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Local Probate Rules of Court
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
H. DISTRIBUTION
I. FUNDS IN BLOCKED ACCOUNT IN NON-GUARDIANSHIP CASES
J. TRANSFER OF FUNDS OF A MINOR OR A PERSON WITH A DISABILITY
TO A TRUST
A. GUARDIAN AD LITEM
A guardian ad litem has no authority to accept funds on
behalf of a minor or person with a disability.
(Eff. 7/01/05)
B. WHERE PETITIONS ARE PRESENTED
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.
(Eff. 7/01/05)
C. CONTENTS OF PETITION
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.
(Eff. 1/01/04)
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.
(Eff. 7/01/05)
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.
(Eff. 7/01/05)
D. PRESENCE OF MINOR OR PERSON 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.
(Eff. 7/01/05)
E. EX PARTE PETITIONS
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.
(Eff. 7/01/05)
F. ATTORNEY FEES
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 (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.
(Eff. 7/01/05)
G. MEDICAL MALPRACTICE MATTERS
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.
(Eff. 7/01/05)
H. DISTRIBUTION
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.
I. FUNDS IN BLOCKED ACCOUNT IN NON-GUARDIANSHIP CASES
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 MC-358).
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.
J. TRANSFER OF FUNDS OF A MINOR OR A PERSON
WITH A DISABILITY TO A TRUST
When it is proposed to put the funds of a minor or person
with a disability in a trust, 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 period
accountings to the Court. The proposed trust should be attached to the
petition as an exhibit.
(Eff. 7/01/05)
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 2 copies of the
Confidential Document Cover Sheet. (See
attached local form
PB-4003.)
(Eff. 7/01/06)
Probate Rules: Summary -
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List of attached Probate local forms
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