No Attorney Fees In a California Conservatorship Proceeding Without Appointment Of Conservator

In Brokken v. Brokken, the California Court of Appeals reversed an award of attorney fees incurred in a conservatorship proceeding where no conservator was ever appointed, finding that no statutory authorization exists for the award of attorney fees when there is no conservator.

The Facts of Brokken v. Brokken

Beth and Barry Brokken petitioned to establish a conservatorship over their mother, Doris Mae Brokken.  Doris was vigorously opposed to a conservatorship.  After two years of litigation, the parties settled the matter without the need for a conservatorship.  Doris voluntarily agreed to engage in professional mental health services and the petition was dismissed.

Beth and Barry sought to recover their attorney fees incurred as part of the settlement.  Doris did not think that they should get fees, but to facilitate settlement she agreed to let the California probate court decide whether or not they were entitled to attorney fees, and if so, how much they were entitled to.

Beth and Barry filed a petition for attorney fees under California Probate Code section 2640.1.

Doris claimed that the plain language of the statute precluded a fee award because a conservatorship was not established.

Her children argued that equitable principles set forth in Conservatorship of Cornelius supported an award of attorney fees under the unique circumstances of the case.  The California probate court granted fees with reservation, finding that the statutory language was clear, but determining that Cornelius “does open the door” to fees.  Doris appealed.

California Probate Code Section 2640.1 Authorizes Attorney Fees In Conservatorship Proceedings

California Probate Code section 2640.1 governs the compensation of a guardian, conservator, and attorney in guardianship and conservatorship cases and states in pertinent part:

(a) 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.

Any fees awarded under section 2640.1 “shall be charged to the estate of the conservatee.”  Cal Prob. Code § 2640.1(c).

No Conservator = No Attorney Fees

The California appeals court began by examining the plain language of section 2640.1, and found that the plain language does not support the attorney fees award when there is no conservator (a point acknowledged by the probate court).  Section 2640.1 would apply only if Doris’ children filed their petition for appointment of a specific conservator and another conservator was appointed while their petition was pending.  No conservator was ever appointed.  Thus, there was no estate of the conservatee from which to pay attorney fees, and no basis or source for a fee award in the statute.

Conservatorship of Cornelius – Attorney Fees In California Temporary and Permanent Conservatorships

Doris’ children relied upon Cornelius to argue that section 2640.1 may be read broadly.  The California Appeals Court determined that the children read Cornelius  too broadly, stating:

At most, it stands for the proposition that payment of fees under sections 2641, subdivision (a) and 2642, subdivision (a) applies to both temporary and permanent conservatorships. Cornelius involved a temporary conservatorship. Here, we have a different statute and no conservatorship. “‘[C]ases are not authority for propositions not considered.’” (American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1039; B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11.)

In Cornelius, a temporary conservatorship was established.  The court awarded fees and expenses to the temporary conservator and her attorneys, to be paid from the conservatee’s estate.  Section 2642 makes no distinction between a temporary and permanent conservatorship for the purpose of attorney fees.

Cornelius does broadly state “[t]he 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.” (Cornelius, supra, 200 Cal.App.4th at p. 1205.) The court clarified, however, that “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. The petition to appoint a permanent conservator, and appointment of a temporary conservator pending resolution of [the] petition, may well benefit the conservatee even if a permanent conservatorship is never established. It 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.” (Ibid., italics added.)

Therefore, the focus in Cornelius was whether the statutes allowing attorney fees to a conservator and attorneys for conservators apply in both temporary and permanent conservatorships, not whether fees can be awarded in the absence of any conservator at all.

Here, there was no conservator, and therefore section 2640.1 of the California Probate Code does not authorize an award of attorney fees.

Andrew S. Gold, Esq.

Probate & Trust Litigation

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(650) 450-9600



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