BILL ANALYSIS                                                                                                                                                                                                    






                             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,  
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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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