Dicken v. McDonald

Opinion

LEVY, Acting P. J. This appeal arises from the order approving the final account and report of the Kings County Public Guardian (Public Guardian) with respect to the conservatorship of Edith Key. Appellant, the executor of the conservatee’s estate, objects to the manner in which the Public Guardian allocates interest earned on the pooled conservatorship estates to each individual estate. However, appellant’s challenge does not focus on the subject final account. Rather, appellant’s primary goals are to have the relevant code section, Probate Code section 7642, declared unconstitutional and to have a referee appointed to examine all conservatorships that have been handled by the Public Guardian during the last 13 years. Further, appellant’s attorney, Neil A. Helding, wants to be declared an “interested person” with respect to those other conservatorships and seeks attorney fees under Code of Civil Procedure section 1021.5.

As discussed in the published portion of this opinion, Probate Code section 7642 violates neither the takings clause of the Fifth Amendment nor due process. In the nonpublished portion, we hold that the issues raised concerning other conservatorships are outside the scope of this appeal. Moreover, with respect to Helding, he does not qualify as an “interested person” and he did not file the required postjudgment motion for attorney fees. Accordingly, the order will be affirmed.

[257]BACKGROUND

In May 2002, the Public Guardian was appointed the conservator of the person and estate of Edith Key. Although Helding was present at the hearing on the conservatorship petition as an “interested party,” the court appointed Jennifer Giuliani as Key’s attorney.

The Public Guardian filed a current account covering the first year of the conservatorship in May 2003. In April 2003, Key inherited approximately $224,000. Before that time, she was dependent on Social Security for her support.

Key died in November 2003.

In March 2004, the Public Guardian filed a final accounting and report for the Key conservatorship. Shortly thereafter, Helding, as appellant’s attorney and as an “interested person,” filed the first of several sets of objections to the final accounting. In response to Helding’s concerns, the Public Guardian revealed that Key’s estate was located in the Public Guardian’s trust account, a pooled account, at the Bank of Sierra. The Public Guardian also explained that he calculates the interest to be applied to each estate by averaging the interest rates from three financial institutions at the end of each quarter.