(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.
(Amended by Stats. 2003, Ch. 32, Sec. 4. Effective January 1, 2004.)
Last modified: October 25, 2018