You cannot get a power of attorney for an incapacitated person in California. A POA can only be signed by someone who still has the mental capacity to understand what the document does and what authority it hands over, so once your loved one has lost that capacity, the window has closed. The main legal path forward is a court-supervised conservatorship, which lets a judge appoint someone to handle the incapacitated person’s finances, healthcare, or both. Before you head to court, though, it’s worth checking whether existing documents or narrower alternatives already solve the problem.
Why Capacity Is Required to Sign a POA
California Probate Code section 4120 ties the ability to sign a power of attorney to the ability to enter into a contract: only someone with the mental capacity to contract can execute one.1Justia Law. California Probate Code 4120-4130 – Creation and Effect of Powers of Attorney In practice, the signer has to understand the rights and responsibilities they are transferring, the risks involved, and the consequences of signing.2Sacramento County Public Law Library. Determining Competency to Sign a Durable Power of Attorney A notary or witness who senses confusion can refuse to proceed, and a POA signed without genuine understanding can be challenged and voided later.
That is why a POA is a planning tool, not a crisis tool. If your loved one has advanced dementia, a serious brain injury, or another condition that prevents them from grasping what they would be signing, no attorney can legally prepare a POA for them. You need a different approach.
Check for Documents They Already Signed
Before assuming you need court involvement, look for paperwork the person may have signed while still competent. A durable power of attorney remains effective after the principal becomes incapacitated, which is the whole point of the “durable” designation. An advance healthcare directive names an agent to make medical decisions if the person cannot speak for themselves. If either document exists and names someone appropriate, you may already have authority to act for the matters those documents cover, and you may not need a conservatorship at all.
Search the person’s home files, ask their attorney if they had one, and check with their primary care provider, who may have an advance directive on file.
Narrower Alternatives Before Conservatorship
California courts are required to find that a conservatorship is the least restrictive option before granting one. The judge must consider alternatives like supported decision-making agreements, existing powers of attorney, and advance healthcare directives.3California Legislative Information. California Probate Code 1800.3 The court will ask about them, and one of them may actually solve your problem.
Representative Payee for Benefits
If the concern is Social Security or Veterans Affairs benefits, those agencies handle it in-house. The Social Security Administration can appoint a representative payee for someone who cannot manage their benefits, and the VA has a parallel process for veterans. Neither requires probate court, and both are free to set up.
Spousal Petition Under Probate Code 3100
If the incapacitated person is married, the healthy spouse can petition under Probate Code section 3100 for authority over specific transactions involving community property, and in some cases the incapacitated spouse’s separate property.4California Legislative Information. California Probate Code 3100 This is narrower than a conservatorship because it authorizes particular transactions rather than broad ongoing authority. When a spouse just needs to sell a house, transfer an account, or handle one financial matter, it’s faster and cheaper.
When Conservatorship Is the Right Path
If the alternatives don’t fit, a conservatorship is the remaining option. California recognizes two main types, and the court can grant one or both together.
Conservator of the Person
A conservator of the person makes decisions about the conservatee’s daily life: where they live, what medical care they receive, what food and clothing they get. The court can appoint one when the person is unable to provide for their own physical health, food, clothing, or shelter.5California Legislative Information. California Probate Code 1801
Conservator of the Estate
A conservator of the estate manages the conservatee’s money and property: paying bills, collecting income, protecting investments, and handling financial obligations. The court appoints one when the person is substantially unable to manage their own finances or resist fraud and undue influence. The statute notes that isolated incidents of poor financial judgment are not enough; the inability must be substantial.5California Legislative Information. California Probate Code 1801
Limited Conservatorship
A limited conservatorship applies only to adults with developmental disabilities. The conservator gets only the specific powers the court determines are necessary, and the conservatee keeps every right the court does not expressly remove. If the court learns during a general conservatorship proceeding that the proposed conservatee has a developmental disability, it must treat the case as a limited conservatorship instead.3California Legislative Information. California Probate Code 1800.3
For all three types, the standard of proof is clear and convincing evidence, higher than the “more likely than not” standard used in most civil cases.5California Legislative Information. California Probate Code 1801
Temporary Conservatorship for Urgent Situations
A full conservatorship takes weeks to establish. When someone is in immediate danger, such as financial exploitation happening now, an eviction, or an urgent medical decision with no advance directive, you can petition for a temporary conservatorship at the same time you file the general petition. The filing fee is $60, separate from the main petition fee.6Judicial Council of California. Statewide Civil Fee Schedule Effective January 1, 2026 The petition has to describe specific facts showing good cause, and the court can grant it on an emergency basis without the usual notice period. The Judicial Council form is GC-111.7California Courts. Petition for Appointment of Temporary Conservator The temporary appointment lasts until the court holds the hearing on the full petition.8California Legislative Information. California Probate Code 2250
Filing the Petition
You file with the Superior Court in the county where the proposed conservatee lives. Family members, friends, and public agencies can all initiate the process.9California Courts. Conservatorships The core paperwork uses Judicial Council forms:
- GC-310, Petition for Appointment of Probate Conservator. The main petition, identifying the proposed conservatee, explaining why a conservatorship is needed, and naming the proposed conservator.
