Denny v. Ohana Fiduciary Corp. (In re Denny)

• Decision Date: 01 August 2016
• Docket Number: c/w No. 69610-6-I,No. 69117-1,69117-1
• Parties: In the Matter of the Guardianship of: ELLA NORA DENNY, an incapacitated person. RICHARD DENNY and THOMAS ANDERSON, Appellants, v. OHANA FIDUCIARY CORPORATION, FULL GUARDIAN OF THE ESTATE AND LIMITED GUARDIAN OF THE PERSON OF ELLA NORA DENNY, Respondent.
• Court: Court of Appeals of Washington

In the Matter of the Guardianship of: ELLA NORA DENNY, an incapacitated person.RICHARD DENNY and THOMAS ANDERSON, Appellants, v. OHANA FIDUCIARY CORPORATION, FULL GUARDIAN OF THE ESTATEAND LIMITED GUARDIAN OF THE PERSON OF ELLA NORA DENNY, Respondent.

No. 69117-1

c/w No. 69610-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

August 1, 2016

UNPUBLISHED OPINION

DWYER, J. — This appeal stems from proceedings in the management of the limited guardianship of Ella Nora Denny. The appellants, one purportedly acting as Mrs. Denny's "next friend," raise issues regarding nearly every decision made by the guardianship court since 2012. Finding no error in the superior court's management of the guardianship or its supervision of the guardian, we affirm.

I

Richard's Petition for Full Guardianship

In 2009, Richard Denny¹ petitioned for guardianship of his mother, Ella Nora Denny (Mrs. Denny), because Alzheimer's disease had allegedly made her unable to recall signing conflicting legal documents and placed her at risk of undue influence. Richard alleged that Mrs. Denny's incapacity was "moderate" and that she "require[d] full support and assistance in managing her finances [and] moderate assistance in managing health care and residential issues." Richard requested a full guardianship of both the person and estate of Mrs. Denny and desired the appointment of a professional guardian.

Independent counsel Timothy Austin represented Mrs. Denny in responding to the guardianship petition filed by Richard. Mrs. Denny selected Austin because he had previously represented her on other matters. In Mrs. Denny's response to the guardianship petition, she asked to retain the right to engage in estate planning, with Austin assisting her. Mrs. Denny did not ask to retain counsel for any other purpose. Mrs. Denny also requested that no information about the guardianship be shared with her brother Martin Anderson.

2009 Order Appointing Limited Guardian of the Person and Full Guardian of the Estate

On December 17, 2009, the King County Superior Court entered an order appointing a limited guardian of Mrs. Denny's person and a full guardian of her estate. Ohana Fiduciary Corporation was appointed as Mrs. Denny's limited guardian.

The order provides: "The powers of the Guardian and the rights retained, limitation and restrictions placed on EllaNora Denny shall be as set forth in Conclusion of Law."

Conclusion of Law 2.1 provides: "EllaNora Denny is an Incapacitated Person within the meaning of RCW Chapter 11.88, and a Full Guardian of the Estate and a Limited Guardian of the Person should be appointed."

Conclusion of Law 2.2 identifies the rights Mrs. Denny retained after the guardianship:

a. Mrs. Denny shall retain the right to make or revoke a will, trust or other testamentary device under the direction of competent independent counsel. This estate planning may include, but not be limited to, gifting and transfer of interests to a family trust.

b. Mrs. Denny shall retain the right to consent to or refuse medical treatment, subject to the conditions set forth herein.

c. Mrs. Denny shall retain the right to decide who shall provide care and assistance, subject to the conditions as set forth herein.

d. Mrs. Denny shall retain the right to make decisions regarding the social aspects of her life, subject to the conditions as set forth herein.

(Emphasis added.)

Consistent with Mrs. Denny's response to the guardianship petition, the order also expressly terminated Mrs. Denny's right to enter into contracts except in the furtherance of her estate planning through court-appointed counsel:

a. Mrs. Denny shall have the right to enter into contract provided it is solely under the advice and direction of competent independent counsel and in furtherance of her estate planning. Mrs. Denny shall also have the right to appoint someone to act on her behalf pursuant [sic] provided such appointment is solely in a testamentary devise. In all other areas, Mrs. Denny shall not have the right to enter into a contract.

b. Mrs. Denny shall not have the right to sue or be sued other than through a guardian.. . . .

d. Mrs. Denny shall not have the right to buy, sell, mortgage or lease property other than through the guardian.

(Emphasis added.)

