Not Pretty Facts At All ….. But Surcharge Sustained.
Conservatorship of Moore, Case No. B253538 (2d Dist., Div. 6 Sept. 30, 2015) began in a not so pretty way, not involving particularly pretty facts: “Retained counsel for an elderly person suffering from dementia must safeguard the well-being of the person and his or her financial resources. As we shall explain, here the attorney did neither. The probate court expressly indicated that counsel put his own financial interests ahead of the interests of his client. It surcharged counsel. We agree with the probate court's ruling and its rationale. We commend it. We affirm the judgment.”
What happened here was that a trustee/trust attorney was surcharged for $96,077.14 in fees and expenses as being unreasonable and excessive in nature. The appellate court agreed. The “client” trustor was 82 years olds, with dementia. So, arguments that he approved the fees did not resonate on appeal, where the focus was on the fees being reasonable but double barreled in nature—reasonable in general and reasonable as to the trust. (Donahue v. Donahue, 182 Cal.App.4th 259, 263 (2010).) The appellate court did not have difficulty in sustaining that the dementia-ridden trustor could not approve fees and many of the activities were spent on needlessly proving that the trustor was suffering from elder symptoms. Also, with respect to block billing, no problem that the lower court only surcharged for 5% on these entries given it was hard to decipher between trustee, attorney, and personal advisor services.
Beyond that, the appellate court sent the opinion to the State Bar for consideration on whether further action was necessary as to the attorney.