Gardner, Matter of
| Decision Date | 11 August 1981 |
| Docket Number | No. WD,WD |
| Citation | 621 S.W.2d 92 |
| Parties | In the Matter of the Alleged Incompetency of Audrey GARDNER. 32315. |
| Court | Missouri Court of Appeals |
David A. Baird, Maryville, for Audrey Gardner.
Frank H. Strong, Jr., Maryville, (Strong, Strong & Prokes, Maryville of counsel), for petitioner Thelma Abrams.
Before PRITCHARD, P.J., and TURNAGE and CLARK, JJ.
Audrey Gardner, a woman then about 85 years of age, was on October 30, 1980, adjudged to be "incapable of managing her property and caring for herself and is therefore incompetent." Thelma E. Abrams, the respondent, was appointed guardian, and Audrey appeals from the judgment.
The petition alleged that Audrey "is incapable because of senility or other incapacity of managing her property and caring for herself", with stated reasons for appointment of guardian: "Cerebrovascular insufficiency, transient ischemic attacks".
Appellant's three points are related and attack the judgment as being based on insufficient evidence that she was incompetent under § 475.010(3), RSMo 1978, in that: (1) There was no clear and convincing evidence that she suffered from senility or other incapacity; (2) That there was no clear and convincing evidence that she was incapable of knowing and appreciating the nature and consequence of her acts in respect to her conduct as a direct result of senility or other incapacity; and (3) The same point as (2), supra, but with respect to her property. No brief has been filed by respondent.
The evidence is this: Respondent, who is Audrey's daughter, testified that her mother required a guardian because she "does not eat right", "doesn't take her medicine", "gets weak", "falls around", and "staggers". Audrey had been recently hospitalized because of those problems. Edith Barrett, who resided in the same housing complex as Audrey, confirmed that she had fallen. Audrey's minister testified that he had seen her stumble, and her need for assistance when she walked into the church. About 21/2 to 3 months before trial, Deputy Sheriff Johnson responded to an ambulance call for Audrey, being there for awhile before the ambulance arrived. She was lying on a divan, apparently could not breathe, and she could not walk. She had to have oxygen.
Many of Audrey's checks were introduced into evidence which were payable to various magazines, publishing houses, and for (some 30) sweepstake contests. Her income was from Social Security, supplements thereto, and welfare benefits. She had overdrafts on her checking account at times, as she admitted, but she testified that she had paid them. Audrey identified the checks and recalled most but not all the expenditures. She testified further that she cleaned her own apartment, made her bed, prepared her own meals, and that she did not need a guardian.
Two affidavits of Dr. Kenti Havaldar, M.D., concerning his examination of Audrey, were offered, but objections were sustained thereto, and properly so, upon the ground of hearsay. No medical evidence was otherwise presented.
Martha Campbell, who had lived next to Audrey for a little over 11/2 years, had observed her daily activities. Audrey did her own housework, cooking, laundering, cleaning and canning. Martha took Audrey to the bank each month where she had the bank take out $100 for her rent, and she took $60 to $100 a month to buy her groceries. Martha also took Audrey to grocery stores where she picked her own meats, breads and...
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