PROBATE RULE 13: GUARDIAN AD LITEM AND COMPROMISES OF CLAIMS OF MINORS AND PERSONS WITH A DISABILITY
A. GUARDIAN AD LITEM
B. WHERE PETITIONS ARE PRESENTED
C. PRESENCE OF MINOR OR PERSON WITH A DISABILITY
D. EX PARTE PETITIONS
E. MEDICAL MALPRACTICE MATTERS
G. FUNDS IN BLOCKED ACCOUNT IN NON-GUARDIANSHIP CASES
H. TRANSFER OF ASSETS OF A MINOR OR A PERSON WITH A DISABILITY TO A TRUST UNDER PROBATE CODE SECTION 3600 et. seq.
A. GUARDIAN AD LITEM
A guardian ad litem has no authority to accept funds on behalf of a minor or person with a disability.
Unless otherwise ordered by the Court, all claims of minors and persons with a disability, both where an action is pending and where no action is pending, must be heard by the judge assigned to hear compromises of claims of minors and persons with a disability.
Unless excused by the Court, the minor or person with a disability, the petitioner, and at least one of the minor's parents or guardians must be present at the hearing.
In certain circumstances, in the Court's sole discretion, petitions may be presented ex parte. These cases are only those in which the net settlement to the minor or person with a disability, after deduction of attorney fees and costs, is less than $5,000.
Medical malpractice cases may justify a higher attorney fee than that commonly awarded in compromises of claims of minors or persons with a disability. The Court will, in an appropriate case, award the maximum fee permissible under Business and Professions Code §6146. The fee contract must be disclosed to the Court upon request.
Upon approval of the petition to compromise, the judge must direct whether the funds are to be paid to a parent, to a blocked account, to a guardian or conservator of the estate, or to some other appropriate fiduciary. When deposit in a blocked account is ordered, parties must use the Judicial Council forms referred to in Section 4.E.
It is the responsibility of the fiduciary to file a Receipt for the blocked account, signed by an officer of the financial institution accepting the deposit, within 15 days of the date of deposit. If the Receipt has not been filed within 45 days of the order, the fiduciary must file a written explanation with the Court within 45 days of the order, stating the reason the Receipt has not been filed and when the fiduciary expects the Receipt to be filed.
A request for withdrawal of funds for the minor's support, maintenance, or education may be made ex parte if accompanied by a sufficient showing of need. However, where the minor has a living parent or the minor receives or is entitled to support from another source, the petition must contain the allegations referred to in Section 12.F. In such cases the Court may require that the matter be set for noticed hearing. A petition for withdrawal of funds must be made on Judicial Council form “Petition For Withdrawal of Funds From Blocked Account (Judicial Council form MC-357 ), and the petitioner must submit for the Court’s signature the Judicial Council form “Order For Withdrawal of Funds From Blocked Account” (Judicial Council form
Where there is no prior Court record of the minor's date of birth, a petition to release funds from the blocked account upon the minor's majority must be accompanied with a copy of the minor’s birth certificate.
When it is proposed to put the assets of a minor or person with a disability in a trust, under Probate Code § 3600 et. seq., including a special needs trust, the petition should provide detailed information demonstrating that the proposed trustee is qualified to be appointed as a trustee of the trust. In addition, the proposed trust must comply with all provisions required in CRC 7.903, including but not limited to requiring a bond for the trustee and periodic accountings to the Court. The proposed trust should be attached to the petition as an exhibit. If the beneficiary of the trust is conserved, at the time of filing of the trustee's accounting, a "Referral for Court Investigator- Conservatorship" form (Attachment PB-4002 ) must be submitted with the notice of hearing and the original accounting, for review by the Court Investigator. See also Rule 9.A. (1) and (2) on the format of accountings and on accounting compliance dates.
The trustee must file the trust, the court order approving establishment of the trust, and the trustee's bond, if applicable, in a new file with a probate file number, and the filing should take place within 30 days after court approval of the trust.