Guardianship of Nelson, Matter of, 82-466

• Decision Date: 12 May 1983
• Docket Number: No. 82-466,82-466
• Citation: 663 P.2d 316,204 Mont. 90
• Parties: In the Matter of the GUARDIANSHIP OF Naomi NELSON, an incapacitated person. Shirley GIARRANTANA, Petitioner and Respondent, v. Christine THOMPSON, Respondent and Appellant.
• Court: Montana Supreme Court

Page 316

663 P.2d 316

204 Mont. 90

In the Matter of the GUARDIANSHIP OF Naomi NELSON, an

incapacitated person.

Shirley GIARRANTANA, Petitioner and Respondent, v. Christine THOMPSON, Respondent and Appellant.

No. 82-466.

Supreme Court of Montana.

Submitted on Briefs March 17, 1983.

Decided May 12, 1983.

Leonard J. Haxby, Butte, for respondent and appellant.

Daniel McCarthy, Johnson, Skakles & Kebe, Anaconda, James Dorr Johnson, Warm Springs, Nick Rotering, Dept. of Institutions, Helena, for petitioner and respondent.

SHEEHY, Justice.

Christine Thompson appeals from an order of the Third Judicial District Court appointing respondent, Shirley Giarrantana guardian of the person and estate of Naomi Nelson, an incapacitated person.

Naomi Nelson is a 56 year old single woman who has been a patient at Warm Springs State Hospital since April 18, 1941. Christine Thompson and Shirley Giarrantana are sisters of Naomi. They both reside in California.

On March 25, 1982, Christine Thompson filed a petition requesting that Naomi be declared incapacitated and that she be appointed Naomi's guardian. On May 25, 1982, a second petition for appointment was filed by Shirley Giarrantana.

A hearing on the question of incapacity was held on May 26, 1982. At that time, Dr. Myron K. Meinhardt, a psychiatrist at the Warm Springs State Hospital, testified that Naomi Nelson suffers from schizophrenia which is chronic and undifferentiated. Dr. Meinhardt further stated in a report filed with the District Court that Naomi Nelson "is a severely regressed, institutionally dependent woman who will never be able to autonomously care for herself independent of the emotional structure and directions of trained nursing care staff."

Conde F. MacKay, a court-appointed visitor, also testified at the hearing and filed a report with the District Court. MacKay stated that when he visited with Naomi Nelson, it was virtually impossible to communicate with her. A nurse responsible for Naomi's care informed MacKay that his experience of being unable to communicate in a meaningful way with Naomi was typical. MacKay reported that he found the facilities to be pleasant and clean, with trained staff present at all times.

At the May 26, 1982 hearing, the District Court also heard testimony regarding the guardianship proceeding. Christine Thompson testified that although she lives in California, she has visited with Naomi on two occasions in the last two years. Mrs. Thompson testified that she sends Naomi food packages, canteen money, and money for clothing. It was revealed on cross-examination that Mrs. Thompson has been the representative payee for Naomi's Social Security benefits since 1964. During that time, Mrs. Thompson has not accounted for the disbursal of the Social Security funds to any of her brothers and sisters, and has not made payments to the State of Montana for Naomi's care and maintenance for at least the past two years.

Raymond Nelson, a brother of Naomi Nelson, testified that Christine Thompson should not be appointed guardian because, among other reasons, Christine is prone to becoming overly concerned with having her own way in spite of consequences to others.

The guardianship proceeding was continued until September 1, 1982, so that Shirley Giarrantana, who had suffered injuries in an automobile accident, could be present. At that time, Shirley Giarratana testified that she visits Naomi as often as possible and sends her packages. Mrs. Giarratana testified that she filed the guardianship petition because Naomi's best interests would not be served by the appointment of Christine Thompson as guardian.

Raymond Nelson, also present at the September 1, 1982 hearing, testified that Shirley Giarratana should be appointed guardian of Naomi because she is very responsible, and is the only member of the family who has not had serious mental, emotional, or alcoholic problems. Robert Nelson, another brother of Naomi Nelson, testified that Christine Thompson should be appointed guardian of Naomi because she is compassionate and understanding with disabled persons.

On September 27, 1982, the District Court entered its findings of fact and conclusions of law. Naomi Nelson was found to be an incapacitated person who required the appointment of a guardian. The District Court concluded that both Christine Thompson and Shirley Giarratana were proper persons to be considered for the appointment of guardians, but that it was in Naomi's best interests that Shirley Giarratana be appointed as guardian.

Christine Thompson appeals and presents the following issues for our review:

1. Did the District Court err in failing to designate whether the guardianship is to be full or limited, pursuant to section 72-5-316(2), MCA?

2. Did the District Court err in appointing a guardian whose interests conflict with those of the ward, pursuant to section 72-5-312(4)(c), MCA?

3. Did the District Court err in failing to consider whether the appointed guardian would encourage the development of maximum self-reliance and independence of the ward, pursuant to section 72-5-306, MCA?

4. Did the District Court err in not allowing the testimony of Dr. Meinhardt regarding alternative treatment plans, pursuant to section 53-21-127, MCA?

5. Did the District Court err in failing to determine whether the appointed guardian would consider alternate treatment plans for the ward, pursuant to section 53-21-127, MCA?

When reviewing guardianship proceedings, this Court is governed by the following standard of review:

"Subject to statutory restrictions, the selection of the person to be appointed guardian is a matter which is committed largely to the discretion of the appointing court, and an appellate court will interfere with the exercise of this discretion only in case of a clear abuse." 39 Am.Jur.2d Guardian and Ward Sec. 27, at 29.

In this case, appellant Christine Thompson does not claim that the District Court abused its discretion by appointing Shirley Giarratana as guardian of Naomi Nelson. We will therefore limit our review to whether any statutory restrictions were violated in the guardianship proceeding.

Christine Thompson's first allegation of error is that the District Court did not comply with section 72-5-316(2), MCA, which states:

"The court may not invest a guardian with powers or duties beyond those sought in the petition and may, upon petition for full guardianship, create a limited guardianship or conservatorship when the court determines that a limited guardianship or conservatorship is all that is required for the care and protection of the incapacitated person. The order shall specify whether a full or limited guardianship is being created. In the case of a limited guardianship, the order shall...