April 26, 2012
Temporary Conservators May Recover Attorney’s Fees and Costs Even Where No Permanent Conservatorship Results
The Problem: Litigation is costly and often a deterrent to family members needing to seek court intervention to conserve an elderly parent. Although Probate Code section 2641 allows a conservator to petition the court for reimbursement of costs, securing a permanent conservatorship can take months and, if contested, result in enormous attorney’s fees. Can a petitioner that has only secured an order of temporary conservatorship be reimbursed his costs? The First Appellate District has answered, “yes”.
Criteria: So long as expenses incurred by the temporary conservator were incurred in good faith and in the best interests of the proposed conservatee, the temporary conservator can petition for reimbursement. In the Conservatorship of Bobby Jack Cornelius (November 15, 2011)200 Cal. App.4th 1198 the Court of Appeal reasoned that it is “the 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.” The Court noted that the Probate Code does not distinguish between a temporary or permanent conservator in allowing compensation to the conservator. Rather the relevant question is whether the temporary conservator acted in good faith and in the best interests of the conservatee.
Facts: The trial court, in awarding reimbursement of the temporary conservator’s costs, did not merely presume that prevailing on a petition for temporary conservatorship entitled the conservator to reimbursement of costs. Instead, the lower court considered extensive facts establishing that the conservatorship benefitted the conservatee. Bobby Jack Cornelius had allowed strangers to move into his home, rent-free and farm marijuana. These strangers abused Cornelius mentally, physically and financially. Neighbors had called the Sheriff out to the premises at least 12 times over the past year. The temporary conservator had removed the unsavory squatters from Cornelius’ home, helped him with medical treatment, nutrition and his finances. Cornelius’ court appointed attorney supported payment of the temporary conservator and reported that “many of my recommendations are contrary to many of Mr. Cornelius’s stated wishes to me, but the majority of Mr. Cornelius’s objections and the course of action he suggests is inappropriate.” Ultimately the petition for permanent conservatorship was dismissed, perhaps due to the appointment of a private professional fiduciary over Cornelius’s finances. When the temporary conservator sought reimbursement for costs, Cornelius objected both to the reimbursement and to the amount. The trial court allowed all costs and the Court of Appeal upheld the decision.
The Take Away: a temporary conservator can be reimbursed for costs associated with a successful petition for temporary conservatorship, however, be diligent in documenting and reporting how those actions benefitted the conservatee. A mere “win” may not be sufficient to recover all costs.
Ellen McKissock is a Shareholder in Hopkins & Carley’s Trust & Estate Litigation department.
