“Under the Probate Code conservatorship proceedings the court ‘shall appoint a conservator of the person and property or person or property of any adult person who, in the case of a conservatorship of the person, is unable properly to provide for his personal needs for physical health, food, clothing or shelter, and, in the case of a conservatorship of the property, is substantially unable to manage his own financial resources, or resist fraud or undue influence....’” (Conservatorship of Sanderson (1980) 106 Cal. App. 3d 613, 618 citing Prob. Code Sec. 1751.)

“A probate conservator cannot place a conservatee in a mental health facility against his will.” (Conservatorship of Sanderson (1980) 106 Cal. App. 3d 613, 618 citing Prob. Code Sec. 1851.) “However, a probate conservator ‘has the care, custody and control of the conservatee and may fix the residence and domicile of the conservatee at any place within this state, but not elsewhere without the permission of the court.’” (Id.) “As mentioned earlier a probate conservator has the same powers as an LPS conservator, other than the power to place the conservatee in a mental health facility.” Id. “Respondent contends that a probate conservatee does not suffer the same deprivation of liberty as an LPS conservatee.” Id.

Interests of the Conservatee

Under Probate Code 1470(a) the court may appoint the deputy public defender to represent the interests of the proposed temporary conservatee as a discretionary appointment.

The law requires full bond to the extent of all personal property assets, plus annual gross income, as well as a recovery bond. Probate Code Sec. 2620; CRC 7.207. If independent powers to buy sell or encumber real property are requested, the bond is further increased by all existing equity. Probate Code Sec. 2620.1; CRC 7.204.

Role of Counsel and Jury Trial

Counsel for a conservatee in a probate conservatorship has full authority to bind the client with respect to jury trial. (Conservatorship of B.C. (2017) 6 Cal.App.5th 1028, 1035.)

The Standard of Review and Evidence

Prob. Code Sec. 1800.3 states in relevant part: “No conservatorship of the person or the estate shall be granted by the court unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.”

With regard to the sufficiency of evidence to support an order of probate conservatorship, the standard of review is a question of law. (Coastal Envtl. Rights Found. v. Cal. Reg'l Water Quality Control Bd. (2017) 12 Cal. App. 5th 178, 188.) Further, such a question is reviewed de novo. (Id.)

Attorney Fees and Compensation

“Section 2645 provides in part:

1. No attorney who is a guardian or conservator shall receive any compensation from the guardianship or conservatorship estate for legal services performed for the guardian or conservator unless the court specifically approves the right to the compensation and finds that it is to the advantage, benefit, and best interests of the ward or conservatee.
2. No parent, child, sibling, or spouse of a person who is a guardian or conservator, and no law partnership or corporation whose partner, shareholder, or employee is serving as a guardian or conservator shall receive any compensation for legal services performed for the guardian or conservator unless the court specifically approves the right to the compensation and finds that it is to the advantage, benefit, and best interests of the ward or conservatee.”

(Conservatorship of Bryant (1996)45 Cal. App. 4th 119, 120.)

Size of the conservatorship estate is an important consideration in awarding attorney fees. (Conservatorship of Levitt (2001) 93 Cal.App.4th 944.)

In contested conservatorships, where one party petitions for the appointment of one individual as conservator and another party objects and responds with a petition for the appointment of someone else, the losing party may petition the court for an order fixing and allowing fees and costs, provided the court determines that the petition was filed in the conservatee’s best interests. (Probate Code Sec. 2640.1(a).)

A petition for fees under Probate Code section 2604.1 cannot be filed “before the expiration of 90 days from the issuance of letters.” (Probate Code Sec. 2640.1(a).) In other words, a conservatorship must be established before a court may issue an order setting fees. (See Probate Code Sec. 2310 stating: appointment not effective until letters are issued.)

“Any compensation and costs allowed shall be charged to the estate of the conservatee. If a conservator of the estate is not appointed, but a conservator of the person is appointed, the compensation and costs allowed shall be ordered by the court to be paid from property belonging to the conservatee, whether held outright, in trust, or otherwise.” (Probate Code Sec. 2640.1(c).)

Although section 2640.1 contemplates payment from sources other than the conservatorship estate, it nonetheless still requires establishment of a conservatorship. (Id.)