June 17, 2004

Alzheimer’s patients (and their families) may be helped legally
by substituted judgment procedure

By Donald J. DeVries
Special to the Times

This week’s question:
My husband of many years now has Alzheimer’s disease, similar to President Reagan’s final 10 years. Unfortunately, we waited too long to have a living trust or will done. Now, his mind is gone. He doesn’t even know me anymore. Is there anything we can do? I know that he always wanted everything to go to me and then to our three children. Of course, I want to minimize taxes and keep everything out of probate, if I can.

Mary Ann M.
Almaden Valley

Dear Mary Ann:
I may have some good news for you, Mary Ann, at least from a legal point of view.

You might want to pay a visit to your own attorney and look into a conservatorship proceeding. He or she would help you with papers that are filed with the Probate Court. Presumably, you would be appointed Conservator for your husband, the Conservatee.

The next step would be for your attorney to file a Petition with the court to allow you to sign a living trust, will, and related documents on behalf of your husband.

This may sound too good to be true, but it is actually possible. It will not lessen his and your personal pain and distress during this long ordeal, but it may help with many aspects involved with the legal transfer of assets from one person to the next. And this procedure is available for other disabled individuals, such as stroke patients, brain-damaged individuals, and the like.

The key legal basis for the “Substituted Judgment” procedure is §§2580-2586 of the California Probate Code. Under these rules, your petition with the court would ask for the authorization for you to take proposed action to create an estate plan for your husband, the Conservatee.

The proposed action could well include a revocable living trust and/or wills for you and your husband. After the trust is prepared and after you would obtain a court order approving this plan, you would sign the trust twice—once for yourself and a second time as Conservator for your husband per order of court.

§2580 specifically provides that the trust may be revocable or irrevocable and it may extend beyond the Conservatee’s disability or life. You could also seek court authorization to take various actions that would benefit the Conservatee or his estate, including minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the Conservatee.

You could also seek court approval to make gifts for any purposes, and to any charities, relatives, including the other spouse, friends, or other “objects of bounty”, as would be likely beneficiaries of gifts from the Conservatee.

This provision goes on to state that you may obtain court authorization to make gifts of principal or income, or both, of the estate, outright or in trust. You as Conservator could even enter into contracts for your husband, the Conservatee, or exercise stock options.

Under §2580(b)(8) you could exercise your husband’s rights pertaining to certain life insurance policies, annuity policies, mutual funds, and/or retirement, profit sharing, and employee plans and benefits.

Under Probate Code §2581, notice is required to be given to specified persons who may be adversely effected, such as certain heirs, unless the court dispenses with notice for good cause.

The Court under §2582 will need to find that the Conservatee either (1) is not opposed to the proposed action or (2) if opposed to the proposed action, lacks legal capacity for the proposed action.

So, you can see, Mary Ann, that this procedure may really help Alzheimer’s patients and others as well in dealing with various legal issues concerning their estates. As stated above, a visit with your own attorney may prove very helpful.

If you want to read some of the key provisions in this area, feel free to visit the following link: http://caselaw.lp.findlaw.com/cacodes/prob/2580-2586.html. This information is free and is readily available. Just one note of caution, however: Be sure to discuss this with your own attorney for a complete, balanced picture. Only he or she can provide the expertise you need in this situation so that you can make sound decisions for your and your husband’s best interests.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Want to learn about a specific legal issue or how DeVries can help you? Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.