Adult Guardianship Statute:
Cal. Prob. Code §§ 1400-1490; 1500-1611; 1800-1970; 2100-2893; 2900-2955
Right to Counsel in Statute: Initial Guardianship Proceedings:
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings:
Right to Counsel Statututory Citation:
Cal. Prob. Code § 1470(a); 1471; 1823(b)(6); Cal. Health & Safety Code § 416.95
Right to Counsel Definition in Statute:
ʺThe court may appoint private counsel for a ward, a proposed ward, a conservatee or a proposed conservatee in any proceeding under this division if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the person's interest.ʺ Cal. Prob. Code § 1470(a). "(a) If a conservatee, proposed conservatee or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of oounsel to assist in the particular matter, whether or not such person lacks or appears to lack legal capacity, the court shall, at or before the time of hearing, appoint the public defender or private counsel to represent the interest of such person in the following proceedings under this division: (1) A proceeding to establish conservatorship or to appoint a proposed conservator (2) A proceeding to terminate the conservatorship; (3) A proceeding to remove the conservator (4) A proceeding for an court order authorizing removal of termporary conservatee from the temporary conservatee's place of residence. (b) If a conservatee or proposed conservatee does not plan to retain legal counsel and has not requested the court to appoint legal counsel, whether or not such person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the itnerests of such person in any proceeding listed in subdivison (a) if, based on information contained in the court investigator's report or obtained from any other source, the court determines that the appointment would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee or proposed conservatee. (c) In any proceeding to establish a limited conservatorship, if the proposed limited conservatee has not retained legal counsel and does not plan to retain legal counsel, the court shall immediately appoint the public defender or private counsel to represent the proposed limited conservatee. The proposed limited conservatee shall paythe cost for such legal service if he or she is able. This subdivision applies irrespective of any medical or psychological inability to attend the hearing on part of the proposed limited conservatee as allowed in Section 1825.ʺ Cal. Prob. Code § 1471. "The proposed conservatee has the right to choose and be represented by legal counsel and has the right to have legal counsel appointed by the court if unable to retain legal counsel." Cal. Prob. Code § 1823(b)(6). ʺAny adult developmentally disabled person for whom guardianship or conservatorship is sought pursuant to this article shall be informed by a member or designee of the regional center and by the court of the person's right to counsel; and if the person does not have an attorney for the proceedings the court shall immediately appoint the public defender or other attorney to represent the person. The person shall pay the cost for such legal services if able.ʺ Cal. Health & Safety Code § 416.95.
Advocacy Role of Counsel Defined in Statute:
Professional Rules &/or Ethics Opinions:
Do not address how an attorney should treat a person with an alleged disability or diminished capacity. CA did not adopt Rule 1.14 of the ABA Model Rules.
Other Case Law:
“[W]hile the . . . court properly found [the mother] was unable to assist counsel in preparing her case, the record fails to show that she was incapable of expressing her wishes and exercising the judgment necessary to determine whether to waive her trial rights. . . It was her prerogative to decline to waive her rights and it was not within the province of her guardian ad litem, her attorney, or the court to force the waiver upon her." In re Christina B., 23 Cal. Rptr. 2d 918 (App. 4 Dist. 1993). "[A] guardian ad litem’s role is more than an attorney’s but less than a party’s the guardian must make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardian’s charge in mind. Specifically, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit.” Id. "The statutes regarding appointment of guardians ad litem were enacted to protect a minor and insane and incompetent person, not to preclude them from their legal rights." Briggs v. Briggs, 325 P.2d 219 (App. 1958). "Should a guardian ad litem take an action inimical to the legitimate interests of the ward, the court retains the supervisory authority to rescind or modify the action taken." Regency Health Services, Inc. v. Superior Court, 64 Cal. App. 4th 1496 (App. 2 Dist. 1998). "A guardian ad litem may be appointed in addition to a guardian or conservator under the Probate Code for custody purposes, because the role of a GAL, who is appointed only for purposes of the action, is solely to protect and defend the ward's interest in the suit." Golin v. Allenby, 118 Cal. Rptr. 3d 762 (App. 6 Dist. 2010). "Guardian ad litem has the power, under statute governing appointment of guardian ad litem for an incompetent party, to control the lawsuit, including controlling procedural steps necessary to the conduct of the litigation, making stipulations or concessions with court approval, waiving the right to a jury trial, and controlling trial tactics." In re Sara D., 104 Cal. Rptr. 2d 909 (App. 5 Dist. 2001). "...Mentally incompetent persons can take an appeal only by their general or ad litem guardian, but, .... this does not apply to an appeal take directly from the order of guardianship itself." In re Moss, 120 Cal. 695 (1898).