolution of the litigation - for example, a trial court may appoint a GAL for a minor whose parent appears to be delaying or frustrating resolution of the minor's claims. (Ibid.) Due to the GAL's broad authority (subject to court supervision) to control litigation, appointment of a GAL can often move stagnant cases forward, though speed alone is not an adequate reason to appoint a GAL.
Guardians Ad Litem Distinguished from Guardians, Conservators, and Minor's Counsel
The GAL's role as an officer of the court is distinct from counsel for the ward or minor - the GAL is affirmatively responsible for protecting the best interests of the ward and "enabl[ing] the court to perform that duty of protection." (Williams [GAL's "role is more than an attorney's but less than a party's "]; A.F. v. Jeffrey F., 79 Cal.App.5th 737 (2022) [distinguishing "neutral minor's counsel in a dissolution" from counsel for minor represented by GAL in a civil proceeding].) The GAL "does not act as an advocate, and does not simply represent the ward's wishes." (McClintock v. West, 219 Cal.App.4th 540, 549 (2013).) Instead, the "job is acting in the ward's best interests, and the ward might not always agree with the guardian ad litem's decisions." (McClintock.)
Indeed, the GAL does not need to be an attorney. The GAL may (and often will) retain independent counsel without court approval. To the extent the minor has separate counsel, the GAL also "oversees any attorney representing [the] minor's litigation-related interests." (In re Josiah Z., 36 Cal.4th 664 (2005); De Los Santos v. Superior Court, 27 Cal.3d 677 (1980) [GAL is entitled to be "apprised of matters which the minor communicates to the attorney for the purpose of prosecuting or defending the action" either by personal "presence at consultations between the attorney and the minor or by securing the information from the minor"].) The "attorney the [GAL] is charged with overseeing is the independent attorney for the child, not an attorney representing the guardian himself." (Shen v. Miller, 212 Cal.App.4th 48 (2012).)
In many cases, the minor/ward's parent or guardian will be appointed as GAL. But the GAL is not the same as a guardian of the person or estate or a conservator. (Golin v. Allenby, 190 Cal.App.4th 616 (2010) [guardian ad litem is "appointed only for purposes of the action . . . solely to protect and defend the ward's interest in the suit," which is "a different role from a guardian or conservator appointed for custody or other purposes"].) "Despite the fact that the phrase 'guardian ad litem' contains the word 'guardian,' the former is not a subset of the latter. . . . They are different roles, and this is why a minor can have two different people serving as a guardian and a guardian ad litem at the same time . . . . Along the same lines, a guardian ad litem is not a 'personal' or 'legal representative' in terms of being a fiduciary because those latter roles contemplate a far broader role than representation in a single lawsuit." (Yadegar v. Yadegar, B271627 (Feb. 2, 2017) (non-published opinion).) A GAL is appointed to assist a party in a specific proceeding while a guardian or conservator assists the party in a more general manner.
Appointment of Guardian Ad Litem
Code of Civil Procedure sec. 372 requires a "minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed" to "appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending . . . in each case." Under PC sec. 1003, the "court may, on its own motion or on request of a personal representative, guardian, conservator, trustee, or other interested person, appoint a guardian ad litem at any stage of a proceeding under this code to represent the interest" of certain parties "if the court determines that representation of the interest otherwise would be inadequate." These parties include a minor, an incapacitated person, an "unborn person," an "unascertained person," a "person whose identity or address is unknown," or a "designated class of persons who are not ascertained or are not in being." A GAL may also be appointed where the ward is "incompetent to understand the nature of the proceedings or to assist [the ward's] counsel in representing [the ward's] interest." (In re Christina B.) When the court "has knowledge of [a party's] incompetency, [it] has an obligation to appoint a guardian ad litem sua sponte." (In re Lisa M., 177 Cal.App.3d 915, 919 (1986).)
