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Conservatorship of the Person and Estate of Bobby Jack Cornelius. Bobbie Mcdonald v. Bobby Jack Cornelius

November 15, 2011


Trial Court: Sonoma County Superior Court Trial Judge: Honorable Mark Tansil (Sonoma County Super. Ct. No. SPR-82760)

The opinion of the court was delivered by: Sepulveda, J.


A daughter petitioned for temporary and permanent conservatorship of her elderly father upon allegations that he was not receiving adequate nutrition, hygiene, and medication, individuals living with the father were financially abusing him, and those individuals were conducting illegal activity on the premises. An investigator appointed by the court substantiated the allegations and the court established a temporary conservatorship that lasted six months. A court-appointed attorney reported that the temporary conservatorship improved the conservatee's situation but the father strenuously objected to the conservatorship. The daughter dismissed her petition for a permanent conservatorship. The court awarded compensation and reimbursement of expenses to the temporary conservator and her attorneys, to be paid from the conservatee's estate. The conservatee appeals the award.

The conservatee claims that Probate Code sections 2641 and 2642 authorizing payments to a conservator and the conservator's attorneys do not apply where there was only a temporary conservatorship, never a permanent conservatorship. The conservatee also claims that, even if a temporary conservator may recover costs and legal fees, the amount awarded here was excessive and thus an abuse of the court's discretion. We reject the claims and affirm the order.

i. facts

Bobby Jack Cornelius is a 73-year old widower. On July 7, 2010, his daughter Bobbie McDonald filed petitions for temporary and permanent conservatorship of the person over her father. (Prob. Code, §§ 1820, 2250.) The petitions were supported by declarations from several family members attesting to Cornelius's compromised physical and mental state and susceptibility to fraud being perpetrated by people who moved into his house and were operating a marijuana farm on the premises. The petition was also supported by a capacity declaration prepared by Cornelius's treating physician, who stated concerns about Cornelius's judgment and said that Cornelius's "competency needs to be evaluated in more detail."

As in all cases where a temporary conservatorship is sought, a court investigator was appointed to evaluate whether a temporary conservatorship was appropriate. (Prob. Code, § 2250.6.) The investigator, Kelly Jensen, conducted interviews on July 12 and 13, 2010, of Cornelius, Cornelius's attorney, and McDonald, and she also reviewed sheriff reports and the physician's capacity declaration. The investigator reported to the court in advance of the July 14, 2010 temporary conservatorship hearing and later prepared a report with her findings. The investigator concluded that Cornelius "is urgently in need of medical and medication supervision and proper nutrition, and is at high risk of undue influence from what appear to be virtual strangers that he has allowed to live in his home." The investigator recommended a temporary conservatorship of Cornelius with McDonald as conservator.

On July 14, 2010, the court held a hearing attended by Cornelius's attorney, Tate Birnie, who objected to the conservatorship. The court found that a temporary conservatorship was in Cornelius's "best interest." The court ordered a temporary conservatorship through August 12, 2010, the day after a permanent conservatorship hearing was set to be heard. McDonald, Cornelius's daughter, was appointed the temporary conservator. The court investigator filed a subsequent report noting that Cornelius has memory deficits and impaired judgment, and requires assistance with money management, medical care, and daily living activities.

On August 5, 2010, Cornelius filed an objection to the appointment of a conservator and a declaration stating his disagreement with his family members' declarations. At the permanent conservatorship hearing first called on August 11, 2010, Cornelius's attorney, Tate Birnie, said Cornelius was in the hospital and wanted to substitute new counsel. The permanent conservatorship hearing was continued to October 13, 2010, and the temporary conservatorship extended to the day following the permanent conservatorship hearing.

On August 18, 2010, the court granted the request of Cornelius's attorney to be relieved as counsel and, when no other attorney substituted as counsel, the court accepted the recommendation of the court investigator and appointed Attorney Roberta Simi to represent Cornelius. (Prob. Code, § 1471, subd. (b).) On September 13, 2010, Cornelius gave notice that he had retained Philip Gunning to represent him as legal counsel (representation that continues through this appeal) but that court-appointed counsel Simi "is not being replaced hereby and may continue in her Court appointed role until discharged by the Court." On that same date, Cornelius filed supplemental objections to conservatorship of his person. Cornelius also demanded a jury trial.

On September 29, 2010, McDonald filed a petition for temporary conservatorship of Cornelius's person and estate, which was an expansion of her prior request limited to a conservatorship of the person. McDonald declared that the change was necessary because Cornelius was taking action to rescind McDonald's appointment as trustee of a trust he established and to assume financial control himself despite impaired capacity to make rational financial decisions. McDonald asked that a professional fiduciary, rather than herself, be appointed as temporary conservator. McDonald also moved to disqualify Attorney Gunning from representing her father as private counsel, asserting that her father lacked capacity to retain counsel and that the retention may have been the product of undue influence.

On that same date, court-appointed Attorney Simi filed an extensive report with the court. As the court directed, the report included background facts, factual and legal analysis, and recommendations "to assist the court in making a determination as to the course of action that would best serve the interests of the proposed conservatee." In preparing the report, Attorney Simi conducted over two dozen interviews, including interviews of Cornelius, his family members, attorneys, physicians, and neighbors. The attorney confirmed that Cornelius associated with people who lived in his house rent-free, "obtained money and credit cards from him," and operated a marijuana farm. Attorney Simi reported that "[t]he Sheriff was called out to the property for incidents involving several of these friends on at least 12 occasions in the last year, including eradication of more than 100 marijuana plants in July[] 2010."

Attorney Simi dismissed Cornelius's claim that the events giving rise to the conservatorship were isolated and that a conservatorship was no longer necessary. Attorney Simi cited medical reports showing that Cornelius has "significant impairment of many skills and [mental] functions." Cornelius's condition had improved since establishment of the conservatorship, Attorney Simi noted, but "[i]mprovements to Mr. Cornelius's situation have been made largely as a result of arrangements made by the temporary conservator for help with taking medications; monitoring his health; ridding his home of various people who were abusing him physically, mentally, and financially; and having a group of responsible individuals who make their presence known with many of his friends and associates." Attorney Simi concluded that Cornelius was "unable to manage his own financial resources or resist fraud or undue influence, and a conservatorship of the estate would be appropriate and necessary," and recommended appointment of a professional fiduciary as conservator of his person and estate. The attorney noted: "Many of my recommendations are contrary to many of Mr. Cornelius's stated wishes to me, but the majority of Mr. Cornelius's objections and the course of action he suggests are inappropriate."

On September 30, 2010, the court appointed Deborah Wagner, a professional fiduciary, as temporary conservator of the person and estate of Cornelius. Wagner had been assisting McDonald in managing the conservatorship. Following a hearing on October 13, 2010, the court replaced Wagner with Shelly Ocana, another professional fiduciary, as conservator of the estate. The court terminated the temporary conservatorship of the person upon finding that Cornelius, although suffering mental deficits, was able to provide for his own personal needs, at least until a trial was convened on the petition for a permanent conservatorship of his estate and person. The ...

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