Estate of Potashnick, Matter of

• Decision Date: 06 October 1992
• Docket Number: Nos. 60826,60827,s. 60826
• Citation: 841 S.W.2d 714
• Parties: In re The Matter of the ESTATE OF R.B. POTASHNICK.
• Court: Missouri Court of Appeals

Page 714

841 S.W.2d 714

In re The Matter of the ESTATE OF R.B. POTASHNICK.

Nos. 60826, 60827.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Oct. 6, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Nov. 19, 1992.

Application to Transfer Denied Dec. 18, 1992.

Richard A. Wunderlich, Billy R. Randles, Clayton, James E. Reeves, Caruthersville, for appellant.

Richard G. Steele, Christopher M. Crank, Cape Girardeau, for respondent.

CRIST, Judge.

The granddaughter and daughter of protectee appeal denial of their motions to set aside and granddaughter's motion to intervene in conservatorship proceedings initiated by protectee. We affirm.

R.B. Potashnick is 90 years old. He has owned a sole proprietorship, R.B. Potashnick, for over 60 years. That business is a heavy highway contractor. His net worth is estimated at $14.2 million. He maintains two residences in Cape Girardeau, one in which his granddaughter, Appellant Brinkopf, and her family live, and another apartment used primarily for storage. However, for health reasons, Potashnick has lived in Fort Lauderdale, Florida, since 1976. He has around-the-clock nursing care.

On August 13, 1991, R.B. Potashnick filed a voluntary petition for appointment of Larry Dunger as conservator of his estate. Potashnick hired Dunger in approximately 1950 and Dunger has been his chief financial advisor for the last 10 to 15 years. Dunger has also conducted most of Potashnick's business affairs since January of 1990 when Potashnick issued Dunger a durable power of attorney.

Upon Potashnick's filing, the Circuit Court of Cape Girardeau County appointed David B. Summers as guardian ad litem for Potashnick. Summers conferred with Potashnick and determined Potashnick understood what he was doing and he wanted Dunger as his conservator. That same day, the court held a hearing on the petition. The court did not provide notice of the proceedings to Potashnick's family.

The court then appointed Dunger as conservator after making the following findings: (1) Potashnick was disabled; (2) Potashnick wished Dunger to be appointed; (3) Potashnick had the capacity to understand the need for a conservator and had the ability to make a reasonable choice; and (4) Dunger was a suitable, qualified person to be conservator and he accepted such appointment. Dunger posted a surety bond in the amount of $13.2 million, equal to the amount of personal property in Potashnick's estate.

On August 15, 1991, a Florida court appointed Appellant Brinkopf temporary emergency guardian of Potashnick, which included the power to defend all actions brought against him or his property and to take possession of that property. The order was for 60 days. On August 23, 1991, Appellant Brinkopf filed a motion to intervene and a motion to set aside letters. The trial court held a hearing on the motions on September 6, 1991, and denied the motions. On September 20, 1991, Appellant Harrison, Potashnick's daughter, filed a motion to set aside letters on the basis of denial of due process. The trial court denied this motion as well. Appellants appealed separately. These appeals were consolidated. Appellants raise four issues on appeal: (1) whether the trial court erred in finding Potashnick disabled; (2) whether § 475.062 violates their due process rights; (3) whether they are entitled to intervention as a matter of right; and (4) whether venue was proper in Cape Girardeau County.

I.

Appellants' first point is the trial court erred in finding Potashnick disabled because the record does not support such a finding. Further, Appellants allege that if Potashnick were disabled, then he could have neither the capacity to understand the need for appointment of conservator nor make a reasonable choice. We reject these contentions.

Our review of the trial court's holding is limited. We will not overturn the judgment of a trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

When a voluntary petition for conservatorship is filed, the provisions of § 475.062.1 are to be followed. Section 475.062.1 provides the court may appoint the chosen conservator in a voluntary petition if the court follows certain procedures. First, the court must appoint counsel for the person. Second, the court must be satisfied: (1) the alleged disability exists; (2) the disabled person wishes the appointment and has the capacity to understand the need for it; (3) the disabled person makes a reasonable choice of conservator; and (4) the person nominated as conservator is suitable, qualified and will accept the appointment. § 475.062.1, RSMo 1986. The court may appoint the conservator without notice or a hearing, except for notice to any codepositors or cotenants. § 475.062.1.

