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self-study / Civil Practice

Jun. 10, 2021

Competency in the civil litigation arena

Stanley Mosk Courthouse

Scott J. Nord

Judge, Los Angeles County Superior Court

Whittier College School of Law

The following question was posed during a roundtable discussion: "What steps can a court take when it determines that a self-represented civil litigant is not mentally competent to participate in the proceedings?" The answer is...

Competency under the law

Both the due process clause of the 14th Amendment to the U.S. Constitution and state law prohibits the state from trying or convicting a defendant who is mentally incompetent to stand trial. People v. Ary, 51 Cal. 4th 510, 517-18 (2011). As such, criminal proceedings have a unique rules and resources for handling these types of cases. California Penal Code Section 1367 provides that a person cannot be tried while he or she is "mentally incompetent," which is defined to mean that "as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." Section 1367(a). Penal Code Sections 1368 and 1369 lay out mechanisms for determining the mental competency of a criminal defendant and, ultimately, Section 1370(a)(1)(B) states, "[i]f the defendant is found mentally incompetent, the trial ... shall be suspended until the person becomes mentally competent." See also California Rules of Court, Rule 4.130.

Civil cases do not trigger the same constitutional concerns, and therefore have an amalgam of laws addressing the capacity issue. Similar to criminal proceedings, Probate Code Sections 810 to 812 set forth a mental capacity sliding scale standard related to certain legal acts and decisions. Section 810(a) establishes, "a rebuttable presumption that all persons have the capacity to make decisions and to be responsible for their acts or decisions." Section 811(a) provides that a person with unsound mind or lacks capacity when there is a deficit in at least one identified mental function and "a correlation [exists] between the deficit or deficits and the decision or acts in question." Section 812 provides: "Except where otherwise provided by law, including, but not limited to, ... the statutory and decisional law of testamentary capacity, a person lacks the capacity to make a decision unless the person has the ability to communicate ... the decision, and to understand and appreciate, to the extent relevant ... : (a) The rights, duties, and responsibilities created by, or affected by the decision[;] (b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision[; and] (c) The significant risks, benefits, and reasonable alternatives involved in the decision." Probate Code Section 812(a)-(c); see Lintz v. Lintz, 222 Cal. App. 4th 1356, 1351-52 (2014). While Sections 810 through 812 deal with competency for basic life decisions (i.e., medical care, financial issues), Probate Code Section 6100.5, details testamentary capacity and employs a different legal standard than the one stated above. See In re Lingenfelter's Estate, 38 Cal. 2d 571, 582 (1952). Additionally, Section 810(b) recognizes that persons with mental or physical disorders "may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions."

A comparison of the criminal and civil approaches demonstrates that similar questions about a litigant's competency must be addressed. For example, understanding of the nature of the proceedings, the potential consequences, and the risks and benefits involved in the litigation. Unfortunately, the above cited Penal Code sections and Rule of Court are only applicable to criminal proceedings, and there is no parallel process should a court determine a party is incompetent to continue in civil proceedings. So, what is the path forward when a court recognizes that a litigant may have mental capacity issues which affects their ability to effectively participate in civil proceedings?

Could the court appoint counsel?

Could the court just appoint counsel to represent the incompetent party? Again, in the criminal setting, the Sixth Amendment of the U.S. Constitution guarantees a defendant a right to counsel but also allows him to waive this right and to represent himself without counsel. United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir.2004); see also People v. Williams, 110 Cal. App. 4th 1577, 1585 (2003). In fact, criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right to represent themselves." See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975). However, the Sixth Amendment does not apply to the civil arena, except in limited matters. The Seventh Amendment, which applies to civil matters, only discusses the right to a jury trial.

The appointment of counsel also presents other thornier issues. First, as discussed above, a party (either in a criminal or civil proceeding) is free to choose counsel of their own choice or no counsel at all if they so desire. The court, in a civil context, cannot just impose counsel, against a party's will, for their representation. Even assuming the court could appoint counsel over the litigant's objection, which counsel to appoint creates an issue of selection process which is not standardized, as it in the criminal context (i.e., public defender, alternate public defender, etc). Assuming there are two self-represented parties and the court were to appoint counsel for one, would it then be obligated, out of fundamental fairness, to appoint counsel for the other? Would counsel be appointed for all matters or only on a limited scope basis for each hearing, which would create an issue of continuity of representation? How much will they be paid and by whom?

What about appointing a guardian ad litem?

