June 15, 2021

Attorney Fees in a Conservatorship

A conservatorship involves the appointment of a conservator by a court to manage the affairs of an incapacitated person, the conservatee. For example, a child, the conservator, can file a petition for conservatorship regarding their incapacitated parent, the conservatee.

A conservatorship can take the form of a conservatorship of the person.

"A conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter." Probate Code §1801(a).

A conservatorship can also take the form of a conservatorship of the estate.

"A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence." Probate Code §1801(b).

A recent appellate decision adjudicated the recovery of attorney fees in a conservatorship case.

Conservatorship of Brokken (2021) 61 Cal.App.5th 944

"Respondents are the adult children of appellant Doris Mae Brokken. Over their mother's vigorous objection, respondents petitioned to establish a conservatorship. They alleged that appellant suffered from ongoing mental health issues and that her behavior had become increasingly erratic. After two years of litigation and negotiation, the parties settled the matter without the need for a conservatorship. Appellant voluntarily agreed to engage in professional mental health services and the petition was dismissed.

Respondents sought to recover their attorney fees as part of the settlement. Appellant did not believe they are legally entitled to fees, but to facilitate settlement, she agreed to let the probate court decide whether respondents are entitled to fees and, if so, the amount of such fees."

Respondents cited Probate Code § 2640.1(a) as statutory authority for this request. It reads in pertinent part:

"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."

Respondents' further cited Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198 as case law that permitted the recovery of attorney fees. In Cornelius, a child had successfully petitioned for a 6-month conservatorship regarding her mother. Ultimately a permanent conservatorship was not established. The Cornelius Court held that 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." Id. at 1204.  

Conversely, Respondents in Brokken neither established a temporary conservatorship nor a permanent conservatorship for their mother. The Brokken Court held that since Probate Code § 2640.1(a) requires some form of a conservatorship to be established and none was, Respondents were not entitled to recovery of their attorney fees.