BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1520 (Gatto)
As Amended May 23, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
TMW
SUBJECT
Guardians Ad Litem: Animals
DESCRIPTION
This bill would authorize a court to appoint a guardian ad litem
to represent the interests of an animal, who is the subject of a
pet trust, if the court determines that representation of the
animal's interest otherwise would be inadequate. This bill
would also authorize the court to award payment of the
reasonable expenses of the guardian ad litem either rout of the
trust or another source.
BACKGROUND
According to the 2013-2014 American Pet Products Association's
National Pet Owners Survey, 68 percent of United States
households own a pet, which equates to approximately 82.5
million homes. Increasingly, pet owners are seeking to ensure
that their pets are cared for after the owner's death or
disability. Thus, informal arrangements with family or friends
have been made for the care of such animals. Some have ventured
to include pets in their wills, while others have created "pet
trusts" that set aside money for the care of the pets in the
event of the owner's death or disability.
For example, famed real estate and hotel mogul Leona Helmsley
left a trust of $12 million for the care of her pet dog,
Trouble. Another lesser known pet owner from Maryland willed
some $400,000 plus a house to the three stray dogs that he
adopted. In those circumstances, the trustee or executor is
expected to pay a caretaker to ensure that the pets are housed,
(more)
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fed, and maintained as provided in the trust or will.
Under existing law, any person interested in the welfare of a
pet, or any nonprofit charitable organization principally
involved in the care of animals, may petition the court
regarding the pet trust or the trustee's powers or
administration of the trust. This bill would also provide that
the court, on its own motion, or upon the petition of the
trustee or any person interested in the welfare of the pet or
any appropriate nonprofit charitable organization, could appoint
a guardian ad litem to represent the interests of the pet if the
court determines that the representation of the pet's interest
otherwise would be inadequate.
CHANGES TO EXISTING LAW
1. Existing law authorizes 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 to represent the interest
of any of the following persons, if the court determines that
representation of the interest otherwise would be inadequate:
a minor;
an incapacitated person;
an unborn person;
an unascertained person;
a person whose identity or address is unknown; and
a designated class of persons who are not ascertained or
are not in being. (Prob. Code Sec. 1003(a).)
This bill would also authorize the court, on its own motion or
on request of a trustee or other person interested in the
welfare of the animal or an animal care nonprofit
organization, to appoint a guardian ad litem to represent the
interest of an animal for which a trust has been established,
if the court determines that representation of the interest
otherwise would be inadequate.
2. Existing law provides for the creation of a trust for the
care of an animal as follows:
a trust for the care of a designated domestic or pet
animal is valid and terminates when no living animal is
covered by the trust;
the governing instrument shall be liberally construed in
order to bring the transfer within the normal rules for
trusts, to presume against the honorary nature of the
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disposition, and to carry out the general intent of the
trustor;
extrinsic evidence is admissible in determining the
intent of the trustor;
the trust principal or income shall not be converted to
the trustee's use or for any purpose other than for the
benefit of the covered animal;
upon termination of the trust, the trustee shall
transfer the unexpended trust property, as specified;
the intended purpose of the trust principal or income
may be enforced by a person designated by the trust or, if
none is designated, by a person appointed by the court upon
application;
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;
if the trust instrument does not name a trustee or no
trustee or successor trustee is willing or able to serve,
the court is required to appoint a trustee to carry out the
intended use of the trust property;
a court may order the transfer of the trust property to
a court-appointed trustee, if it is required to ensure that
the intended use is carried out and if a successor trustee
is not designated in the trust instrument or if no
designated successor trustee agrees to serve or is able to
serve;
a court may make all other orders necessary to carry out
the trustor's intent;
trust accountings must be provided to the beneficiaries
who would be entitled to distribution if the animal were
then deceased and to any nonprofit charitable corporation
that has as its principal activity the care of animals and
that has requested these accountings in writing. However,
if the value of the assets in the trust does not exceed
$40,000, no filing, report, registration, periodic
accounting, separate maintenance of funds, appointment, or
fee is required by reason of the existence of the fiduciary
relationship of the trustee, unless ordered by the court or
required by the trust instrument;
any beneficiary, any person designated by the trust
instrument or the court to enforce the trust, or any
nonprofit charitable corporation that has as its principal
activity the care of animals may, upon reasonable request,
inspect the animal, the premises where the animal is
maintained, or the books and records of the trust; and
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"animal" is defined to mean a domestic or pet animal for
the benefit of which a trust has been established. (Prob.
Code Sec. 15212.)
This bill would authorize the court, on its own motion or on
the request of the trustee or any person or organization
authorized to petition the court regarding the trust, to
appoint a guardian ad litem to represent the interest of the
animal if the court determines that representation otherwise
would be inadequate.
This bill would provide that 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.
COMMENT
1. Stated need for the bill
The author writes:
Current law does not allow for the appointment of a person to
represent the best interest of an animal that is the subject
of a pet trust. This bill would allow for the appointment of
such a person [if] the court sees fit.