Conclusions of Law 2.3, 2.4, 2.5, and 2.6 of the order detail the authority and responsibilities of the guardian, with express reference to the guardianship statute, chapter 11.92 RCW. Ohana received "[a]ll of the powers of a Guardian of the estate pursuant to the provisions of Chapter 11.92 RCW," and "[a]ll of the powers and responsibilities of a Guardian of the person pursuant to the provisions of Chapter 11.92 RCW, limited by the language in this Order."

The order also specified the decision-making standard as follows:

[T]he guardian shall make reasonable efforts to ascertain EllaNora Denny's stated, current and historic preferences and shall give significant weight to such preferences. When the competent preferences of EllaNora Denny cannot be ascertained, the Guardian is responsible for making decisions which are in EllaNora Denny's best interest. A determination of her best interest shall include consideration of her stated preferences, as well as consultation with Richard Denny and Marianne Zak [Mrs. Denny's daughter].

Richard's attorney prepared and presented the order establishing the guardianship for Mrs. Denny on December 17, 2009. Richard and Mrs. Denny both attended the hearing. No objections were made to entry of the 2009 order.

Incorrect Letters of Guardianship Issued then Corrected

For the first 17 months of Mrs. Denny's guardianship, from December 21, 2009 through May 16, 2011, letters of limited guardianship of the person were in effect. These letters were provided to Mrs. Denny's medical providers during that time.

In December 2010, in response to a request from the guardian, the superior court authorized the guardian to involve Mrs. Denny's children in her healthcare as follows:

The guardian is hereby authorized to allow Ms. Denny to manage her own medical and dental care with the assistance of her children, provided that:

• The children inform all medical, dental and other care providers that there is a guardianship in place . . .

• The children inform the guardian of each medical, dental or other health care appointment, in advance of the day of the appointment . . .

• At the guardian's discretion if any proposed treatment might be detrimental to Ms. Denny's health, the guardian shall retain authority to withhold consent for the treatment; and

• If the children fail to follow such court direction, the court will entertain an order restraining them from further involvement in their mother's health care.²

Soon thereafter, Ohana filed its first "Annual Report and Care Plan," which was approved on March 31, 2011, after notice to Richard and Mrs. Denny. This report correctly identified Ohana as Mrs. Denny's "limited guardianship of the person," and did not request that the superior court change the scope of the limited guardianship. The March 31, 2011 order directed the clerk of the court to reissue Ohana's letters of guardianship. However, by a drafting error of Ohana's attorney, it did not specify that letters of guardianship of the person should be limited.

On June 17, 2011, the letters of guardianship were reissued without specifying that the guardianship of the person was limited. These letters of guardianship remained in effect for just under 10 months, from June 17, 2011through April 9, 2012. The incorrect letters of guardianship were discovered by Ohana on or about September 22, 2011. Ohana requested that its attorney obtain corrected letters of limited guardianship. As the attorney later explained to the court commissioner,³ because the error was not discovered "until nine months into the second year," the decision was made to correct the letters at the next annual review, rather than through an interim report and review. The error was corrected in the letters of limited guardianship of the person issued April 9, 2012.

During the 10 months that the incorrect letters of guardianship were in effect, Ohana's actions fell entirely within the scope of the 2009 order. The guardian's billing records for June through December 2011 reflect no significant health care decisions by Ohana, and document the involvement of Mrs. Denny's children in her health care.

Attorney Mark Wilson Petitions the Superior Court to Appoint Him to Represent Mrs. Denny

In March 2012, attorney Mark Wilson petitioned the superior court to appoint him to represent Mrs. Denny in responding to the guardian's petition for approval of the second annual report. Mrs. Denny, pro se, filed a companion motion to continue the hearing, two declarations, an ex parte motion to shorten time, and petition for appointment of independent counsel, which appear to have been prepared by Wilson's firm.

In response to the petition to appoint Wilson, the superior court ordered anupdated report from the psychologist who evaluated Mrs. Denny in 2009, Renee Eisenhauer, Ph.D. Dr. Eisenhauer's updated report concluded in pertinent part: "Ms. Denny's cognitive functioning has deteriorated over the last two and a half years. . . . She showed greater confusion and impaired problem solving at her current evaluation than she did at her previous evaluation. Her thinking is presently more disorganized."

As requested in the motion to shorten time signed by Mrs. Denny, the superior court held a hearing on March 23, 2012. Mrs. Denny was confused about why she was in court and asked whether her son was in trouble. Also during the March 23, 2012 hearing, Commissioner Velategui observed that Mrs. Denny did not know who Wilson was, and believed that he was the judge.

Three days before Mrs. Denny signed multiple documents stating that she wanted Wilson to represent her, she had signed a notarized statement, directed to Wilson, which provided:

I withdraw my authorization for you to

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