State Codes and Statutes

State Codes and Statutes

Statutes > California > Prob > 3140-3145

PROBATE CODE
SECTION 3140-3145



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) The court may, in its discretion and if necessary, appoint an
investigator to review the proposed transaction and report to the
court regarding its advisability.
   (c) If the court determines that a spouse alleged to lack legal
capacity has not competently retained independent counsel, the court
may in its discretion appoint the public guardian, public
administrator, or a guardian ad litem to represent the interests of
the spouse.
   (d) (1) 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 that appointment is made, Section 1472
applies.
   (2) If the petition proposes a transfer of substantial assets to
the petitioner from the other spouse and the court determines that
the spouse has not competently retained independent counsel for the
proceeding, the court may, in its discretion, appoint counsel for the
other spouse if the court determines that appointment would be
helpful to resolve the matter or necessary to protect the interests
of the other spouse.
   (e) Except as provided in paragraph (1) of subdivision (d), 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.
   (f) The court may order the cost of the review and report by a
court investigator pursuant to subdivision (b) to be paid out of the
proceeds of the transaction or otherwise as the court may direct, if
the court determines that its order would not cause a hardship.



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.