SUBSTITUTED JUDGMENT PETITION LOS ANGELES ATTORNEY
Can I make a will or a trust for an incompetent person with a substituted judgment petition in Los Angeles? Many clients often ask our attorney regarding a substituted judgment petition in Los Angeles County and whether they have a right to file or object to a substituted judgment petition in a conservatorship case.
What is a Substituted Judgment Petition in Conservatorship Cases in Los Angeles? This is a petition for authority to take certain types of actions including but not limited to making gifts, wills or trusts for a disabled and incompetent person.
A substituted judgment petition in Los Angeles is used to ask the court to order the conservator to take certain types of actions, which many times include making a will, or a trust, funding a trust, or making gifts on behalf of the Conservatee, as well as other types of actions.
Who can file a Substituted Judgment Petition?
A conservator or other interested person may file a petition for an order of the court requiring the conservator to take a proposed action.
An interested person is usually a family member, a spouse, or domestic partner, but can be any person who is affected by the decision.
What types of requests or actions can be considered in a Substituted Judgment Petition?
Any action benefiting the conservatee or the estate.
Gifts: 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. For example, an action, which would minimize current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.
While the actions are not limited, here are some of the common actions and requests in substituted judgment petitions:
• Making a gift of principal or income, or both, of the estate, outright or in trust.
• Transferring, 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.
• Exercising or releasing the disabled person’s powers as donee of a power of appointment.
• Entering into specific types of contracts.
• Creating a revocable or irrevocable trust.
• Transferring assets to a trust created by the conservator or conservatee.
• Exercising options in securities.
• Change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under insurances, annuities, mutual funds, retirement accounts, and pensions.
• Exercise the rights of the conservatee in someone else’s will or estate.
• Exercising disclaimers.
• Revoking or modifying a revocable trust or giving up the right to revoke or modify a revocable trust, unless the trust provides restrictions on this as to a conservator.
• Making elections referred to in Section 13502 or an election and agreement referred to in Section 13503.
• Make a Will or Trust for an incompetent person.
• Making or revoking a revocable transfer on death deed.
What can prevent the Court from issuing a Substituted Judgment Petition under Ca Probate Code 2582?
If the Court will not grant the substituted judgment petition if:
1. The Conservatee is opposed to the Petition;
2. The Conservatee has the capacity to oppose the proposed action;
3. The proposed action will have an adverse effect on the estate; or
4. If the action is taken, what remains of the estate will not be sufficient to support the needs of the conservatee, or those he/she has to legally support.
The Court will want to know all about the legal traits that affect the Petition which are better described in California Probate Code 2583.
What types of things does the court take into consideration in evaluating a substituted judgment petition?
All relevant facts and circumstances are taken into consideration in substituted judgment petitioner, but some are more important than others, such as the following:
• Whether or not the conservatee has legal capacity for the proposed transaction;
• The probability of the conservatee’s recovery of legal capacity;
• Past donative intentions, practices, and conduct of the conservatee;
• The character traits of the conservatee.
• Closeness and relationship and intimacy of the prospective recipients, with the conservatee, their standards of living,
• Whether or not they would be natural objects of the conservatee’s bounty by any objective test based on such relationship, intimacy, and standards of living.
• The wishes of the conservatee.
• Prior estate plans of Conservatee;
• What is likely happen after the Conservatee’s death;
• The value, liquidity and other factors in the estate.
• The impact of minimization of current or prospective income, estate, inheritance, or other taxes or expenses of administration.
• What motivated the proposed action in the substituted judgment petition?
• What is the likelihood that Conservatee would have taken this action if he or she had capacity?
• Indicators of abuse by others.
One of the most common actions to substitute judgment is the right to make a will or trust for an incompetent person in a conservatorship proceeding. Talk to us about a substituted judgment petition in Los Angeles California.
Mina N. Sirkin is a substituted judgment petition attorney in Los Angeles California. Contact our Law Office at 818.340.4479 or by email at [email protected]