Estate planning can be a daunting challenge if your spouse is unable to make independent decisions about their assets. Although California law presumes that most adults are capable of writing a will, funding a trust, or delegating the durable power of financial attorney, the Golden State’s probate code makes a critical exception. If somebody is of “unsound mind” or otherwise unable to understand how their estate planning decisions could affect their assets, they cannot typically create or revise such important legal documents. While these elements of the probate code are intended to shield adults with dementia, Alzheimer’s disease, or other cognitive impairments from abuse, it could prevent well-meaning spouses from protecting their partner’s properties and possessions. Protecting a loved one with diminished capacity | California Estate Planning Lawyer

California’s Mental Health Requirements for Wills and Trusts

California law has two simple requirements that residents must meet to write a will:

  • The will-writer, or testator, must be at least 18 years of age
  • The testator must be of sound mind

Simply having a mental health disorder or cognitive impairment does not necessarily mean that someone is ineligible to write a will, establish a trust, or create an advanced health care directive. A person is only considered “of unsound mind” if they:

  • Lack the ability to recognize relatives and other heirs who may benefit from their will or trust
  • Suffer from a documented medical condition that impairs their reasoning by way of hallucination or delusion
  • Cannot understand the nature or implications of their estate planning decisions

If your spouse is of unsound mind, they may be restricted not only from writing a will but transferring their cash accounts, investments, and real properties to your name.

Creating an Estate Plan to Accommodate a Spouse’s Cognitive Impairment

If your spouse cannot create their own estate plan, you could petition the court for limited relief through the following methods:

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 

Do You Need To Speak With An Attorney About Estate Planning?

If you need to speak with an experienced estate planning lawyer, please contact us online, or call us directly at 800-756-5596 to first register for one of our free, informative seminars. Your attendance will qualify you for a special discount for our estate planning services should you decide to make a free appointment at the conclusion of the seminar and choose to proceed with us. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.


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