In 2020, a satirical black comedy was released titled “I Care a Lot.” It highlights corruption in the court-appointed eldercare system. The Britney Spears conservatorship case also brought to light how court-appointed conservatorships are being abused in California.
A conservatorship can be filed when it is believed that an individual cannot manage their own finances. Once the petition is filed, several attorneys become involved and are paid using the assets of the individual named in the petition. These fees add up quickly and are a problem that needs to be addressed. The standards for these attorney's fees are often far too vague, and the probate judges often award these attorneys unjustified and excessive fees.
Currently, there are no checks and balances or accountability because of the “go along to get along" mutual back-scratching culture among attorneys in the probate court. Of the two types of conservatorships, of the person and of the estate, the Palm Springs-based Spectrum Institute has recommended, for a decade, that reforms be implemented to protect innocent victims of mismanaged estates in California’s probate courts.
In the December 2021 program of the Commonwealth Club of California titled “Fee for All: How Judges are Raiding Assets of Seniors & Lining Pockets of Conservatorship Attorneys” (website: https://www.youtube.com/watch?v+9Y-GmhVtIP8), Thomas F. Coleman, executive director of the Spectrum Institute, explained, “One day, an attorney might be representing a proposed conservatee. The next day, in a different case, they may be representing a petitioner. On another day, they may be representing a conservator or they, themselves, might be a guardian ad litem. So all these attorneys know this, if they raise objections to the fees of another attorney, this could come back to bite them in another case where their fees are challenged. So, all too often, nobody raises any objections to any of the fees, whatsoever.”
This practice has recently been called into question because it can overburden the assets of the party in need of assistance while completely ignoring their wishes. In one case, Catherine is an elderly woman with dementia who created advanced planning documents to ensure her care in her later years, including an advanced health care directive and a durable power of attorney that named one of her daughters as the agent. She also created a trust and put all her assets into it with competency determined at the time of its creation. However, one of her sons, who believed he should have been the designated conservator, petitioned to have his mother put into a conservatorship.
Catherine was forced into a conservatorship by her son against her will. During this process, her legal representation was lacking as her court-appointed attorney withdrew right before the trial. Catherine's attorneys were largely paid from her trust. Their fees amounted to over $340,000. All the attorneys and private fiduciaries involved intended to submit large bills in order to receive payment from Catherine's assets.
The court’s rules have changed as a result of the Covid-19 pandemic, and it has highlighted the need for some reforms in the legal and court system. In one case, the court approved the billing of over $1 million for attorneys who were hired to put Catherine into a conservatorship against her wishes. Other aspects of legal fees included a private fiduciary who charged over $150,000, a guardian ad litem who billed Catherine $100,000, an interim trustee who charged $150 an hour, and an additional attorney who charged $450 an hour. This demonstrates how some lawyers can take advantage of their positions of power and how the court system approves such extreme billings.
In another current case in San Diego, the attorneys hired by the conservatorship applicant prevented all witnesses and documents indicating the conservatee’s wishes from being heard at trial.
The Spectrum Institute recommends, at minimum, that perjury be prosecuted in probate courts and that the fees for the court-appointed attorney for the conservatee be paid for by the State. The current law requiring the conservatee to pay for their court-appointed attorney all too often forces the attorney to commit perjury in the court and forces a conservatorship so that they will be paid for their court time. According to the Spectrum Institute, the State could recover these fees from increased property title transfer fees.