Probate/Conservatorship: Dueling Conservatorship Candidates Got Much Reduced Attorney’s Fees For Battling, But Winning Conservatorship Candidate Only Gets 25% Of Requested Fees

 

Having 70% of Settlement Funds Go to Attorney’s Fees Not Digestible.

     Okay, for all of you probate and conservatorship practitioners, here is an interesting one involving dueling attorney’s fees requests by conservatorship candidates.

     The winning conservator got his requested fees whacked down by 75%, while the losing conservatorship--who also got a big whack--did not appeal. Here are the numbers: Winner sought over $83,000 in fees/costs, but was only awarded $20,753--25% of the request; loser sought over $43,000 in fees/costs, but was only awarded $8,037 based on two categories of expenses that were of benefit to the conservatee, a 47-year-old gentleman who was cared for by his grandmother until the dueling conservator candidates vied for control once grandmother could no longer assist conservatee.

     The winning conservatorship, astonished we might say about the 25% fee award, appealed in Conservatorship of Alcaraz, Case No. D057542 (4th Dist., Div. 1 July 18, 2011) (unpublished).

     To get to the bottom line, the appellate court was shocked that the conservator candidates would be seeking fees that totaled 70% of the settlement fund for conservatee (with the fund being about $180,000).

     However, we do not like to skirt the law on this blog, so here we go.

     Only reasonable fees to a conservator’s attorney are allowed. (Prob. Code, § 2640(c)(2).) Only just and reasonable fees are allowed to an unsuccessful conservatorship petitioner. (Prob. Code, § 2640.1.)

     Appellant (winner conservator getting greatly reduced fees) argued that an agreement by some of the parties to not object to a fee request bound the trial court in determining the reasonableness of a fee award. Get outta here, said the appeal court. Reasonableness of fees is always an issue vested with the lower court in this area.

     The special needs trustee appointed in the case had a fiduciary duty to manage the trust and make objections (including to fee requests), so she had no conflict of interest in doing so.

     Bottom line, the probate court found that a lot of the fees incurred by winner related to an intra-family “squabble” (great word, isn’t it?) rather than something really benefitting conservatee. In the end, fee award, 75% reduction, affirmed.

Surgery scalpels.  1878.  Japanese drawing.  Library of Congress.