Santa Clara County judges vow limits on conservator fees within weeks

Santa Clara County judges vow limits on conservator fees within weeks


By Karen de Sá


kdesa@mercurynews.commercurynews.com



Posted: 07/02/2012 05:34:01 PM PDT

July 3, 2012 8:27 PM GMTUpdated: 07/03/2012 01:27:53 PM PDT



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Santa Clara County's court-appointed personal and estate managers are handing out costly and questionable billsOnline discussion: How to avoid conservatorships, July 2 at noonSanta Clara County court-appointed estate manager quits case after questions about fees, judgmentMercury News editorial: County judges must impose tighter rules for managing vulnerable residents' estatesWith Santa Clara County's top judges promising reform, advocates for the elderly and local probate attorneys on Monday called for swift action to stop court-appointed estate and care managers from charging excessive fees to the dependent adults they serve.



The reaction comes after "Loss of Trust," a two-day series in this newspaper, highlighted cases of private conservators and trustees submitting six-figure bills to incapacitated adults under the court's watch. In some cases, they are charging lofty hourly rates that are double what's allowed in neighboring counties.



The Superior Court on Monday vowed changes within weeks. "Not years, not months, but weeks," said Assistant Presiding Judge Brian Walsh.



"We are not going to stand for our most vulnerable being taken advantage of -- period."



Presiding Judge Richard Loftus and top probate Judge Thomas Cain have been surveying courts up and down the state for solutions since the newspaper approached the bench months ago with early findings of its investigation.



The changes won't come soon enough, said elder rights advocate Pat McGinnis, executive director of the nonprofit California Advocates for Nursing Home Reform. She said "there's no justification" for six-figure bills that deplete life savings, like the ones highlighted in "Loss of Trust."



Court-appointed trustees and conservators are appointed by judges to handle the daily affairs and finances of elderly and disabled people
who lack support of family or friends.



Their fees have grown to alarming levels over the years in Santa Clara County, evidenced by the case of Danny Reed, a 37-year-old man left brain-damaged after he was struck twice by cars. Reed's court-appointed trustee Thomas Thorpe and his attorneys charged more than $108,000 for 41/2 months' service. And -- in an all-too-common probate scenario justified by California law -- Reed has been billed about $260,000 by Thorpe and his attorneys in a legal fight over the original bill.



In an email Monday to members, the Professional Fiduciary Association of California said the newspaper report was "very one sided and failed to portray all the great work fiduciaries do to serve their clients."



In an interview, the association's president, Norine Boehmer, lamented Reed's predicament -- but noted private business people in probate court are only paid with judges' approval.



"It's truly unfortunate for Mr. Reed, and it's truly unfortunate for everybody involved that so much time and money has been spent on a case that was meant just to protect somebody's assets and to help them," Boehmer said.



Boehmer added that court-appointed estate managers make decisions based on their own rates and business models. Earlier this year, for example, Boehmer charged her Los Angeles clients $100 an hour, while Thorpe charged Reed up to $250.



"Even though people's lives and livelihoods are in our hands we are still business people," she said. "I will not say I would have done what Mr. Thorpe did, but I don't know the whole case."



Thorpe and his attorneys have denied repeated interview requests.



New state laws in 2006 increased court oversight of probate cases like Reed's. Yet while new licensing requirements were imposed on private conservators and trustees, little was done to limit the fees they can charge. McGinnis, who spent years crafting statewide reforms, said that holes in the new laws led to problems such as the fees seen in Santa Clara County -- annual charges as high as $298,000 a year in the case of one quadriplegic.



Other Bay Area counties have responded with guidelines that limit hourly rates and annual fees.



Longtime Palo Alto probate attorney Peter Stern has represented one of the private conservators in the "Loss of Trust" series whose fees have been challenged. He said in his experience, Russ Marshall "has behaved ethically and he has not overcharged estates." When Stern has raised concerns about Marshall's charges, he said Marshall has been "most flexible and most considerate about my suggestions he cut his fees."



Still, Stern believes there are larger issues. That's because the incapacitated adults at the heart of these cases "often do not have the ability to represent themselves and to speak up for their own interests," Stern said. Therefore, the court needs to be "more vigilant."



"The court in Santa Clara County should look at the fee question much more closely and try to come up with guidelines that will avoid some of the abuses that may have happened in the past," he said.



Stern and other local attorneys are calling for new guidelines that would include better disclosure -- on a monthly or projected annual basis -- of how much estates will be charged. Others have sent proposals to the court for maximum limits based on how much is left in a person's estate, and elimination of monthly "administrative" fees often piled on top of hourly rates.



Before taking action, the judges will meet with probate attorneys and estate managers -- the very teams that work the local probate cases. The judges said their input is necessary before new limitations are put in place and they have expressed concern about limiting fees too much, in case that drives away talented professionals they rely upon.



One of the issues the court may address is top hourly rates being charged for tasks that do not require a high level of expertise, such as basic elder care. While some conservators work solo, others employ layers of staff members who perform tasks at varying hourly rates. But the lower rates are not always applied appropriately, Judge Loftus said. "Sometimes you look at it and ask: 'Do you really have to have the top person doing this at the top rate?' Contact Karen de Sá at 408-920-5781


http://www.mercurynews.com/bay-area-news/ci_20993228/santa-clara-county-judges-vow-limits-conservator-fees

Editor's note:  Why is this thievery allowed to continue in the Probate Court of Cook County?  Lucius Verenus, Schoolmaster, ProbateSharks.com

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