Clear and convincing evidence supported establishment of conservatorship (TN App)
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Petitioners petitioned for the appointment of a conservator for the person and estate of their mother. They alleged that she had dementia, Parkinson’s disease, coronary artery disease, and was unable to make decisions about her health or finances. The Trial Court found by clear and convincing evidence that a conservatorship was necessary. When the Trial Court denied the ward’s motion for a new trial, she appealed. Affirming, the appellate court found that the facts below supported the lower court’s ruling, including records showing the ward was diagnosed with a psychotic disorder, her own testimony that she could not drive, that she did not know what medications she was prescribed and that she did not know how much income she received each month nor what bills she had to pay. The ward’s testimony was muddled and confused, and explanations regarding her erratic behavior were not logical.
Drake v. Drake, 2010 Tenn. App. LEXIS 16 (January 19, 2010)

Time Spent by Guardian on Legislative Advocacy Not Compensable (WA)
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This case deals with a politically active professional Guardian charging $150 per month to all his clients, which fees was challenged by the Department. The Court of Appeals reasoned that though the decision to award guardian fees lies within the discretion of the trial court, the court may only award fees for work performed by the guardian that directly benefits the ward. Finding that the guardians failed to establish that their advocacy activities provided a direct benefit to their wards, the guardians are not entitled to compensation under the facts of this case.
In the Matter of the Guardianship of Lamb, No. 62711-2-I, 2009 Wash. App. LEXIS 3119 (12/21/2009)

Failure of Guardian to Bring Action does not Preclude Personal Representative from Bringing Claim (MN)
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Mary Mindl (decedent) was diagnosed with dementia and subsequently admitted to the Warroad Care Center in June 2004. One year later, respondent Ricky Holland, who had been granted power of attorney for decedent’s husband and had facilitated the drafting of his will, purchased from decedent and her husband a 2.5-acre parcel of property on the Northwest Angle (the property) for $ 40,000. This purchase price was approximately $22,000 below the tax-assessed value of the property, and significantly below the purported fair market value of between $200,000 and $300,000. Shortly after the sale, appellant Sherri Nelson, decedent’s granddaughter, petitioned the district court for guardianship and conservatorship over decedent. In support of the petition, Nelson argued that decedent lacked the requisite capacity. Nelson relied, in part, on the sale of the property as evidence of decedent’s need for a conservator, stating that, while she was suffering from dementia and living in the nursing home, decedent had signed a document transferring to Holland real estate worth between $ 200,000 and $300,000. Rebecca Rosendrans was appointed guardian and conservator for decedent and remained so until decedent’s death in August 2007. After the death, the probate court appointed Nelson as personal representative of decedent’s estate. During the conservatorship, Rosenkrans did not challenge the sale of the property to Holland. But shortly after her appointment as personal representative of decedent’s estate, Nelson brought suit to set aside the property sale. The district court concluded that, because decedent’s conservator failed to move the district court to set aside the sale of the property, Nelson, as personal representative, lacked standing to assert the same claim on behalf of decedent’s estate. On appeal the decision was reversed because the personal representative has standing to assert surviving claims on behalf of the estate.
Nelson V. Holland, 2009 Minn. App. LEXIS 219 (12/22/2009)

Adultery trumps perjury (Miss. App.)
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Ruby Chism Ellis, married to Bobbie Ellis since July, 2000, entered a nursing home in June, 2006. In 2008, Ruby’s granddaughter, Stephanie Chism Turner, filed a petition to be appointed as Ruby’s conservator. Stephanie represented to the court that she served the petition on Bobbie although she had not. The court appointed Stephanie as conservator and, according to Bobbie, his first notice of the proceeding was when Stephanie showed up at the home with the conservatorship papers, demanding that he vacate the premises. Bobbie, for his part, had been carrying on an affair over the previous eighteen months, even moving his paramour into Ruby’s home. After Stephanie moved money from Ruby and Bobbie’s joint account, placing it in a conservatorship account, Bobbie sought to have the conservatorship set aside or, in the alternative, to replace Stephanie as conservator. Bobbie argued that he was Ruby’s appointed agent under a power of attorney. It was at this point when Stephanie’s perjury became apparent. A guardian ad litem was appointed who prepared a detailed report quoted at length in the appellate opinion. Significantly, the guardian ad litem found that Bobbie’s loyalties had been transferred to someone else and may once again. The trial court declined to dissolve the conservatorship, but ordered Stephanie to submit an accounting. The court noted that Mississippi law does not give a spouse preference in a guardianship proceeding and that any procedural deficiency in Stephanie’s appointment was resolved by later hearings. On appeal, the judgment was affirmed. The presence of a power of attorney does not deprive the court of jurisdiction and, although the court was displeased with the conduct of each party, the determining factor appeared to be Bobbie’s shifted loyalty.
In re Conservatorship of Ellis, 2009 Miss. App. LEXIS 873, Appeal No. 2008-CA-01993-COA (12/8/2009)

