Conservatorship of Resnick CA1/1

Filed 7/6/15 Conservatorship of Resnick CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Conservatorship of the Estate of ELIZABETH RESNICK.

BARBARA R. SIMON, Petitioner and Appellant, v. A140915 ELIZABETH RESNICK, (Alameda County Defendant and Respondent. Super. Ct. No. RP05230890)

INTRODUCTION Barbara R. Simon, formerly the conservator of the estate of Elizabeth Resnick, appeals from an order of the probate court order denying Simon conservator fees for the final work she did following Resnick’s death. The court denied fees based on what it perceived were inadequate efforts by Simon to check on Resnick’s personal well-being the weeks immediately prior to her death. We reverse. The probate court effectively penalized Simon for conduct it had expressly approved in connection with the accounting period ending on the date of Resnick’s death, which we will refer to as the “pre-death accounting period.” That prior order, approving Simon’s work as conservator, was final months before the court did an about-face and ruled that same conduct was egregiously deficient. Not only did the probate court lack the power to effectively vacate its prior order and revisit the adequacy of Simon’s actions

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during the pre-death accounting period, but Simon’s actions during that prior period had no relevance to the appropriateness of her actions and her entitlement to conservator fees during the subsequent accounting period following Resnick’s death, which we will refer to as the “post-death accounting period.” BACKGROUND In 2005, Resnick inherited approximately $1 million in retirement accounts from her father. She suffered from depression and petitioned for conservatorship of her estate, seeking help in settling her deceased father’s estate. In October 2005, Simon, a professional fiduciary with over 20 years of experience, was appointed conservator of Resnick’s estate. Five years later, in November 2010, Resnick petitioned to terminate the conservatorship, and a hearing was set for March 3, 2011. On March 2, Resnick was found dead in her apartment. Simon and Resnick had last communicated on February 10. Thereafter, between February 16 and March 2, Simon made several attempts to contact Resnick, including two unsuccessful home visits on February 16 and several unanswered calls on February 28. Simon then contacted Resnick’s sister and Resnick’s attorney. When she learned neither had heard from Resnick, Simon called the police, who found Resnick’s body in her apartment. The coroner listed Resnick’s cause of death as Acute Polypharmacy Toxicities. While the death certificate lists Resnick’s date of death as March 2, the coroner concluded it was likely she died at least two weeks earlier. Pre-Death Accounting Period (Petition to Settle Third and Final Account) Approximately three months after Resnick’s death, Simon filed a “Petition for Termination of Conservatorship; To Settle Third and Final Account and Report of Conservator; for Conservator’s Fees; for Attorney’s Fees and Costs Advanced; and for Discharge of Surety.” She advised the probate court the accounting covered the period from October 1, 2008 to September 30, 2010, and she anticipated filing an amended accounting which would include the entire period from September 30, 2010 to Resnick’s death on March 2, 2011. Four months later, Simon filed an amended petition covering