BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 269 (Vidak)
          Version: April 6, 2015
          Hearing Date:  April 14, 2015
          Fiscal: No
          Urgency: No
          TMW
                    

                                        SUBJECT
                                           
                       Conservator appointments:  compensation

                                      DESCRIPTION  

          This bill would authorize a person, who has successfully  
          petitioned for the appointment of a third-party conservator, and  
          the person's attorney, to petition the court for an order fixing  
          and allowing compensation for services rendered and  
          reimbursement for costs incurred in connection with the  
          appointment of the conservator.  This bill would provide that  
          any compensation and costs shall be charged to the conservatee's  
          estate.

                                      BACKGROUND  

          In California, if an adult is unable to manage his or her  
          financial matters, a conservator of the estate may be appointed  
          by a court to manage the adult's (conservatee) financial  
          matters.  If the adult is unable to manage his or her medical  
          and personal decisions, a conservator of the person may be  
          appointed.  Similarly, a guardian of the estate or person may be  
          appointed for a minor child (ward). 

          After the guardian or conservator has been appointed, the  
          guardian or conservator of the estate or person, and his or her  
          attorney, may petition the court for an order fixing and  
          allowing compensation for services rendered to that time, which  
          may include compensation for services rendered before the date  
          of the order appointing the guardian or conservator.  Further, a  
          person, who unsuccessfully petitioned for the appointment of a  








          SB 269 (Vidak)
          Page 2 of ? 

          conservator because a different conservator was appointed, may  
          petition the court for an order fixing and allowing compensation  
          and reimbursement of the person's costs in filing the petition  
          for conservator.  In that case, the court must find that the  
          petition was brought in the best interests of the conservatee,  
          and the compensation and fees awarded are charged to the ward's  
          or conservatee's estate.

          This bill would also authorize a person, who successfully  
          petitions for the appointment of a third-party conservator, and  
          the person's attorney, to petition the court for payment of the  
          fees and costs incurred in filing the petition for conservator.

                                CHANGES TO EXISTING LAW
           
           Existing law  permits the guardian or conservator of the estate,  
          at any time after the filing of the inventory and appraisal of  
          the ward's or conservatee's estate, 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, to petition  
          the court for an order fixing and allowing compensation to,  
          among others, the guardian or conservator of the estate or  
          person, or both, and the guardian's or conservator's attorney.   
          (Prob. Code Sec. 2640(a).)
           
          Existing law  requires the guardian or conservator to provide to  
          interested parties, as specified, notice of the hearing on the  
          petition for compensation.  (Prob. Code Sec. 2640(b).)

           Existing law  authorizes the court, upon the hearing, to 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. (Prob. Code Sec. 2640(c).)

           Existing law  provides that 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, and the compensation allowed is charged against the  







          SB 269 (Vidak)
          Page 3 of ? 

          guardian's or conservatee's estate. (Prob. Code Sec. 2640(c).)
           
          Existing law  prohibits the guardian or conservator from being  
          compensated from the estate for any costs or fees that the  
          guardian or conservator 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.  (Prob. Code Sec. 2640(d).)
           
          Existing law  authorizes a person who has petitioned for the  
          appointment of a particular conservator and another conservator  
          was appointed while the petition was pending, but not before the  
          expiration of 90 days from the issuance of letters, the person  
          who petitioned for the appointment of a conservator but was not  
          appointed and that person's attorney may petition the court for  
          an order fixing and allowing compensation and reimbursement of  
          costs, provided that the court determines that the petition was  
          filed in the best interests of the conservatee.  (Prob. Code  
          Sec. 2640.1.)
           Existing law  authorizes a guardian or conservator of the person  
          to petition the court for an order fixing and allowing  
          compensation for services rendered to that time.  (Prob. Code  
          Sec. 2641(a).)

           Existing law authorizes the court, upon a hearing and after  
          determining that a guardian's or conservator's petition for  
          compensation is just and reasonable, to award to the guardian or  
          conservator of the person fees and costs for services rendered.   
          (Prob. Code Sec. 2641(a).)

