In re Barnard

• Decision Date: 22 March 2016
• Docket Number: No. ED 102778,ED 102778
• Citation: 484 S.W.3d 833
• Parties: In the Matter of: Duane R. Barnard
• Court: Missouri Court of Appeals

484 S.W.3d 833

In the Matter of: Duane R. Barnard

No. ED 102778

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

Filed: March 22, 2016

Timothy Belz, J. Matthew Belz, 112 South Hanley, Suite 200, St. Louis, MO 63105, for Respondent/Appellant.

Cheryl Barnard, Respondent acting pro se, 64555 Tigereye Street, Knox City, MO 63446.

Theresa A. Hamlin, Respondent acting pro se, P.O. Box 206, Edina, MO 63537.

SHERRI B. SULLIVAN, P.J.

Introduction

Duane R. Barnard (Appellant) appeals from the probate court's March 6, 2015 Final Order and Judgment supplementing, modifying, completing and finalizing its December 23, 2014 Judgment of Partial Disability, appointing Appellant's wife, Cheryl Barnard (Barnard), limited conservator of Appellant's estate.¹ We reverse both judgments.

Factual and Procedural Background

On January 16, 2014, Jon and Betty Jo Simmons (collectively Petitioners) petitioned the probate court requesting their appointment as co-guardians and co-conservators for Appellant, 83 years old at that time, who Petitioners alleged was "unable to adequately manage his personal needs without supervision...." Petitioners alleged they were "close personal friends" of Appellant and were the "current attorneys-in-fact of [Appellant's] Durable Power of Attorney with Healthcare Directives & Living Will."

On August 20, 2014, a hearing was held on the petition. Nurse practitioner Christine Tisinger (Tisinger) testified that on December 30, 2013, approximately eight months earlier, she administered one cognitive test, called a "clock test," where Appellant was to draw the hands of a clock on a piece of paper. Tisinger stated Appellant failed the test and so she found him cognitively impaired, in that he "lacked the ability to make sound decisions because he lacked the ability to show insight or communication clearly, and he had difficulty receiving speech or spoken instructions as well." She testified that if unsupervised Appellant could not meet his essential needs for food, shelter and medical care and could not manage his financial resources.

Kris Chambley (Chambley) of the Department of Health and Senior Services testified she received a hotline report on December 30, 2013, the same date Appellant had his appointment with Tisinger, regarding Appellant and claims of medical neglect and financial exploitation of the elderly. Chambley had a visit with Appellant on January 4, 2014, and also interviewed Barnard. Between January 4 and February 28, 2014, Chambley spoke with Appellant and Barnard a few times and "suspected" Barnard of financial exploitation but eventually conceded that she did not have the evidence to substantiate the report. Chambley had no further contact with Appellant after February 28, 2014.

The deposition of Dr. Eugene Childress (Dr. Childress), who periodically treated Appellant and had last seen him on January 16, 2014, was admitted into evidence. He states in his deposition that he believes Appellant "has functional dementia, which means he can carry out, you know, his activities of daily living ..." and he does not "believe that [Appellant] has the ability to do complex problem solving or such things as, you know, buying and selling stocks on the exchange or, you know, diamonds or land ..." but he could handle his normal daily expenses.

Michael Williams (Williams), an attorney who had prepared amendments to Appellant's trust and worked on a real estate sale between Appellant and Petitioner Jon Simmons, testified Appellant understood what he was doing regarding these legal matters.

On August 20, 2014, after hearing evidence presented by Petitioners, the probate court found Appellant "to be incapacitated and disabled, and in need of a guardian and conservator." The court memorialized its findings in a judgment dated October 8, 2014, appointed Appellant's daughter, Melinda Wentz (Daughter), and the Knox County Public Administrator Theresa Hamlin (Hamlin), as co-guardians and co-conservators, and purported to void Appellant's marriage to Barnard and past financial transactions.

On October 23, 2014, Appellant moved to set aside the court's October 8, 2014 judgment because: (a) he was not incompetent; (b) a full guardianship/conservatorship was unnecessary; (c) the court had no jurisdiction to nullify his marriage; (d) the judgment was vague as to what past financial transactions were void due to incompetency; and (e) the evidence at trial was not clear and convincing as required.

On October 31, 2014, the probate court stated that it was "willing to reopen the medical evidence upon [Appellant's] condition as it relates to incapacity and disability."

