Child Support Payment Calculator
Is Divorce The Right Option For You?
Protect Your Assets and Net Worth During Divorce
Get a 30–Minute, Free Consultation
You will walk away with an idea of what choices you can make and what each different path would look like – whether or not you wish to pursue any action now.
In addition to the more common ground of irreconcilable differences, the California family code provides that the legal grounds for a divorce or legal separation include permanent legal incapacity to make decisions.
To obtain a divorce or legal separation on the ground of permanent legal incapacity to make decisions, proof must be provided to the court, including medical or psychiatric testimony, that the spouse was, at the time the petition was filed, and remains, permanently lacking the legal capacity to make decisions.
When would someone have an appointed Guardian ad Litem?
If an individual permanently lacks the legal capacity to make decisions, how then do they participate in the family law case? The answer is that the court may appoint a California Guardian ad Litem for that party.
The court may also appoint a Guardian ad Litem for an incapacitated party in the initial stage of paternity cases, cases for child custody and support, and domestic violence cases. If a party becomes incapacitated during later stages of a family law case, they can have an appointed Guardian ad Litem at that time as well. Again, proof must be provided to the court, including medical or psychiatric testimony, that the party for whom a Guardian ad Litem is to be appointed, is lacking the legal capacity to make decisions.
The court may also appoint a Guardian ad Litem for a minor child, who lacks legal capacity due to their minority. However, this can only be done if the child is a party to the case, such as in a domestic violence case brought by the minor. If a minor child is not a party, their interests may still be represented by appointment of minor’s counsel.
What does it mean when someone lacks legal capacity?
When someone lacks legal capacity, it means that they do not have the authority under law to engage in a particular undertaking or maintain a particular status. A person lacking legal capacity does not have this authority because they do not have the ability to understand the nature and consequences of their decision(s) or to make and communicate their decision(s).
This means a person lacking legal capacity does have the ability to decide what course of action is right for them in a situation, or the ability to enter into a legally binding agreement.
In the context of family law, this means a person lacking legal capacity does not have the ability to determine what position to take on the issues presented in the family law case or to give informed consent to any agreements to resolve the issues presented in the family law case. A person may lack legal capacity for different reasons including being a minor or being a person with psychological disabilities that rise to a certain level.
While a minor generally lacks legal capacity, the California Family Code provides that a minor, who is at least 12 years of age, may appear in court without a Guardian ad Litem for purposes of requesting or opposing a domestic violence restraining order.
What is the role of a Guardian ad Litem in California?
A court appoints a Guardian ad Litem in order to protect an incompetent party’s interests in a legal proceeding, whether in family court or in another area of law. A Guardian ad Litem is not a party to the action, rather, the Guardian ad Litem is the incompetent party’s representative. The Guardian ad Litem stands in the place of the incompetent individual in the case to make decisions that are in the incompetent person’s best interest.
When a Guardian ad Litem is appointed for a party lacking legal capacity in a family law case, it is the duty of the Guardian ad Litem to appear in that case on behalf of the party. This includes attending all court hearings.
The Guardian ad Litem has the power, with the approval of the court, to compromise with respect to the legal proceeding, to agree to orders or judgments, and to satisfy any judgment or release any claim.
This includes entering into agreements that the party lacking legal capacity is then legally bound to. In this way, the incompetent spouse or parent has a voice in the case and their interests are protected, even though they lack the legal capacity to maintain or defend on their own.
If the party lacking legal capacity has an attorney, the Guardian ad Litem will inform the attorney of any decisions being made on the parties’ behalf. The Guardian ad Litem will then work with the party’s attorney to handle his or her assets in the best interest of the protected party. They will make financial and custody decisions for the protected party in a manner that the party him or herself would make.
How do you become a Guardian ad Litem in California?
Under California family code section 2332(b), if a spouse does not have a conservator or if the other spouse is the conservator, a Guardian ad Litem must be appointed when a petition for divorce is filed based on permanent incapacity to make decisions.
The court must also appoint a Guardian ad Litem when a minor, a party who lacks legal capacity to make decisions, or a party for whom a conservator of the person has been appointed is party. If a conservator of the estate has been appointed for a party, the court may appoint a Guardian ad Litem.
In order to be appointed a Guardian ad Litem, you must be 18 years old or older and approved by the court, either by filing an application to be appointed or on the court’s own motion.
It is important to note that the court will not appoint a Guardian ad Litem for a party just because a family member, or other individual, is not happy with decisions made by a party to the action. Proof must be provided to the court, including medical or psychiatric testimony, that the spouse lacks the legal capacity to make decisions.
Guardian ad Litem vs. conservatorship
If a person lacking legal capacity is likewise unable to provide for their daily care or manage their financial affairs, it may be appropriate to appoint a conservator for that person. There are two types of conservatorships: conservator of the person and conservator of the estate.
The duty of a conservator of the person is to ensure the conservatee's daily needs are met, such as food, clothing, shelter, and health care.
The duty of a conservator of the estate is to manage the conservatee’s financial affairs. When a person’s inability to provide for their daily care or manage their financial affairs is because they are a minor, a guardian, rather than a conservator, is appointed.
When a person lacking capacity has had conservator or guardian appointed on their behalf, the court may, and in some cases must, still appoint a Guardian ad Litem for the specific purpose of acting on a person’s behalf in a legal proceeding.
If you are concerned that you or a family member’s interests are in danger of being compromised during family law proceedings due to legal incapacity, speak to an experienced family law attorney at Cage & Miles, LLP today by calling 858-736-7251. We provide free 30-minute consultations.
