Bill Text: CA SB1279 | 2021-2022 | Regular Session | Introduced

California Senate Bill 1279 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Guardian ad litem appointment.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2022-09-29 - Chaptered by Secretary of State. Chapter 843, Statutes of 2022. [SB1279 Detail]

Download: California-2021-SB1279-Introduced.html

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill

No. 1279

Introduced by Senator Ochoa Bogh

February 18, 2022

An act to amend Section 372 of the Code of Civil Procedure, and to amend Section 1003 of the Probate Code, relating to guardian ad litems.

LEGISLATIVE COUNSEL'S DIGEST

SB 1279, as introduced, Ochoa Bogh. Guardian ad litem appointment.

Existing law authorizes a court to appoint a guardian ad litem at any stage of a proceeding under the Probate Code to represent the interest of specified persons, including a minor or an incapacitated person, if the court determines that representation of their interest otherwise would be inadequate.

This bill would add a person with a disability to that list of specified persons. The bill would require a proposed guardian ad litem to disclose any known potential or actual conflicts of interests arising from appointment to the court and all interested persons, and would require an appointed guardian ad litem to annually report all actions taken on behalf of the ward that affect the ward’s interests. The bill would limit a guardian ad litem’s powers to those specified in the order appointing the guardian ad litem.

Existing law requires a party to a civil action who is a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed to appear in the action either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court, except as specified. Existing law authorizes the court to appoint a guardian ad litem in any case when the court deems it expedient.

This bill would revise those provisions, and would instead require a party to a civil action who is a minor or a person for whom a conservator has been appointed to appear in the action either by a guardian or conservator of the estate. The bill would authorize the court to appoint a guardian ad litem in an action without a guardian of the estate for a minor or a conservator of the estate for an incapacitated person, or if the court finds other good cause for the appointment of a guardian ad litem.

Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

Section 372 of the Code of Civil Procedure is amended to read:

372.

(a) (1) When a ~~minor, a person who lacks legal capacity to make decisions,~~ minor or a person for whom a conservator has been appointed is a ~~party,~~ party to an action, other than as the conservatee in a conservatorship action, that person shall 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, or by a judge thereof, in each case. A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor, person lacking legal capacity to make decisions, or person for whom a conservator has been appointed, notwithstanding that the person may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate. In an action without a guardian of the estate for a minor or a conservator of the estate for an incapacitated person, or if the court finds other good cause for the appointment of a guardian ad litem, the court may appoint a guardian ad litem to represent the interests of any of the persons set forth in subdivision (a) of Section 1003 of the Probate Code. The guardian or conservator of the estate or guardian ad litem ~~so appearing for any minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed~~ shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise. Money or other property to be paid or delivered pursuant to the order or judgment for the benefit of a ~~minor, person lacking legal capacity to make decisions,~~ minor or person for whom a conservator or guardian ad litem has been appointed shall be paid and delivered as provided in Chapter 4 (commencing with Section 3600) of Part 8 of Division 4 of the Probate Code.

(2)Where reference is made in this section to “a person lacking legal competence to make decisions,” the reference shall be deemed to include “a person for whom a conservator may be appointed.”
~~(3)~~

(2) Nothing in this section, or in any other provision of this code, the Civil Code, the Family Code, or the Probate Code is intended by the Legislature to prohibit a minor from exercising an intelligent and knowing waiver of ~~his or her~~ the minor’s constitutional rights in a proceeding under the Juvenile Court Law, Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code.

(b) (1) Notwithstanding subdivision (a), a minor 12 years of age or older may appear in court without a guardian, counsel, or guardian ad litem, for the purpose of requesting or opposing a request for any of the following:

(A) An injunction or temporary restraining order or both to prohibit harassment pursuant to Section 527.6.

(B) An injunction or temporary restraining order or both against violence or a credible threat of violence in the workplace pursuant to Section 527.8.

(D) A protective order pursuant to Sections 7710 and 7720 of the Family Code.

~~The~~

(2) The court may, either upon motion or in its own discretion, and after considering reasonable objections by the minor to the appointment of specific individuals, appoint a guardian ad litem to assist the minor in obtaining or opposing the order, ~~provided that~~ if the appointment of the guardian ad litem does not delay the issuance or denial of the order being sought. In making the determination concerning the appointment of a particular guardian ad litem, the court shall consider whether the minor and the guardian have divergent interests.

~~(2)~~

(3) For purposes of this subdivision only, upon the issuance of an order pursuant to paragraph (1), if the minor initially appeared in court seeking an order without a guardian or guardian ad litem, and if the minor is residing with a parent or guardian, the court shall send a copy of the order to at least one parent or guardian designated by the minor, unless, in the discretion of the court, notification of a parent or guardian would be contrary to the best interest of the minor. The court is not required to send the order to more than one parent or guardian.

~~(3)~~

(4) The Judicial Council shall adopt forms by July 1, 1999, to facilitate the appointment of a guardian ad litem pursuant to this subdivision.

(c) (1) Notwithstanding subdivision (a), a minor may appear in court without a guardian ad litem in the following proceedings if the minor is a parent of the child who is the subject of the proceedings:

(A) Family court proceedings pursuant to Part 3 (commencing with Section 7600) of Division 12 of the Family Code.

(B) Dependency proceedings pursuant to Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code.

(C) Guardianship proceedings for a minor child pursuant to Part 2 (commencing with Section 1500) of Division 4 of the Probate Code.

(D) Any other proceedings concerning child custody, visitation, or support.

(2) If the court finds that the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case, the court shall, upon its own motion or upon a motion by the minor parent or the minor parent’s counsel, appoint a guardian ad litem.

SEC. 2.

Section 1003 of the Probate Code is amended to read:

1003.

(a) 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 any of the following persons, if the court determines that representation of the interest otherwise would be inadequate:

(1) A minor.

(2) An incapacitated person.

(3) A person with a disability, as described in Section 3603.
~~(3)~~

(4) An unborn person.

~~(4)~~

(5) An unascertained person.

~~(5)~~

(6) A person whose identity or address is unknown.

~~(6)~~

(7) A designated class of persons who are not ascertained or are not in being.

(b) If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several persons or interests.

(c) The reasonable expenses of the guardian ad litem, including compensation and attorney’s fees, shall be determined by the court and paid as the court orders, either out of the property of the estate involved or by the petitioner or from such other source as the court orders.

(d) Before a guardian ad litem is appointed pursuant to this section, the proposed guardian ad litem shall disclose to the court and all interested persons any known potential or actual conflicts of interests arising from appointment in the matter, including any familial or affiliate relationship of the guardian ad litem to any of the parties.
(e) An order appointing a guardian ad litem pursuant to this section shall specify the powers of the guardian ad litem. A guardian ad litem only has the powers specified in the order.
(f) Unless otherwise ordered by the court, the guardian ad litem appointed pursuant to this section shall, at least annually, report all actions taken by the guardian ad litem on behalf of the ward that affect the ward’s interests.