Amended in Assembly June 19, 2013

Amended in Assembly June 11, 2013

Amended in Senate April 8, 2013

Senate Bill No. 156

Introduced by Senator Beall

(Coauthor: Assembly Member Fong)

January 31, 2013

An act to amend Section 2640 of the Probate Code, relating to conservatorships and guardianships.

LEGISLATIVE COUNSEL’S DIGEST

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 award specified litigation costs begin insert incurred by the guardian or conservator in defending the compensation in the petition end insert , including attorney’s fees, begin delete to the prevailing party if an objection is made to the petition for compensation, except as specified. end delete begin insert only if the guardian or conservator first proves that he or she made a good faith effort to informally resolve all objections, that he or she acted in good faith in defending the petition, and that it is in the best interest of the ward or conservatee to award the costs. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2640 of the Probate Code is amended to
read:

2640.  

(a) At any time after the filing of the inventory and
appraisal, but not before the expiration of 90 days from the issuance
of letters or any other period of time as the court for good cause
orders, the guardian or conservator of the estate may petition the
court for an order fixing and allowing compensation to any one or
more of the following:

(1) The guardian or conservator of the estate for services
rendered to that time.

(2) The guardian or conservator of the person for services
rendered to that time.

(3) The attorney for services rendered to that time by the
attorney to the guardian or conservator of the person or estate or
both.

(b) Notice of the hearing shall be given for the period and in
the manner provided for in Chapter 3 (commencing with Section
1460) of Part 1.

(c) Upon the hearing, the court shall make an order allowing
(1) any compensation requested in the petition the court determines
is just and reasonable to the guardian or conservator of the estate
for services rendered or to the guardian or conservator of the person
for services rendered, or to both, and (2) any compensation
requested in the petition the court determines is reasonable to the
attorney for services rendered to the guardian or conservator of
the person or estate or both. The compensation allowed to the
guardian or conservator of the person, the guardian or conservator
of the estate, and to the attorney may, in the discretion of the court,
include compensation for services rendered before the date of the
order appointing the guardian or conservator. The compensation
allowed shall be charged to the estate. Legal services for which
the attorney may be compensated include those services rendered
by any paralegal performing legal services under the direction and
supervision of an attorney. The petition or application for
compensation shall set forth the hours spent and services performed
by the paralegal.

begin delete

(d) If the court, upon an objection to the petition, reduces the
compensation requested in the petition, the objecting party shall
be deemed the prevailing party and the court may award the
objecting party his or her costs and other expenses and costs of
litigation, including attorney’s fees, incurred to contest the petition.
In determining whether to award the objecting party his or her
costs and other expenses and costs of litigation, the court shall
consider the best interests of the ward or conservatee.

(1) The award shall be a charge against the compensation of the
guardian or conservator, and the guardian or conservator shall be
liable personally and on the bond, if any, for any amount that
remains unsatisfied.

(2) This subdivision does not apply to a public conservator or
public guardian.

(e)

end delete

begin insert (d) end insert  Notwithstanding subdivision (c), begin insert if the court reduces or
denies the compensation requested in the petition, end insert the guardian or
conservator shall not be compensated from the estate for any costs
or fees, including attorney’s fees, that the guardian or conservator
incurred in defending the compensation in the begin delete petition, unless the
guardian or conservator proves to the satisfaction of the court that
the guardian or conservator acted in good faith in defending the
petition, taking into consideration the objections of the ward or
conservatee, if any. If the guardian or conservator establishes good
faith, the court may choose, but is not required, to award those
costs or fees if the court determines that it is in the best interest of
the ward or conservatee to make that award. end delete begin insert petition. However,
the court may exercise discretion to grant or deny any portion of
the additional fee request if the guardian or conservator proves
to the satisfaction of the court all of the following: end insert

begin insert

(1) The guardian or conservator made a reasonable and good
faith attempt at an informal resolution of each issue presented by
the objection to the compensation in the petition.

end insert begin insert

(2) The guardian or conservator acted in good faith and with
substantial justification in defending the petition, taking into
consideration any objections thereto.

end insert begin insert

(3) It is in the best interest of the ward or conservatee to make
an award of costs or fees.

end insert begin delete

(f) If the court, upon an objection to the petition, does not reduce
the compensation requested in the petition, the guardian or
conservator shall be deemed the prevailing party and the court
may order the objecting party to pay the expenses and costs of
litigation, including attorney’s fees, incurred by the guardian or
conservator to defend the petition. The objecting party shall be
personally liable for the amount ordered. In determining whether
to award the objecting party his or her expenses and costs of
litigation, the court shall consider the best interests of the ward or
conservatee.

end delete