Now that I Am the Conservator of my Grandmother in California, May I Sign a Trust or Will for Her or Do I Need a Substituted Judgment Petition for That?
Yes, in California the conservator must obtain court authority prior to signing a will or trust for the conservatee. (The conservator is the person in charge of the conservatorship. The conservatee is the incapacitated person who is unable to manage her affairs and is the subject of the conservatorship.) Filing a substituted judgment petition with the court is the way to obtain that specific court authority.
A California conservatorship can consist of 1 or 2 parts. A conservatorship of the person gives the conservator legal authority to manage the medical and personal affairs of the conservatee. A conservatorship of the estate gives the conservator authority to manage the assets and financial affairs of the conservatee.
One California court proceeding may include both a conservatorship of the person and a conservatorship of the estate.
Acts that the Conservator Cannot Take Without Prior Court Approval Through a Substituted Judgment Petition
The conservator has legal authority to manage essentially all of the affairs of the conservatee. That said, the conservator must obtain court approval prior to certain more significant acts. Those more significant acts include:
- Giving gifts of conservatorship estate assets (assets of the conservatee);
- Signing a will or trust for the conservatee;
- Transferring assets to a trust for the conservatee; and
- Changing beneficiaries of life insurance policies and financial accounts of the conservatee.
All such actions involve assets and finances. Accordingly, this post applies to California conservators of the estate and not to California conservators of the person.
Substituted Judgment Petition Process
The substituted judgment petition process is similar to the process of most other conservatorship petitions filed with the court. It involves:
- Filing the petition and the court setting a hearing time;
- Providing notice of the court hearing;
- Clearing any matters to clear of the court’s probate notes;
- Attending the court hearing; and
- Preparing the order for the judge’s signature.
The court can approve your substituted judgment petition only if it makes the following determinations:
- The conservatee either:
- Is not opposed to the proposed action, or if opposed;
- Lacks legal capacity for the proposed action;
- Either of the following:
- The proposed action will have no adverse effect on the conservatorship estate (the conservatee’s assets and finances), or;
- The conservatorship estate remaining after taking the proposed action will be adequate to provide for the needs of the conservatee. It also must be adequate to support those people who may be legally entitled to support by the conservatee.
Also there is a list of factors for the court to consider. Some of them are as follows:
- Whether the conservatee has legal capacity for the proposed transaction, and if not, the probability of the conservatee recovering legal capacity;
- The past gifting and other conduct of the conservatee;
- The relationship between the conservatee and the potential recipients of any assets, their standards of living, and the extent to which they would be the people who ordinarily would inherit from the conservatee;
- The wishes of the conservatee;
- The value, liquidity, and productiveness of the conservatorship estate;
- Minimization of current or potential income, estate, inheritance, or other taxes or expenses;
- Changes of laws that likely would have motivated the conservatee; and
- The likelihood, from all the circumstances, that the conservatee, as a reasonably prudent person, would take the proposed action if the conservatee had the capacity to do so.
Get Help from an Experienced Conservatorship Attorney
Obtaining court approval of a substituted judgment petition in a California conservatorship court proceeding is very challenging to the unexperienced. If you don’t do it correctly, then you may waste a lot of time, and a significant amount of money. Also you may not be able to take the proposed action that you want.
Hiring an attorney experienced with California conservatorship court proceedings is critical for obtaining the results that you need. In addition, the advice and guidance of an attorney experienced with conservatorship court cases is invaluable in these cases.
At Meinzer Law Firm, P.C., we have over 20 years of experience helping clients achieve their goals in these types of cases in California. Contact Meinzer Law Firm, P.C., in Torrance to assist you with your California conservatorship court case.
