Conservatorship of Kovatch, Matter of, 94-379

• Decision Date: 01 June 1995
• Docket Number: No. 94-379,94-379
• Citation: 896 P.2d 444,271 Mont. 323
• Parties: In the Matter of the CONSERVATORSHIP OF Andrew J. KOVATCH, a Protected Person.
• Court: Montana Supreme Court

Page 444

896 P.2d 444

271 Mont. 323

In the Matter of the CONSERVATORSHIP OF Andrew J. KOVATCH, a Protected Person.

No. 94-379.

Supreme Court of Montana.

Submitted on Briefs Feb. 9, 1995.

Decided June 1, 1995.

Maxon R. Davis, Cure, Borer & Davis, Great Falls, for appellant.

Chris Christensen, Keil & Christensen, Conrad, for respondent.

NELSON, Justice.

The appellant, Ann Cogswell, appeals from an order of the District Court for the Ninth Judicial District, Pondera County, denying her petition to be appointed conservator for her father, Andrew Kovatch. We affirm.

The sole issue on appeal is whether the District Court erred in finding that Andrew's property is not being wasted or dissipated and that appointment of a conservator for Andrew's estate is unnecessary.

Ann Cogswell and Merrill Kovatch are the only children of Andrew Kovatch, aged 88. Andrew, who has been widowed since 1990, resides in a nursing home and is unable to manage his affairs and property due to mental deficiency and physical illness or disability. Andrew's principal asset is 1,480 acres of farmland in Toole County of which 1,371 acres are enrolled in the Conservation Reserve Program (CRP). The acreage was put into the program in 1988 and the income is split between Andrew as owner and Merrill as operator with Andrew receiving $27,580.00 per year and Merrill receiving $27,500.00 per year.

On February 1, 1991, Andrew granted Merrill a Power of Attorney to handle all of Andrew's business affairs. Under the authority of this Power of Attorney, Merrill pays Andrew's real estate taxes and living and care expenses at the nursing home from Andrew's checking account. In addition, Merrill has transferred all certificates of deposit and stocks and bonds into joint tenancy between Andrew, Ann and himself. Merrill has also made gifts on Andrew's behalf to Ann and himself.

On January 4, 1994, Ann filed a petition in District Court in Pondera County to be appointed conservator for her father. The petition specifically noted that the income from Andrew's cropland in Toole County was being improperly diverted to Merrill by virtue of Merrill having wrongfully listed himself as the operator of the farm when it was enrolled in the CRP. Merrill filed an Answer and Counter-Petition denying that the appointment of a conservator was necessary and asserting his right to be appointed conservator for his father.

At a hearing on June 6, 1994, an attorney appointed to represent Andrew concluded that Andrew lacked the mental capacity to handle his own affairs. Ann testified that she has not been satisfied with the way her brother has been handling Andrew's financial affairs. She contended that Merrill was not entitled to half of the CRP income because he was not the operator of the farm for the three years prior to the enrollment of the farm in the CRP as required by the federal regulations governing the program.

At the hearing, Merrill testified that he is the operator of the farm because he seeded the land with his own machinery, capital and labor and he reports to the soil conservation service on an annual basis. Merrill testified that the appointment of a conservator was unnecessary because he has been managing his father's property and handling his father's financial affairs under the authority of the Power of Attorney since 1991. Merrill also testified that he has kept his sister informed of the various transactions regarding their father's estate.

On June 9, 1994, the District Court issued its order denying the appointment of a conservator. The court concluded that while Andrew could not manage his own affairs (satisfying the requirements of § 72-5-409(2)(a), MCA), there was not sufficient persuasive evidence to meet subsection (2)(b) of the statute which requires a showing that Andrew has property "which will be wasted or dissipated unless proper management is provided...."

Did the District Court err in finding that Andrew's property is not being wasted or dissipated and that appointment of a conservator for Andrew's estate is unnecessary?

The appointment of a conservator is controlled by statute in Montana. Sections 72-5-409(2)(a) and (b), MCA provide:

(2) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that:

(a) the person is unable to manage his property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and

(b) the person has property which will be wasted or dissipated unless proper management is provided or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him and that protection is necessary or desirable to obtain or provide funds.

There is no dispute that Andrew lacks the capacity to manage his property and affairs. However, this Court has...