Many times when a person starts to lose capacity and needs a conservatorship, there is such a drastic change in behavior that may cause a well-spouse to think about the possibility of a divorce. This is common, even in long marriages.
California law generally disfavors the appointment of a well-spouse as a conservator, when she/he is involved in a divorce proceeding against his/her spouse. California Probate Code 1813 provides:
ARTICLE 2. Order of Preference for Appointment of Conservator [1810 – 1813.1]
“(a) (1) The spouse of a proposed conservatee may not petition for the appointment of a conservator for a spouse or be appointed as conservator of the person or estate of the proposed conservatee unless the petitioner alleges in the petition for appointment as conservator, and the court finds, that the spouse is not a party to any action or proceeding against the proposed conservatee for legal separation of the parties, dissolution of marriage, or adjudication of nullity of their marriage. However, if the court finds by clear and convincing evidence that the appointment of the spouse, who is a party to an action or proceeding against the proposed conservatee for legal separation of the parties, dissolution of marriage, or adjudication of nullity of their marriage, or has obtained a judgment in any of these proceedings, is in the best interests of the proposed conservatee, the court may appoint the spouse.”
(2) Prior to making this appointment, the court shall appoint counsel to consult with and advise the Conservatee, and to report to the court his or her findings concerning the suitability of appointing the spouse as conservator.
“(b) The spouse of a conservatee shall disclose to the conservator, or if the spouse is the conservator, shall disclose to the court, the filing of any action or proceeding against the conservatee for legal separation of the parties, dissolution of marriage, or adjudication of nullity of the marriage, within 10 days of the filing of the action or proceeding by filing a notice with the court and serving the notice according to the notice procedures under this title. The court may, upon receipt of the notice, set the matter for hearing on an order to show cause why the appointment of the spouse as conservator, if the spouse is the conservator, should not be terminated and a new conservator appointed by the court.”
So, the standard for appointment of a spouse in a conservatorship who is in a divorce proceeding with the conservatee is clear and convincing evidence that the appointment of his/her spouse as conservator is in his/her best interest. There is an inherent conflict of interest that exists in those situations, but which may be overcome with the appointment of a Guardian Ad Litem in the family court or even in the conservatorship court.
Call Mina Sirkin for assistance with appointments of a conservator in a conservatorship as it relates to a divorce. Contact a skilled conservatorship counsel at 818-340-4479 in San Fernando Valley and in Los Angeles County.
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