specially concurring.
I concur in the result reached by the majority opinion, and its rationale, except that portion which cautions that fees charged against VA funds are limited by both subsections (1) and (2) of § 30.1-29-14, NDCC. Insofar as VA funds are concerned, I believe the fees are governed exclusively by subsection (1) and the five percent limitation contained therein. I reach this conclusion for two reasons: First, the statute uses the term “shall be limited to” rather than language such as “shall not exceed.” Although the distinction may appear to be one without a difference, the intent appears to be to allow a straight five percent for VA funds. Second, the ease of administration permitted by such a construction. The construction of the majority, on the other hand, creates an administrative burden which I believe the Legislature did not intend to apply in the case of VA funds. If the conservator cannot justify the five percent as being reasonable under subsection (2) as a result of the ordinary activity with the VA funds in the estate, the cost of having to prove the five percent is reasonable will more than make up for the difference and provide the justification. I believe the intention in enacting subsection (1) of § 30.1-29-14, NDCC, was that the conservator may charge five percent for VA funds and neither the conservator nor the VA will need to spend additional time and money in determining whether or not that fee is reasonable.
Finally, it appears to me that in some instances a minor flat fee ought to be accepted as per se reasonable, for the cost of attempting to prove the reasonableness of a minor fee may well exceed the fee itself, thus forcing the conservator to forgo any compensation for certain services.