Santa Clara County lacks rules to rein in fees of court-appointed conservators (CA)

July 3, 2012

In California, elderly and disabled adults, blessed with some savings but incapable of caring for themselves, foot the bill when judges appoint private business people to manage their finances or daily affairs.

But when it comes to racking up those charges, no place in the Bay Area stands out like Santa Clara County.

An examination by this newspaper found that in Contra Costa, Alameda and Marin counties, court-appointed conservators wouldn’t get very far if they tried to charge the $330 maximum hourly rate that turns up on one San Jose professional estate manager’s rate schedule, or the $295 an hour described on a well-known Campbell conservator’s fee list. That’s more than double what other courts allow.

And if estate managers burned through the life savings of a dependent adult in San Francisco or San Mateo counties, they would be expected to stay on the job the rest of their client’s life — for free.

But in Santa Clara County, this newspaper found, these court-overseen services can come at exorbitant costs in a probate court system with few specific rules to rein them in. When families can’t care for elderly and incapacitated adults, these private professionals can be assigned as conservators or trustees to arrange everything from complex money management to rides to the grocery store.

In Santa Clara County, some work alone, charging top rates for their services. Others employ staff members, whose multiple tasks layered on top of fiduciary fees can also add up to astounding six-figure bills for a single year.

“The buck stops at the court, and we should have more guidelines and more factors to determine reasonable fees,” said Victoria Tran Sood, a South Bay probate and trust attorney who represents the elderly and their families. “Here we don’t have that, so people take their chances. The young fiduciaries charge according to what they’re taught, and the older guys charge double and layer their bills because they can get away with it.”

A survey by this newspaper of five Bay Area superior courts found that the Santa Clara County probate division lacks guidelines routinely enforced elsewhere.

While Contra Costa, San Francisco and Marin counties all provide guidelines for fees based on hourly rates or the percentage of assets, Santa Clara County has no defined limit on what a private estate manager can charge.

For example, this newspaper on Sunday published the story of one San Jose man’s costly attempt to fight a $108,771 bill he received from a court-appointed trustee after just 4 1/2 months on the job. While state law says fees must be “just and reasonable,” the Danny Reed case and others featured Sunday show how broadly that code is interpreted.

Presented with this newspaper’s findings, Santa Clara County Superior Court Presiding Judge Richard Loftus expressed concern, saying the court had started its own review when this newspaper started raising questions months ago.

“We really need to begin to address this, and that’s what we are trying to do,” Loftus said in an interview last week. “We are looking at how they do this in other places,” making sure people are adequately cared for in a cost-effective way.

“If there are ways to do this better or smarter,” he said, “we’re going to look at those.”

Private estate managers and the attorneys who represent them argue that their fees can seem high at first glance — such as the six-figure annual bills this newspaper uncovered — but supporters say they are fully justified in this high-cost region.

Like other local attorneys who defend fiduciaries, Los Gatos trust and estate attorney Janis Carney said judges here understand the special skill set required to handle complex elder care and manage messy estates. Carney, past president of the Silicon Valley Bar Association, described the probate court in Santa Clara County as “more fair” because judges have not limited conservator compensation as routinely as they do in the surrounding region.

“I hear horror stories in other places,” Carney said, but she noted that “the culture here is not to cut fees.”

Judges in Marin County, for example, have become so critical of fees that private estate managers are leaving the business, said longtime Corte Madera elder law attorney Patricia Tobin.

Indeed, Santa Clara County’s court — which oversees more than twice as many assets as any other Bay Area court does — stands out for its relatively loose guidelines:

  • High hourly rates are barred elsewhere. Most Bay Area courts surveyed said allowable fees range from $90 to $125 an hour — with higher fees approved in only the rarest circumstances. Yet private estate managers in Silicon Valley typically charge between $135 and $165 an hour, according to attorney Steve Yarbrough, who represents them in court and monitors their hourly rates. Those rates can reach as high as $350 for court testimony, he noted, and this newspaper found numerous examples of $250-an-hour charges approved by judges.
  • Fee limits rein in costs. San Francisco, Contra Costa and Marin counties provide guidelines for annual fees of no more than 1 percent of the value of a client’s assets. The Santa Clara County court does not.
  • No room for bill-padding. Most Bay Area courts reject monthly “administrative fees” that in Santa Clara County can be charged on top of daily tasks, at times adding thousands of dollars a year to private estate managers’ bills.San Mateo County probate Judge George Miram said he would consider such requests excessive. “That’s not what we’re paying them for,” Miram said. “Fees in addition to that hourly rate doesn’t make a whole lot of sense to me.”The CEO of Santa Clara County Superior Court, David Yamasaki, said judges follow state-mandated guidelines — such as weighing the size of an estate, the complexity of a case and typical local rates — and then ultimately decide what a private estate manager should be paid.

