Article 10 - Substituted Judgment

California Probate Code — §§ 2580-2586

Sections (7)

Amended by Stats. 2015, Ch. 293, Sec. 7. (AB 139) Effective January 1, 2016.

(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:

(1)Benefiting the conservatee or the estate.

(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.

(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or

domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.

(b)The action proposed in the petition may include, but is not limited to, the following:

(1)Making gifts of principal or income, or both, of the estate, outright or in trust.

(2)Conveying or releasing the conservatee’s contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.

(3)Exercising or releasing the conservatee’s powers as donee of a power of appointment.

(4)Entering into contracts.

(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatee’s disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.

(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.

(7)Exercising options of the conservatee to purchase or exchange securities or other property.

(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:

(A)Life insurance policies, plans, or benefits.

(B)Annuity policies, plans, or benefits.

(C)Mutual fund and other dividend investment plans.

(D)Retirement, profit sharing, and employee welfare plans and benefits.

(9)Exercising the right of the conservatee to elect to take under or against a will.

(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.

(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.

(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.

(13)Making a will.

(14)Making or revoking a revocable transfer on death deed.

§ 2581

Amended by Stats. 1996, Ch. 862, Sec. 8. Effective January 1, 1997.

Notice of the hearing of the petition shall be given, regardless of age, for the period and in the manner provided in Chapter 3 (commencing with Section 1460) or Part 1 to all of the following:

(a)The persons required to be given notice under Chapter 3 (commencing with Section 1460) of Part 1.

(b)The persons required to be named in a petition for the appointment of a conservator.

(c)So far as is known to the petitioner, beneficiaries under any document executed by the conservatee which may have testamentary effect unless the court for good cause dispenses with such notice.

(d)So far as is known to the petitioner, the persons who, if the conservatee were to die immediately, would be the conservatee’s heirs under the laws of intestate succession unless the court for good cause dispenses with such notice.

(e)Such other persons as the court may order.

§ 2582

Enacted by Stats. 1990, Ch. 79.

The court may make an order authorizing or requiring the proposed action under this article only if the court determines all of the following:

(a)The conservatee either (1) is not opposed to the proposed action or (2) if opposed to the proposed action, lacks legal capacity for the proposed action.

(b)Either the proposed action will have no adverse effect on the estate or the estate remaining after the proposed action is taken will be adequate to provide for the needs of the conservatee and for the support of those legally entitled to support, maintenance, and education from the conservatee, taking into account the age, physical condition, standards of living, and all other relevant circumstances of the conservatee and those legally entitled to support, maintenance, and education from the conservatee.

§ 2583

Amended by Stats. 2011, Ch. 308, Sec. 10. (SB 647) Effective January 1, 2012.

In determining whether to authorize or require a proposed action under this article, the court shall take into consideration all the relevant circumstances, which may include, but are not limited to, the following:

(a)Whether the conservatee has legal capacity for the proposed transaction and, if not, the probability of the conservatee’s recovery of legal capacity.

(b)The past donative declarations, practices, and conduct of the conservatee.

(c)The traits of the conservatee.

(d)The relationship and intimacy of the prospective donees with the

conservatee, their standards of living, and the extent to which they would be natural objects of the conservatee’s bounty by any objective test based on such relationship, intimacy, and standards of living.

(e)The wishes of the conservatee.

(f)Any known estate plan of the conservatee (including, but not limited to, the conservatee’s will, any trust of which the conservatee is the settlor or beneficiary, any power of appointment created by or exercisable by the conservatee, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at the conservatee’s death to another or others which the conservatee may have originated).

(g)The manner in which the estate would devolve upon the conservatee’s death, giving consideration to the age and the mental and

physical condition of the conservatee, the prospective devisees or heirs of the conservatee, and the prospective donees.

(h)The value, liquidity, and productiveness of the estate.

(i)The minimization of current or prospective income, estate, inheritance, or other taxes or expenses of administration.

(j)Changes of tax laws and other laws which would likely have motivated the conservatee to alter the conservatee’s estate plan.

(k)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.

(l)Whether any beneficiary is the spouse or domestic partner of the conservatee.

(m)Whether a beneficiary has committed physical abuse, neglect, false imprisonment, or financial abuse against the conservatee after the conservatee was substantially unable to manage his or her financial resources, or resist fraud or undue influence, and the conservatee’s disability persisted throughout the time of the hearing on the proposed substituted judgment.

§ 2584

Enacted by Stats. 1990, Ch. 79.

After hearing, the court, in its discretion, may approve, modify and approve, or disapprove the proposed action and may authorize or direct the conservator to transfer or dispose of assets or take other action as provided in the court’s order.

§ 2585

Enacted by Stats. 1990, Ch. 79.

Nothing in this article imposes any duty on the conservator to propose any action under this article, and the conservator is not liable for failure to propose any action under this article.

§ 2586

Amended by Stats. 1993, Ch. 519, Sec. 5. Effective January 1, 1994.

(a)As used in this section, “estate plan of the conservatee” includes, but is not limited to, the conservatee’s will, any trust of which the conservatee is the settlor or beneficiary, any power of appointment created by or exercisable by the conservatee, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at the conservatee’s death to another or others which the conservatee may have originated.

(b)Notwithstanding Article 3 (commencing with Section 950) of Chapter 4 of Division 8 of the Evidence Code (lawyer-client privilege), the court, in its discretion, may order that any person having possession of any document constituting all or part of the estate plan of the conservatee shall deliver the document to the court for examination by the court, and, in the discretion of the court, by the attorneys for the persons who have appeared in the proceedings under this article, in connection with the petition filed under this article.

(c)Unless the court otherwise orders, no person who examines any document produced pursuant to an order under this section shall disclose the contents of the document to any other person. If that disclosure is made, the court may adjudge the person making the disclosure to be in contempt of court.

(d)For good cause, the court may order that a document constituting all or part of the estate plan of the conservatee, whether or not produced pursuant to an order under this section, shall be delivered for safekeeping to the custodian designated by the court. The court may impose those conditions it determines are appropriate for holding and safeguarding the document. The court may authorize the conservator to take any action a depositor may take under Part 15 (commencing with Section 700) of Division 2.