Can someone who is under a conservatorship make a will in California?

In California, a person who is under a conservatorship retains the right to make a will, unless he or she is found to lack testamentary capacity. California Probate law does not take away the conservatee’s right to make a will under Prob C §1871(c), but the question of whether a will created by a conservatee is valid, is a factual one, if there is no finding of lack of testamentary capacity.

Probate Code 1871 provides:

PRB § 1871. Nothing in this article shall be construed to deny a conservatee any of the following:

(a) The right to control an allowance provided under Section 2421.

(b) The right to control wages or salary to the extent provided in Section 2601.

(c) The right to make a will.

(d) The right to enter into transactions to the extent reasonable to provide the necessaries of life to the conservatee and the spouse and minor children of the conservatee and to provide the basic living expenses, as defined in Section 297 of the Family Code, to the domestic partner of the conservatee. [Amended by Stats. 2001, Ch. 893, Sec. 23. Effective January 1, 2002]”

The issue of testamentary capacity, by contrast, does not involve such issues. [3] “It is thoroughly established by a series of decisions that: ‘Ability to transact important business, or even ordinary business, is not the legal standard of testamentary capacity. …’ (Estate of Arnold [1940] 16 Cal.2d 573, 586 ….” (Estate of Powers (1947) 81 Cal.App.2d 480, 483-484 [184 P.2d 319]; Estate of Mann (1986) 184 Cal.App.3d 593, 605 [229 Cal.Rptr. 225].) Rather, testamentary capacity involves the question of whether, at the time the will is made, the testator “‘has sufficient mental capacity to understand the nature of the act he is doing, to understand and recollect the nature and situation of his property and to remember, and understand his relations to, the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument.'” (Estate of arnold (1940) 16 Cal.2d 573, 586 [107 P.2d 25], quoting Estate of Sexton (1926) 199 Cal. 759, 764 [251 P. 778]; Estate of Mann, supra, 184 Cal.App.3d at p. 602.) It is a question, therefore, of the testator’s mental state in relation to a specific event, the making of a will. [2b] While it is true that the existence of a conservatorship at the time a will was executed may have some bearing on the question of testamentary capacity in a will contest (see, e.g., Estate of Wochos (1972) 23 Cal.App.3d 47 [99 Cal.Rptr. 782]), appointment of a conservator is not an adjudication of testamentary incapacity. fn. 5

This is made clear by the conservatorship statute itself. Section 1872, subdivision (a) states: “Except as otherwise provided in this article, the appointment of a conservator of the estate is an adjudication that the conservatee lacks the legal capacity to enter into or make any transaction that binds or obligates the conservatorship estate.” A specific exception to this general rule of legal incapacity, however, is that the conservatee retains “[t]he right to make a will ….” (§ 1871, subd. (c).) . Estate of Powers (1947) 81 CA2d 480

If you have a Glendale family member or have filed a Petition for Conservatorship for a loved one or parent, you should investigate whether or not a will exists, and if it does not, consult with a conservatorship attorney regarding creating a will or trust for an incompetent person by using a substituted judgment petition.

If there is a doubt as to the conservatee’s testamentary capacity, a conservator may petition the court to create a will under a substituted judgment petition rules. The court in Murphy v Murphy (2008) 164 CA4th 376, held that a substituted-judgment order had collateral estoppel effect and therefore could not be challenged after the conservatee’s death.

What Standard Does The Court Look For In Finding Incompetency to Make a Will in California?

Under Probate Code § 6100.5. (a), an individual is not mentally competent to make a will if at the time of making the will either of the following is true:

(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.

(b) Nothing in this section supersedes existing law relating to the admissibility of evidence to prove the existence of mental incompetence or mental disorders.

(c) Notwithstanding subdivision (a), a conservator may make a will on behalf of a conservatee if the conservator has been so authorized by a court order pursuant to Section 2580. [Amended by Stats. 1995, Ch. 730, Sec. 8. Effective January 1, 1996]

There are formal and legal ways to make a will for someone incompetent through a special court petition. Call us about substituted judgment petitions in Los Angeles California.

If you are unsure that your loved one has the capacity to make a will, please call us with your questions. Call Mina Sirkin, at 818.340.4479 to consult with out attorney to determine if a conservatee can make a will.

Power of Attorney Lawyer Attorney

Everything you wanted to know about a Power of Attorney is listed below for your use. Feel free to call our power of attorney lawyer to discuss your individual case.

Requirements of Setting Up the Power of Attorney

The person who wants to give the power is called the Principal. The person who receives the power is called the Agent or Attorney in Fact. In order for the Power of Attorney to work, the Principal must be competent at the time of creation of the power. The Agent must also be competent at the time he or she starts to act as the agent. The document itself also sets up the time when the power goes into effect. Some Power of Attorney documents go into effect immediately. Other Power of Attorneys will start to work only when the Principal has become incapacitated.

In summary, look to see if the following requirements for the power of attorney are met:

  1. Competency of Principal at execution or signing of the power of attorney.
  2. Competency of the Agent at the time he or she starts to act.
  3. Time set in the Power of Attorney document or form when the power starts to work.

What if the Power of Attorney delays its effectiveness until there is incapacity?

Incapacity is usually defined in the instrument itself. If it is not, it can be determined by a certification by one or two doctors. It is important to look to see if the form itself has a definition.

If there are two power of attorney documents which are competing, the later one governs, unless it can be shown that it was invalid at the time of execution or signing of the power of attorney.

How to open an account when you are named as an agent under a power of attorney?

The account should read as follows:

Agent’s name, as Agent under a Power of Attorney for Principal.

Joe Smith, Agent under a Power of Attorney for John Smith.

Banks will accept any variation of the above on the account or may shorten it.

The social security number of the principal is used at the bank.

You must keep the assets of the principal separate from the assets of the agent. The agent should not use the assets of the principal to benefit the agent unless the document so authorizes specifically.

If you doubt that the power of attorney will work, you should consult and attorney about a conservatorship.

Call us to discuss your Power of Attorney needs or a conservatorship with our lawyer and attorney. Call 818.340.4479 to talk to the friendly staff at Sirkin Law Group, P.C.

Ending a Guardianship of the Estate after Your Child Turns 18 in Los Angeles

What happens to old Guardianships of the Estate in California after kids reach 18 years of age?

If you were appointed as Guardian of the Estate of a minor many years ago and he or she has now reached 18 years of age or is perhaps over 18, there are several things you should do.

  1. Do a final accounting or get a waiver of the accounting from the ward (if competent).
  2. Prepare a Petition to Terminate the Guardianship.
  3. After the court orders the Guardianship terminated, you need to transfer all the assets to the child, who is now an adult.
  4. File receipts with the court.
  5. Get a discharge.

What happens if your child has turned 18 and was under a guardianship, but is not competent now to handle the funds?

Then, you must file to become the conservator of the estate of your child.   A conservatorship is the adult version of the guardianship.

Why you should not wait to end the Guardianship of the estate:   As time goes by, records get lost, and it becomes exponentially more difficult to gather all bank records to complete the accounting if an accounting cannot be waived.   Not being able to account subjects you to a surcharge and recovery on your bond.   As soon as your child turns 18, you should file a petition to terminate the guardianship of the estate.

Our estate lawyers can help you terminate guardianships of the estate and create and establish conservatorships of the estate.  In Los Angeles County and San Fernando Valley, call attorney Mina Sirkin for Guardianship advice at 818.340.4479 or email us here.