Just as a person must be competent enough to understand the ramifications of entering into divorce, they must also be able to understand what it means to become divorced, especially the financial consequences. Likewise, a person deemed “incompetent” or “insane” has the right to seek an end to their marriage, and a representative to file this request on their behalf. Of course that person is entitled to be represented by an attorney, however, sometimes it is necessary to also have a guardian ad litem or conservator work with the attorney to represent the incompetent person’s preferences, financial or otherwise. Then, the attorney files pleadings and legally represents the incompetent party in court according to those preferences.
What is a Guardian Ad Litem?
A guardian ad litem derives authority from the court’s power to protect incompetent persons in their proceedings, whether family court or elsewhere. A guardian ad litem, like a conservator (explained below), is not a party to the action, but is the party’s representative. The guardian ad litem will work with the protected 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. In this way, the incompetent spouse in the divorce case remains the “real party in interest” even if they lack capacity to maintain or defend on their own.
Under California Family Code section 2332(b), a guardian ad litem must be appointed when a petition for divorce is filed based on the other spouse lacking the legal capacity to make decisions. (This is listed as one of the reasons for the divorce on the Petition for Dissolution, along with the more-often used reason, “irreconcilable differences.”) The court also must appoint a guardian ad litem when a spouse is already under a conservatorship or otherwise “incompetent,” (i.e.: a person who qualifies for a conservatorship.)
What is a Conservatorship?
A conservatorship is where a responsible person or organization (called the “conservator”) is appointed by court to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances. Under California Probate Code 1801(b), a conservator is appointed by court upon showing that a person is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.” The person proving the need of a conservatorship must show more than just isolated incidents of the conservatee’s negligence, carelessness or incompetence. Under California Probate Code 1801(e), the need for a conservatorship must be shown by clear and convincing evidence, or that it is substantially more likely than not that the conservatorship is needed.
California Probate Code
California Probate Code § 1821 provides additional factors to be considered for a conservatorship:
(1) The inability of the proposed conservatee to properly provide for his or her needs for physical health, food, clothing, and shelter.
(2) The location of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship.
(3) Alternatives to conservatorship considered by the petitioner or proposed conservator and reasons why those alternatives are not available.
(4) Health or social services provided to the proposed conservatee during the year preceding the filing of the petition, when the petitioner or proposed conservator has information as to those services.
(5) The inability of the proposed conservatee to substantially manage his or her own financial resources, or to resist fraud or undue influence.
It is important to note that the court will not appoint a guardian ad litem to a case just because the attorney, other party, or family member is not happy with decisions made by a party to the action. One party may give up a large interest to the other party, or may do something that may seem unreasonable to a relative, but this does not mean that party is unable to manage his or her own financial resources. Fortunately, an appointment for a guardian ad litem or a conservator can be made prior to filing for divorce, and also anytime during a divorce case if the need arises at a later point.
If you are concerned that you or a family member’s interests are in danger of being compromised during divorce proceedings, speak to an experienced family law attorney at Cage & Miles, LLP today by calling 858-736-7251. We provide free 30-minute consultations.