Brown

I respectfully dissent.

Probate Code section 2645, subdivision (b), effective January 1994, reads as follows: “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 it is to the advantage, benefit, and best interests of the ward or conservatee.” (Italics added.) On its face, this section is unambiguous, requiring only that the court assure itself the compensation requested is commensurate with the advantage, benefit and interests of the ward or conservatee the legal services promoted.

Determined to find ambiguity where none exists, the majority, in a feat of legerdemain worthy of David Copperfield, ignores the plain language of Probate Code 1 section 2645, subdivision (b), the rules of statutory interpretation and its obligation to defer to legislative action. The majority creates the illusion of ambiguity in section 2645, subdivision (b) by referring to…

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

We hold that under Probate Code 1 section 2645, 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…