Conservatorship of Obdulia Canaba

Case Number

21PR00534

Case Type

Hearing Date / Time

Mon, 09/18/2023 - 08:30

Nature of Proceedings

(Amended) First Accounting & Report of Successor Conservator

Tentative Ruling

Probate Notes:

Appearances required.  The following discrepancies must be resolved as noted:

Discrepancy no. 1 – Schedule C is not segregated into categories then listed in chronological order.  (See Fiduciary Accounting Handbook (Cont. Ed. Of the Bar 2022) §8.8 [“As with receipts, disbursements should be listed categorically, then chronologically within each category.”].)  Schedule C is also not subtotaled per page.

The Court is not expected to make sense out of scattered lists of transactions.

Discrepancy no. 2 – Conservator may not use credit cards without disclosing the billing statements to the court that show both payee and include a purpose for the expense. Use of credit cards without court approval violates CRC, Rule 7.1059, subdivisions (b)(1-3, and 8).

Discrepancy no. 3 – Amount spent on groceries and food is excessive for one person.  Disbursements show well over $1,000 during several of the reporting months for conservatee’s 1/2 share.  Consult USDA Food Plans: Cost of Food:(http://www.cnpp.usda.gov/usdafoodplanscostoffood.htm )

Discrepancy no. 4 – Breach of Fiduciary Duty. The relationship of guardian and ward and of conservator and conservatee is a fiduciary relationship that is governed by the law of trusts, except as provided in this division.  Thus, all trustee duties are applicable to conservators. (Prob. Code, § 2101.)  The following fiduciary duties appear to have been breached by the transactions listed beside them:

• Imprudent management. 
  • Excessive spending
  • Failure to preserve estate property (Prob. Code, §16006)

• Conflict of Interest (Prob. Code, §16004)
  • Living in conservatee’s home without payment
  • Petty cash, or unexplained cash withdrawals/disbursements

Discrepancy no. 5 – Account statements are not original account statements and lodged with the court. (Prob. Code, § 2620.)  There is no account statement for the Banker’s Life Retirement annuity.

Discrepancy no. 6 – Account statements do not support balance reported to be on hand in account, and not supported by schedule of detailed reconciliation.  (See Local Rule 1744.)  For example, estate account ending in 8734 contained $15,901.15 according to summary of account attachment, but the bank statement shows $30,182 in the amended account, and in original accounting, showed all but $584.49 of those funds was transferred out of that account to three different accounts before the beginning of the accounting period, with two of those accounts not being reported or accounted for in this accounting (Union Bank account nos. 3513 and 2031).  There is also no explanation why the account statements are different for the amended accounting.

Discrepancy no. 7 – Title on both union bank accounts does not reflect the conservatorship. (CRC 7.1059 (b)(7).)

Discrepancy no. 8 – Attorney’s fees not supported by billing statements. Generally, an appropriate fee petition will contain a summary of the total hours, the proposed hourly rate, and the amount of compensation sought. The petition must be accompanied by a detailed description of each service, the date, duration, rate, and total charges. Cal Rules of Ct 7.702, 7.751(b). If compensation is requested for legal services performed by a paralegal, the petition must state that such services were performed under the direction and supervision of an attorney and must set forth the hours spent and services performed by the paralegal. Prob C §2640(c).

In determining the appropriateness of the charge, the court must consider the best interest of the conservatee, not the interest of beneficiaries of the estate, in awarding compensation to the conservator and the conservator's attorney. Cal Rules of Ct 7.702, 7.751(b).

Notice to Surety. Notice to the surety is required when an objection is made, a surcharge is requested, or a petition to suspend or remove a fiduciary is filed.  (Prob. Code §1213.)  If counsel for the conservatee objects to these discrepancies, notice to the surety must be given.

Meeting ID: 161 797 5412

Passcode: 8749009