    Establishing whether fees are reasonable is no simple task, said the county’s lead probate judge, Thomas Cain. He said he does not approve fees unless he receives explanations that satisfy him. And when he needs to raise objections to fees, he does.

    But often his questions are met with surprise, Cain noted: “I can’t tell you the number of times conservators presenting their fees in court say: ‘Well, no one’s objecting.’ ”

    Cain is now in a rare third year on the Santa Clara County probate bench. In other Bay Area counties, judges tend to stay in probate longer — some for a decade or more — rather than cycling on and off the bench as they do in Santa Clara County, typically within two years or less. Elder law experts say the constant rotation can lead to lower levels of scrutiny.

    “Certainly a new judge is more inclined to just approve what had been approved before — and after they’ve been there for a while … they’d be more likely to recognize a fee that is out of line,” said recently retired Contra Costa County Probate Judge Pro Tem Don Green, who served for 11 years. “The fact that I was more experienced meant people were less inclined to think they could get away with it.”

    • Attribution:

    Santa Clara County lacks rules to rein in fees of court-appointed conservators
    Karen de Sá
    July 2, 2012
    MercuryNews.com
    http://www.mercurynews.com/breaking-news/ci_20985221/santa-clara-county-lacks-rules-rein-fees-court

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    • Anonymous

      Ohhh Karen!

      Thank You for opening a venue to publically speak about this.

      The depth of this scheme you bring to light will frighten most people because it contains dreadfully horrible insensitivities.

      So horrible that attorney Janis Carney equally refers to it thus: “I hear horror stories in other places,” Carney said, but she noted that “the culture here is not to cut fees.”

      She means the “horror” of not being able to skin the victims of their money. “The culture not to cut fees” is an evil macabre expression that exemplifies the insensitivity among seemingly normal people.

      Ask Ms. Carney to show her Living Trust document where it states her successor Trustee will be paid $100 to $350 an hour—I stake my heart medicine if there is an amount it is under $25/hr.

    • Anonymous

      There are countless Probate cases of one-time Trustees, one-time Guardians, one-time Conservators with enormous attorney fees as they litigate with beneficiaries. Never again in their lives will they so boldly attempt to deprive another of so much money or expend so much time to cause another to lose so much money. Such an act is utterly disgusting to the conscious—no normal person would be so comfortable—for so long—putting that much effort.

      How did these people become fanatical litigators? The attorneys urge them on. The attorney can figure what risk it will be. He can coax the fiduciary that it will not cost him anything.

      whats the risk if you know the Judge will at least award you what you would have been paid had you not tried to claim it all?

      In my case, they litigated it to a plus amount owing them! A $100k Trust winds up with $200k in attorney fees. I owe $100,000.00 for losing $100,000.00.

      YES—NIGHTMARE!

      “uhh, Your Honor, that was money my mother saved for me. She expected that to go to me.”

      If you look pathetic, if you look scared and nervous, if the attorney did not have the decency to cover his flagrant Court violations, if the attorney has recklessly allowed the record to show the Trust has been mishandled, if the attorney has shown he has no concern for the difficulty it takes the Judge to cover the attorney’s ass—the Judge might surprise everyone and only award the attorney all the Trust—and NO MORE!

      This is the “horror” Ms. Carney speaks of, that a Judge would deny the fiduciary all requests. She would be “horrified” if a Judge DID NOT condone wrongdoing.

      For 2011 Bureau of Labor reported Healthcare workers earned an average of $15.50/hr. Accountants earned $33/hr.

      two professionals both earn half of what one Trustee earns and he is not skilled to provide either service to the client.

      This report attempts to assure the reader there are good courtrooms in the Bay Area, yet, they too allow $90-$125 and will allow higher fees. THEY ARE ALL CHARGING INDECENT FEES.

      BOTTOM LINE: if you have $300,000 to leave any family member, there is a likely chance, $100,000 of that is going to somone you do not know.