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
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 this 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 require notice and a copy 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 interest arising from appointment, and any familial or affiliate relationship with any of the parties.
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.
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
August 15, 2022 |
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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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Senate
April 27, 2022 |
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Amended
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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 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 require a proposed guardian ad litem to disclose to the court and all interested 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.
appointment.
(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.
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.(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 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, if all of the following occur: estate.
(B) If application is made for appointment of a guardian ad litem for a person described in paragraph (1), and that person has a guardian or conservator of the estate, the application may be granted only if all of the following occur:
(i) Notice of the guardian ad litem
application is provided The applicant gives notice and a copy of the application to the guardian or conservator of the estate upon the filing of the application. filing 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)
(C) 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.
(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.
(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.
(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 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.
(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.
(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) 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.
(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.
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) 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 any other source as the court orders.
(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, or any financial interest the proposed guardian ad litem has in the pending action, 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.
(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.