Dominion over decision-making sufficient to justify conservatorship (Tenn. App.)
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Doris McCaslin left most of her estate to her 83 year old sister, Lila Trout. Because McCaslin had expressed concern that one of Trout’s daughters (Susan) would take advantage of Trout, McCaslin’s attorney, Buckner, advised placing the funds ($208,000) in trust. Trout agreed to place $163,000 in trust; of the remainder, $30,000 was invested in CDs and $15,000 was given directly to Trout. After the trust was established, Buckner started receviving numerous requests for disbursements; Susan was living next door to Trout and spending escallated. $17,000 were spent on a vehicle that was wrecked; Buckner was never informed where the insurance settlement funds went. Credit card debt had been incurred exceeding $60,000. In 2007, Buckner discovered that a $212,000 home had been purchased on a 30 year mortgage, with an $1,800 per month payment. Buckner became alarmed and filed a petition for conservatorship. The evidence indicated that Trout was mentally competent, but that Trout was unaware of her financial situation. Trout had surrendered her decision-making to Susan, who was found to have abused that Trust. The Court of Appeals affirmed the trial court’s decision to deny a last minute motion to appoint an attorney for Trout, proceeding because the funds were hemorrhaging; by the time of the hearing, there was only $70,000 remaining of the original bequest; the need to proceed outweighed the potential benefit of appointing Trout with separate counsel. Although Trout was mentally competent, a guardianship was warranted because Trout had no knowledge of her assets or expenses and had ceded decision-making to someone who had exerted dominion and control over Trout with disasterous results. Because Trout had not retained decision-making authority, but had surrendered it to a person who consistently abused authority, the Court of Appeals also affirmed incuding medical decision-making within the scope of the conservatorship.
In re Conservatorship of Trout, 2009 Tenn. App. LEXIS 693 (10/15/2009)

Error abounds; what “not to” do (Ga. App)
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Sloppy bookkeeping cost the Conservator her commission and, but for the objecting party’s sloppy trial work, could have cost her substantially more. Daisy Hudson, an 80 year old, had Alzheimer’s disease. On November 9, 2004, the Cobb County Probate Court issued letters of guardianship over Daisy’s person and property to her daughter, Lynda. Daisy died intestate in November, 2006, and the Court determined that no administration was necessary. Daisy’s estate of $130,437 was distributed equally to her three children. Later, the administrator cited irregularities in the Conservator’s final accounting (underreported income and unverified expenses including transfers from the ward to the Conservator), the Court set aside its prior order that no administration was necessary. A hearing took place where the Administrator referred to financial records, but failed to admit them into evidence. After a hearing, the court entered judgment against the conservator in the amount of $38,428.27; the commission was also disallowed. The conservator appealed. On appeal, the Court found that the judgment against the Conservator relied on the records not admitted which were hearsay. Hearsay lacks any probative value, absent a valid exception; no evidence was admitted to support an exception. Thus, the judgment was not supported by evidence and the judgment was reversed. The Court did, however, sustain disallowance of the Conservator’s commissions since she admitted there were errors in the reports and corrected returns were not filed.
In re Hudson, 2009 Ga. App. LEXIS 1124, Appeal No. A09A1602 (9/24/09)

