Conservatorship of Bryant

• Decision Date: 07 May 1996
• Docket Number: No. D022487,D022487
• Citation: 45 Cal.App.4th 117,52 Cal.Rptr.2d 755
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3308, 96 Daily Journal D.A.R. 5311 CONSERVATORSHIP OF the Person and Estate of Lillian R. BRYANT. Carol S. BROWN, as Conservator, etc., Petitioner, v. Charles BROWN, Objector and Appellant; Lillian R. Bryant, Conservatee and Respondent.

Page 755

52 Cal.Rptr.2d 755

45 Cal.App.4th 117, 96 Cal. Daily Op. Serv. 3308,

96 Daily Journal D.A.R. 5311

CONSERVATORSHIP OF the Person and Estate of Lillian R. BRYANT Carol S. BROWN, as Conservator, etc., Petitioner, v. Charles BROWN, Objector and Appellant Lillian R. Bryant, Conservatee and Respondent.

No. D022487.

Court of Appeal, Fourth District, Division 1, California.

May 7, 1996.

Review Denied July 31, 1996.

[45 Cal.App.4th 118] Charles P. Brown, Oceanside, for Objector and Appellant.

Linda M. Fabian, San Diego, for Conservatee and Respondent.

Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy, and Lewis P. Zollinger, Deputy, amicus curiae for Superior Court, County of San Diego.

BENKE, Associate Justice.

This is an appeal from a probate court order denying attorney compensation in a conservatorship.

We hold that under PROBATE CODE SECTION 2645¹, subdivision (b), an attorney who is related to a conservator must show that his representation, as opposed to the representation otherwise available, was to the advantage, benefit and best interest of the conservatee. The appellant in this case made no such showing and accordingly he may not recover fees incurred following the effective date of section 2645, subdivision (b).

FACTUAL HISTORY

Carol S. Brown (Carol Brown) ² was originally appointed to act as the temporary conservator of the person and estate of Lillian R. Bryant on March 12, 1993. Sometime later Carol Brown retained her husband, objector and appellant Brown (Brown), to perform legal services for her in her capacity as conservator. On April 23, 1993, the probate court approved a general conservatorship of Bryant and appointed Carol Brown conservator.

In early 1994 the probate court expressed to Brown its concern that under section 2645, subdivision (b), which became effective on January 1, 1994, Brown could no longer recover fees incurred in representing his wife as conservator.

On June 30, 1994, Carol Brown filed an accounting and petition for approval of her fees and her husband's fees. After a hearing, the probate court approved payment of the conservator's fees but not the attorney fees requested on behalf of Brown. The court continued the matter to permit Brown to file a brief regarding section 2645, subdivision(b).

In the brief he submitted to the probate court Brown argued section 2645 merely required he show the services he rendered benefited the conservatee. He further argued the services he rendered had in fact benefited the conservatee. However Brown made no showing that his services, as opposed to the services available from other attorneys, were of any special advantage or benefit to the conservatee. Upon consideration of Brown's brief the probate court refused to approve payment of fees to Brown insofar as the fees were for services rendered after the effective date of section 2645, January 1, 1994. ³

Brown filed a timely notice of appeal.

DISCUSSION

I

Section 2645 provides in part: "(a) No attorney who is a guardian or conservator shall receive any compensation from the guardianship or conservatorship estate for legal services performed for the guardian or conservator unless the court specifically approves the right to the compensation and finds that it is to the advantage, benefit, and best interests of the ward or conservatee.

"(b) No parent, child, sibling, or spouse of a person who is a guardian or conservator, and no law partnership or corporation whose partner, shareholder, or employee is serving as a guardian or conservator shall receive any compensation for legal services performed for the guardian or conservator unless the court specifically approves the right to the compensation and finds that is to the advantage, benefit, and best interests of the ward or conservatee."

