Metropolitan News-Enterprise


Thursday, November 17, 2011


Page 1


C.A.: Legal Fees May Be Awarded for Temporary Conservatorships


By SHERRI M. OKAMOTO, Staff Writer


A daughter who successfully obtained a temporary conservatorship over the person of her elderly father was entitled to recover her costs and legal fees, even though the convervatorship was not made permanent, the First District Court of Appeal has ruled.

Div. Four on Tuesday said the compensation and reimbursement of expenses to Bobbie McDonald, paid by the estate of her father, Bobby Cornelius, was proper.

McDonald had petitioned for temporary and permanent conservatorships over Cornelius, a 73-year old widower, last July.

She asserted that her father was of a compromised physical mental and physical state, rendering him susceptible to fraud by persons who had moved into his home and were operating a marijuana farm on the premises. Declarations from several family members also attested to this.

Investigator’s Report

A court investigator was appointed to evaluate whether a temporary conservatorship was appropriate, and concluded that Cornelius was “urgently in need of medical and medication supervision and proper nutrition, and is at high risk of undue influence from what appear to be virtual strangers that he has allowed to live in his home.”

After reviewing the report and holding a hearing attended by Cornelius’ attorney, Sonoma Superior Court Judge Mark Tansil found that a temporary conservatorship was in Cornelius’ best interest. McDonald was appointed the temporary conservator, but she was subsequently replaced, at her request, by a professional fiduciary.

Cornelius filed an objection to the appointment of a conservator and a declaration stating his disagreement with his family members’ declarations. He also demanded a jury trial, which was set for last December.

For reasons which did not appear on the record, McDonald dismissed her petition for conservatorship before the trial began. In February she sought and received an award of $34,000 for the compensation and reimbursement of expenses to the temporary conservator, attorneys, and care providers.

Cornelius challenged this award on appeal, contending no such compensation is authorized under the Probate Code unless a permanent conservator appointed.

Writing for the appellate court, Justice Patricia K. Sepulveda disagreed with Cornelius’ construction of Secs. 2641 and 2642.

Probate Code

Sec. 2641(a) provides that a “conservator of the person may petition the court for an order fixing and allowing compensation for services rendered to that time.” Similarly, Sec. 2642(a) states that “an attorney who has rendered legal services” to the “conservator of the person or estate or both…may petition the court for an order fixing and allowing compensation for such services rendered to that time.”

Sepulveda noted that the statutes “make no distinction between temporary and permanent conservators,” and said “we perceive no reason to draw one.”

Joined by Presiding Justice Ignazio J. Ruvolo and Justice Maria P. Rivera, Sepulveda concluded, “[a] temporary conservator is entitled to reimbursement of legal fees and other expenses properly incurred for the conservatee’s benefit during the term of that temporary appointment regardless of whether a permanent conservator is ever appointed.”

She explained that the “deciding factor in awarding reimbursement in a conservatorship proceeding is not whether a permanent conservatorship is established but whether expenses were incurred in good faith and in the best interests of the proposed conservatee,” and so a conservator is “entitled to compensation for expenses that the conservator believed were necessary to benefit the conservatee and that belief was objectively reasonable.”

Reasonableness Finding

Such a finding, the justice reasoned, is “readily made where a petitioner succeeds in establishing a permanent conservatorship because the court has adjudicated that a caretaker is necessary and beneficial to the conservatee,” while “a court’s denial of a petition for permanent conservatorship suggests that a caretaker was not needed, and the effort to establish a conservatorship unnecessary.”

However, Sepulveda cautioned, “it does not follow that the absence of a permanent conservatorship (whether by court denial or party dismissal) proves that the petition for a permanent conservatorship and the interim temporary conservatorship were not necessary and beneficial to the conservatee.”

She posited that a petition to appoint a permanent conservator, and appointment of a temporary conservator pending resolution of that petition, may benefit the conservatee even if a permanent conservatorship is never established, and so “[i]t is benefit to the conservatee, not establishment of a permanent conservatorship, that a court must look to in deciding whether a temporary conservator is entitled to reimbursement.”

Sepulveda noted there was “substantial, indeed overwhelming, evidence that conservatee Cornelius was benefitted by the temporary conservatorship,” which supported the trial court’s finding that the temporary conservatorship was established in good faith and in the best interests of the conservatee.

The case is Conservatorship of Cornelius, 11 S.O.S. 6150.


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