Second District, Division 3 Finds Lack of Hearing Notice and Failure to Stipulate to a Temporary Judge Required As Bases For Overturning Order.
A commissioner awarded a court-appointed conservatee’s attorney fees of $9,170 payable out of the estate. Conservatee’s husband appealed the fee order, obtaining a reversal in Conservatorship of Davis, Case No. B214680 (2d Dist., Div. 3 Jan. 6, 2010) (unpublished).
The Court of Appeal initially found that the probate court was empowered to appoint the conservatee’s attorney, whose fees could be ordered paid from the conservatorship estate unless the estate cannot bear the costs. (Prob. Code, § 1470(a)-(c).)
However, a lack of due process drove the reversal in this case. Based on a local Los Angeles County rule, husband should have been given notice of the hearing, which was not done. Also, the temporary judge—a commissioner—is only authorized to act upon stipulation of the parties, meaning the commissioner could not make the order when husband was absent from the proceedings.