At the very least, should the court appoint a guardian ad litem to represent an incompetent party? California Code of Civil Procedure Section 372(a)(1), provides that when "a person who lacks legal capacity to make decisions ... is a party, that person shall appear ... by ... a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case." Section 372(a)(1) continues "A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent ... the person lacking legal capacity to make decisions." California Code of Civil Procedure Section 373 states, "[w]hen a guardian ad litem is appointed, he or she shall be appointed as follows: (c) If the person who lacks legal capacity to make decisions is a party to an action or proceeding, upon the application of a relative or friend of the person lacking legal competence to make decisions, or of any other party to the action or proceeding, or by the court on its own motion."

In In re Guardianship of Christiansen, 248 Cal. App. 2d 398 (1967), the court stated that, "the real party in interest is the incompetent, and the general guardian, or, if appointed, a guardian ad litem merely appears for him." The court continued "executors and administrators are strictly and technically representatives of the deceased, while guardians are not technically representatives of anybody. They simply stand in the position of protectors. The guardian is the counsel assigned by operation of law to conduct the suit." In In re Jessica G., 93 Cal. App. 4th 1180, 1186-87 (2001), the court stated that "the introduction of a guardian ad litem into the case is no small matter ... The court is being asked to dramatically change the [litigant's] role in the proceeding by transferring the direction and control of the litigation from the [litigant] to the guardian ad litem." (Citation omitted.) "The guardian ad litem has broad powers: 'the power to control the lawsuit, including controlling procedural steps necessary to the conduct of the litigation ... and controlling trial tactics.' Because 'the decisions made can affect the outcome of the ... proceeding, with a corresponding effect on the [litigant] ... the [litigant] has a direct and substantial interest in whether a guardian ad litem is appointed." Id.

In In re Sara D., 87 Cal. App. 4th 661, 670-71 (2001), the court stated that "that a guardian ad litem can be appointed on an ex parte application" and further held "we will not attempt to declare a rule applicable to all such cases." However, a litigant is entitled, at a minimum, "to an informal hearing and an opportunity to be heard" and "an opportunity to explain why a guardian ad litem was not required [or] necessary." Id. A hearing would also afford the court and the litigant the opportunity "to gain a full understanding of the circumstances. Also, a record would have been established for appellate review." Id. "The inquiry we have suggested is consistent with Code of Civil Procedure section 373, subdivision (c), which authorizes the court to appoint a guardian ad litem on its own motion. To exercise this authority, the court must obtain sufficient information that the parent does not understand the proceedings or cannot assist his/her attorney in protecting his/her interests. Inquiry is one way to obtain this information." Id. at 672. However, neither a formal hearing nor a noticed motion is required. Id.

In AT&T Mobility, LLC v. Yeager, 143 F.Supp.3d 1042 (E.D. Cal. 2015), the court, applying California law, found famed test pilot General Charles "Chuck" Yeager incompetent to proceed in the case without representation and the appointed a guardian ad litem. In rendering a opining on General Yeager's competency, the decision cited a "broad range of evidence [that] may [be used to] inform the court's decision: a report of mental disability by a government agency; the sworn declaration of the person or those who know him; the representations of counsel; a diagnosis of mental illness; a review of medical records; the person's age, illnesses, and general mental state; and the court's own observations of the person's behavior, including the person's 'manner and comments throughout the case' that suggest he does not 'have a grasp on the nature and purpose of the proceedings.'" Id. at 1050.

However, in Sara D., the appointment of a guardian ad litem was overturned despite the litigant suffering from "psychological problems (major depression [mild recurrent], posttraumatic stress disorder with chemical dependency in remission, and borderline personality disorder) and ... fragmented thoughts which made it difficult for her to stay focused." In re Sara D., 87 Cal. App. 4th at 674. These findings did not "support a conclusion that the litigant did not understand the nature of the proceedings or was unable to assist counsel in protecting her interests." Id. In Jessica G., the appointment of a guardian ad litem was also overturned where the discussion of the appointment was held in chambers outside the presence of the litigant, the term "GAL" was not explained to the litigant, and where "Mother testified at the section 366.26 hearing in April 2001, her testimony was coherent, responsive and focused. She acknowledged emotional difficulties, but her testimony does not demonstrate any kind of incompetence as a party." In re Jessica G., 93 Cal. App. 4th at 1186-87.

