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Please see DMV warning about fraudulent texts: https://www.dmv.ca.gov/portal/news-and-media/dmv-warns-of-fraudulent-te…

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In the Matter of Wilbur Masonheimer

Case Number

24PR00590

Case Type

Property Spouse Lacks Capacity

Hearing Date / Time

Mon, 12/02/2024 - 08:30

Nature of Proceedings

Petition for Order Authorizing Particular Transaction

Tentative Ruling

Probate Notes:

Appearances required.

After further briefing, the following is noted for the Court: 

Petitioner’s rationale as to why the subject property should be transmuted is unpersuasive, and unsupported by law.  Petitioner’s response to the concern that an incapacitated spouse will lose all right to the subject property or sale proceeds from such if the petition is granted as presented, was essentially: “to make it easier and keep court intervention to a minimum.”  The further briefing is, frankly, alarming, and exactly why the petition should not be granted.

Next to the developmentally disabled, elderly incapacitated persons are the most vulnerable persons in our society.  This was highlighted in the legislative history of the most recent changes to the conservatorship statutes in California by citation in that history to various exposés in California publications that highlighted how the elderly were losing everything they worked for at the end of their lives though a loopholes in the system, before concluding: “While California has specific laws to prevent this from happening here, without vigorous court oversight of conservatorships, it is not impossible that such abuses could be happening in California today.”  (Stone, Chrmn. Mark, Assemb. Com. On Jud., AB 1194, Apr. 21, 2021.)

Additionally, the petition fails to meet the legal standard upon which a court order authorizing a particular transaction may be granted.  According to Probate Code section 3122, the following are authorized reasons:

  • For the advantage, benefit, or best interests of the spouses or registered domestic partners or their estates.
  • For the care and support of either spouse or registered domestic partner or one of their legal dependents.
  • For the payment of taxes, interest, or other encumbrances or charges for the protection and preservation of the community property.
  • For gifts or estate planning such as would be made in a conservatorship under substituted judgment.

(Prob. Code, §3122, subds.(d)(1-4).)

On the evidence before the Court, there is no legitimate purpose to strip the property rights from the incapacitated spouse by transmuting the subject property (the incapacitated spouses home).  A trust can be created via this same procedure that would accomplish the overall goal of the petitioner, and even reduce court oversight, without transmutation of the property.  If the Court granted the petition as presented, it would not be the least restrictive means of protecting the interests of the incapacitated spouse, because the incapacitated spouse will have no right to sale proceeds or equity of the subject property.  It does not matter that the incapacitated spouse may not ever realize those rights are gone, or ever have the capacity to ‘enjoy’ those rights in the future. What matters is that the incapacitated spouse has a right to those assets so they can be used to provide for the incapacitated spouse in the event someone else (i.e. a conservator/agent under a Power of Attorney) becomes necessary to manage the estate of the incapacitated spouse in the future.

Thus, the petition should be denied in toto, or the petition should be denied in part and granted in part by ordering the creation of a trust, but denying the request to transmute the property rights of the subject property held by incapacitated spouse.

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