2. Appointment of guardian ad litem to protect the pet's interest
in trust
California law provides for the creation of a pet trust to
ensure the continued care of an animal after the owner's death
and authorizes an interested person or any nonprofit charitable
organization principally involved in the care of animals to
petition the court with respect to the trustee's administration
of the pet trust. However, existing law does not currently
provide for the appointment of a guardian ad litem to represent
the pet's interest in a legal proceeding of the pet trust.
According to the author, this bill is necessary to allow for the
appointment of a person to represent the best interest of an
animal that is the subject of a pet trust.
The Humane Society of the United States, in support, asserts
that "[p]ets are routinely considered part of [a] person's
family. The Humane Society of the United States encourages
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responsible pet owners to ensure that their beloved pet will
continue to receive the care they provided if something
unexpected were to happen. AB 1520 provides a valuable and
needed safety net for pets and other animals if that message is
not heard or, despite an individual's best intentions, the plans
fall short."
A pet owner or person may establish a trust for the continued
care of the animal after the death of the owner. At times, the
trust may or may not specify a person to act as the trustee of
the pet trust who would be responsible for administering the
trust funds for the care of the pet. In those cases, a court is
authorized to appoint a trustee for this purpose. However, in
cases where a person who is interested in the well-being of the
animal or an animal care organization is concerned that the
trustee may not act in the best interest of the animal, this
bill would authorize the court to appoint a guardian ad litem to
represent the best interests of the animal in the trust
proceedings. Arguably, allowing a person, who has knowledge of
the pet and the owner's intentions with respect to the pet's
care or an animal care organization with experience in the
particular needs of the animal, to represent the animal's legal
interests would better serve the trustor's intent to provide
proper care for the pet.
Staff notes that there are two different methods and four
different court forms to request an appointment of a guardian ad
litem under California law. (See Code Civ. Proc. Sec. 372;
Prob. Code Sec. 1003; Judicial Council Forms CIV-010, FL-935,
DE-350, GC-100.) However, the recent amendments to this bill,
which add pet trust guardian ad litem to the list of persons for
whom the court may appoint a guardian ad litem in Probate Code
proceedings, clarify the appropriate procedure the court or
authorized person would use to appoint a guardian ad litem for a
pet regarding a pet trust proceeding.
3. Opposition concerns
The California State Association of Public Administrators,
Public Guardians, and Public Conservators (Public Guardians), in
opposition, argue that public guardians in most counties are
already burdened with heavy caseloads and inadequate funding.
Further, "in many cases when there is a dispute among parties in
trust or probate cases the court looks to public guardians to
serve as an arbitrator to resolve disputes. . . [Public
guardians] cannot spend valuable time and resources serving as
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guardian ad litem for animal trusts. Rather, they need to
reserve their limited time and resources caring for people in
dire need of their services." Accordingly, the Public Guardians
request that the bill be amended to prohibit a court from
appointing a public guardian to serve in the ad litem role in
pet trusts.
The Animal Council (TAC), also in opposition, argues that "there
is no proper legal basis for appointment of guardians ad litem
for animals within the California Probate Code. . . . Since
Section 15212 already provides procedures for oversight of the
trust and the animal, it is difficult to understand the need for
establishing unprecedented legal rights for any class of animals
within the Probate Code." TAC further argues that the author's
assertion that "the status of animals is inherently more than
property as evidenced by animals being able to be beneficiaries
of trusts pursuant to legislation" is misleading and incorrect
in a legal context because animals were not intended by the
Legislature when enacting the pet trust statute to make animals
beneficiaries of a pet trust. On this point, TAC argues
"[t]here is a legal difference between being a 'beneficiary' in
a legal sense and that of animals as 'property' for which a
trust is established for its care and maintenance. Inanimate
property can also be maintained by a trustor's designation and
assets but does not become a 'beneficiary' itself. Under
existing law animals are property within a framework that allows
their legal owners or other provided by statute to protect their
interests within the judicial system. Animals for which a trust
has been established may be 'beneficiaries' in vernacular usage,
but the statutory enforceability of the trust does not confer
the legal status of 'beneficiary;' on the animals. To enact law
that suggests this invites confusion, expense and unnecessarily
time consuming use of the judicial system."
To address the opposition concerns, the author has requested to
amend this bill in Committee to clarify that a guardian ad litem
can only be appointed in a pet trust proceeding, but a public
guardian cannot be appointed for this purpose.
Author's Amendments :
1. On page 2, in line 16, remove and replace "The" with
"(1) For purposes of Section 15212, the"
2. On page 2, between lines 20 and 21, insert "(2) The
public guardian shall not be appointed as a guardian ad
litem for purposes of this subdivision."
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3. On page 4, in line 19, after "(i)" insert "(1)"
4. On page 4, between lines 28 and 29, insert "(2) The
public guardian shall not be appointed as a guardian ad
litem for purposes of this section."
Support : State Humane Association of California; The Humane
Society of the United States
Opposition : California State Association of Public
Administrators, Public Guardians, and Public Conservators; The
Animal Council
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : SB 685 (Yee, Ch. 168, Stats. 2008) repealed
prior law on trusts for domesticated or pet animals and enacted
more detailed provisions for the creation and enforcement of pet
trusts.
Prior Vote :
Assembly Floor (Ayes 72, Noes 0)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
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