Probate: 5th Dist. Court Of Appeal Reversed Award To Atty Not Representing Conservator For Providing Assistance To Public Guardian, But Recognized Equitable Cases Allowed Partial Fee Award For Atty In Obtaining Appointment of Conservator Public Guardian

Probate Code Section 2642 Was Not The Right Statute, But Estate of Moore Allowed For Partial Fees To Attorney Upon Equitable Grounds.

            In Conservatorship of Smith, Case No. F073436 (5^th Dist. May 24, 2018) (unpublished), the lower court granted an attorney assisting the Public Guardian as conservator after helping obtain the conservatorship appointment. The probate court awarded fees and costs of slightly under $19,000 under Probate Code section 2642, payable to the non-conservator representing attorney out of the conservatorship estate given that the conservatorship was over a person and that person’s estate. One of the involved parties appealed, claiming section 2642 was the wrong statute for distribution to fees to the assisting attorney.

            The appellate court agreed. Section 2642 only applied to compensation to the actual conservator’s attorney, which the attorney receiving fees/costs was not. However, not all was lost. It further held that the reasoning of Estate of Moore, 258 Cal.App.2d 458, 460-462 (1958), on equitable grounds, allowed the attorney to receive fees for work successfully leading to appointment of the Public Guardian as conservator. So, the matter was remanded to recalculate the fees due under an apportionment-out of fees relating to work other than appointment of the Public Guardian.