           Existing law  authorizes, in the discretion of the court, for the  
          guardian or conservator of the person to receive compensation  
          for services rendered before the date of the order appointing  
          the guardian or conservator, and provides that compensation is  
          charged against the guardian's or conservatee's estate.  (Prob.  
          Code Sec. 2641(b).)
           
          Existing law  prohibits compensation from the estate to the  
          guardian or conservator for any costs or fees that the guardian  
          or conservator 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.  (Prob. Code Sec. 2641(c).)







          SB 269 (Vidak)
          Page 4 of ? 


           Existing law  also authorizes an attorney who has rendered legal  
          services to the guardian or conservator of the person or estate  
          or both to petition the court for an order fixing and allowing  
          compensation for such services rendered to that time. (Prob.  
          Code Sec. 2642(a).)

           Existing law  requires the court, upon the hearing, to make an  
          order allowing such compensation as the court determines  
          reasonable to the attorney for services rendered to the guardian  
          or conservator, and the compensation is required to be charged  
          against the ward's or conservatee's estate.  (Prob. Code Sec.  
          2642(b).)
           
          This bill  would provide that when a conservator nominated by a  
          third party is appointed by the court, but not before the  
          expiration of 90 days from the issuance of letters, the person  
          who has petitioned for the appointment of that conservator and  
          that person's attorney may petition the court for an order  
          fixing and allowing compensation and reimbursement of costs.

           This bill  would require notice of the time and place of the  
          hearing to be given, as specified, at least 15 days before the  
          day of the hearing.

           This bill  would require the court to make an order to allow both  
          of the following:
           any compensation or costs requested in the petition the court  
            determines is just and reasonable to the person who petitioned  
            for the appointment of a conservator for the person's services  
            rendered in connection with and to facilitate the appointment  
            of the conservator, and costs incurred in connection  
            therewith; and
           any compensation or costs requested in the petition the court  
            determines is just and reasonable to the attorney for that  
            person, for the attorney's services rendered in connection  
            with and to facilitate the appointment of the conservator, and  
            costs incurred in connection therewith.
           
          This bill  would require any compensation and costs allowed to be  
          charged to the conservatee's estate. 

           This bill  would provide that if a conservator of the estate is  
          not appointed, but a conservator of the person is appointed, the  
          compensation and costs allowed are to be ordered by the court to  







          SB 269 (Vidak)
          Page 5 of ? 

          be paid from property belonging to the conservatee, whether held  
          outright, in trust, or otherwise.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
             Current law provides a hierarchical preference to certain  
             individuals to become the conservator, which begin with the  
             spouse and then works down through adult children, parents,  
             and siblings.  Individuals can also petition the court for  
             the appointment of another conservator if they feel that  
             another individual should act as the conservator.

             Probate Code [Section] 2640 only authorizes reimbursement  
             from the estate of the compensation, costs and attorney's  
             fees of a successful petitioner, on their own behalf, for  
             appointment as estate conservator.  Probate Code [Section]  
             2640.1 allows for the allowance of such compensation, costs,  
             and fees to an unsuccessful petitioner for appointment as  
             conservator.

             But there is no provision allowing for compensation, costs,  
             and fees for a successful petitioner for the appointment of a  
             third person to act as the conservator.  Without this  
             authority for reimbursement of fees, family members and other  
             interested parties may be discouraged, because of their own  
             limited means, from petitioning to have a suitable  
             conservator appointed.

             SB 269 allows interested parties who are successful in their  
             petition for appointment of another, more appropriate person  
             as conservator, to recover compensation, reimbursement of  
             attorneys' fees and other costs incurred in connection with  
             that petition.

