California Legal Implications: Attorney Fees in Unsuccessful Conservatorship Petitions
In the case of *Conservatorship of Brokken* (2021), a California appellate court delivered a stark warning regarding the financial risks of seeking a conservatorship. The court ruled that petitioners are not entitled to reimbursement for attorney’s fees from the proposed conservatee’s estate if a conservator is not ultimately appointed. In this specific instance, two adult children petitioned for a conservatorship over their mother, alleging mental health issues. After two years of litigation, the case settled without an appointment. Consequently, the court reversed the initial award of legal fees, stating that the plain language of the statute precludes fee awards when a conservatorship is never established, regardless of whether the petition was brought in good faith. You can read the full opinion here..
For California families, this ruling highlights the high stakes of probate litigation and emphasizes the critical need for proactive estate planning to avoid court intervention altogether.
The Financial Risks of Conservatorship Litigation
A conservatorship is a legal proceeding where a court appoints a responsible person or organization to care for another adult who cannot care for themselves or manage their own finances. While often necessary in emergency situations, the *Brokken* case illustrates a significant financial peril: the cost of the legal battle itself. is a legal proceeding where a court appoints a responsible person or organization to care for another adult who cannot care for themselves or manage their own finances. While often necessary in emergency situations, the *Brokken* case illustrates a significant financial peril: the cost of the legal battle itself.
Many family members assume that if they petition the court out of genuine concern for a loved one (“good faith”), the court will allow them to be reimbursed for their legal costs from the loved one’s assets. However, California law is specific. If the matter is settled, dismissed, or decided against the petitioner before a formal appointment is made, the petitioner may be personally liable for their own legal bills.
Alternatives to Court Intervention
The most effective way to protect a family from the costs and uncertainties of public court proceedings is to establish a comprehensive estate plan while the individual still has legal capacity. By utilizing private legal instruments, families can manage incapacity without a judge.. By utilizing private legal instruments, families can manage incapacity without a judge.
Durable Power of Attorney
A Durable Power of Attorney allows an individual (the principal) to designate a trusted agent to manage their financial affairs. Because this document remains effective even if the principal becomes incapacitated, it often eliminates the need for a conservatorship of the estate. This allows for the seamless management of bills, investments, and real estate without a costly court battle.. This allows for the seamless management of bills, investments, and real estate without a costly court battle.
Advance Healthcare Directive
Similarly, an Advance Healthcare Directive empowers an agent to make medical decisions on behalf of the principal. This document ensures that healthcare preferences are honored and that a trusted person has the legal authority to speak with doctors, rendering a conservatorship of the person unnecessary in many cases. unnecessary in many cases.
Revocable Living Trust
A Revocable Living Trust is the cornerstone of many California estate plans. It holds title to assets and provides specific instructions on how those assets should be managed during the grantor’s lifetime and after their death. In the event of incapacity, the successor trustee can step in immediately to manage trust assets, bypassing the probate court entirely. can step in immediately to manage trust assets, bypassing the probate court entirely.
Why Proactive Planning Matters
The litigation in the *Brokken* case lasted two years. Had the mother established a robust estate plan involving a Trust and Powers of Attorney prior to the decline of her health, her children likely would not have needed to petition the court. Proactive planning keeps control within the family, preserves privacy, and protects the estate from being drained by legal fees. prior to the decline of her health, her children likely would not have needed to petition the court. Proactive planning keeps control within the family, preserves privacy, and protects the estate from being drained by legal fees.
About This Case
Source: Conservatorship of Brokken (2021): Attorney’s Fees When No Conservator Is Appointed
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Legal Disclaimer
This article is for informational purposes only. Consult with a qualified California estate planning attorney for advice specific to your situation.