Under California law, anyone over the age of eighteen years can be nominated and approved by the court as a guardian ad litem. Usually it is either the mother or father of the injured child; in some cases, it is another close family member or friend. In rare cases, the court can appoint a guardian ad litem to protect the best interest of the child. Generally speaking, if two parents are living together, one usually becomes the guardian ad litem. Sometimes the father or mother has a busy work schedule, so I generally counsel both parents to choose who will have more time in order to go to court and to the bank with me to deposit the settlement funds for their injured child when there is a settlement or award. If the case will more than likely have to be filed in court in the form of a lawsuit, then this always carries the chance that a jury trial may ensue; I counsel the parents to decide which one will have more time to attend the trial.

Sometimes I appoint the mother or father as the guardian ad litem for their injured child, even if they were injured in the same accident as the child and received a settlement from the same insurance company. This is still okay as long as it is disclosed in the court paperwork and the judge is made aware of it. As long as the interests of the mother or father are not adverse to the best interests of the child, this is allowable. I see this situation usually in cases in which a parent is the driver of an automobile that undergoes an accident caused by an at-fault third party. I have represented three minor children, all having ridden together in the same vehicle, injured child in paternity proceedings could not represent child in pro per (although she could appear in her own right in pro per).  Due to the negligence of an at-fault third party; the judge will look at the settlement for each child to make sure it is fair and equitable.

Close Family Member Can be Appointed Guardian Ad Litem

In other cases, I have had to appoint a close family member because—for whatever reason—both parents are unavailable. I have had cases in which the mother is on military deployment overseas and the father is unavailable. In one case, I appointed the grandmother guardian ad litem. In another case, I appointed the aunt guardian ad litem for the injured minor child. In much rarer cases, both parents may have their own claim against the defendant, or for whatever reason, neither parent can be the guardian ad litem. Again, the next choice would be the closest family member that can be available for the responsibility. If the child has no family at all, then the court can appoint the guardian ad litem. This situation can also occur if both parents cannot agree on who should be the guardian ad litem; here, the court would then appoint one for the child.

Responsibilities of the Guardian ad Litem

The responsibilities of the guardian ad litem are limited to approving the settlement on behalf of the minor, opening the blocked account with the bank or investment vehicle, and communicating with the minor child about the settlement funds. The communication includes whether or not the early withdrawal of the funds is ever needed. I counsel each guardian ad litem about their rights and responsibilities so that they can make an informed decision about being a guardian ad litem for an injured minor child. The job of the guardian ad litem does require responsibility and does not end until the minor child reaches the age of eighteen. If the guardian ad litem does not believe the settlement is fair, but the court believes the settlement to be fair and in the best interests of the child, the court can, in rare circumstances, remove the current guardian ad litem and reappoint a new guardian ad litem in order to protect the minor child. If for any reason, the guardian ad litem can no longer act as the guardian ad litem, the court can appoint a new one.

Legal Research for this Article Posting:  Monfared (2000) 77 CA4th 1402, 1410, 92 CR2d 459, 464. California Code of Civil Procedure Section 373(a). Sarracino v. Sup. Ct. (Sarracino) (1974) 13 C3d 1, 12, 118 CR 21, 29. 120 See San Diego Sup. Ct. Rule 2.4.6A.  California Code of Civil Procedure Section 373(b). Scruton v. Korean Air Lines Co; Ltd., supra, 39 CA4th at 1606-1608, 46 CR2d at 644.


Mark Blane
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San Diego Personal Injury Lawyer | California Car Accident Attorney