1

Filed 7/7/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Conservatorship of the Person of A.B.

PUBLIC GUARDIAN OF CONTRA 

COSTA COUNTY, as Conservator, 

etc.,

Petitioner and Respondent,

v.

A.B.,

Objector and Appellant.

A160473

(Contra Costa County

Super. Ct. No. MSP15-01661)

A.B. appeals an order compensating the Public Guardian of Contra 

Costa County (public guardian) and the public guardian’s attorney, Contra 

Costa County Counsel (county counsel), for services rendered to A.B. while 

the public guardian was acting as his (A.B.’s) conservator. A.B. contends the 

public guardian’s petition failed to include sufficient information regarding 

the services rendered by the public guardian or regarding A.B.’s financial

circumstances. He argues that absent this information, the court was unable 

to determine whether the requested compensation was “just and reasonable” 

as required by Probate Code section 2942.1 Finally, A.B. contends the court 

improperly delegated its authority under section 2942 to the public guardian 

by directing the agency to defer collection of the compensation ordered if the 

public guardian determined collection would impose a financial hardship on 

A.B. 

1 All statutory references are to the Probate Code unless otherwise noted.
2

We conclude that the court had sufficient information before it to 

enable consideration of the factors enumerated in section 2942, 

subdivision (b), but that the court failed to do so and improperly delegated 

responsibility to the public guardian. Therefore, we must reverse the order 

granting the public guardian’s petition for compensation. 

Background

A.B. is a 40-year-old male diagnosed to suffer from severe 

schizophrenia. He has been subject to conservatorships on and off over the 

last 20 years. According to his treatment team, he is not capable of remaining 

compliant with his medications regimen outside of a locked setting. The 

record reflects that A.B. has no real property or significant assets and his 

only income is $973.40 in monthly social security benefits.

The public guardian was most recently appointed as conservator of A.B.

in 2016 and reappointed annually until the dismissal of the conservatorship 

in September 2019.2

In August 2017, the public guardian was awarded $1,025 and county 

counsel was awarded $365 in compensation for services rendered from March 

2016 through February 2017. The compensation order indicates that 

collection “will be deferred to a future date if collection will be a hardship for 

conservatee.” In December 2018, the court entered an order for compensation 

for the public guardian and county counsel in the same amounts and subject 

to the same limitation on collection, covering the period from March 2017 

through February 2018. At issue now is the public guardian’s petition for 

2 Appellant’s request to take judicial notice of the records in other 

cases, including subsequent proceedings involving appellant, is denied as 

irrelevant.
3

compensation for services rendered from March 2018 until dismissal of the 

conservatorship in September 2019.

The public guardian’s petition seeks $1,569.79 in compensation for its 

services and $365 in compensation for county counsel. Exhibit B to the 

petition sets forth in general terms the “typical services” rendered by the 

public guardian. The petition also alleges that county counsel “has rendered 

and performed legal services as attorney for petitioner including, but not 

limited to, preparing all necessary documents, making court appearances and 

giving legal advice to petitioner as requested.” In a subsequently filed 

declaration, the public guardian clarified that it was requesting 

compensation for approximately 43 hours spent on “visits,” approximately 

30 hours spent on “court matters” and one hour spent on a phone call. The 

declaration adds that although the public guardian was requesting only

$1,569.79 for its services, the hourly rate for the conservator is $150 under 

the local rules of court. Finally, the declaration indicates that “although 

county counsel had spent more time on this case,” the amount requested by

county counsel is less than one hour at the maximum hourly rate permitted 

by the local rules of court.

At a contested hearing on the petition, A.B.’s appointed attorney

argued, among other things, that the petition failed to include the specificity 

required by statute regarding the nature and necessity of the services 

rendered, particularly in light of the fact that the most recent petition for 

reappointment was dismissed. Counsel also argued that A.B. had no assets or 

income from which to collect the ordered compensation and that it would be 

speculative to order compensation based on the idea that “at some point more 

money will come somehow else.”
4

The court found that the request for compensation was just, reasonable 

and necessary to sustain the support and maintenance of the conservatee, 

and approved the petition as prayed. As with its previous orders, the court

ordered the public guardian to defer collection of payment if it determined 

that collection would impose a financial hardship on the conservatee. 

A.B. timely filed a notice of appeal.

Discussion

Section 2942, subdivision (b) authorizes payment to the public guardian 

from the estate of the conservatee for “[c]ompensation for services of the 

public guardian and the attorney of the public guardian . . . in the amount 

the court determines is just and reasonable.” Section 2942, subdivision (b) 

provides further, “In determining what constitutes just and reasonable 

compensation, the court shall, among other factors, take into consideration 

the actual costs of the services provided, the amount of the estate involved, 

the special value of services provided in relation to the estate, and whether 

the compensation requested might impose an economic hardship on the 

estate. Nothing in this section shall require a public guardian to base a 

request for compensation upon an hourly rate of service.”