On December 5, 2014, the probate court heard testimony on Appellant's motion to set aside the court's finding of disability. The docket entry indicates, "[Appellant] appears in person and by Attorney Garrett. [Hamlin], [Daughter] and [Barnard] appear in person. No other interested person appears in person or by counsel." New evidence was presented at the December 5, 2014 hearing. Psychiatrist Dr. Jeffrey Harden (Dr. Harden) examined and psychiatrically evaluated Appellant. His report was entered into evidence.² The probate court, familiar with Dr. Harden, called him "a very capable physician and psychiatrist."

Dr. Harden stated Appellant was a friendly, cooperative, engaging individual who interacts in an emotionally appropriate fashion. Dr. Harden administered the clock test, in which he instructed Appellant to draw the face of a clock indicating the time 11:10. Dr. Harden reported "he did so in an accurate fashion quite readily." Dr. Harden stated Appellant appeared to be experiencing mild cognitive decline in that he had difficulty with sustaining his focus on repetitive tasks, his ability to recall long-term events and his immediate recall seemed limited. Dr. Harden noted his capacity for abstract thought and his judgment both seemed appropriate. Dr. Harden assessed Appellant's abilities to quickly focus his attention on an issue, understand its implications, and come up with a clear plan of action is now such that he will require longer periods of contemplation before he can achieve meaningful conclusions. Because of these observations, Dr. Harden concluded that "consideration should be given" to Appellant having a conservator and/or guardian in matters of finances and management of property and other material resources because he believed such a conservator could serve the purpose of impeding any sudden, rash or misdirected financial decisions that Appellant "might" be manipulated into. Dr. Harden opined "it would be in Appellant's best interest for him to select a durable power of attorney to manage matters of healthcare, finances, domicile, etc. should he eventually be found to be incapable of competently caring for himself in those matters."

Hamlin, the Knox County Public Administrator, whom the court had preliminarily appointed to be Appellant's co-guardian and co-conservator on August 20, 2014, also testified. Hamlin testified she had a lot of personal contact with Appellant since becoming one of his co-conservators and co-guardians on August 20, 2014. Like Dr. Harden, she found Appellant to be "very outgoing, very friendly." Her opinion was that Appellant is very well known in the community and people enjoy his company. She said she personally sees Appellant and Barnard visiting with people in restaurants. Hamlin also found Appellant to be "very intelligent." She learned he served as a Sergeant Major in the Army for 34 years.

Hamlin testified Appellant lives on a farm with Barnard, and Appellant has shown Hamlin around the buildings and operations of the farm. Appellant, according to Hamlin, is definitely an active man, always on the go, whether it is mowing the yard, doing repairs, painting the house or doing fence work. She said Appellant explained the intricacies of his farm to her as they drove around it, explaining how a terrace farm works and the way the water is diverted to take care of the fields. She stated the fields and terraces appear to be maintained and in good condition, and their home is comfortable and clean. She said Appellant also has a home in Mississippi he and Barnard visit.

Hamlin testified she saw nothing to indicate Barnard was taking advantage of Appellant, and on the contrary, Barnard was very supportive, helpful and cooperative.

Hamlin testified Appellant definitely understands his business affairs, does his own accounting, keeps accurate records and itemized documentation of his finances and transactions, including lists, bills and receipts; and knows how much he has in the bank at all times. She stated Appellant is very aware of and definitely capable of managing his finances, income, expenses, and checkbook.

Hamlin said before she became involved with Appellant, he had entered into the sale and rental of certain property with Petitioners without a written contract, because Appellant stated he believed a man's word was his bond and sacred. The sale was for less than market value, and Petitioner Jon Simmons defaulted on his payments, which Hamlin saw as Petitioner Jon Simmons' abuse of the situation, rather than due to mental unfitness on the part of Appellant.

On December 23, 2014, the probate court entered a Judgment of Partial Disability, to the effect that Appellant "shall be only disabled as to the transfer of major assets or their conversion to another form. Permission shall also be obtained from the Court for after death transfer designations not currently in place such as transfer on death designations or beneficiary deeds." The probate court set aside any prior, inconsistent decisions, including its October 8, 2014 judgment, and set aside any prior orders nullifying Appellant's marriage to Barnard. Barnard and Hamlin were appointed co-conservators for Appellant.

On March 6, 2015, the trial court entered a Final Order and Judgment that "supplement[ed], modifie[d], complete[d] and finalize[d]" its December 23, 2014 Judgment...