BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 269| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 269 Author: Vidak (R) Amended: 4/6/15 Vote: 21 SENATE JUDICIARY COMMITTEE: 6-0, 4/14/15 AYES: Jackson, Vidak, Anderson, Leno, Monning, Wieckowski NO VOTE RECORDED: Hertzberg SUBJECT: Conservator appointments: compensation SOURCE: Conference of California Bar Associations DIGEST: This bill authorizes 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 provides that any compensation and costs shall be charged to the conservatee's estate. ANALYSIS: Existing law: 1) 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 SB 269 Page 2 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. 2) Requires the petition for compensation to be noticed to interested parties, as specified. 3) Authorizes the court, upon the hearing, to make an order allowing: (a) 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 (b) 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. 4) 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 guardian's or conservatee's estate. 5) 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. 6) 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 SB 269 Page 3 compensation and reimbursement of costs, provided that the court determines that the petition was filed in the best interests of the conservatee. 7) 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. 8) 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. 9) 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. 10) 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. 11) 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. 12) 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. This bill: SB 269 Page 4 1) Provides 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. 2) Requires notice of the time and place of the hearing to be given, as specified, at least 15 days before the day of the hearing. 3) Requires 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. 1) Requires any compensation and costs allowed to be charged to the conservatee's estate. 2) Provides that if a conservator of the estate is not appointed, but a conservator of the person is appointed, the compensation and costs allowed is to be ordered by the court to be paid from property belonging to the conservatee, whether held outright, in trust, or otherwise. Background In California, if an adult is unable to manage his or her SB 269 Page 5 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 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 also authorizes 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. Comments 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] SB 269 Page 6 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. Prior Legislation AB 1363 (Jones, Chapter 493, Statutes of 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 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, Chapter 581, Statutes of 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 SB 269 Page 7 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, Chapter 730, Statutes of 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, Chapter 572, Statutes of 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, Chapter 79, Statutes of 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified4/15/15) Conference of California Bar Associations (source) OPPOSITION: (Verified4/15/15) None received Prepared by:Tara Welch / JUD. / (916) 651-4113 4/17/15 14:26:29 **** END **** SB 269 Page 8