On appeal Brown argues that when legal services have been provided by a conservator, someone related to the conservator or someone who is a law partner or employee of the conservator, payment for those services is permissible under section 2645 so long as the conservatee benefited from the services. We disagree.

"Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.]" (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387, 241 Cal.Rptr. 67, 743 P.2d 1323.) " 'Rules of statutory construction require courts to construe a statute to promote its purpose, render it reasonable, and avoid absurd consequences.' " (Ford v. Gouin (1992) 3 Cal.4th 339, 348, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

Section 2645 was a part of Assembly Bill No. 21 (1993-1994 Reg.Sess.) enacted by the Legislature in 1993. Assembly Bill No. 21 represented an extension of the Legislature's continuing effort to combat "financial abuse" of elderly and dependent persons. (See Assembly Committee on Judiciary, hearings on Assem. Bill No. 21 (1993).) ⁴ Specifically, Assembly Bill No. 21 was initiated in response to activities of a probate attorney engaged in a series of questionable activities. (Ibid.) His activities were the subject of media attention and included having himself named as conservator of a client and subsequently authorizing payment of large sums of money to his law partners for legal services. (Ibid.) "The overriding intent of Assembly Bill No. 21 is to clearly and unambiguously prohibit the most patently offensive actions of [the attorney] while not unreasonably encumbering the practice of probate law." (Id. at p. 4.)

In addition to enactment of section 2645, Assembly Bill No. 21 amended section 10804. As amended section 10804 provides that an attorney may not receive compensation as both a personal representative and as an estate attorney, notwithstanding any provision in decedent's will, "unless the court specifically approves the right to the compensation in advance and finds that the arrangement is to the advantage, benefit, and best interests of the decedent's estate." (§ 10804, emphasis added.)

Contrary to Brown's argument on appeal, the language and history of the statute make it clear the Legislature intended that two separate and distinct criteria be met before compensation under either subdivision (a) or subdivision (b) of section 2645 may be awarded. Under both subdivisions the court must specifically approve the "right to the compensation." If, as Brown suggests, the Legislature intended that courts assure themselves only that the conservatee received valuable services, no further language was needed. Indeed, if the Legislature had intended that proof of the right to compensation be the only requirement for compensation, it did not need to enact section 2645. Prior to enactment of section 2645 an attorney acting as a conservator could recover fees for legal services he rendered on behalf of a conservatorship estate if the probate court found the conservatorship estate realized a benefit from the legal services. (See Conservatorship of Gray (1970) 12 Cal.App.3d 513, 521, 90 Cal.Rptr. 776.)

However, in addition to requiring a finding as to the right to fees, the Legislature added the phrase, "and finds that it is to the advantage, benefit, and best interests of the ward or conservatee." This second phrase must be given some significance in both subdivision (a) and subdivision (b) of section 2645. " 'Words of a statute must be given such interpretation as will promote rather than defeat the general purpose and policy of the law.' " (County of Alameda v. Clifford (1960) 187 Cal.App.2d 714, 722, 10 Cal.Rptr. 144.) By finding that the second phrase requires proof that the services rendered by counsel provided some benefit that would not otherwise be available to the conservatorship estate, the phrase and the statute itself are given a meaning which clearly aids in effectuating the overall purpose of preventing actual self-dealing or the appearance of impropriety.

Our construction of section 2645 is supported by consideration of the amendment to section 10804 which was also part of Assembly Bill No. 21. As we have noted, "[s]ignificance, if possible, should be attributed to every word, phrase, sentence and part of an act in pursuance of the legislative purpose, as 'the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.'.. [Citation.]" (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.) The fact section 2645 and the amendments to section 10804 were enacted at the same time, by the same bill and the fact both provisions govern attorneys who act in dual capacities, require that the two provisions be interpreted coherently. (Ibid.) The need for a coherent and consistent interpretation of these provisions is underscored by the fact that in any number of instances the attorney for the conservatorship will eventually become the attorney for the later decedent's estate. Imposing one lower standard at the conservatorship stage and then imposing a...