Your Client or Opposing Party is Incompetent: Appointment of Guardian Ad Litem for Incompetent Litigant in California

Author: Codie Dukes

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April 27, 2018 10:56am

In California, a party must have “capacity” to prosecute or defend a civil lawsuit. A party who lacks the requisite capacity may be deemed “incompetent” by the court and a guardian ad litem may be appointed to represent him or her in the litigation.

Scenarios: (1) you are an attorney defending a personal injury action and based upon your interactions with your defendant client, you have reason to believe your client is unable to understand the nature or consequences of the lawsuit, or is unable to assist you with the preparation of the case; (2) you are an attorney defending a personal injury action and during the course of mediation and/or plaintiff’s deposition, plaintiff’s competency is called into question.

What recourse is available when an attorney has good cause to be believe a litigant is incompetent? This article discusses the general framework in California for the appointment of a guardian ad litem under these circumstances.

What is Incompetence? 

In California, a party is incompetent, for purposes of determining necessity to appoint a guardian ad litem, if he or she lacks capacity to understand the nature or consequences of the proceeding, or is unable to assist counsel in the preparation of the case.  AT&T Mobility, LLC v. Yeager, E.D.Cal.2015, 143 F.Supp.3d 1042 (2015).

The provisions on representation of insane or incompetent persons are similar to those applicable to infants. Both groups are regarded by the law as unable to act independently. Section 372 of the Code of Civil Procedure provides that when a person lacking 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.” This section defines an incompetent person to include a person for whom a conservator has been appointed.

California law sets out an extensive scheme for appointment of conservators, not merely for the actually insane and incompetent, but also for persons who suffer only partial physical or mental disabilities not rendering them totally incompetent. Cal. Probate Code §§ 1400 et seq., 1800 et seq.

An adult is incompetent for purposes of Code of Civil Procedure Sections 372 and 373 if a preponderance of the evidence shows that the individual is either: (1) a person for whom a conservator could be appointed, as set forth by Probate Code Section 1801, or (2) unable to understand the proceedings or effectively assist his or her attorney in protecting his or her interests, as set forth by Penal Code Section 1367. Sarracino v. Superior Court, 13 Cal.3d 1, 11-12 (1974).

Evidence of incompetence may be drawn from various sources, but the evidence relied upon must “speak … to the court’s concern … whether the person in question is able to meaningfully take part in the proceedings.” In re Christina B., 19 Cal.App.4th 1441, 1450 (1993). California law adopts a broad view of relevance, emphasizing a trial judge’s “duty…to clearly bring out the facts.” In re Conservatorship of Pamela J., 133 Cal.App.4th 807, 827–28 (2005). The court’s first-hand observations of and interactions with the person may inform a court’s decision. See Guardianship of Walters, 37 Cal.2d 239, 249 (1951); see also In re McConnell’s Estate, 26 Cal.App.2d 102, 106 (1938).

What is a Guardian Ad Litem?

“Ad litem” in Latin means “for the suit.” A guardian ad litem serves as the legal guardian of the person who is legally incapacitated for purposes of the suit for which the ad litem has been appointed. A guardian ad litem makes strategic and fundamental decisions on behalf of the incompetent person. In re Marriage of Caballero, 27 Cal.App.4th 1139, 1149 (1994).

A guardian is an officer of the court, with a duty to protect the rights of an incompetent person. County of Los Angeles v. Superior Court, 91 Cal.App.4th 1303 (2001). “A guardian ad litem may be appointed in any case when it is deemed by the court …expedient to appoint a guardian to represent the …incompetent person.” C.C.P. §372(a). There are no statutory guidelines concerning who may be appointed as a guardian ad litem. Rather, the trial court has authority to appoint any individual it deems appropriate to act in the incompetent party’s best interests.

Guardian’s Powers and Compensation

A guardian ad litem has a great deal of power and decision-making discretion, including accepting a settlement compromise and discharging claims as necessary. The appointment of a guardian ad litem may be utilized as an effective settlement tool, particularly in cases involving an incompetent party who may be more susceptible to influence by their attorney.

For example, an attorney must communicate any settlement offer to his or her client. Cal. Rules of Professional Conduct, Rule 3-500. However, an incompetent party may not understand or appreciate the significance of a settlement offer, and may be unduly influenced by his or her attorney. This is particularly true when an incompetent plaintiff’s attorney has taken the case on a contingency basis and has a stake in the outcome of the litigation. The appointment of a guardian ad litem alleviates the potential for attorney control because the guardian steps into the shoes of the client for purposes of the attorney-client relationship and assumes decision making responsibility that ordinarily belongs to the incompetent client.

The court is required to pay the guardian’s fair compensation for reasonable expenses incurred in pursuing or defending a claim on behalf of the incompetent party, i.e., costs incurred. Such fees shall not be excessive, nor intended to “reward” the guardian.

Procedure for Appointment

If a person lacking legal capacity to make decisions is a party or is to be made a party, then a guardian ad litem may be appointed on application of a relative or friend of the person, on the application of any other party in the action, or on the court’s own motion. Code of Civil Procedure § 373(c). As is true for appointments for minors, the appointment may properly be made on an ex parte application. Sarracino v. Superior Court, 13 Cal.3d 1, 12 (1974); Granger v. Sherriff, 133 Cal. 416, 418 (1901); Briggs v. Briggs, 160 Cal.App.2d 312 (2d Dist.1958).

California Judicial Council Form CIV-010 is the required application and order for appointment of a guardian ad litem in a civil lawsuit.  A formal hearing on the application is not required, but “the court should make an inquiry sufficient to satisfy it that the (party) is, or is not, competent … The court’s decision on this issue should be stated on the record.” In re Jessica G., 93 Cal.App.4th 1180, 1187-1188 (2001).

A guardian may be appointed at any stage of the litigation. Code of Civil Procedure Section 373(c) does not specify a time for the appointment of a guardian ad litem for an insane or incompetent person. However, in the case of an insane or incompetent person, the Court must appoint a guardian ad litem whenever the need for one is brought to the court’s attention.


Whether you are an attorney representing an incompetent defendant or opposing an incompetent plaintiff, you should consider pursuing an application for the appointment of a guardian ad litem who will be better suited to reasonably and meaningfully evaluate the issues of liability, damages, and settlement value.

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