More than an attorney but less than a party

"A guardian ad litem is not a party to the action, but is the party's representative and is an officer of the court. The guardian ad litem 'is like an agent with limited powers.' '[A] guardian ad litem's role is more than an attorney's but less than a party's.' 'A guardian ad litem's role is limited to protecting the [litigant's] interest in the litigation, and the role is closely supervised by the judge.'" Alex R. v. Superior Court, 248 Cal. App. 4th 1, 8 (2016). As such, a guardian ad litem cannot represent a litigant in court nor appear on their behalf, without the guardian ad litem being an attorney themselves, or with counsel for the litigant. Code of Civil Procedure, Section 372(a)(1) states that "guardian ad litem so appearing for a ... person who lacks legal capacity to make decisions has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise." See also De Los Santos v. Superior Court, 27 Cal. 3d 677, 683-84 (1980). Guardian ad litem's have the ability to retain counsel and to make tactical decisions in connection with counsel in representing the litigant. However, as stated in Berry v. Chaplin, 74 Cal. App. 2d 652, 657-58 (1946), "the court may set aside or disregard concessions of the guardian which have not already been judicially approved and which are shown to the court to have been improvidently made. Any acts or concessions that apparently waive or surrender any material right of the [litigant], such as the right to a trial, should be set aside unless they be shown to be beneficial or, in any event, not prejudicial to the rights and interests of the [litigant]."

Assuming a court finds a litigant to be incompetent and decides to appoint a guardian ad litem, returning to the familiar theme, whom does the court appoint as the guardian ad litem? A relative? Except in limited cases such as probate where all relatives are generally given notice, how does the court determine this information? And, as stated above, assuming the court did find someone to act as the guardian ad litem, that person will need to retain counsel to represent the litigant. Who pays for that counsel's attorney fees if the litigant is of limited or has no financial means?

Is there any protection for a civil incompetent litigant?

There are some statutory protections which protect a vulnerable party from being taking advantage of as a result of their incompetence in certain civil arenas. In a dissolution proceeding, Family Code Section 2550 states that "the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally," statutorily ensuring that all parties, competent and incompetent, are treated equally and fairly in the division of the community estate. Family Code Section 721(b), "imposes a duty of the highest good faith and fair dealing on each spouse." This duty stems from the "general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other," prohibiting each spouse from taking "any unfair advantage of the other." Lintz, 222 Cal. App. 4th at 1353. Thus, "[i]f one spouse secures an advantage from the transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside." In re Marriage of Fossum, 192 Cal. App. 4th 336, 344 (2011). These sections would ensure that even an incompetent party in a dissolution proceeding would not be financially disadvantaged by the other party.

A conservatorship could also be sought for the incompetent civil litigant, but, in reality, that is a means to the same end without a real solution. In lieu of the guardian ad litem making these necessary decisions, the incompetent party would have a conservator acting on their behalf. Like a guardian ad litem, the conservator would need to retain counsel for the incompetent party. While a conservator may have more legal freedoms to make decisions on the conservatee's behalf, the conservator cannot represent a litigant in court nor appear on the litigant's behalf, without being an attorney themselves, or with counsel for the conversatee. A key difference between a guardian ad litem and a conservatorship can be the appointment of court appointed counsel to represent the conservatee in the conservatorship proceedings. California Probate Code Sections 1470, 1471 and 1813(a)(2). In order to ensure that the conservatee is protected, theoretically, court appointed counsel could require the proposed conservator, or on their own client's behalf, to seek/retain counsel in any other pending litigation to protect the estate of the conservatee. However, a conservator of the person has no ability to act on the estate's behalf. Additionally, there may not be resources, or desire, to pay for an attorney to prosecute/defend a civil action but the conservator for moral reasons (i.e. parent-child relationship) has filed the conservatorship to take care of the incompetent party.

Further, Probate Code Section 1470(a) provides that "the court may appoint private legal counsel for a ward, a proposed ward, a conservatee, or a proposed conservatee in any proceeding under this division if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the person's interests. As such, if the conservatee did have an estate which needed protection, the court could appoint counsel to represent the estate at the expense of the conservatee or the county. Section 1470(c)(1-3). Additionally, Welfare and Institutions Code, Section 15600, et seq., prevents physical, emotional and financial abuse against elders. As is evident, these are solutions in very limited situations.


As is evident, the solutions available to judicial officers are very limited. Ultimately, solutions and/or tools to address incompetent civil litigants will require legislative efforts to assist the courts and judicial officers to help the most vulnerable of litigants.

So returning to the original question, is there anything a bench officer can do with an incompetent civil party, it depends...


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