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Guardian Ad Litem

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R

rmdupree

Guest
California

My brother is mentally ill. We have appointed a guardian ad litem for his divorce proceedings. Is it necessary to have one appointed for another case he has that is settling? If so, can we use the same guardian ad litem and appointment papers from the divorce?
 


I AM ALWAYS LIABLE

Senior Member
My response:

Yes, if the other settling party wants to have the court "confirm" the settlement.

A guardian ad litem may be appointed to represent an incompetent person, or person for whom a conservator has been appointed in any case in which the court or judge deems it expedient to do so, notwithstanding that the incompetent person, or person for whom a conservator has been appointed may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate. [CCP §372]

The appointment of a guardian ad litem for an insane or incompetent party to an action or proceeding is made on application of a relative or friend of the insane or incompetent person, any other party to the action or proceeding, or by the court on its own motion. [CCP §373(c)] Unlike CCP §373(a) and (b) which specify a time for the appointment of a guardian ad litem for a minor, CCP §373(c) does not specify a time for the appointment of a guardian ad litem for an insane or incompetent person.

A judgment rendered against an insane or incompetent person who was not represented by a guardian ad litem may be set aside. [Winslow v. McCarthy (1918) 39 Cal.App. 337, 178 P. 720.] However, because the failure to appoint a guardian ad litem is not a jurisdictional defect, but a mere irregularity, the judgment will not be set aside unless a different result would have been probable had the error not occurred. [In re Lisa M. (1986) 177 Cal.App.3d 915, 225 Cal.Rptr. 7.]

• Appointment of guardian ad litem for insane or incompetent party to action or proceeding [CCP §373(c)]
– Who may request
– – Relative or friend of incompetent person
– – Any other party to action or proceeding
– – Court on its own motion
– Time for appointment not specified



Petition for appointment of guardian ad litem for incompetent plaintiff [CCP §373(c)]

_________[Name, office address, telephone number, and
state bar number of attorney]
Attorney for _________


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF _________ _________
_________[Name],an Incompetent
Person,
by Case No. _________
_________[Name], PETITION FOR APPOINTMENT
_________ [his or her] OF Guardian ad Litem,
FOR PLAINTIFF
GUARDIAN AD LITEM [CCP §373]
Plaintiff,

vs.
_________[Name],
Defendant.


____________________________________________________________
_________, Petitioner, states the following:
1. _________[Name of incompetent person] is _________[an incompetent person].
2. I, Petitioner, am qualified to serve as guardian ad litem because: _________[indicate relationship to insane or incompetent person, such as: I am a friend of _________ (name of incompetent person)].
3. _________[Name of incompetent person] has a cause of action against the above-named defendant arising out of _________[describe nature of cause of action].
4. No previous petition for appointment of guardian ad litem has been made.
WHEREFORE, petitioner requests an order appointing _________[name of proposed guardian ad litem], as guardian ad litem for _________[incompetent person].

Dated _________.
_______________________
[Signature of petitioner]
Petitioner
Dated _________.
_______________________
[Signature of attorney for petitioner]
Attorney for Petitioner



Who may request appointment: The appointment of a guardian ad litem for an incompetent party to an action or proceeding is made upon application of a relative or friend of the insane or incompetent person, any other party to the action or proceeding, or by the court on its own motion. [CCP §373(c)]

Some local rules require that an application for the appointment of a guardian ad litem be accompanied by the written consent of the person nominated and of the one for whom the guardian is sought, if the ward is over 14 years of age.

Good luck.

IAAL
 

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