Duncan v. Yocum

• Decision Date: 10 November 2021
• Docket Number: Court of Appeals Case No. 20A-GU-2299
• Parties: Lydia A. DUNCAN and Donald E. Frederick, Appellants-Petitioners, v. John J. YOCUM, Jr., Appellee-Respondent.
• Court: Indiana Appellate Court

179 N.E.3d 988

Lydia A. DUNCAN and Donald E. Frederick, Appellants-Petitioners,

v.John J. YOCUM, Jr., Appellee-Respondent.

Court of Appeals Case No. 20A-GU-2299

Court of Appeals of Indiana.

FILED November 10, 2021

Attorneys for Appellants: Jeffrey B. Kolb, Charles E. Traylor, Kolb Roellgen & Traylor, LLP, Vincennes, Indiana

Attorneys for Appellee: Maurice E. Doll, Aaron D. Doll, Doll & Sievers Attorney at Law LLC, Vincennes, Indiana

Mathias, Judge.

[1] Lydia A. Duncan and Donald E. Frederick ("the Appellants") appeal the Gibson Circuit Court's order dismissing their petition to establish guardianship over John Yocum, Jr. ("John") and awarding attorney fees. The Appellants raise three issues on appeal, which we restate as:

I. Whether the trial court erred when it concluded that John was not an incapacitated person as defined by Indiana Code section 29-3-1-7.5 ;

II. Whether John had the contractual capacity to execute a power of attorney in December 2019; and,

III. Whether the trial court erred when it awarded John attorney fees pursuant to Indiana Code section 34-52-1-1.

[2] Concluding that the guardianship petition was properly dismissed, but the trial court erred when it awarded attorney fees to John, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Facts and Procedural History

[3] John was a ninety-five-year old man who lived alone in a single family residence in Vincennes, Indiana. John had no known relatives. He lived in the same home for almost ninety years. John had trouble hearing and had poor eyesight. He also had moderate dementia. But John took care of his daily needs and his house was well-maintained.

[4] In August 2018, John was injured when he fell in his home. He was unable to get up and was not found for two to three days. John was hospitalized for several days. Lydia Duncan ("Lydia"), a family friend, agreed to live with and care for John in his home when he was released from the hospital and inpatient rehabilitation. But her agreement was conditioned on John granting Lydia his power of attorney. On September 5, 2018, John executed a power of attorney, naming Lydia as his attorney-in-fact and his neighbor David Lancaster ("David") as his successor attorney-in-fact. Lydia provided twenty-four hour care for John for approximately six weeks.

[5] In October 2018, John drafted a new will and a new power of attorney. He retained Lydia as his attorney-in-fact and as his health care representative, but he named his friend Donald Fredrick ("Donald") as his successor attorney-in-fact and successor health care representative. Lydia and Donald also agreed to serve as trustees of John's charitable trust.

[6] John was a frugal man and had accumulated significant assets. John managed his own investments. Under the 2018 Will, John transferred the bulk of his estate to the Charitable Trust upon his death. But John also established an educational trust for Lydia's daughter, who was also his goddaughter, willed his house to Lydia, and made several small bequests to other individuals in his neighborhood.

[7] While Lydia had authority to act as John's attorney-in-fact, she liquidated two of John's CDs in the amount of $250,000. She deposited $100,000 of the proceedings into a new checking account and listed herself and John as co-owners of the account.

[8] Lydia continued to assist John through December 2019. Lydia took John to appointments, cooked for him on occasion, and ran errands for him. On December 3, 2019, Lydia agreed to take John to an eye doctor appointment, but when she arrived at his home, John told her that the doctor had canceled the appointment. Lydia called the doctor's office and was told that John had canceled the appointment. An argument ensued after Lydia accused John of lying to her.

[9] The next day, Lydia returned to John's home and the argument continued. She began to look through John's personal documents that were laid out on his dining room table. John told her to stop looking at his documents several times. When she refused, John took ahold of Lydia's shoulder and pushed her away from the table. Lydia fell to the floor and accused John of kicking her. Lydia reported the incident to the police but no criminal charges were filed. Unbeknownst to John, Lydia recorded the incident. She also recorded John on several other occasions without his knowledge.

[10] On December 8, 2019, John revoked Lydia's power as attorney-in-fact and named his neighbor David as his attorney-in-fact. In February 2020, John executed a new will leaving his estate to his church.

