Bill Text: CA SB1279 | 2021-2022 | Regular Session | Amended
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-Amended.html
ASEC. 2. Section 373 of the Code of Civil Procedure is amended to read: 373.
Section 1003 of the Probate Code is amended to read:
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-Amended.html
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Amended
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Assembly
June 23, 2022 |
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Amended
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Senate
May 05, 2022 |
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Amended
IN
Senate
April 27, 2022 |
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Amended
IN
Senate
April 25, 2022 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Senate Bill
No. 1279
| Introduced by Senator Ochoa Bogh |
February 18, 2022 |
An act to amend Sections 372 and 373 Section 372 of the Code of Civil Procedure, and to amend Section 1003 of the Probate Code, relating to guardians ad litem.
LEGISLATIVE COUNSEL'S DIGEST
SB 1279, as amended, Ochoa Bogh.
Guardian ad litem appointment.
(1) 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 who lacks the legal capacity to make a decision to that list of specified persons. The bill would define a person who lacks legal capacity to make decisions to include a person who lacks capacity to understand the nature or consequences of the action or proceeding, to assist the person’s attorney in the preparation of the case, or for whom a conservator may be appointed, as specified. 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. persons any known potential or actual conflicts of interest arising from appointment and any financial interest the proposed guardian ad litem has in the pending action.
(2) 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, even notwithstanding that the person may have a guardian of the estate or conservator of the estate and may have appeared by the guardian of the estate or conservator of the estate.
This bill would revise those provisions, and would instead require a party to a civil action for whom a guardian of the estate or conservator of the state has been appointed to appear either by the guardian of the estate or conservator of the estate. With respect to the appointment of guardians, the bill would replace the term “person lacking legal competence to make decisions” with the term “person who lacks legal capacity to make decisions,” as defined. The bill would make conforming changes to a related provision.
The bill would require notice of a guardian ad litem application for a person who already has a guardian or conservator of the estate to be provided to the guardian or conservator of the estate, as prescribed. The bill would give the guardian or conservator of the estate 5 court days from receiving notice of the application to file an opposition to the application. The bill would require a proposed guardian ad litem to disclose to the court and all interested persons any known potential or actual conflicts of interests interest 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. appointment, and any familial or affiliate relationship with any of the parties.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
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, or a person for whom a conservator has been appointed is a party, 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. When a guardian of the estate or conservator of the estate has been appointed for a party to an action, that party shall appear either by the guardian of the estate or conservator of the estate.(2) (A) A guardian ad litem may be appointed in any other 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 who lacks legal capacity to make decisions, or person for whom a conservator may be appointed. 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, if all of the following occur:
(i) Notice of the guardian ad litem
application is provided to the guardian or conservator of the estate upon the filing of the application.
(ii) The application discloses the existence of a guardian or conservator of the estate.
(iii) The application sets forth the reasons why the guardian or conservator of the estate is inadequate to represent the interests of the proposed ward in the action.
(B) The guardian or conservator of the estate shall have five court days from receiving notice of the application to file any opposition to the application.
(2)
(3) 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, or person for whom a
conservator 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.
(3)
(4) Where reference is made in this chapter to “a person who lacks legal capacity to make decisions,” the reference shall be deemed to include
all of the following:
(A) A person who lacks capacity to understand the nature or consequences of the action or proceeding.
(B) A person who lacks capacity to assist the person’s attorney in the preparation of the case.
(C) A person for whom a conservator may be appointed pursuant to Section 1801 of the Probate Code.
(4)
(5) 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 the minor’s constitutional rights in a proceeding under the Juvenile Court Law, Chapter Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code. 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.
(C) A protective order pursuant to Division 10 (commencing with Section 6200) of the Family Code.
(D) A protective order pursuant to Sections 7710 and 7720 of the Family Code.
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 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) 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)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.
(d)Except in cases arising under the Probate Code or Section 373.5 of this code, the reasonable expenses of the guardian ad litem, including compensation, shall be determined by the court and paid as the court orders, including out of the property of the estate involved, by the petitioner, or from any other source as the court orders.
(e)
(d) Before a court appoints a guardian ad litem pursuant to this chapter, a proposed guardian ad
litem shall disclose both of the
following 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.
(2) Any familial or affiliate relationship the proposed guardian ad litem has with any of the parties.
(f)An order appointing a guardian ad litem shall specify the powers of the guardian ad litem in the action. A guardian ad litem shall not exceed the authority provided for in the order.
(g)Unless otherwise ordered by the court, a guardian ad litem shall, at least annually, report all actions taken by the guardian ad litem on behalf of the ward pursuant to their appointment since their appointment or their previous report, whichever is later.
(e) If a guardian ad litem becomes aware 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 guardian ad litem shall promptly disclose the conflict of interest to the court.
When a guardian ad litem is appointed, the appointment shall be made as follows:
(a)If the minor is the plaintiff the appointment shall be made before the summons is issued, upon the application of the minor, if the minor is 14 years of age or older, or, if under that age, upon the application of a relative or friend of the minor.
(b)If the minor is the defendant, upon the application of the minor, if the minor is 14 years of age or older, and the minor applies within 10 days after the service of the summons, or, if under that age or if the minor neglects to apply, then upon the application of a relative or friend of the minor, or of any other party to the action, or by the court on its own motion.
(c)If the person who lacks legal capacity to make decisions is a party to an action or proceeding, upon the application of a relative or friend of the person
who lacks legal capacity
to make decisions, or of any other party to the action or proceeding, or by the court on its own motion.
SEC. 3.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) A person who lacks legal capacity to make decisions.
(3) An unborn person.
(4) An
unascertained person.
(5) A person whose identity or address is unknown.
(6) A designated class of persons who are not ascertained or are not in being.
(b)For purposes of this section, a person who lacks legal capacity to make decisions includes only the following persons:
(1)A person who lacks capacity to understand the nature or consequences of the proceeding.
(2)A person who lacks capacity to assist the person’s attorney in the preparation of the case.
(3)A person for whom a conservator has been or may be appointed pursuant to Section 1801 of this code.
(c)
(b) If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several persons or interests.
(d)
(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 any other source as the court orders.
(e)
(d) Before a court appoints a guardian ad litem pursuant to this chapter, a proposed guardian ad litem shall disclose both of the following to the court and all parties to the action or proceeding:
(1) Any known actual or potential conflicts of interest interest, or any financial interest the proposed guardian ad litem has in the pending action, that would or might arise from the appointment.
(2) Any familial or affiliate relationship the proposed guardian ad litem has with any of the parties.
(f)An order appointing a guardian ad litem shall specify the powers of the guardian ad litem in the action. A guardian ad litem shall not exceed the authority provided for in the order.
(g)Unless otherwise ordered by the court, a guardian ad litem shall, at least annually, report all actions taken by the guardian ad litem on behalf of the ward pursuant to their appointment since their appointment or their previous report, whichever is later.
(e) If a guardian ad litem becomes aware 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 guardian ad litem shall promptly disclose the conflict of interest to the court.
