Cite as E077664
Filed May 8, 2023
Fourth District, Div. Two
By Jaime B. Herren
Holland & Knight LLP
Headnote: Conservatee’s Right to Independent and Court-appointed Counsel
Summary: The Probate court has the power to appoint persons to protect a conservatee’s interests and the power to deny appointment of proposed conflicted counsel as conservatee’s independent counsel. Further, a probate court sitting in exclusive concurrent jurisdiction of a conservatorship may disqualify others from representing a conservatee in other matters.
Thomas is a wealthy nonagenarian and the conservatee. A group of nonappointed counsel held themselves out as counsel to Thomas, Thomas’s wife Gloria and various other allegedly interested parties. The trial court found that nonappointed counsel were not independent and to have a conflict of interest such that they should not represent Thomas. Nevertheless nonappointed counsel and Gloria continued to act as if nonappointed counsel represented Thomas, Gloria and others including themselves. After years of prolonged litigation, Gloria filed a verified petition to void Thomas’s conservatorship and vacate all orders of the probate court, based on Thomas’s alleged lack of independent counsel. Co-trustee of Thomas’s trust filed a demurrer on several grounds and Thomas’s court-appointed conservator filed a motion to strike the petition and to disqualify nonappointed counsel from representing any party in this or any related proceeding. The trial court (i) sustained the demurrer without leave to amend, (ii) struck Gloria’s petition, and (iii) ordered that nonappointed counsel may not directly, or indirectly through Gloria or others, represent Thomas.
The appellate court affirmed. Nonappointed counsel may not represent a conservatee unless approved and appointed by the probate court. Here, nonappointed counsel had a conflict of interest and Thomas did not have capacity to provide informed consent. The probate court, which was the first court to assert jurisdiction in this action, had exclusive concurrent jurisdiction over any issues related to the conservatorship. Thus, the probate court could disqualify others from representing Thomas in other matters. Gloria had standing to pursue the challenge to validity of the conservatorship but she had no standing to allege Thomas was deprived of independent counsel because Gloria interfered with the probate court’s attempts to appoint independent counsel for Thomas.