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Court of Appeal:
Attorney-Fee Award in Conservatorship Case Improper Where Conservator Not Appointed
By a MetNews Staff Writer
Two adult children who brought an action to place their mother under a conservatorship, but dismissed their petition after two years of litigation when she agreed to obtain needed care, were erroneously awarded attorney fees, Div. Six of the Court of Appeal for this district held yesterday.
Justice Steven Z. Perren authored the opinion which reverses an order by Santa Barbara Superior Court Judge Colleen K. Sterne, made pursuant to Probate Code §2640.1.
That section “authorizes fees in certain cases in which a conservator was appointed,” Perren said, but such fees, he added, “are not available where, as here, the matter is resolved without a conservator’s appointment.”
Wording of Statute
Sec. 2640.1(a) provides:
“If a person 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.”
Sec. 2640.1(c)(2) specifies that any fees that are awarded “shall be charged to the estate of the conservatee.”
No Authority
Perren wrote:
“The probate court acknowledged that the statute’s plain language does not apply to the facts in this case. Section 2640.1 would apply only if respondents filed their petition for appointment of a specific conservator and another conservator was appointed while their petition was pending. That did not occur. No conservator was ever appointed and, consequently, appellant never became a conservatee. Thus, there is no ‘estate of the conservatee’ from which to pay attorney fees….Respondents cite no authority suggesting the court may order a non-conservatee to pay the fees.”
The children, Beth and Barry Brokken, argued—successfully in the trial court—that fees are awardable under the Nov. 15, 2011 opinion by Div. Four of the First District Court of Appeal in Conservatorship of Cornelius. Perren said they “read Cornelius too broadly,” explaining that “[a]t most, it stands for the proposition that payment of fees” can be ordered as to conservatorships that are either temporary or permanent.
“Cornelius involved a temporary conservatorship,” he said. “Here, we have a different statute and no conservatorship.”
The case is Conservatorship of Brokken, B303898.
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