Trusts and Estates

Ca. Trs. & Estates Quarterly 2016, Volume 22, Issue 3


By Sarah A. Brooks, Esq.,* Michelle L. Barnett, Esq.,* and Charles M. Riffle, Esq.*

Probate Code sections 1470 and 1471 provide for the appointment of legal counsel for a conservatee or proposed conservatee in a conservatorship proceeding.1 However, the Probate Code provides little guidance on counsel’s role in the conservatorship proceeding. What guidance it does provide could easily create a conflict between the attorney’s obligations under the Probate Code and the attorney’s ethical obligations to his or her client, the person whose capacity is in question.2 Unlike a guardian ad litem, who is tasked with advocating for his or her ward’s best interests,3 an attorney is generally a zealous advocate for his or her client ? regardless of whether the client’s position is what the attorney perceives to be in the client’s best interests.4 But what is the practitioner to do when asked by the court to provide an opinion as to the incapacitated or possibly incapacitated client’s best interests? And what liability does the court-appointed attorney face if his or her opinion is contrary to the client’s wishes?

In McClintock v. West,5 the Fourth District Court of Appeal held that a guardian ad litem was immune from liability for professional negligence and breach of fiduciary duty under the doctrine of quasi-judicial immunity in a subsequent tort action initiated by her former ward. The court reasoned that quasi-judicial immunity was appropriate given that the guardian ad litem acted under the supervision of the trial court and in the best interests of her ward, fulfilling a role "intimately related to the judicial process."6

Although the Probate Code does not expressly state that independent counsel may be appointed to act in the "best interests" of the conservatee, counsel may be appointed to protect the "interests" of the conservatee or proposed conservatee.7 In practice, some California courts expect court-appointed counsel to report to the court the attorney’s view of his or her client’s "best interests,"8 as opposed to strictly following the client’s wishes, even if contrary to the client’s best interests. In such circumstances, should the attorney, like a guardian ad litem, be immune from subsequent tort liability under the theory of quasi-judicial immunity? In this article, the authors explore the ethical dilemmas independent counsel face when representing an incapacitated client and ask whether quasi-judicial immunity should protect court-appointed counsel from liability for actions the attorney takes in the client’s "best interests."

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