The appointment of a GAL typically requires "an informal hearing and an opportunity [for the ward] to be heard," at least where the ward has not consented to appointment of a GAL. (In re Sara D., 87 Cal.App.4th 661 (2001); but see pp. 668-669 of In re Sarah D. [GAL appointments are typically supported by the ward's consent].) In re Sarah D. further noted as follows. A hearing allows the parties to explain their respective positions and enables the court "to gain a full understanding of the circumstances," with the added benefit of establishing a "record . . . for appellate review." Due process does not necessarily require a "formal hearing" or a "noticed motion with briefing," nor does it require the court hear from parties other than the proposed ward and ward's counsel (if any). There is no one-size-fits-all procedure "applicable to all" cases because the circumstances of appointment "may vary widely from case to case."
The appointment of a GAL for a "person who lacks legal capacity to make decisions" under CCP sec. 372 or an "incapacitated person" under PC sec. 1003 does "not require any prior independent adjudication of incompetency," which "may exist independently of any judicial determination thereof." (Sarracino v. Superior Court, 13 Cal.3d 1 (1974).) The trial court must determine the capacity of a party as appropriate in each case in determining whether appointment of a GAL is necessary. (See PC sec. 1003 [appointment of GAL authorized if "representation of the [ward's] interest otherwise would be inadequate"].)
Determination of Capacity
In determining capacity under CCP sec. 372, courts have looked to "the requirements of either Penal Code section 1367 or Probate Code section 1801." (In re Sara D.) Penal Code sec. 1367 sets forth the standard for determining whether a criminal defendant is "mentally incompetent to be tried," while PC sec. 1801 defines the conditions for appointment of a conservator. (In re James F. (2008) 42 Cal.4th 901, 916; CCP sec. 372(a)(2) [a "person lacking legal competence to make decisions" includes "a person for whom a conservator may be appointed"].)
In determining capacity under PC sec. 1003, the Probate Code's "sliding scale" capacity standard applies. (PC sec. 810, et seq.; see Lintz v. Lintz, 222 Cal.App.4th 1346 (2014).) While there is a "rebuttable presumption" of capacity, this presumption may be overcome by establishing a "deficit" in a specified mental function and "correlation between the deficit . . . and the decision or acts" at issue. (PC secs. 810-811.) "More complicated decisions and transactions . . . appear to require greater mental function; less complicated decisions and transactions would appear to require less mental function." (Andersen v. Hunt, 196 Cal.App.4th 722 (2011).) Probate Code sec. 812 identifies several factors to consider in assessing capacity to make a decision, including the person's "ability to communicate" the decision and their understanding of "probable consequences," "significant risks, benefits, and reasonable alternatives," and any "rights, duties, and responsibilities created by, or affected by the decision."
While the sliding scale capacity standard is typically applicable, there is a lower capacity standard for testamentary instruments such as wills and codicils. (Lintz [probate court should have applied the sliding-scale capacity standard of PC secs. 810-812 in a case involving "trust instruments . . . unquestionably more complex than a will or codicil"].) While Sections 810 through 812 deal with competency for basic life decisions (i.e., medical care, financial issues), PC sec. 6100.5 details testamentary capacity and employs a different legal standard than the one stated above. (See In re Lingenfelter's Estate, 38 Cal.2d 571 (1952).) Additionally, PC sec. 810(b) recognizes that persons with mental or physical disorders "may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions."
The currently adopted mandatory use form for a Petition for Appointment of Guardian Ad Litem - Probate (Form DE-350/GC-100) defines an "incapacitated person" as "a person with a disability within the meaning of Probate Code § 3603." The definition of "person with a disability" under Section 3603 is broad, but notably includes a "person with a developmental disability, as defined in Section 4512 of the Welfare and Institutions Code." In turn, that statute defines a developmental disability as a "disability that originates before an individual attains 18 years of age, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual," though this definition specifically excludes "other handicapping conditions that are solely physical in nature."
