Who Has Authority to Act if You, Your Spouse or Domestic Partner Becomes Incapacitated by Illness or Injury?

There is a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and are responsible for their acts or decisions. Probate Code Section 810. A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is also rebuttable (a presumption affecting the burden of proof). Probate Code Section 46571

Despite the presumptions of capacity for finances and health care, are you prepared if you, your spouse, or your domestic partner becomes incapacitated by illness or injury? Will you need to apply to the court for a conservatorship of the person and/or estate for authority to make medical or financial decisions for your spouse or domestic partner? Can a conservator of the person and/or estate be avoided with simple estate planning tools available in the judicial council forms?

Authority for Medical Decisions

The incapacitation of a spouse or domestic partner by illness or injury may make it difficult or impossible to obtain information and make health care decisions regarding your spouse or domestic partner.

Probate Code Section 4716 authorizes a spouse or domestic partner to make health care decisions for an incapacitated spouse or domestic partner.

A patient may designate an adult as a surrogate to make health care decisions by personally informing the supervising health care provider. Probate Code Section 4711. A surrogate designation is effective only during treatment or illness, during the stay in the health care institution, or for 60 days, whichever period is shorter. Probate Code Section 4711(b).

The execution of an Advanced Health Care Directive (judicial council form NONNJC-020) authorizes your spouse, domestic partner, adult child, etc. to act as your agent to obtain information and make decisions regarding your health care. An Advanced Health Care Directive can be executed that is effective immediately or in the alternative to spring into operation in the event of incapacitation. An Advanced Health Care Directive can also include a nomination of a conservator of the person. Probate Code Section 1810.

You can also petition the court for an order to be appointed conservator of the person if your spouse or domestic partner is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter. Probate Code Section 1800.3(a). Subject to the court’s right to appoint a conservator in the best interest of a conservatee, a spouse or domestic partner has priority to serve as conservator. Probate Code Section 1812.

Probate Code Section 4716, the designation of a surrogate under Probate Code Section 4711(b), or better, the execution of an Advanced Health Care Directive can avoid delay in obtaining needed medical information and health care for you, your spouse, or domestic partner. An Advanced Health Care Directive can avoid the need to obtain a court order authorizing you to act as conservator for your spouse or domestic partner if he or she becomes incapacitated by illness or injury.

Financial Decisions

The incapacitation of a spouse or domestic partner may make the sale, encumbrance, or lease of community real property necessary to pay for the cost of medical care and/or to compensate for the incapacitated spouse’s loss of income.

Family Code Section 1100 authorizes either spouse or domestic partner to manage and control the community personal property. But Family Code Section 1102 requires both spouses, either personally or by a duly authorized agent, to execute an instrument that sells, conveys, encumbers, or leases community real property for more than one year.

The court is authorized to issue an order dispensing with the requirement of the other spouse’s consent if both of the following requirements are met: (1) The proposed transaction is in the best interest of the community, and (2) Consent has been arbitrarily refused or cannot be obtained due to the physical incapacity, mental incapacity, or prolonged absence of the non-consenting spouse. Family Code Section 1101(e).

A conservatorship of the estate and a court order issued by the Probate Court can also authorize a spouse or domestic partner to act on behalf of an incapacitated spouse or domestic partner. A conservator of the estate may be appointed for a person who is substantially unable to manage his or her financial resources or resist fraud or undue influence. Probate Code Section 1800.3(b).

The execution of a Uniform Statutory Power of Attorney (judicial council form NONNJC-019) authorizing a spouse, domestic partner, or another adult to act in the event of incapacitation can avoid the need for a court order to act on behalf of an incapacitated spouse or domestic partner regarding real property transactions. A revocable trust can also be executed conveying the spouses or domestic partners’ assets to the spouses or domestic partners as trustees.