SB 156, as amended, Beall. Conservatorships and guardianships: attorney’s fees.
Existing law provides for the administration of guardianships and conservatorships. Existing law authorizes a guardian or conservator of an estate to petition the court for an order allowing compensation to the guardian, conservator, or attorney for the guardian or conservator, as specified. Existing law prohibits the guardian or conservator from being compensated from the estate for any costs or fees that he or she incurred in unsuccessfully opposing a petition, or other request or action, made by or on behalf of the ward or conservatee, unless the court determines that the opposition was made in good faith, based on the best interests of the ward or conservatee.
This bill would instead authorize the court to awardbegin insert specifiedend insert litigation costs, including attorney’s fees, to the prevailing party if an objection is made to the petition for compensation,begin insert exceptend insert as specified.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 2640 of the Probate Code is amended to
2read:
(a) At any time after the filing of the inventory and
4appraisal, but not before the expiration of 90 days from the issuance
5of letters or any other period of time as the court for good cause
6orders, the guardian or conservator of the estate may petition the
7court for an order fixing and allowing compensation to any one or
8more of the following:
9(1) The guardian or conservator of the estate for services
10rendered to that time.
11(2) The guardian or conservator of the person for services
12rendered to that time.
13(3) The attorney for
services rendered to that time by the
14attorney to the guardian or conservator of the person or estate or
15both.
16(b) Notice of the hearing shall be given for the period and in
17the manner provided for in Chapter 3 (commencing with Section
181460) of Part 1.
19(c) Upon the hearing, the court shall make an order allowing
20(1) any compensation requested in the petition the court determines
21is just and reasonable to the guardian or conservator of the estate
22for services rendered or to the guardian or conservator of the person
23for services rendered, or to both, and (2) any compensation
24requested in the petition the court determines is reasonable to the
25attorney for services rendered to the guardian or conservator of
26the person or estate or both. The compensation allowed to the
27guardian
or conservator of the person, the guardian or conservator
28of the estate, and to the attorney may, in the discretion of the court,
29include compensation for services rendered before the date of the
30order appointing the guardian or conservator. The compensation
31allowed shallbegin delete thereuponend delete be charged to the estate. Legal services
32for which the attorney may be compensated include those services
33rendered by any paralegal performing legal services under the
34direction and supervision of an attorney. The petition or application
35for compensation shall set forth the hours spent and services
36performed by the paralegal.
37(d) If the court, upon an objection to the petition, reduces the
38compensation requested in the petition, thebegin delete objectorend deletebegin insert
objecting partyend insert
P3 1 shall be deemed the prevailing party and the court may award the
2begin delete objectorend deletebegin insert objecting party end insert his or her costs and other expenses and
3costs of litigation, including attorney’s fees, incurred to contest
4the petition.begin delete The amount charged isend deletebegin insert In determining whether to
5award the objecting party his or her costs and other expenses and
6costs of litigation, the court shall consider the best interests of the
7ward or conservatee.end insert
8begin insert(1)end insertbegin insert end insertbegin insertThe award shall beend insert a charge against the compensation of
9the guardian or conservator, and the guardian or conservatorbegin delete isend delete
10begin insert shall beend insert liable personally and on the bond, if any, for any amount
11that remains unsatisfied.
12(2) This subdivision does not apply to a public conservator or
13public guardian.
14(e) Notwithstanding subdivision (c), the guardian or conservator
15shall not be compensated from the estate for any costs or fees,
16including attorney’s fees, that the guardian or conservator incurred
17in defending the compensation in the petition, unless the guardian
18
or conservator proves to the satisfaction of the court that the
19guardian or conservator acted in good faith in defending the
20petition, taking into consideration the objections of the ward or
21conservatee, if any. If the guardian or conservator establishes
22good faith, the court may choose, but is not required, to award
23those costs or fees if the court determines that it is in the best
24interest of the ward or conservatee to make that award.
25(e)
end delete
26begin insert(f)end insert If the court, upon an objection to the petition, does not reduce
27the compensation requested in the petition, the guardian or
28conservator shall be deemed the prevailing party and
the court
29may order thebegin delete objectorend deletebegin insert
objecting partyend insert to pay thebegin delete compensation expenses and
30and costs of the guardian or conservator and otherend delete
31costs of litigation, including attorney’s fees, incurredbegin insert
by the
32guardian or conservatorend insert to defend the petition. Thebegin delete objectorend delete
33begin insert objecting partyend insert shall be personally liablebegin delete to the guardianship or for the amount ordered.begin insert In determining
34conservatorship estateend delete
35whether to award the objecting party his or her expenses and costs
36of litigation, the court shall consider the best interests of the ward
37or conservatee.end insert
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