New California case: a temporary conservator was entitled to recovery of attorneys’ fees even when permanent conservatorship was dismissed

In Conservatorship of Cornelius (California Court of Appeal, First Appellate District, November 15, 2011, A131495), the court held that a temporary conservator was entitled to recover her attorneys’ fees and costs for the temporary conservatorship although she dismissed the permanent conservatorship.

A daughter was appointed temporary conservator of her father for six months, but then dismissed her petition for permanent conservatorship.  The evidence established a clear need for the temporary conservatorship as the father was susceptible to undue influence, fraud and financial abuse; however, the father’s condition and situation improved during the temporary conservatorship and the father objected to the permanent conservatorship.  The daughter petitioned for attorneys’ fees and costs after dismissing the petition for permanent conservatorship.  The father objected to his daughter’s recovery of the attorneys’ fees and costs.

The court affirmed the daughter’s recovery of attorneys’ fees and costs, holding that §§2641(a) and 2642(a) make no distinction between temporary and permanent conservators, and that a temporary conservator is entitled to reimbursement of attorneys’ fees and other expenses properly incurred for the conservatee’s benefit during the term of that temporary appointment regardless of whether a permanent conservator is ever appointed.  Section 2641(c) also provides that a conservator may be compensated for her good-faith, but unsuccessful, opposition to a petition or other request or action by the conservatee.

“The petition to appoint a permanent conservator, and appointment of a temporary conservator pending resolution of that petition, may well benefit the conservatee even if a permanent conservatorship is never established. It is benefit to the conservatee, not establishment of a permanent conservatorship, that a court must look to in deciding whether a temporary conservator is entitled to reimbursement.”

“The relevant question is whether [the] temporary conservator . . . acted in good faith, based on the best interest of her father . . . in petitioning for conservatorship and in opposing his request to dissolve it.”  Similarly, expenses incurred in seeking disqualification of the private attorney who was retained by the father were also properly awarded as there was a legitimate dispute regarding the capacity of the father to contract for legal services.

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