Cal. Codes » Probate Code / DIVISION 4. GUARDIANSHIP, CONSERVATORSHIP, AND OTHER PROTECTIVE PROCEEDINGS / PART 4. PROVISIONS COMMON TO GUARDIANSHIP AND CONSERVATORSHIP / CHAPTER 6. Powers and Duties of Guardian or Conservator of the Estate / ARTICLE 10. Substituted Judgment
California Codes

Cal. Probate Code § 2580 (2026)

Substituted Judgment

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(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:

(1)Benefiting the conservatee or the estate.

(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.

(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.

(b)The action proposed in the petition may include, but is not limited to, the following:

(1)Making gifts of principal or income, or both, of the estate, outright or in trust.

(2)Conveying or releasing the conservatee’s contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.

(3)Exercising or releasing the conservatee’s powers as donee of a power of appointment.

(4)Entering into contracts.

(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatee’s disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.

(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.

(7)Exercising options of the conservatee to purchase or exchange securities or other property.

(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:

(A)Life insurance policies, plans, or benefits.

(B)Annuity policies, plans, or benefits.

(C)Mutual fund and other dividend investment plans.

(D)Retirement, profit sharing, and employee welfare plans and benefits.

(9)Exercising the right of the conservatee to elect to take under or against a will.

(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.

(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.

(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.

(13)Making a will.

(14)Making or revoking a revocable transfer on death deed.

Notes of Decisions
Cited in 11 cases (2 in the last 5 years), 1987–2022 · leading case: Conservatorship of McElroy, 104 Cal. App. 4th 536 (Cal. Ct. App. 2002).
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Conservatorship of McElroy, 104 Cal. App. 4th 536 (Cal. Ct. App. 2002). · cites it 5× “Probate Code section 2582 provides that the court may make an order for substituted judgment only if it determines that the conservatee either is not opposed to the order or, if opposed, lacks legal capacity for the proposed action.”
In re Est. of Berger, 520 N.E.2d 690 (Ill. App. Ct. 1987). · cites it 3× “(See Cal. Prob. Code § 2580 et seq. (West Supp.”
Conservatorship of Romo, 190 Cal. App. 3d 279 (Cal. Ct. App. 1987). · cites it 4× “Larson ( Larson ), a daughter of the above-named conservatee, Doris Romo, appeals from (1) the "Order for approval and confirmation of will for Doris Romo (Prob. Code, § 2580) entered in this action on January 25, 1984," and from (2) the "Order of the court entered on May 8,…”
Goodman v. Berger, 520 N.E.2d 690 (Ill. App. Ct. 1st Dist. 1987). · cites it 3× “(See Cal. Prob. Code §2580 et seq. (West Supp.”
Wells Fargo Bank v. Keresey, 228 Cal. App. 3d 1244 (Cal. Ct. App. 1991). “(Prob. Code, § 2580, subd. (a).) The proposed action may include, among other things, “[mjaking gifts of principal or income, or both, of the estate, outright or in trust.”
Michael S. B. v. Berns, 540 N.W.2d 11 (Wis. Ct. App. 1995). “This section, created in 1985, was based on Cal. Prob. Code § 2580 (West 1981) and Uniform Probate Code § 5-407 (1983), both of which codify the common law equitable doctrine of substituted judgment.”
Lazzaroni v. Larson, 190 Cal. App. 3d 279 (Cal. Ct. App. 1987). · cites it 4× “Larson {Larson), a daughter of the above-named conservatee, Doris Romo, appeals from (1) the “Order for approval and confirmation of will for Doris Romo (Prob. Code, §2580) entered in this action on January 25, 1984,” and from (2) the “Order of the court entered on May 8, 1984,…”
Cecil v. Netcharu, 125 Cal. App. 4th 659 (Cal. Ct. App. 2004). “Statement of the Case Petitioner and respondent Santa Clara County Public Guardian Robert Cecil, conservator for Kathryn McDowell, filed a petition for substituted-judgment (Prob. Code, § 2580 et seq.), 1 requesting authority to revoke Ms.”
Sutherland v. Arent, No. A160404 (Cal. Ct. App. Mar. 24, 2022). “4th 376 , a conservator obtained an order from a probate court to enter a substituted judgment (Prob. Code, § 2580, subd. (b)(5) & (13)) authorizing the conservator to establish a living trust and pour-over will that effectively disinherited one of the conservatee’s two children…”
Conservatorship of Stouky, No. H047388 (Cal. Ct. App. Sept. 14, 2022). “” (Prob. Code, § 2580, subd. (a).5) Such actions may include creating, modifying, or revoking a trust, or making a will.”
Conservatorship of Smith, No. A139386 (Cal. Ct. App. July 16, 2014). “(Prob. Code, § 2580.) At a hearing on August 25, 2009, the trial court granted the petition on a 2 temporary basis, and allowed appellant time to consult with an attorney regarding her objection to respondent’s separate petition to name him as conservator.”
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