Conservatorship of Brokken

Filed 3/15/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Conservatorship of the Estate of 2d Civ. No. B303898 DORIS MAE BROKKEN. (Super. Ct. No. 17PR00194) _______________________________ (Santa Barbara County)

BETH BROKKEN et al.,

Respondents,

v.

DORIS MAE BROKKEN,

Appellant.

Respondents Beth and Barry Brokken filed this conservatorship proceeding on their mother’s behalf. The case settled before a conservator was appointed. Respondents requested an award of attorney fees under Probate Code section 2640.1, 1 which authorizes fees in certain cases in which a conservator was appointed. The trial court erred by granting the request. Attorney fees are not available where,

1 All statutory references are to the Probate Code.

as here, the matter is resolved without a conservator’s appointment. We reverse. FACTUAL AND PROCEDURAL BACKGROUND Respondents are the adult children of appellant Doris Mae Brokken. Over their mother’s vigorous objection, respondents petitioned to establish a conservatorship. They alleged that appellant suffered from ongoing mental health issues and that her behavior had become increasingly erratic. After two years of litigation and negotiation, the parties settled the matter without the need for a conservatorship. Appellant voluntarily agreed to engage in professional mental health services and the petition was dismissed. Respondents sought to recover their attorney fees as part of the settlement. Appellant did not believe they are legally entitled to fees, but to facilitate settlement, she agreed to let the probate court decide whether respondents are entitled to fees and, if so, the amount of such fees. Relying upon section 2640.1, respondents filed a motion seeking $12,584 in attorney fees. Appellant claimed the statute’s plain language precludes a fee award because a conservatorship was not established. Subdivision (a) states: “If a person has petitioned for the appointment of a particular conservator and another conservator was appointed while the petition was pending, but not before the expiration of 90 days from the issuance of letters, the person who petitioned for the appointment of a conservator but was not appointed and that person’s attorney may petition the court for an order fixing and allowing compensation and reimbursement of costs, provided that the court determines that the petition was filed in the best interests of the conservatee.”