Probate: Reversal Of $12,584 In Prob. Code § 2640.1 Attorney Fee Award To Two Adult Children Who Petitioned To Establish A Conservatorship For Their Mother

No Conservator Was Ever Appointed, And Mother Never Became A Conservatee, As The Parties Settled The Litigation Without Need For A Conservatorship.

            In Conservatorship of Brokken, Case No. B303898 (2d Dist., Div. 6 March 15, 2021) (published), two adult children petitioned to establish a conservatorship for their mother – over her vigorous objections – claiming their mother suffered from mental health issues and exhibited erratic behavior.  After the matter was settled without the need for a conservatorship, petitioners successfully moved to recover $12,584 in attorney fees, under Prob. Code § 2640.1, from mother’s estate.  Mother appealed.

            The 2/6 DCA reversed – finding that while § 2640.1 authorizes attorney fees in certain probate cases in which a conservator is appointed, it does not support an award of attorney fees where no conservator was appointed.  Mother never became a conservatee, and petitioners failed to cite any authority allowing the trial court to order a non-conservatee to pay their attorney fees.