2005 California Probate Code Sections 3140-3145 Article 5. Hearing and Order

3140.  (a) A conservator served pursuant to this article shall, and
the Director of Mental Health or the Director of Developmental
Services given notice pursuant to Section 1461 may, appear at the
hearing and represent a spouse alleged to lack legal capacity for the
proposed transaction.
   (b) If a spouse alleged to lack legal capacity is not otherwise
represented, the court may in its discretion appoint the public
guardian, public administrator, or a guardian ad litem to represent
the interests of the spouse.
   (c) If a spouse alleged to lack legal capacity is unable to retain
legal counsel, upon request of the spouse, the court shall appoint
the public defender or private counsel under Section 1471 to
represent the spouse and, if such appointment is made, Section 1472
applies.
   (d) Except as provided in subdivision (c), the court may fix a
reasonable fee, to be paid out of the proceeds of the transaction or
otherwise as the court may direct, for all services rendered by
privately engaged counsel, the public guardian, public administrator,
or guardian ad litem, and by counsel for such persons.
3141.  (a) If a spouse is alleged to lack legal capacity for the
proposed transaction and has no conservator, the spouse shall be
produced at the hearing unless unable to attend the hearing.
   (b) If the spouse is not able to attend the hearing because of
medical inability, such inability shall be established (1) by the
affidavit or certificate of a licensed medical practitioner or (2) if
the spouse is an adherent of a religion whose tenets and practices
call for reliance upon prayer alone for healing and is under
treatment by an accredited practitioner of the religion, by the
affidavit of the practitioner.
   (c) Emotional or psychological instability is not good cause for
absence of the spouse from the hearing unless, by reason of such
instability, attendance at the hearing is likely to cause serious and
immediate physiological damage.
3142.  (a) If a spouse is alleged to lack legal capacity for the
proposed transaction and has no conservator, the court, before
commencement of the hearing on the merits, shall inform the spouse of
all of the following:
   (1) A determination of lack of legal capacity for the proposed
transaction may result in approval of the proposed transaction.
   (2) The spouse has the right to legal counsel of the spouse's own
choosing, including the right to have legal counsel appointed by the
court if unable to retain legal counsel.
   (b) This section does not apply if the spouse is absent from the
hearing and is not required to attend the hearing under the
provisions of subdivision (a) of Section 3141 and any showing
required by Section 3141 has been made.
3143.  (a) If the petition requests that the court make an order
declaring a spouse to have legal capacity for the proposed
transaction and the court determines that the spouse has legal
capacity for the proposed transaction, the court shall so order.
   (b) If the petition alleges that a spouse having no conservator
lacks legal capacity for the proposed transaction and the court
determines that the spouse has legal capacity for the transaction,
the court shall make an order so declaring.
3144.  (a) The court may authorize the proposed transaction if the
court determines all of the following:
   (1) The property that is the subject of the proposed transaction
is community property of the spouses, and, if the proposed
transaction involves property in which a spouse also has a separate
property interest, that there is good cause to include that separate
property in the transaction.
   (2) One of the spouses then has a conservator or otherwise lacks
legal capacity for the proposed transaction.
   (3) The other spouse either has legal capacity for the proposed
transaction or has a conservator.
   (4) Each of the spouses either (i) joins in or consents to the
proposed transaction, (ii) has a conservator, or (iii) is
substantially unable to manage his or her own financial resources or
resist fraud or undue influence.  Substantial inability may not be
proved by isolated incidents of negligence or improvidence.
   (5) The proposed transaction is one that should be authorized
under this chapter.
   (b) If the proposed transaction is to provide gifts or otherwise
affect estate planning of the spouse who is alleged to lack capacity,
as would be properly the subject of a petition under Article 10
(commencing with Section 2580) of Chapter 6 of Part 4 (substituted
judgment) in the case of a conservatorship, the court may authorize
the transaction under this chapter only if the transaction is one
that the court would authorize under that article.
   (c) If the court determines under subdivision (a) that the
transaction should be authorized, the court shall so order and may
authorize the petitioner to do and perform all acts and to execute
and deliver all papers, documents, and instruments necessary to
effectuate the order.
   (d) In an order authorizing a transaction, the court may prescribe
any terms and conditions as the court in its discretion determines
appropriate, including, but not limited to, requiring joinder or
consent of another person.
3145.  A court determination pursuant to this chapter that a spouse
lacks legal capacity for the proposed transaction affects the legal
capacity of the spouse for that transaction alone and has no effect
on the legal capacity of the spouse for any other purpose.