Appointment Generally

The appointment of Guardian ad Litem depends on whether the party for whom the appointment is made “has the capacity to understand the nature or consequences of the proceeding, and is able to assist counsel in preparation of the case.” (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.)

”A minor who is a party in a lawsuit must appear ‘by a guardian ad litem appointed by the court in which the action or proceeding is pending...’” (Williams v. Super. Ct. (2007) 147 Cal.App.4th 36, 46-47 citing Civ. Code, Sec. 372(a); In re Emily R. (2000) 80 Cal.App.4th 1344, 1356; accord, In re Josiah Z. (2005) 36 Cal.4th 664, 678) “If the minor is under 14 years old and is a plaintiff, "the appointment must be made before the summons is issued, upon the application of... a relative or friend of the minor.” (Williams, supra, 147 Cal.App.4th at 46-47 citing Civ. Code, Sec. 373(a.)

The appointment may be made on an ex parte application. (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1149 [ 33 Cal.Rptr.2d 46].)

A court has broad discretion in ruling on a guardian ad litem application. (In re Emily R., supra, at 1356.) “‘In the absence of a conflict of interest . . ., the appointment is usually made on application only and involves little exercise of discretion.’” (Williams v. Super. Ct. (2007) 147 Cal.App.4th at 47 citing In re Marriage of Caballero, supra, at 1149.)

The court has a duty to ensure that the ward's rights are protected by the guardian ad litem. (McClintock v. West (2013) 219 Cal.App.4th 540, 549-50 citing Berry v. Chaplin, supra,74 Cal.App.2d at 657.) The guardian ad litem, therefore, when representing an adult deemed incapable of representing themselves, is in a similar role to a conservator, who derives his or her authority from the power of the state to protect incompetent persons. (See, e.g., Young v. CBS Broadcasting, Inc. (2012) 212 Cal.App.4th 551, 562, 151 Cal.Rptr.3d 237.)

Removal of Guardian ad Litem

“[G]uardians ad litem are appointed by and subject to the supervision of the trial court. The trial court can remove a guardian if he or she is not performing responsibly, either on its own motion or at a party's request.” (McClintock v. West (2013) 219 Cal.App.4th 540, 552.)

“The Court has inherent authority to remove a Guardian ad Litem. The Court retains the inherent power to rescind or modify the action taken.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 643–644.)

A guardian ad litem may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardian’s charge. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453.) Although the guardian ad litem serves as a representative of the minor, it is the court’s duty to ensure the minor’s interests are protected. (McClintock v. West (2013) 219 Cal.App.4th 540, 549.) As such, a court has broad discretion in ruling on an application to appoint or remove a guardian ad litem. (Williams v. Superior Court (2007) 147 Cal.App.4th 36, 47.) A guardian ad litem should be removed if a conflict of interest or improper representation is shown. (Estate of Emery (1962) 199 Cal.App.2d 22, 29.)

“Should a guardian ad litem take an action inimical to the legitimate interests of the [incompetent person], the court retains supervisory authority to rescind or modify the action taken.” (Golin, supra, 190 Cal.App.4th at 644 (quoting Regency Health Services, Inc. v. Super. Ct. (1998) 64 Cal.App.4th 1496, 1502.)

While a guardian ad litem is not technically the party to a case, s/he is the representative of the party. The Guardian ad Litem appears of record in the case, and represents the interests of his ward, the party, in the legal proceeding. (McClintock v. West (2013) 219 Cal.App.4th 540, 549.) The GAL is appointed to prosecute or defend the suit and has the power to assent to procedural steps that facilitate a determination of the ward’s litigation. The GAL actively represents the interests of the party in legal proceedings. (J.W. v. Super. Ct. (1993) 17 Cal.App.4th 958, 964–965.)