A guardian ad litem (or “GAL”) is a person chosen and charged, typically by a superior court judge, to stand in the shoes of a disabled, or incompetent person under the law. In our practice, typically these proceedings involve minors involved legal wrangling of some sort or another. But most often we are dealing with children, or teens who lost a mother or father as the result of an infamous act by an evildoer. The minor often will have an interest in other proceedings, such as a will, or a trust.
Ehline Law will sign up the victim, or their anticipated guardian, pending court approval, fill out and file the Judicial Council Approved Form FL-935 here on this downloadable PDF (Rev. January 1, 2008; See also Code of Civil Procedure, § 373; Family Code, § 7635)
373. When a guardian ad litem is appointed, he or she shall be appointed as follows: (a) If the minor is the plaintiff the appointment must be made before the summons is issued, upon the application of the minor, if the minor is of the age of 14 years, 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 of the age of 14 years, 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 an insane or incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such insane or incompetent person, or of any other party to the action or proceeding, or by the court on its own motion.
7635. (a) The child may, if under the age of 12 years, and shall, if 12 years of age or older, be made a party to the action. If the child is a minor and a party to the action, the child shall be represented by a guardian ad litem appointed by the court. The guardian ad litem need not be represented by counsel if the guardian ad litem is a relative of the child. (b) The natural mother, each man presumed to be the father under Section 7611, and each man alleged to be the natural father, may be made parties and shall be given notice of the action in the manner prescribed in Section 7666 and an opportunity to be heard. Appointment of a guardian ad litem shall not be required for a minor who is a parent of the child who is the subject of the petition to establish parental relationship, unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case. (c) The court may align the parties. (d) In any initial or subsequent proceeding under this chapter where custody of, or visitation with, a minor child is in issue, the court may, if it determines it would be in the best interest of the minor child, appoint private counsel to represent the interests of the minor child pursuant to Chapter 10 (commencing with Section 3150) of Part 2 of Division 8.
In all events, the State of California has a substantial interest in overseeing and protecting the rights, privileges and immunities of vulnerable minors who have an interest in money, property, or care, for example. The court in its discretion, also may empower a GAL for an unwary adult, like a person in a coma, or an old person who is senile, and who was ripped off or injured due to corrupt and incompetent medical providers. These categories of people are unable to competently make choices that require a sufficient amount of education, life experience and judgment. The law says a minor is incompetent for these purposes and common sense says a person who is knocked out, or an old person who doesn’t know their own name, does not possess the mental faculties to be able to make challenging decisions
Typically a guardian ad litem is a surviving parent, grandma, grandpa, uncle or aunt, and sometimes the court will appoint attorneys, such as probate type attorneys to represent a child’s interests in nasty divorce cases where the parents are fighting over support, or who has rights to the child. Most of the time, the court also makes the attorney for the victim, act as the attorney for the guardian ad litem, with respect to decision making and instructions to be followed.
If you want to learn more about California tort law, contact Ehline Law Firm PC at 888-400-9721.