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Frequently Asked Questions (FAQs)

Alternatives to Conservatorships and Guardianships

What if my spouse cannot no longer act and has not executed a power of attorney?

Court involvement may be necessary, but not necessarily the appointment of a conservator. The well spouse can petition the court for authority to act on behalf of the ill spouse. This is often referred to as a “3100 petition”, referring to the applicable probate code section.

For example, if the ill spouse has a large IRA, the court can authorize the well spouse to access the IRA, to make investment decisions and to make withdrawals if necessary or appropriate. The court can authorize the well spouse to make gifts of the ill spouse’s assets, and can even allow the well spouse to remove the name of the ill spouse from title to the family home for Medi-Cal purposes.

The court will not approve any act unless the court also determines that the act will not jeopardize the ill spouse; many counties, including Alameda County, routinely appoint a guardian ad litem for the ill spouse when such petitions are brought. The guardian ad litem is often an attorney in private practice whose job it is to represent the interests of the ill spouse and make a report to the court. The court usually requires the well spouse to pay the guardian ad litem’s fee.