3

3 Section 2641 similarly authorizes conservators in general to petition 

the court for “just and reasonable” compensation for services rendered. Under 

California Rules of Court, rule 7.756, “[t]he court may consider the following 

nonexclusive factors in determining just and reasonable compensation for a 

conservator from the estate of the conservatee . . . : [¶] (1) The size and 

nature of the conservatee’s . . . estate; [¶] (2) The benefit to the conservatee 

. . . , or his or her estate, of the conservator’s . . . ; [¶] (3) The necessity for the 

services performed; [¶] (4) The conservatee’s . . . anticipated future needs and 

income; [¶] (5) The time spent by the conservator . . . in the performance of 

services; [¶] (6) Whether the services performed were routine or required 

more than ordinary skill or judgment; [¶] (7) Any unusual skill, expertise, or 

experience brought to the performance of services; [¶] (8) The conservator’s 
5

A.B. contends the public guardian’s petition did not contain sufficient 

evidence to support its finding that the compensation was just and 

reasonable. Initially, he argues “the record contains no evidence of the 

services provided to appellant or the actual costs of those services. While the 

public guardian declared it spent forty-three hours on ‘visits,’ it did not state 

with whom the visits were, the purpose of the visits or whether the visits 

accomplished anything. Thus, the court had no way of judging the benefit of 

these visits to appellant nor their necessity.” A.B. similarly challenges the 

lack of “transparency” as to the thirty hours spent on “court matters,” the one 

hour of “court time” allocated to county counsel and the one hour of time 

spent on the telephone. The only reasonable reading of the public guardian’s 

declarations, however, is that the visits were with A.B., his family, or his 

treatment team. Whether the visits “accomplished anything” is not the test 

for just and reasonable compensation. The public guardian is entitled to 

“compensation for expenses that the conservator believed were necessary to 

benefit the conservatee [if] that belief was objectively reasonable.” 

(Conservatorship of Cornelius (2011) 200 Cal.App.4th 1198, 1205.) Nor is it 

dispositive that the final petition for reappointment was ultimately 

dismissed. (See ibid. [“The deciding factor in awarding reimbursement in a 

conservatorship proceeding is not whether a permanent conservatorship is 

established but whether expenses were incurred in good faith and in the best 

interests of the proposed conservatee.”].)

. . . estimate of the value of the services performed; and [¶] (9) The 

compensation customarily allowed by the court in the community where the 

court is located for the management of conservatorships . . . of similar size 

and complexity.” The parties agree that section 2942, which expressly 

authorizes compensation to the Public Guardian, governs in this case.
6

The information provided in support of the petition is limited, to say 

the least. It would undoubtedly be advisable to provide some specifics, such 

as the dates of visits and the person “visited.” However, the information 

provided includes the number of hours devoted to appellant’s care and 

services, and the $1,569.79 requested is less than one quarter of the amount 

authorized by the local rules. We are therefore constrained to find the 

showing sufficient to support the court’s finding that the services rendered 

were reasonable.

A.B. also asserts that the record contains no evidence regarding his 

financial condition. He argues, “Without it, the court had no way of 

considering ‘the amount of the estate involved, the special value of services 

provided in relation to the estate, and whether the compensation requested 

might impose an economic hardship on the estate.’ (§ 2942, subd. (b).)” A.B.

also notes that based on the prior compensation orders, he is “already in debt 

for $2780” and without knowing whether that debt has been discharged, the 

court could not determine whether adding to that debt was reasonable.

The record makes clear, however, that A.B. has no assets and his only 

income is his social security benefits. The record also indicates that when he 

is not in a locked setting, he is most often homeless. Although this 

information was not expressly included in the petition for compensation, it 

was readily available in the court file, as A.B.’s attorney argued. The court 

acknowledged that A.B. has no assets or income other than his social security 

benefits, so that the failure to include A.B.’s financial circumstances in the 

petition was harmless.

Finally, A.B. argues that the court improperly delegated to the public 

guardian discretion to defer collection if necessary to avoid imposing a 

hardship on A.B. We agree. At the hearing, the court indicated that while the 
7

compensation order, “would probably be [a financial hardship],” the court “did 

not think that [the] county would pursue collection under those 

circumstances.” The court also noted that social security benefits are

“typically . . . not subject to collection of a civil judgment.” The written order 

expressly states, “Collection of said compensation will be deferred to a future 

date if collection will be a hardship for conservatee.”

