Michael J. v. Superior Court

Stephen M. Magro, Tustin, for Real Party in Interest.

RYLAARSDAM, ACTING P. J.

Does the conservator of the person and the estate of a mentally disabled person who is unable to communicate her wishes have the power to initiate and prosecute a petition for the dissolution of her marriage? We conclude she does not. But, if necessary for the protection of the assets of the estate, the conservator has the authority, subject to the approval of the probate court, to petition for legal separation. The trial court ruled it had the power to grant conservator's petition for substituted judgment and for instructions directing her to file and prosecute a petition to dissolve the conservatee's marriage. We disagree and therefore grant husband's petition for writ of mandate and order the trial court to vacate its order.

Real party in interest Linda Rogers (conservator) is the conservator of the person and estate of Jung J. (conservatee). Conservator filed a petition in the probate court seeking authority to file an action dissolving conservatee's marriage to petitioner Michael J. (husband). According to the petition, conservatee and husband married in 1989. At the time, both of them were…