One of the important people in a conservatorship proceeding is the attorney appointed by the court to represent the conservatee. Some counties appoint private attorneys from a list the court maintains, other counties appoint the public defender’s office, and other counties do a hybrid of private attorneys and the public defender’s office depending on if there are assets in the conservatorship. Each attorney subject to court appointment must meet certain requirements as detailed in the California Rules of Court.
If the proposed conservatee, whether or not they have capacity, expresses a preference to have a specific attorney represent them, then the court shall allow that attorney to represent the conservatee.
The court has the discretion to appoint counsel for a conservatee if the appointment would be helpful in resolving the matter or is necessary to protect the conservatee’s interest. The court is required to appoint counsel for a conservatee or allow an attorney chosen by the conservatee to represent them in several circumstances. Mandatory appointment of counsel is discussed in Probate Code Section 1471 and is required in the following:
- A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.
- A proceeding to terminate the conservatorship.
- A proceeding to remove the conservator.
- A proceeding for a court order affecting the legal capacity of the conservatee.
- A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.
- In a proceeding to establish a limited conservatorship.
- In an appeal of a conservatorship matter.
If a party knows that counsel must be appointed in a matter, then an Application for Appointment of Counsel (Judicial Council Form GC-005) should be completed and filed along with all the other initial documents. This will prevent any unnecessary delay in having the court appoint counsel at the first hearing and then continue the matter. Also, to avoid any further delay, I like to send all the necessary documents to counsel once I know who is appointed.
Legislation that went into effect on January 1, 2022 requires that court appointed counsel zealously represent the wishes of their client. Probate Code Section 1471(d) also references Business and Professions Code Section 6068 and the California Rules of Professional Conduct. This new provision requires that court appointed counsel advocate only for what the proposed conservatee or conservatee wants and not necessarily what is in the conservatee’s best interest.
Court appointed counsel is different from a guardian ad litem appointed under Probate Code Section 1003. That code section provides that the court has discretion to appoint a guardian ad litem if it determines that a persons interest may not be adequately represented. In a conservatorship, there is the possibility that both court appointed counsel and a guardian ad litem will be appointed. If the conservatee is subject to undue influence and what they wish and desire is not necessarily in the conservatee’s best interest and the court appointed counsel is bound to zealously advocate for those wishes, the guardian ad litem can then advocate for what is in the conservatee’s best interest.
Court appointed counsel is entitled to reasonable compensation and reimbursement of expenses. The court has to approve the fees and reimbursement. If the conservatee has assets either in a conservatorship of the estate or a trust, then the court can order that the fees and costs be paid from those sources. If the conservatee has no assets, then the county pays the approved fees and costs. The county typically pays a much lower rate than an attorney’s regular hourly rate. There is uncertainty if an attorney chosen by the conservatee, but who was not appointed by the court, must obtain court approval for the payment of their fees.
It is helpful and important to have court appointed counsel in conservatorship matters.