Breaking the piggy bank with gavel

March 30, 2021


WHAT IS A CONSERVATORSHIP?

A Conservatorship is a legal proceeding where a judge appoints a responsible person or organization (called the “Conservator”) to care for another adult (called the “Conservatee”) who cannot care for himself or herself and/or manage his or her own finances.  They can be conducted in either the Probate Division of the Superior Court of California (called “Probate Conservatorships”) or some Conservatorships (known as Lanterman-Petris-Short Conservatorships (referred to as “LPS”)) are conducted in mental health court.  For purposes of this writing, I am referring only to Probate Conservatorships (temporary and permanent).

WHEN ARE CONSERVATORHIPS NECESSARY?

As I have written in the past, Conservatorships are something I recommend my clients attempt to avoid, if possible.  They are public; expensive; and often expose “dirty laundry” or “embarrassing activities” if they are contentious.   If they become contentious, depending on the claims to support the Conservatorship, they can sometimes result in a rift in the relationship between the Conservator and the Conservatee.  They are sometimes necessary though.  If you or your loved one does not have a complete estate plan and/or may have fallen victim to undue influence or elder abuse from individual(s) who have less than honorable intentions, a Conservatorship is often the only avenue to protect the Conservatee and/or his or her assets from abuse.

WHO PAYS FOR A CONSERVATORSHIP?

With few statutory exceptions, the California court system follows the American Rule. The American Rule is a rule in the U.S. justice system that says two opposing sides in a legal matter must pay their own attorney fees, regardless of who wins the case. Conservatorships are one of those statutory exceptions where the side that brings the petition can have their attorney fees and costs ordered paid from the assets of the estate of the Conservatee.   However, a recent ruling by the California Court of Appeal, Second Appellate District, Division Six, held that one must be successful in establishing a conservatorship in order to have the Petitioner’s fees and costs subject to an order of payment from the Conservatee’s assets.

In re: the Estate of Doris Mae Brokken, the adult children of Doris Mae Brokken sought to establish a conservatorship over their mother, Doris. Doris vigorously objected to it.  After two years of litigation, the parties finally settled and agreed that the Petition for Appointment of Conservator would be dismissed.  However, the children still wanted Doris to pay their attorney’s fees and costs.  Doris would not agree to pay them, but in the interest of settling the litigation, agreed to leave it up to the court to decide.  

Doris’ children sought court approval of $12,584 of attorney fees incurred in seeking the establishment of a conservatorship.  They relied on the California Probate Code and the ruling in the Conservatorship of Cornelius (2011) 200 Cal.App. 4th 1198. The Superior Court Judge acknowledged that the Probate Code did not allow for the award of fees when the conservatorship was not established but felt that the ruling in Cornelius may have “opened the door” for an award of fees against Doris’ estate.  As such, the Superior Court awarded Doris’ children attorney fees and ordered them paid by Doris.  Doris appealed that ruling.

In the appeal, Doris pointed out that the Probate Code only allows for an award of attorney fees when the conservatorship petition is successful and that Cornelius did not  “open the door” for an award of fees in this case, where no conservatorship was established.   In Cornelius, although the permanent petition was dismissed, a temporary conservatorship had been established.  There was no temporary conservatorship in Doris’ case.

The Appellate Court agreed with Doris and found that Cornelius allowed attorney fees, despite the dismissal of the permanent petition, because there was a finding that the appointment of a temporary conservatorship resulted in a benefit to the Conservatee and her estate that allowed for the court to award fees.   The distinction in Doris’ case was that no temporary conservatorship was ever established, so her children were not entitled to have their attorney fees and costs paid from Doris’ assets.

As a result of the speculative nature of conservatorship proceedings many attorneys are adopting an approach where they have their client pay their fees and the court costs and then seek reimbursement of those fees and costs once the conservatorship is established.  If you are considering seeking a conservatorship over a dependent adult, be prepared to pay up to $15,000 in attorneys’ fees and court costs on a contentious conservatorship.  If you are successful in getting a conservator appointed, be it you or someone else, you can then seek payment of your attorney fees and costs from the assets of the Conservatee or if you paid those fees and costs out of your own pocket, you can seek reimbursement. 

ALTERNATIVES TO CONSERVATORSHIP.

Many people do not realize that a complete estate plan can not only help to avoid probate but can help to avoid a conservatorship in many cases.  The cost of an estate plan is considerably less than the cost of establishing a conservatorship, not to mention the ongoing expenses of a bond premium, preparing regular accountings, attorney fees, and court filing fees.

CANNON LEGAL FIRM CAN HELP.

If you or your loved one need more information about conservatorships or alternatives to conservatorships, we can help. Contact Cannon Legal Firm for a free consultation.  

We proudly serve Seal Beach, Long Beach and the surrounding communities for all your Estate Planning, Trust & Estate Litigation, Trust Administration and Probate needs.   We are happy to provide a free consultation via telephone, virtual visit or socially distanced at our offices at 3020 Old Ranch Parkway, Suite 300, Seal Beach, California or at your home or office.

Contact us for a free consultation or schedule a Zoom or telephone appointment online.  Dana@CannonLegalFirm.com   –    562.543.4529 (Voice and Text)   –   www.CannonLegalFirm.com

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About the author 

Dana Cannon

Dana M. Cannon has many years of experience with Probates, Conservatorships, Trusts and Estates. During that time she has advised clients on multi-million dollar trust administrations; handled complex litigation; performed estate planning; and represented clients in contested and uncontested conservatorship, guardianship, probate and trust matters. She has been a volunteer at the Los Angeles Superior Court Pro Bono Probate Settlement Program since it began.  She understands that these matters may not just involve money. They are often fueled by emotions and because of that this isn’t just business, it’s personal. She looks forward to assisting you with your legal needs.

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