BILL ANALYSIS Ó
AB 1520
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1520 (Gatto) - As Amended: April 10, 2014
As Proposed to be Amended
SUBJECT : guardian aD liteM: PET TRUSTS
KEY ISSUE : SHOULD A COURT BE PERMITTED TO APPOINT A GUARDIAN AD
LITEM TO PROTECT THE INTERESTS OF A PET WHO IS THE SUBJECT OF A
PET TRUST?
SYNOPSIS
This non-controversial bill seeks to better protect the
interests of pets who are the subjects of pet trusts. Existing
law allows for the creation and enforcement of trusts for the
benefit of pets. It also allows for the appointment of a
guardian ad litem in any action under the Probate Code to
protect the interests of those who cannot adequately protect
themselves. This includes children, as well as incapacitated
individuals and unborn children. This bill allows a court to
appoint a guardian ad litem to represent the interest of a pet
who is the subject of a pet trust when the court determines that
the interest of the pet cannot otherwise be adequately
protected. The author proposes to amend the bill to narrow who
may petition the court for appointment of a guardian for the
pet. This bill has no known opposition.
SUMMARY : Permits a court to appoint a guardian ad litem to
represent the interests of a pet who is the subject of a pet
trust. Specifically, this bill :
1)Permits the court, on its own motion or on request of the
trustee, a beneficiary of the trust, a person interested in
the welfare of the animal, or a nonprofit charitable
organization that has as its principal activity the care of
animals, to appoint a guardian ad litem to represent the
interest of an animal that is subject to a trust for the care
of that animal.
2)Provides that the reasonable expenses of the guardian ad litem
shall be determined by the court and paid as the court orders,
AB 1520
Page 2
either out of the property of the trust or from such other
source as the court orders.
EXISTING LAW :
1)Provides that a trust may be created for the care of an
animal, as provided. Permits any beneficiary, any person
designated by the trust instrument or the court to enforce the
trust. Allows any nonprofit organization that cares for
animals, upon reasonable request, to inspect the animal and
the premises where the animal is maintained. Defines "animal"
as one or more domestic or pet animals for whose benefit the
trust was established. (Probate Code Section 15212. Unless
stated otherwise, all further statutory references are to that
code.)
2)Permits the court, on its own motion or on request of a
personal representative, guardian, conservator, trustee, or
other interested person, to appoint a guardian ad litem at any
stage of a proceeding under the Probate Code to represent the
interest of any of the following persons, if the court
determines that representation of the interest otherwise would
be inadequate: (a) a minor; (b) an incapacitated person; (c)
an unborn person; (d) an unascertained person; (e) a person
whose identity or address is unknown; or (f) a designated
class of persons who are not ascertained or are not in being.
Provides that the reasonable expenses of the guardian ad litem
shall be determined by the court and paid as the court orders,
either out of the property of the estate involved or by the
petitioner or from such other source as the court orders.
(Section 1003.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill represents the author's experiment in
crowdsourcing legislation. According to the author, the bill is
the result of "months of deliberation among the participants of
the WikiPage that was established to create and refine
legislation limited to the Probate Code." The result is
legislation that seeks to better protect pets when their owners
can no longer care for them. In particular, this bill allows
the court to appoint a guardian ad litem to represent the
interest of an animal who is the subject of a pet trust. In
support of the bill, the author writes:
AB 1520
Page 3
As was noted by contributors to the WikiPage: "The status
of animals is inherently more than property as evidenced by
animals being able to be beneficiaries of trusts pursuant
to legislation. It makes sense, therefore, that when
needed, a guardian ad litem could be appointed for them."
Pet Trusts : Current law allows for the establishment of a trust
for the benefit of an animal. The trust has specific rules to
protect both the settlor's interests and the interests of the
pet. In particular, the trust provides that the principal or
income of the trust may not be converted to the use of the
trustee or to any use other than for the benefit of the animal.
The law also provides that trust provisions may be enforced by a
person designated for that purpose in the trust instrument or,
if no one is designated, by a person appointed by a court. In
addition, any person interested in the welfare of the animal or
any nonprofit charitable organization that has as its principal
activity the care of animals may petition the court regarding
the trust. However, these provisions do not explicitly allow
for a guardian ad litem to be appointed to represent the pet's
interests.
Guardian Ad Litem : A guardian ad litem is appointed by the
court to represent the best interest of someone who cannot
properly represent himself or herself. Minors are often
appointed guardians ad litem in legal proceedings. The Probate
Code specifically allows for a court to appoint a guardian ad
litem to represent, in addition to a child, an incapacitated
person, an unborn person, an unascertained person or a person
whose identity or address is unknown or not yet in being. The
court can appoint a guardian ad litem for any of these
individuals, on its own motion, or on request of a personal
representative, guardian, conservator, trustee, or other
interested person, at any stage of a probate proceeding if the
court determines that representation of that person's interest
otherwise would be inadequate. The guardian ad litem's
reasonable expenses are to be determined by the court and paid
as the court orders, either out of the property of the estate
involved or by the petitioner or from such other source as the
court orders.
This Bill Seeks to Protect Pets Subject to a Pet Trust by
Allowing a Court to Appoint a Guardian ad Litem When Necessary
to Represent Their Interests : This bill seeks to protect the
AB 1520
Page 4
interest of pets who are the subject of a pet trust by allowing
the court to appoint a guardian ad litem to represent their
interests if the court finds that their interests are not
otherwise adequately protected. This gives a court the
discretion to protect a pet whose interests are not, for
whatever reason, adequately protected by the trustee.
Author's Amendment : In order to narrow the bill and better
track the existing language that allows any person interested in
the welfare of the animal or any nonprofit charitable
organization that cares for animals to petition the court
regarding the trust, the author rightly proposes to amend the
bill to clarify that not just any interested person can seek a
guardian ad litem for the pet. As proposed to be amended, only
a beneficiary of the trust, a person interested in the welfare
of the animal, or a nonprofit charitable organization that has
as its principal activity the care of animals may petition the
court for appointment of a guardian ad litem to protect the
pet's interests. The following amendment achieves this:
(j) The court may, on its own motion or on request of the
trustee or any person or organization permitted to petition the
court regarding the trust pursuant to subdivision (c) other
interested person , appoint a guardian ad litem to represent the
interest of the animal if the court determines that
representation of the interest otherwise would be inadequate.
The reasonable expenses of the guardian ad litem, including
compensation and attorney's fees, shall be determined by the
court and paid as the court orders, either out of the trust or
from another source as the court orders.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
AB 1520
Page 5