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. CONTENTS OF PETITION
D. PRESENCE OF MINOR OR PERSON WITH A DISABILITY
E. EX PARTE PETITIONS
F. ATTORNEY’S FEES
G. MEDICAL MALPRACTICE MATTERS
I. FUNDS IN BLOCKED ACCOUNT IN NON-GUARDIANSHIP CASES
J. TRANSFER OF ASSETS OF A MINOR OR A PERSON WITH A DISABILITY TO A TRUST UNER 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.
The petition to compromise a minor's claim must contain, in addition to those matters required by statute and by the CRC 7.950 to 7.955, the names and addresses of the minor's parents.
Where the minor's settlement is part of a larger settlement, the petition must state in detail the factual basis for the proposed allocation to the minor or the person with a disability.
For personal injury claims of minors and persons with a disability, unless waived by the Court, the petition must have attached a current medical report (prepared within four weeks of the date of the petition) that gives a diagnosis and a prognosis of the condition of the individual. The report must be prepared by a licensed physician who has treated the minor or person with a disability. It is not permissible to substitute the medical records of the minor or the person with a disability for this report.
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.
In any matter involving Court approval of the claim of a minor or a person with a disability for property damage, personal injury and/or wrongful death, the Court must allow the attorney a fee not in excess of twenty-five percent of the net amount received for the minor or person with a disability (total recovery less costs incurred by the attorney), unless the attorney by declaration establishes good cause for the Court, in the exercise of its discretion, to allow a larger fee.
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. The trust may be filed as a confidential document by attaching one copy of the Confidential Document Cover Sheet (Attachment PB-4003 ).