Court Conservatorship

California’s courts allow for conservatorships of the disabled person and the estate. In a conservatorship of the person, the conservator is responsible for ensuring that the conservatee has access to proper food, water, and shelter. The conservator may also make medical decisions. In a conservatorship of the estate, the conservator may handle the conservatee’s finances. Financial conservators—such as trustees—are considered fiduciaries, and they have a legal obligation to act only in the conservatee’s best interests.

Section 3100 Petition

If the healthy spouse believes that their partner is likely to be incapacitated for the foreseeable future, they may submit a court petition under Section 3100 of the California Probate Code. This petition asks the court to authorize certain transactions such as the transfer of community property to the mentally sound spouse. Under certain circumstances, the court may also permit the transfer of the impaired spouse’s separate property.

However, the healthy spouse’s right to petition the court for a conservatorship or the transfer of assets under Section 3100 may be contingent on their ability to demonstrate that their partner not only has diminished capacity but is of unsound mind.

Providing for an Unwell Spouse After Death

The healthy spouse should consider the possibility that they may pass away before their partner. However, they can still protect their loved one after death by:

  • Establishing a revocable living trust
  • Creating a special needs trust
  • Purchasing a long-term care insurance policy to provide your family with the funds needed to care for your partner when you can no longer meet all of their medical needs
  • Speaking to an estate planning attorney about how you can structure your estate to preserve your spouse’s rights to access Medi-Cal benefits and other government programs 


Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.