California Probate and Trust Legal Summary Winter 2013

Catanese & Wells, a Law Corporation provides a quarterly newsletter to the California probate and trust professional community including lawyers, accountants, professional fiduciaries and insurance providers. www.cataneselaw.com.

This issue discusses general legal questions regarding California's conservatorship law and the right to attorneys' fees by those who petition the court for appointment of a conservator over a person and their estate.

A conservator of the person or estate or both may be appointed for an adult. Cal. Prob. C. §1800.3(a)(1). A conservator of the person or estate or both may be appointed for a person who "voluntarily requests the appointment and who, to the satisfaction of the court, establishes good cause for the appointment." Cal. Prob. C. §1802. 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." Cal. Prob. C. §1801(a). Further, 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." But, "substantial inability" may not be proved solely by "isolated incidents of negligence or improvidence." Cal. Prob. C. §1801(b). A spouse, adult child, parent, brother or sister and friend of a proposed conservatee may nominate a conservator in the petition for appointment or at the court hearing involving the petition for conservatorship. Cal. Prob. C. §§1811(a), 1820(a). The spouse may not petition the court for appointment as a conservator if the spouse has filed a request for legal separation, dissolution of marriage or nullity of the marriage. Cal. Prob. C. §1813(a). Lastly, the selection of a conservator is "solely in the discretion of the court" and the court is to be guided by "what appears to be for the best interests of the proposed conservatee." Cal. Prob. C. §1812(a).

In practice, conservatorships usually arise in the context of a second marriage involving the proposed conservatee or where financial assets of the proposed conservatee are significant. Usually, potential beneficiaries (i.e., adult children) are concerned that their father or mother (typically the original spouse to the proposed conservatee has pre-deceased the surviving spouse) may be unduly influenced by the second spouse, other adult children, friends or caretakers regarding disposition of the financial assets of the estate. These kinds of petitions are frequent where the petitioner suspects that the proposed conservatee is being "manipulated" by someone to change an existing will or trust thereby depriving the party of an inheritance or where a party is siphoning assets of the estate while the proposed conservatee is subject to undue influence or fraud. Emergency conservatorship petitions followed by the appointment of a temporary conservator will have the effect of limiting the loss of assets from the estate, but the appointment of a permanent conservator may not preclude later recognition of a pre-existing will or trust in a later contest if it is established the conservator (the surviving father or mother) had sufficient capacity when the estate instrument was executed. Cal. Prob. C. §§6100(b), 1871.

Lastly, and perhaps most importantly, Section 2640.1 of the California Probate Code allows the Court to award attorneys' fees to a petitioner seeking appointment of a conservatorship and such fees may be paid from the estate of the proposed conservatee. Cal. Prob. C. §2640.1. Persons who desire the appointment of a conservator over a father or mother should they prevail have the right to petition the court for "just and reasonable" attorneys' fees and costs which are paid from the estate. This is a significant right of a party who desires to protect an estate and who otherwise would be unable to pay associated attorneys' fees and costs to do so.

In conclusion, the law provides remedies for those who wish to protect a relative or friend where capacity may be suspect. Where the estate is significant the use of a conservatorship proceeding can protect the estate and typically can foster settlement discussions between the interested parties to avoid later litigation over the enforcement of a will or trust. For further questions feel free to contact our offices.

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