Niece Not Entitled to Common Fund Recovery, However Maybe Indirect Recovery Appropriate Under Probate Code Section 2642, But That Section Was Never Raised.
Conservatorship of Mazzocco, Case No. E057485 (4th Dist., Div. 2 Nov. 25, 2014) (unpublished) involved some dueling conservatorship petitions for a consevatee having millions in assets even though he had dementia after a heart attack. Basically, the contest revolved around dueling conservatorships by conservatee’s companion and primarily one of his nieces. Ultimately, niece obtained appointment of an independent conservator over the conservatee’s person—which is what she wanted—making companion dismiss her petition for a like conservator, although niece was unsuccessful in getting appointment of a conservator over conservatee’s estate. Niece then moved for recovery of $12,050 in fees and $464.12 in costs under Probate Code section 2640.1. The probate court denied the request, prompting an appeal by niece.
Niece did not get any further relief on appeal. Section 2640.1(a) provides: “If a person has petitioned for the appointment of a particular conservator and another conservator was appointed while the petition was pending, but not before the expiration of 90 days from the issuance of letters, the person who petitioned for the appointment of a conservator but was not appointed and that person’s attorney may petition the court for an order fixing and allowing compensation and reimbursement of costs, provided that the court determines that the petition was filed in the best interests of the conservatee.” The problem here was that niece was successful in obtaining appointment of an independent conservator over the person of conservatee, so no statutory basis existed under this provision for fee recovery.
No “common fund” relief was available because there was no communal sharing in the Trust.
Finally, the appellate court did express the opinion that fees/costs might have been justified indirectly under Probate Code section 2642, allowing fee entitlement to attorneys rendering services to the actual conservator (the independent conservator actually appointed), but this ground was never raised as a basis for entitlement so it was waived.