Probate: Probate Order Dividing Community Property To Pay For Conservatorship Fees, Inclusive Of Attorney’s Fees, Was Legally Erroneous Under Probate Code Section 3089

 

Section 3089 Deals With Conservatee Support and Maintenance, While Sections 2640 and 2647 Concern Conservatorship Fee Compensation.

     In Conservatorship of Bower, Case No. G050468 (4^th Dist., Div. 3 Apr. 15, 2016) (unpublished), our local Fourth District, Division 3, courtesy of authoring Justice Bedsworth on behalf of a 3-0 panel, dealt with a probate court’s order dividing community property of a husband conservatee (who had serious dementia/associated problems) and his wife after wife failed to comply with the letter of an order of support and maintenance for conservatee by directly paying professional conservator fees and conservatorship attorney’s fees. The probate court was irked that wife had made direct payments in noncompliance with the Probate Code section 3089 support/maintenance order, acting “like Frank Sinatra, she gets to do it her way.”

    The appellate panel reversed because the probate court committed legal error of a prejudicial nature by ordering a community property division under section 3089, which focuses on the support and maintenance needs of the conservatee rather than compensation due to conservatorship professionals. In the latter situation, fee compensation is governed by Probate Code sections 2640 and 2647, which has very important and different safeguards/protections. Nothing in section 3089 indicates that community property divided sans divorce was intended as a way of paying professional fees attendant to conservatorships. Reversed and remanded to determine if wife’s actions in paying conservatorship fees was necessary for the support and maintenance of her husband conservatee.