Good neighbor is better choice for Guardian than uninvolved family members (FL)
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Three competing petitions were filed for guardianship of the person and property of 97 year old Estelle Barker, two by first cousins and the third by a neighbor. Both cousins alleged they had visited Barker at various times, but their testimony was unsubstantiated and ultimately each was deemed unfit to serve and the neighbor was appointed. The neighbor, Knight, was a former marine and had known Barker since he was a child. Barker had appointed him as her attorney-in-fact after another relative abused that position, forging checks on Barker’s account. An adult protective services officer described Knight’s relationship with Barker as being “like a mother-son relationship.” He visited her six days each week even after Barker was placed in a nursing home. The court determined, based on Knight’s fitness and Barker’s demonstrated wish to entrust her care to Knight, that he was the most appropriate person to serve notwithstanding the fact that he was unrelated. On appeal the court found that, while the guardianship statute gives family members preference, the inquiry does not end there and the best interest of the ward trumps all other considerations. The court also rejected a claim that Knight had a conflict as sole beneficiary under Barker’s Will since she had no significant assets other than her home and the record showed that Knight selflessly used his own money for Barker’s care while her relatives remained minimally involved in her life.
Morris v. Knight, 2009 Fla. App. LEXIS 1124 (February 11, 2009)

Plenary Guardian cannot refuse life preserving treatment absent end-stage condition or a permanent vegetative state unless continuing life would be inhumane (PA)
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D.L.H., a fifty year old male, suffered from profound mental retardation from birth. At no time did he execute an advance directive for health care. On July, 2002, his parents were appointed as his plenary guardians after the court found D.L.H. was so severely mentally impaired that he was unable to make, communicate or even participate in any decision relating to his estate or person. D.L.H. became ill with aspiration pneumonia in December 2007. When physicians determined that he should be placed on a ventilator, his parents attempted to decline treatment on his behalf, stating mechanical ventilation was not in his best interest. The hospital nonetheless placed him on mechanical ventilation over the parent’s objection. On January 4, 2008, his parent filed a seeking authority to decline treatment. The Department of Public Welfare objected because D.L.H. “was neither terminally ill nor permanently unconscious and never appointed a health care agent under the Act to refuse healthcare necessary to the preservation of his life.” D.L.H.’s condition improved and he was taken off the ventilator before the hearing on January 11, 2008. Nonetheless, despite technical mootness, the court heard the case because similarly situated individuals may at sometime in the future sustain a life threatening medical condition and the issues were capable of repetition, yet likely to evade appellate review. The parent’s petition was denied after the trial court concluded D.L.H. was not in a permanent vegetative state.

On appeal, the court rejected the argument that plenary guardianship is akin to agency under an advance directive, noting “a fundamental distinction” in the common law between an agent and a guardian. While an agent has a duty to carry out a principal’s wishes, a guardian, as officer of the court, is subject to court control and must act in the best interest of the incapacitated person. Noting this distinction, the court concluded that a plenary guardian is not vested with blanket authority to decline life preserving medical treatment where the ward has neither an end-stage illness nor is in a permanent vegetative state because such power would render judicial review of the guardian’s action meaningless since the ward may already be deceased. The court went on to find that a guardian could petition a court for authority to decline life preserving treatment, but that the guardian must prove death is in the incompetent’s best interest by clear and convincing evidence. Establishing that death is in a ward’s best interests, at a minimum, requires providing “reliable medical expert testimony documenting the incompetent’s severe, permanent medical condition (or severe, permanent medical condition with progressive features) and current state of physical/psychological deterioration and pain.” The court noted it would be wise for the guardian to submit additional evidence concerning the incompetent’s expressions, through demeanor or conduct, evincing his wants, needs and/or feelings during the course of treatment. In the absence of such evidence of the ward’s expressions, the quality of the medical evidence should be of such character that a court is definitively convinced that the benefits of prolonging life are markedly outweighed by the incurable nature of the incompetent’s medical condition and the consistent, recurring degree of pain. Essentially, the continuation of life must be inhuman. The court’s holding is distinguished from In re Fiori, 543 Pa. 592 (1996), where the patient was in a permanent vegetative state.
In re: D.L.H., An Incapacitated Person, 2009 PA Super. 25 (February 10, 2009)