          2.  Compensating the petitioner who is successful in appointing a  
            conservator  

          Existing law authorizes the court to compensate the guardian or  
          conservator of a person or estate, and his or her attorney, for  
          fees and costs of services rendered up to the time of the  
          petition for compensation, including the fees and costs incurred  







          SB 269 (Vidak)
          Page 6 of ? 

          prior to the appointment of the guardian or conservator.   
          Existing law also allows a person, who is unsuccessful at  
          appointing a conservator because a different conservator is  
          appointed, to petition the court for fees and costs relating to  
          the conservatorship petition.  This bill would extend that  
          authority to a person who successfully petitions the court for  
          the appointment of a third-party conservator.
          
          The author argues that this bill would provide parity between  
          those who are successful and those who are not successful in  
          petitioning a probate court for the appointment of another  
          person to act as a conservator for reimbursement of attorney's  
          fees and other costs associated with that petition.  The  
          Conference of California Bar Associations (CCBA), sponsor,  
          provides the following example of the problem with existing law:

            [I]n an original Petition for Conservatorship filed by the  
            wife of the proposed conservatee, it is proposed that the wife  
            be appointed to be conservator.  Another interested person,  
            such as the son of the proposed conservatee, may agree that a  
            conservator is necessary but may disagree that the wife is the  
            appropriate person to serve in that capacity.  The son then  
            files a Petition for Conservatorship requesting the  
            appointment of a professional fiduciary.  The Court agrees  
            that the professional fiduciary should be appointed.  The  
            professional fiduciary is represented by other counsel.  Even  
            though the son was successful in having an appropriate  
            fiduciary appointed as conservator, there is no statute which  
            allows him to recover the cost of the petition for appointment  
            of the conservator which was appointed by the court.

          Notably, the wife, and her attorney, in that scenario could be  
          compensated for fees and costs incurred in connection with the  
          wife's unsuccessful petition for appointment as conservator.   
          CCBA argues that without the authority provided in this bill,  
          "family members and other interested parties may be discouraged,  
          because of their own limited means, from petitioning to have a  
          suitable conservator appointed.

          The issue of awarding compensation to a petitioner in a  
          conservatorship case was discussed in Estate of Moore (1968) 258  
          Cal.App.2d 458.  In that case, the Court of Appeal, Second  
          Appellate District, pondered "whether in the absence of  
          statutory authorization, one who in good faith initiates  
          caretaker proceedings in which a guardian or conservator other  







          SB 269 (Vidak)
          Page 7 of ? 

          than the initiator is appointed may be awarded his costs and  
          counsel fees."  (Id. at p. 461.)  The court, holding that the  
          unsuccessful petitioner may be awarded costs and fees, reasoned  
          that "[s]uch a petitioner performs a service to the disabled by  
          notifying the court of the disabled's condition and need for  
          protection.  If compensation were not available, responsible  
          parties might be discouraged from initiating effective action  
          and becoming parties to caretaker proceedings whose primary  
          benefits accrue to other persons."  (Id.)

          Although the Estate of Moore holding allowed the unsuccessful  
          petitioner to be reimbursed for fees and costs, the court's  
          reasoning could also apply to the successful petitioner because  
          the reasoning was based upon the public policy of reimbursing  
          petitioners who bring to the court's attention that an  
          individual may need help through a conservatorship.  The Estate  
          of Moore holding has already been codified in Probate Code  
          Section 2640.1, which authorizes the unsuccessful petitioner to  
          be reimbursed for fees and costs.  Existing law also already  
          authorizes reimbursement to a petitioner who is, himself or  
          herself, appointed as the conservator.  (Prob. Code Secs. 2640,  
          2641.)  This bill would extend the existing conservatorship fees  
          and costs reimbursement to a petitioner who is successful at  
          appointing a third-party conservator.

