Case Number: BC660908 Hearing Date: November 28, 2018 Dept: 2

Plaintiff’s Motion to Dissolve Guardian ad Litem filed on 10/16/18 in Department 2 is DENIED for insufficient evidence.

The Court’s file reflects that on 9/19/17, the Hon. Patricia Nieto, found it reasonable and necessary to appoint a Guardian ad Litem for Plaintiff, Tamar Belillti, because her “cognitive and psychological abilities [were] limited, significantly impairing her ability to understand the lawsuit she has brought and her ability to assist her counsel in pursing the lawsuit.” Order of 9/19/17, 1:21-24.

Accordingly, the Court ordered that Jacqueline Belillti be appointed as Guardian ad Litem for Plaintiff. Id.

Plaintiff, by and through her Guardian ad Litem, now petitions the Court to dissolve the appointment of Guardian ad Litem, and to allow Plaintiff to represent her own interests in this matter.

Plaintiff maintains that she consented at the original hearing that a Guardian ad Litem be appointed. Motion 4:22. This is not supported by the Court’s 9/19/17 order, which specifically found that Plaintiff’s cognitive and psychological abilities significantly impaired her ability to understand the lawsuit she has brought and impaired her ability to assist her counsel. Order of 9/19/17, 1:21-24.

As Plaintiff’s counsel case authority makes clear, and consistent with the Court’s 9/19/17 order, the appointment of Guardian ad Litem depends on whether the party for whom the appointment is made “has the capacity to understand the nature or consequences of the proceeding, and is able to assist counsel in preparation of the case.” In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.

The Court has inherent authority to remove a Guardian ad Litem. The Court retains the inherent power to rescind or modify the action taken. Golin v. Allenby (2010) 190 Cal.App.4th 616, 643–644.

Plaintiff concedes that based on the cited authority, the Court is required to fully evaluate Plaintiff’s competency, ie., her ability to understand the nature of her lawsuit and assist her counsel, and that this inquiry should be done in the form of an in court or in camera interview by the Court to determine that Plaintiff possesses that capacity. Motion 5: 16-20.

However, Plaintiff proposes to establish that capacity by declarations demonstrating that Plaintiff is competent to make her own decisions about whether the agreed upon settlement is in her best interests. Motion, 5:26.

Competence in decision making is governed by Probate Code § 812. Plaintiff must be able to establish the ability to understand and appreciate “(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; (c) The significant risks, benefits, and reasonable alternatives involved in the decision.” Probate Code § 812.

None of the evidence submitted by Plaintiff is sufficient to establish competence in decision making, including an understanding of all the significant risks, benefits, and reasonable alternatives,” of a $950,000 settlement, despite her “significant impairment” affecting her “cognitive and psychological abilities” found by Judge Nieto.

Plaintiff has not submitted a declaration from a mental health professional who determined Plaintiff’s capacity and competence to understand based on any of the factors set forth in Section 812.

Jackie Green-Holmes, is a program coordinator who assists people with disabilities. She does not provide any mental health credentials or qualifications to opine on Plaintiff’s competence, even if she believes Plaintiff is “smart” and functions at a “high level mentally.” Declaration of Green-Holmes, ¶ 3. Ms. Green-Holmes did not conduct any testing or interview. Her opinions are based on her observation. The issue is not Plaintiff’s ability to function in a job force as Ms. Green-Holmes attests, but her competence.

Cara M. Crownover is Plaintiff’s lawyer, who is not a mental health professional, and whose opinion is based on observation and experience.

Bret Cohen is a physician’s assistant who admits not having any credentials in mental health. Cohen Declaration, 2:2-3. Again, her general intelligence is not the issue.

Plaintiff’s present Guardian ad Litem, Jacqueline Belillti opines as to Plaintiff’s general intelligence and mental capabilities. She admits that Plaintiff has had “substantial difficulty with the psychological components of her injury.” Bellilti Declaration, ¶ 4.

