Bill Text: CA SB156 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Conservatorships and guardianships: attorney's fees.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Vetoed) 2014-02-27 - Consideration of Governor's veto stricken from file. [SB156 Detail]

Download: California-2013-SB156-Amended.html

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BILL NUMBER: SB 156	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 8, 2013

INTRODUCED BY   Senator Beall

                        JANUARY 31, 2013

   An act  to amend Section 2640 of the Probate Code, 
relating to conservatorships  and guardianships  .


	LEGISLATIVE COUNSEL'S DIGEST


   SB 156, as amended, Beall. Conservatorships  and guardians
  hips  : attorney's fees. 
   Existing law provides for the administration of guardianships and
conservatorships. Existing law authorizes a guardian or conservator
of an estate to petition the court for an order allowing compensation
to the guardian, conservator, or attorney for the guardian or
conservator, as specified. Existing law prohibits the guardian or
conservator from being compensated from the estate for any costs or
fees that he or she incurred in unsuccessfully opposing a petition,
or other request or action, made by or on behalf of the ward or
conservatee, unless the court determines that the opposition was made
in good faith, based on the best interests of the ward or
conservatee.  
   This bill would instead authorize the court to award litigation
costs, including attorney's fees, to the prevailing party if an
objection is made to the petition for compensation, as specified.
 
   Existing law provides for the administration of conservatorships.
Existing law requires a conservator to pay the reasonable expenses
incurred in the collection, care, and administration of the estate
from the principal and income of the estate, but requires court
approval for compensation of an attorney for the conservator.
 
   This bill would declare the intent of the Legislature to enact
legislation that would limit the ability of an attorney who
represents a conservator to charge a fee for managing a
conservatorship when the conservator challenges this management.

   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 2640 of the   Probate
Code   is amended to read: 
   2640.  (a) At any time after the filing of the inventory and
appraisal, but not before the expiration of 90 days from the issuance
of letters or any other period of time as the court for good cause
orders, the guardian or conservator of the estate may petition the
court for an order fixing and allowing compensation to any one or
more of the following:
   (1) The guardian or conservator of the estate for services
rendered to that time.
   (2) The guardian or conservator of the person for services
rendered to that time.
   (3) The attorney for services rendered to that time by the
attorney to the guardian or conservator of the person or estate or
both.
   (b) Notice of the hearing shall be given for the period and in the
manner provided for in Chapter 3 (commencing with Section 1460) of
Part 1.
   (c) Upon the hearing, the court shall make an order allowing (1)
any compensation requested in the petition the court determines is
just and reasonable to the guardian or conservator of the estate for
services rendered or to the guardian or conservator of the person for
services rendered, or to both, and (2) any compensation requested in
the petition the court determines is reasonable to the attorney for
services rendered to the guardian or conservator of the person or
estate or both. The compensation allowed to the guardian or
conservator of the person, the guardian or conservator of the estate,
and to the attorney may, in the discretion of the court, include
compensation for services rendered before the date of the order
appointing the guardian or conservator. The compensation allowed
shall thereupon be charged to the estate. Legal services for which
the attorney may be compensated include those services rendered by
any paralegal performing legal services under the direction and
supervision of an attorney. The petition or application for
compensation shall set forth the hours spent and services performed
by the paralegal. 
   (d) Notwithstanding the provisions of subdivision (c), the
guardian or conservator shall not be compensated from the estate for
any costs or fees that the guardian or conservator incurred in
unsuccessfully opposing a petition, or other request or action, made
by or on behalf of the ward or conservatee, unless the court
determines that the opposition was made in good faith, based on the
best interests of the ward or conservatee.  
   (d) If the court, upon an objection to the petition, reduces the
compensation requested in the petition, the objector shall be deemed
the prevailing party and the court may award the objector his or her
costs and other expenses and costs of litigation, including attorney'
s fees, incurred to contest the petition. The amount charged is a
charge against the compensation of the guardian or conservator, and
the guardian or conservator is liable personally and on the bond, if
any, for any amount that remains unsatisfied.  
   (e) If the court, upon an objection to the petition, does not
reduce the compensation requested in the petition, the guardian or
conservator shall be deemed the prevailing party and the court may
order the objector to pay the compensation and costs of the guardian
or conservator and other expenses and costs of litigation, including
attorney's fees, incurred to defend the petition. The objector shall
be personally liable to the guardianship or conservatorship estate
for the amount ordered.  
  SECTION 1.    It is the intent of the Legislature
to enact legislation that would limit the ability of an attorney who
represents a conservator to charge a fee for managing a
conservatorship when the conservator challenges this management.