BILL ANALYSIS Ó
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
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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
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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).)
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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
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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
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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
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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
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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
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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.
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