- GC-335, Confidential Capacity Assessment and Declaration. A licensed physician or psychologist evaluates the proposed conservatee and reports to the court. This is the single most important piece of evidence, because it tells the judge whether the person actually lacks capacity.10California Courts. Confidential Capacity Assessment and Declaration – Probate Conservatorship
- GC-312, Confidential Supplemental Information. Background details about the proposed conservatee.
- GC-314, Confidential Conservator Screening Form. Background about the proposed conservator, used to screen for problems.
Practical evidence of incapacity strengthens the petition alongside the medical evaluation: unpaid bills piling up, utility shutoff notices, evidence of financial exploitation, signs of self-neglect, or records showing the person has wandered from home. Concrete facts make it easier for the judge to find clear and convincing proof.
What It Costs
The filing fee is $435 as of January 1, 2026. In Riverside and San Francisco counties, a local courthouse construction surcharge brings that to $450.6Judicial Council of California. Statewide Civil Fee Schedule Effective January 1, 2026 If you cannot afford it, you can ask for a fee waiver. Additional petitions filed after the initial letters are issued cost $60 each.
Attorney fees are usually the larger expense. An uncontested conservatorship handled by a private attorney typically starts around $2,000 and can run higher depending on complexity. Contested cases, where a family member objects or the proposed conservatee disputes the need, can cost substantially more. The conservatee’s estate often pays these costs if the court approves them.
What Happens After You File
From filing to the initial hearing usually takes about four weeks for a standard case, though contested matters or scheduling can stretch it. Several things happen before the judge decides.
Notice to Family
At least 15 days before the hearing, you must provide formal notice to the proposed conservatee, their spouse or domestic partner, and the relatives named in the petition.11California Legislative Information. California Probate Code 1822 If the proposed conservatee has a developmental disability, notice to the relevant regional center goes out at least 30 days before the hearing. The notice must include a copy of the petition.
Court Investigator
The court assigns an investigator to interview the proposed conservatee and assess the situation independently. The investigator verifies the petition’s claims, evaluates whether the person understands what’s happening, and asks whether they want an attorney, object to the proposed conservator, or prefer someone else.12California Legislative Information. California Probate Code 1851
Legal Representation for the Conservatee
Many petitioners don’t expect this: the court must appoint a lawyer for the proposed conservatee if they don’t already have one. The public defender or a private attorney represents the conservatee’s interests at or before the hearing. If the proposed conservatee prefers a specific attorney, the court will generally honor that as long as there’s no conflict. The conservatee pays for appointed counsel if they can; otherwise the county covers it.
The Hearing
At the hearing, the judge reviews the petition, the capacity assessment, the investigator’s report, and any other evidence. Interested parties can appear and object. If the judge finds clear and convincing evidence that a conservatorship is needed and represents the least restrictive option, the court grants the petition and issues Letters of Conservatorship on form GC-350.13California Courts. Letters of Conservatorship (GC-350) Those letters are the conservator’s proof of authority. Banks, medical providers, and government agencies will ask to see them.
Ongoing Duties If You’re Appointed
Being named conservator is the beginning of the responsibility, not the end of the paperwork.
A conservator of the estate must post a surety bond before the court issues letters, unless the court specifically waives it.14California Legislative Information. California Probate Code 2320 The bond amount is based on the value of the conservatee’s personal property plus probable annual income from estate assets.15Judicial Branch of California. California Rules of Court 7.207 – Bonds of Conservators and Guardians Annual premiums to the surety company typically run 1% to 3% of the bond amount.
A conservator of the estate must file a complete inventory and appraisal of the conservatee’s assets within 90 days of appointment, though the court can extend the deadline for good cause.16California Legislative Information. California Probate Code 2610 After the first year, and at least every two years after that, the conservator files a formal accounting showing all income received and money spent on the conservatee’s behalf.17California Legislative Information. California Probate Code 2620
The court investigator revisits the case after the first year and then every one to two years, visiting the conservatee without warning the conservator, confirming the conservatee knows they are under a conservatorship, and asking whether they want to end it or replace the conservator.12California Legislative Information. California Probate Code 1851
Throughout, the conservator has a fiduciary duty to act solely in the conservatee’s best interest. No self-dealing, no borrowing from the estate, no mixing personal funds with the conservatee’s money. Skipping accountings or making self-interested decisions can lead to removal by the court and personal liability for losses.
A Conservatorship Isn’t Necessarily Permanent
The arrangement continues until the conservatee dies or the court orders it terminated.18California Legislative Information. California Probate Code 1860 Either the conservator or the conservatee can petition to end it. If the conservatee has regained capacity, perhaps after recovery from a stroke or stabilization of a medical condition, the court must terminate the conservatorship unless it finds by clear and convincing evidence that the person still meets the criteria and that no less restrictive option would work. When the conservatorship ends, the conservator files a final accounting and returns any remaining assets to the former conservatee or their estate.