Opinion
22-cv-09125-JD
03-15-2024
PHYLLIS SMITH, Plaintiff, v. EQUITABLE LIFE & CASUALTY INSURANCE COMPANY, et al., Defendants.
ORDER RE GUARDIAN AD LITEM
JAMES DONATO, UNITED STATES DISTRICT JUDGE
Plaintiff Phyllis Smith filed an unopposed motion to appoint her son, David Smith, as guardian ad litem for purposes of this lawsuit. Dkt. No. 32.
The Court will appoint a guardian because the record indicates that Phyllis Smith is not competent to proceed independently. See Fed.R.Civ.P. 17(c)(2). Her capacity to sue is determined by California law. See Fed.R.Civ.P. 17(b)(1); Dkt. No. 1 ¶ 4. “In California, a party is incompetent if [s]he lacks the capacity to understand the nature or consequences of the proceeding, or is unable to assist counsel in the preparation of the case.” Robbins v. Mscripts, LLC, No. 23-cv-01381-LB, 2023 WL 4205773, at *2 (N.D. Cal. June 27, 2023) (citations omitted). Phyllis Smith's attorney states that she “has dementia and is not competent to represent herself in this action.” Dkt. No. 32 at 1. This is consistent with the complaint allegation that plaintiff “is 91 and suffers from cognitive deficits,” Dkt. No. 1 ¶ 4, and more recent filings confirming the dementia diagnosis. See Dkt. Nos. 24 at 1; 28 at 1. David Smith has made health care decisions on his mother's behalf for more than five years. Dkt. No. 32-1 ¶ 4.
There is also a presumption in favor of David Smith's appointment because Phyllis Smith has already granted him a durable power of attorney. See In re Marriage of Caballero, 27 Cal.App.4th 1139, 1152 (1994), as modified; Lee v. Retail Store Emp. Bldg. Corp., No. 15-cv-04768-LHK, 2017 WL 565710, at *4 (N.D. Cal. Feb. 13, 2017). The power of attorney properly conveys “the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent incapacity.” Cal. Prob. Code § 4124. See Dkt. No. 34-11 (POA) § 2.02 (“Durability” provision). David Smith avers that he has “no conflicts” with Phyllis Smith and that he will “act in good faith to protect her interests.” Dkt. No. 32-1 ¶ 7. Nothing in the record indicates otherwise.
The power of attorney, which contains personally identifying information, is sealed in accordance with Federal Rule 5.2.
Consequently, David Smith is appointed Phyllis Smith's guardian ad litem for purposes of this lawsuit.
IT IS SO ORDERED.