Trial courts may consider "evidence of incompetence . . . drawn from various sources" provided the evidence addresses "whether the person in question is able to meaningfully take part in the proceedings." (AT&T Mobility, LLC v. Yeager, 143 F.Supp.3d 1042 (E.D. Cal. 2015).) AT&T Mobility also indicated as follows. A judge's "first-hand observations of and interactions with the person may inform" the decision to appoint a GAL. Federal courts have identified several other categories of relevant evidence beyond first-hand observations, such as "report of mental disability by a government agency," the "sworn declaration of the person or those who know" the person for whom a GAL may be appointed, "the representations of counsel," a "diagnosis of mental illness," "review of medical records," and "the person's age, illnesses, and general mental state" to the extent this evidence shows the person cannot grasp the nature or consequences of the proceeding.
Incapacity cannot be established by a party's "deliberate and strategic" refusal to cooperate in legal proceedings. (In re Samuel A., 69 Cal.App.5th 67 (2021).) In re Samuel A. additionally indicated all the following. Even if the appointment of a GAL may be "the only means available to move the case along," a party's "right to actively participate in [a] proceeding may not be disregarded for the sake of expediency" alone and appointment of a GAL is not a remedy for disruptive behavior. The appointment of a GAL is appropriate to assist parties who cannot adequately represent their own interests due to inability to understand the proceedings or assist counsel, requiring the trial court to act as a "guardian," and is not appropriate merely to promote efficient case management.
Appointment of GAL to Address Parental Conflicts
Non-parental GALs are sometimes appointed for minors in cases involving conflicts of interest between the parent and minor or between the parent and the court. When a "parent has an actual or potential conflict of interest with [the] child, the parent has no right to control or influence the child's litigation." (Williams.) Pursuant to Williams, the trial court has a "responsibility to protect the rights of a minor who is a litigant" and "judicial protection of minors encompasses a court's authority to select a [GAL] who is not the parent or general guardian."
Appointment of a non-parental GAL is similarly appropriate to address "potential conflict between a perceived parental responsibility and an obligation to assist the court in achieving a just and speedy determination of the action." (Williams.) The appointment of a GAL assures the minor's litigation is directed by an unconflicted person who will efficiently pursue the minor's litigation interests.
In particular, a GAL can assist in resolving conflicts arising out of settlement of the minor's claims. Conflicts of interest may arise between a parent and minor where the settlement terms may be more favorable to a parent than a minor, or vice versa. This is sometimes justified - for example, parents may be responsible for a larger portion of attorney's fees for representation of the parent and minor, potentially supporting a larger settlement for the parents than the minor provided the minor is not worse off than the parents after payment of fees. But parents may not prioritize their own interests at the child's expense.
However, a GAL is likely unable to assist in resolving conflicts between minors or wards arising out of a settlement. A GAL "may be appointed to represent several persons or interests," and thus may represent multiple minors or wards in the same litigation, but only "[if] not precluded by a conflict of interest." (PC sec. 1003(b); see In re Zamer G., 153 Cal.App.4th 1253 (2007) [discussing conflicts of interest minor's counsel may face when representing multiple minors with conflicting preferences].) If there appears to be a potential conflict of interest between minors represented by the same GAL, the trial court should inquire further of the GAL to ensure all minors' interests are being adequately protected.
This first article addressed the nature and function of GALs in California (including the distinction between GALs, guardians, and court-appointed counsel), explained the distinct (but similar) procedures for appointment of a GAL in civil litigation and probate litigation, and identified various issues that can be addressed by appointment of a GAL. This article is intended to assist judges and practitioners in understanding when, how, and why to apply for appointment of a GAL. In the second article, to be published shortly after this article, readers can expect guidance concerning a core function of GALs: the presentation of minors' compromises for court approval. The second article will also address potential legislative revisions to CCP sec. 372 and PC sec. 1003 reflected in pending Senate Bill No. 1279, including proposed modifications to the definition of a person "lacking legal capacity," limitations on the appointment of a GAL for a person with a guardian or conservator of the estate, and a new requirement to disclose conflicts of interest, among other revisions.