Section 2942, subdivision (b) requires the court to consider whether 

imposition of the requested compensation would pose an economic hardship 

on the conservatee’s estate. While the court’s order undoubtedly was intended 

to comply with the spirit of this requirement, the order does not comply with 

the letter of the law. The court is required to exercise its discretion but 

instead delegated its authority to the public guardian, which is not 

permissible. (See, e.g., People v. Wilson (1982) 130 Cal.App.3d 264, 269 [court 

cannot delegate to probation department determination regarding 

defendant’s ability to pay costs of probation].)

The public guardian argues, “As the fees were necessary to sustain the 

support and maintenance of the conservatee, they were granted; however, the 

fees could only be collected if they do not impose hardship.” This argument 

rewrites the statute. Section 2942 does not authorize compensation based 

solely on a showing that the fees were necessary to sustain the support and 

maintenance of the conservatee. It also requires consideration of whether the 

requested compensation is just and reasonable in light of the conservatee’s 

financial circumstances. If payment of the ordered fees would impose a 

financial hardship on the conservatee, the conservatee is not obliged to have 

an unpaid order hanging over him or her, subject to the public guardian’s 

discretion whether to attempt collection.
8

The factors for consideration found in section 2942, subdivision (b) were 

added to the statute in 1999. (Stats. 1999, ch. 866, § 1.) The legislative 

history explains that “[b]y clarifying the types of factors that should be 

considered when ordering such reimbursement of public guardians, this bill 

appears to strike a reasonable balance which takes into account the actual 

costs incurred by local governments in providing these important services 

while seeking to ensure that courts reduce such compensation requirements 

when estates are small, or the particular compensation requested by the 

public guardian might impose an economic hardship on the particular estate 

involved.” (Assem. Com. on Jud., Analysis of Assem. Bill No. 1152 (1999-2000

Reg. Sess.) Aug. 16, 1999.) The court does not properly exercise its discretion 

if it merely delegates authority to the public guardian to defer collection if the 

public guardian deems collection to impose economic hardship.

The public guardian argues further that the order does not improperly 

delegate discretion because federal law does not permit the public guardian 

to collect against the conservatee’s social security benefits.4 But whether or 

4 The respondent’s brief explains, “In the case of conservatees that 

receive [social security] benefits, the representative payee would defer paying 

the conservator and attorneys fees from [social security benefits] if it would 

cause detriment or hardship to the conservatee, as required in the court’s 

order authorizing the fees. The legislature has provided that the Social 

Security Administration and federal courts oversee the use of [social security] 

benefits through review, audit and appeal of a representative payee’s actions. 

(42 USCS § 1383, subd. (a)(2), 42 USCS § 405, subds. (g), (h) and (j)(6)(c).) A 

‘misuse of benefits’ occurs if used ‘other than for the use and benefit of’ the 

beneficiary. (42 USCS 405, subd. (j)(9).) The representative payee is liable for 

any amount misused and the beneficiary must be refunded any misused 

funds. (42 USCS § 405, subds. (j)(5) and (j)(7), 42 USCS § 1007.) [¶] . . . The 

representative payee of any [social security] benefits will ultimately 

determine if there is hardship, with oversight by the Social Security 

Commission and federal courts. (42 USCS § 405, subd. (g) and (h).) Social 
9

not the public guardian could ever attach appellant’s social security benefits,

the court is not excused from considering whether the compensation 

requested is “just and reasonable” in light of the conservatee’s financial 

circumstances, and in declining to make an award that is not. Accordingly, 

we shall reverse the order granting the public guardian’s petition for 

compensation.5

Disposition

The order awarding compensation is reversed and remanded for 

reconsideration, which shall include consideration of A.B.’s financial 

circumstances. 

POLLAK, P. J.

WE CONCUR:

TUCHER, J.

BROWN, J.

Security benefits are not subject to civil collections proceedings, garnishment 

or attachment. (42 USCS § 407.)”

5 In light of this conclusion, we need not decide whether the filing of a 

formal inventory and appraisal under section 2610 is a prerequisite for a 

petition for compensation by the public guardian. Even if not, if the public 

guardian is requesting fees, it is incumbent on the guardian to make a 

showing as to “the amount of the estate involved” and that the amount of 

compensation requested would not “impose an economic hardship on the 

estate.” (§ 2942, subd. (b)). If no fees are requested, the issue is academic.
10

Trial court: Contra Costa County Superior Court

Trial judge: Honorable Susanne M. Fenstermacher

Counsel for petitioner and respondent: Sharon L. Anderson, County Counsel

Nina Dong, Deputy County Counsel

Counsel for objector and appellant: Julia Freis

A160473