The record below clearly supports the trial court's finding that all the requirements of § 475.062 were met. First, the evidence showed Potashnick was disabled. "Disabled" is defined as one who is "[u]nable by any reason of physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his financial resources." § 475.010(4)(a), RSMo 1986. "Manage financial resources" means the inability to take "those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, income or any assets, or those actions necessary to prevent waste, loss or dissipation of property...." § 475.010(10), RSMo 1986. Potashnick testified he wished to appoint a conservator because his memory was failing and he needed help with his business. An affidavit by J.P. Downey, M.D., was admitted into evidence which stated Potashnick was disabled to the extent he lacked the ability to manage his financial resources. Dunger also testified about Potashnick's failing memory. Furthermore, the court also interviewed Potashnick and satisfied itself he was disabled.

Appellants contend the appropriate standard to determine Potashnick's disability was clear and convincing evidence as set forth in § 475.075.7, and this standard was not satisfied. However, Appellants are relying on an inappropriate standard. Section 475.075 sets forth a person's due process rights when they have not consented to a petition for conservatorship. § 475.062.2, RSMo 1986; § 475.075.1, RSMo 1986. More exacting procedures and standards are in order when a person opposes the appointment of a conservator of his estate than when one consents to the appointment and in fact chooses his own conservator. This is clearly recognized by the provisions of § 475.062 and § 475.075. By filing a voluntary petition and waiving due process rights, the procedures as to hearing and adjudication of disability set forth in § 475.075, including the standard of clear and convincing evidence, are no longer needed. Appellants have failed to cite one case where the clear and convincing evidence standard was applied in a voluntary petition. In fact, the provision of § 475.075.7 is seen as a codification of a case concerning an involuntary petition, In the Matter of Armstrong, 573 S.W.2d 141 (Mo.App.1978). See, Borron, The Guardianship Code Revision: An Overview, 39 J. of Mo. Bar 453, 456 (1983).

Also, Potashnick clearly expressed his desire Dunger be appointed conservator of his estate and Potashnick understood the need for a conservator. At the hearing on his voluntary petition, Potashnick was questioned extensively. During the hearing, Potashnick stated he wished Dunger to be conservator of his estate. Furthermore, Potashnick stated unequivocally he did not wish any of his family members appointed conservator. He further stated no one had forced him to sign the petition or coerced him in any way; he signed of his own free will.

In addition, there was substantial evidence to support the trial court's finding Potashnick made a reasonable choice and Dunger was suitable and qualified for the position. Dunger has worked with Potashnick for the past thirty years and is the one person most intimately familiar with all aspects of Potashnick's business and financial affairs. For the last 22 years, Dunger has been comptroller for Potashnick. For the last 10 to 15 years, Dunger has been Potashnick's chief financial advisor and has basically been running the company in Potashnick's absence. Dunger has worked extensively with vast numbers of Potashnick's business associates, all of whom are used to dealing with Dunger. Moreover, Potashnick executed a durable power of attorney in favor of Dunger in January of 1990, giving Dunger authority to represent him in business matters. Dunger also indicated his willingness to accept the appointment to be conservator and his ability to procure a surety bond.

Furthermore, it is not inconsistent Potashnick was disabled and yet still able to realize he needed a conservator and make a reasonable choice. In In the Matter of Weissinger, 720 S.W.2d 430 (Mo.App.1986), the trial court adjudged a man disabled, but refused to appoint his chosen conservator. This court held the trial court should have appointed his chosen conservator. We stated the 1983 amendment to the Probate Code-Guardianship "leaves selection of a guardian or conservator to the ward whenever possible," and "when an incapacitated or disabled person is, at the time of the hearing, able to communicate a reasonable choice, his nominee should be appointed if the nominee is willing to serve, is qualified under § 475.055, and is not unsuitable." Id. at 434. See also, In the Matter of Crist, 732 S.W.2d 587, 590 (Mo.App.1987). Clearly, the guardianship provisions of the Probate Code contemplate that one who is disabled is not necessarily incompetent and unable to say whom he or she wishes appointed. If not possible, no one would ever...