          It is important to note that in order to be reimbursed for fees  
          and costs associated with the conservatorship petition, existing  
          law requires the unsuccessful petitioner to prove to the court  
          that the conservatorship petition was brought in the best  
          interests of the conservatee.  This provision protects  
          individuals, who are alleged to need a conservatorship but no  
          conservatorship is warranted, from being required to pay the  
          fees and costs of the unsuccessful petitioner.  On the other  
          hand, this bill would not require the court to find that the  
          conservatorship petition was brought in the best interests of  
          the conservatee because this bill would only apply to the  
          petitioner who is successful at proving to the court that the  
          conservatorship is necessary to protect the conservatee. 

          3.  Compensating the successful petitioner's attorney  

          Existing law authorizes the court to compensate the attorney for  
          the guardian or conservator of a person or estate for the  
          attorney's fees and costs of services rendered up to the time of  
          the petition for compensation, including the fees and costs  







          SB 269 (Vidak)
          Page 8 of ? 

          incurred prior to the appointment of the guardian or  
          conservator.  (Prob. Code Secs. 2640, 2642.)  The court is also  
          authorized to award attorney's fees and costs in connection with  
          an unsuccessful conservatorship petition.  (Prob. Code Sec.  
          2641.)  In these cases, the court may only award reimbursement  
          of reasonable attorney's fees.

          Similarly, this bill would authorize an award of attorney's fees  
          and costs incurred from bringing a successful conservatorship  
          petition.  The Estate of Moore court asserted its equitable  
          authority to award attorney's fees and costs incurred from  
          filing an unsuccessful conservatorship petition because  
          petitioners may otherwise be discouraged from acting to protect  
          individuals in need.  (Estate of Moore (1968) 258 Cal.App.2d  
          458, 463.)  By permitting an award of attorney's fees and costs,  
          this bill would maintain the state's policy of encouraging  
          people to bring protective actions to the court's attention.  As  
          with existing awards of attorney's fees and costs, this bill  
          would also only authorize an award of attorney's fees and costs  
          that are reasonable. 
           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Conference of California Bar Associations

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 1363 (Jones, Ch. 493, Stats. 2006), the Omnibus  
          Conservatorship and Guardianship Reform Act of 2006, among other  
          things, required that a person, whose petition for appointment  
          of a conservator is unsuccessful because a different conservator  
          was appointed, and who petitions the court for an award of  
          compensation of fees and costs associated with the  
          conservatorship petition, must also prove that the unsuccessful  
          petition to appoint a conservator was filed in the best  
          interests of the conservatee.  AB 1363 also prohibited the  
          guardian or conservator of the estate from being compensated  
          from the estate for any costs or fees that the guardian or  
          conservator incurred in unsuccessfully opposing a petition, or  
          other request or action, made by or on behalf of the ward or  







          SB 269 (Vidak)
          Page 9 of ? 

          conservatee, unless the court determines that the opposition was  
          made in good faith, based on the best interests of the ward or  
          conservatee.

          AB 2801 (Committee on Judiciary, Ch. 581, Stats. 1998)  
          authorized the court, at any other period of time, other than  
          after the filing of an inventory and appraisal not filed before  
          the expiration of 90 days from the issuance of letters, and as  
          the court for good cause orders, to issue an order fixing and  
          allowing compensation to the guardian or conservator of the  
          estate.

          AB 1466 (Kaloogian, Ch. 730, Stats. 1995) authorized a person,  
          whose petition for appointment of a conservator was unsuccessful  
          because a different conservator was appointed, to receive  
          compensation and reimbursement for costs incurred in the  
          conservatorship proceeding.

          SB 1455 (Mello, Ch. 572, Stats. 1992), among other things,  
          extended the ability of a guardian or conservator of the estate  
          or person to file a petition for an order fixing and allowing  
          compensation, in the discretion of the court, for services  
          rendered before the date of the order appointing the guardian or  
          conservator.

          AB 759 (Friedman, Ch. 79, Stats. 1990) revised and recast the  
          Probate Code and, among other things, authorized a guardian or  
          conservator of a person or estate, and his or her attorney, to  
          file a petition for an order fixing and allowing compensation  
          for services rendered to that time.

                                   **************