Second District, Division 8 Affirms Fee Award to Attorney for Conservatee.
Conservatorships frequently happen to be sad cases, involving sad facts, litigious factions, and fee awards bitterly contested by relatives. This next case is no exception to the rule.
In Conservatorship of Gilly, Case No. B201971 (2d Dist., Div. 8 Mar. 30, 2009) (unpublished), a battle royale developed between a 98-year-old conservatee—who vascillated from being tended to at home or a nursing home depending upon her condition—and her long-time friend, recent hairdresser, niece, petitioning conservator, winning conservator, and conservatee’s court-appointed probate attorney. Eventually winning conservator—a professional, neutral person—won out and conservatee’s attorney was awarded fees totaling $17,145 under Probate Code section 1470.
Petitioning/putative (but losing) conservator’s attorney appealed the fee award, but this was dismissed because the attorney was not aggrieved by the order given that it was levied against conservator’s estate. (Marsh v. Mountain Zephyr, Inc., 43 Cal.App.4th 289, 295 (1996).)
The attorney fee award in favor of conservator’s attorney was also affirmed on the merits. Probate Code section 1470(b) allows the probate court to award court-appointed probate counsel “a reasonable sum for compensation and expenses of counsel.” In setting the reasonable amount, the court calculates the lodestar—the number of hours reasonably expended multiplied by the reasonable hourly rate. Aside from adequate substantiation being provided by conservatee’s counsel for purposes of requested fees, no abuse of discretion was shown by appealing niece. Although conservatee did fluctuate in her desires, it was not a foregone conclusion that she would turn down a nursing home or similar facility—rather than home—should her condition deteriorate. Because her attorney did not act out of bounds in carrying out her wishes, the request for fees was justified.