Petition to Approve Compromise of Pending Action of a Person With a Disability (Tamar Belillti)

The Court has reviewed the Petition to Approve Compromise of Pending Action of a Person With a Disability (Tamar Belillti), filed on 10/17/18.

This civil action arises from allegations of medical malpractice. Plaintiff, Tamar Belillti, is a 42-year-old incapacitated woman. Petitioner, Jacqueline Belillti, now brings a Petition to Approve Compromise as parent and guardian ad litem of plaintiff. The parties tentatively have settled the action for a gross amount of $950,000, with a net amount of $718,582.40 payable to plaintiff after deduction for fees, costs, etc.

Petitioner proposes to deposit $218,582.40 cash from the net settlement proceeds into a special need trust (SNT) for the benefit of plaintiff. Petitioner also proposes to use the remaining $500,000 settlement proceeds to purchase an annuity. The terms of the annuity are not apparent in the filed documents. Petitioner states that the annuity will begin to pay out in 10 years, for the life of plaintiff, guaranteed for 15 years, however, the payout amounts are not listed. The court requires the details of the annuity (payment amounts) so that the court knows what it is approving as a settlement and investment of plaintiff’s settlement funds.

The Probate Department must review the terms of the SNT and the petition. L. A. County Super. Ct. R 4.115(c). The Probate Department has reviewed the proposed trust document and found the following deficiencies that must be corrected before the trust can be approved.

LASC RULE 4.1116 REQUIREMENTS

The proposed SNT instrument does NOT meet all requirements of LASC Rule 4.116 which establishes additional requirements for court-created or court-funded trusts. Specifically, the proposed SNT lacks the following terms requiring:

Any purchase of a personal residence for a beneficiary may be made only if authorized by the court pursuant to the rules applicable to conservatorships and guardianships. (See Probate Code, § 2571.);

Any sale of a personal residence of the beneficiary may be made only if authorized by the court pursuant to the rules applicable to conservatorships and guardianships. (Probate Code, § 2540(b).) Such sales must be returned to court for confirmation. (See Probate Code, § 10300 et seq.); and (4); and

The trustee may not borrow money, lend money, give security, lease, convey, or exchange any property of the estate without prior authorization of the court. (Probate Code, § 2550.) (c) Rule Does Not Apply to Trusts Under $20,000. Unless the court otherwise orders for good cause shown, this rule does not apply to trust instruments or trusts that have a total asset value of $20,000 or less.

II. TRUSTEE AND BOND

Petitioner proposes that Jacqueline (petitioner) and Shahlom Belillti act as initial co-trustees. The identity and qualifications of Shahlom Belillti are unknown and the court will inquire as to both at the hearing.

Bond must be required of a trustee unless they are a corporate fiduciary. (California Rules of Court, Rule 7.903(c)(5), Probate Code § 2320.) Here, the proposed SNT co-trustees do not appear to meet that requirement and bond would be required. Petitioner mentions a bond requirement at various places in the filed documents but does not calculate or state bond. Proper bond would be calculated based just upon the initial $218,582.40 funding of the SNT, plus 1% for return on investment, plus 10% for additional “cost of recovery,” for a total $242,845, or rounded up to $243,000 bond.) The annuity is not relevant to the bond calculation at this time because it appears it would not start paying for 10 years (at which time anticipated annual income from annuity payments will be added to the bond calculation.)

III. THE PROPOSED ORDER

Petitioner must submit a proposed order with the corrections detailed in this ruling so that the proposed order can be reviewed before the next hearing. The order approving the SNT properly must attach a copy of the proposed SNT instrument to capture the text of the trust being approved.

The hearing on the Petition to Approve Compromise of Pending Action of a Person With a Disability is CONTINUED to December 19, 2108, at 1:30 p.m. Petitioner to file the amended proposed Special Needs Trust instrument in compliance with this ruling by December 10, 2018 and serve a courtesy copy in Department SS2. The Court will forward the amended proposed Special Needs Trust instrument to the Probate Department for review.

Moving party is ordered to give notice.