[11] On December 20, 2019, Lydia and Donald filed a verified petition for appointment of guardian over John in Knox Circuit Court. In support of their petition, the Appellants attached as "Exhibit A" a letter from John's physician opining that John required 24-hour care. Appellants’ Conf. App. Vol II, p. 35. But the letter was dated December 10, 2018, over a year before the Appellants filed the petition for guardianship in this case.

[12] In Count II, Lydia and Donald requested a declaratory judgment determining that the power of attorney John had granted to David was void and unenforceable because John lacked the requisite capacity to execute the power of attorney. Lydia and Donald later amended their petition to include Count III, a request to declare John's 2020 will invalid due to fraud, duress, or undue influence. Lydia and Donald also requested an order compelling John to appear for a Trial Rule 35 examination.

[13] John objected to the Appellants’ petition and declaratory action and their request to have him examined pursuant to Trial Rule 35. John challenged the Appellants’ allegations that he was incapacitated and needed a guardian, but he also responded that, if he did need a guardian, he would not want either Lydia or Donald to serve in that capacity because he does not trust them. Id. at 82–83. John also objected to the Appellants’ claim that he lacked the requisite capacity to revoke his prior power of attorney.

[14] The proceedings were delayed for several reasons including discovery disputes and two changes of judge. The case was eventually transferred to Gibson Circuit Court. Before the trial court issued a ruling on the Appellants’ request for a Trial Rule 35 examination, the Appellants selected Dr. Tracy Gunter to examine John, paid her retainer fee, and scheduled an appointment. John continued to object to the need for a Trial Rule 35 examination. In May 2020, the trial court issued an order compelling John to appear for examination with Dr. Gunter, and John was examined on May 7, 2020. Dr. Gunter concluded that John was incapacitated.

[15] A bench trial commenced on September 1, 2020. On September 29, 2020, the trial court issued the following pertinent findings of fact and conclusions thereon:

1. John J. Yocum Jr. ("John") was born on December 4, 1925 and is presently 94 years old.

2. John resides alone at 326 North 3^rd Street in Vincennes Indiana in his family home where he has lived since he was a child ...

3. John attended Vincennes University, served in the U.S. Army in Europe towards the end of World War II, upon discharge he returned to Vincennes University to finish his education, and after graduation he worked until retirement as the office manager for an automobile dealership and then a truck dealership located in Vincennes.

4. John has maintained a significant stock investment portfolio, which he works upon each afternoon. He receives numerous dividend checks each quarter, which he deposits and uses to purchase additional stock. Presently he owns approximately 55,000 shares of Blue-Chip Stocks. John is a long-term investor who prefers stocks that pay a dividend. He has two (2) brokers he uses to track dividend payments and purchase stocks that John selects.

5. John attends to all of his daily needs. He cleans his house, prepares his food, washes his cloths, and maintains his personal hygiene.

6. Prior to the trial of this matter, John participated in approximately 11 hours of discovery deposition as a witness, which the court finds to be quite an endurance for any party, let alone someone 94 years of age.

7. During the trial of this matter, John presented each day neatly dressed, with the assistance of a hearing device. He followed the trial's progress and he participated in consultation with his counsel. He also testified as a witness, during which time he gave logical and coherent answers to the questions asked of him and demonstrated that he strongly wants to be left alone to make his own choices in life and to his property.

8. John testified that he remembers meeting Lydia A. Duncan ("Lydia") while he was the volunteer bookkeeper and she was hired as the secretary at St. Francis X[ ]avier Catholic Church (a.k.a The Old Cathedral).

9. James David Lancaster ("David") and John have been friends for more than 20 years.

10. David lives on the same block where John lives.

11. David is a fireman for the City of Vincennes[.]

12. John fell while in his home in August of 2018, which resulted in his hospitalization at Good Samaritan Hospital.

13. On September 5, 2018, Lydia volunteered to take care of John so that he could live in his home upon being released from the hospital.

14. Lydia insisted as a condition to her care that she be named John's attorney-in-fact.

15. Local attorney Bruce Kirchoff prepared a Power of Attorney (POA) by which John appointed Lydia and David as his attorney-in-fact and successor attorney-in-fact on September 5, 2018. This POA was executed while John was still in Good Samaritan Hospital.

16. Less than a month later, Lydia facilitated new estate planning documents to be drafted by Jeff Kolb ("Kolb documents") through her personal attorney and friend, Yvette Kirchoff, who was Jeff's partner at the time. The Court takes judicial notice of the fact that Bruce Kirchoff and Yvette Kirchoff are not known to be affiliated attorneys.

17. Lydia has one child, a daughter named Allyssa M.

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