2005 California Probate Code Sections 2580-2586 Article 10. Substituted Judgment

PROBATE CODE
SECTION 2580-2586

2580.  (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.
2581.  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.  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.  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 a person described in paragraph (1)
of subdivision (b) of Section 21350.
   (m) Whether a beneficiary has committed physical abuse, neglect,
false imprisonment, or fiduciary 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.  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.  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.  (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.


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