In re Co-Guardianship of DA, 03-570.

• Decision Date: 27 October 2004
• Docket Number: No. 03-570.,03-570.
• Citation: 100 P.3d 650,323 Mont. 442,2004 MT 302
• Parties: In re the Matter of CO-GUARDIANSHIP OF D.A., JR., An incapacitated person.
• Court: Montana Supreme Court

100 P.3d 650

2004 MT 302

323 Mont. 442

In re the Matter of CO-GUARDIANSHIP OF D.A., JR., An incapacitated person.

No. 03-570.

Supreme Court of Montana.

Submitted on Briefs February 17, 2004.

Decided October 27, 2004.

For Appellant: Tony C. Koenig, Michelle J. Maltese, Special Assistant Attorneys General, Montana Department of Public Health and Human Services, Helena, Montana.

For Respondent: Mary Kay Starin, Mary Kay Starin, P.C., Butte, Montana, David J. Wing, Butte, Montana.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 D.A., Sr. (DAS), filed a petition in the Second Judicial District Court, Silver Bow County, for appointment of temporary full co-guardianship of D.A., Jr. (DAJ). After an emergency hearing, the court appointed DAS and a designee of the Montana Department of Public Health and Human Services (DPHHS) as temporary full co-guardians of DAJ. The State appeals. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether an agency of the state or federal government may be appointed guardian of an incapacitated person pursuant to § 72-5-312(5), MCA, without consent, or over the objection, of that agency.

¶ 4 2. Whether a state agency may be appointed guardian of an incapacitated person pursuant to § 72-5-312(5), MCA, when there is a qualified person willing and able to serve as guardian and there is no showing that the state agency is required to provide services to persons suffering from the type of disability from which the alleged incapacitated person suffers.

¶ 5 3. Whether the District Court may appoint a guardian for an alleged incapacitated person without following the procedures required by Title 72, Chapter 5, part 3, MCA.

BACKGROUND

¶ 6 At the age of six, DAJ came into DPHHS's custody and care due to severe abuse and neglect by his birth mother. The State terminated both DAJ's mother's and father's parental rights and granted DPHHS permanent legal custody of DAJ when he was seven years old. DAJ's mother contacted him infrequently and his father, DAS, began to establish limited contact with him after he was thirteen years old.

¶ 7 In anticipation of DAJ reaching majority, DPHHS prepared a transition plan whereby DAJ would reside with DAS in Minnesota after being released from Coastal Harbor Treatment Center, a residential treatment facility in Savannah, Georgia. Both his guardian ad litem, Mary Kay Starin (Starin), and DAS expressed concern over DAJ's ability to function in society due to his mental illness, special needs and danger to himself and others. Yet the plan failed to address how DAJ would receive the care he needed such as his medications, therapy or counseling for transition into society.

¶ 8 On March 17, 2003, Starin requested a hearing in preparation of DAJ reaching majority. She asserted that DPHHS stood in loco parentis to DAJ and recommended that, due to DAJ's maladaptive behaviors and potential danger to himself and others, DPHHS begin to put a guardianship into place at DAJ's eighteenth birthday so he could be placed in an appropriate therapeutic environment which would keep DAJ safe and provide the treatment needed for his ongoing mental illness.

¶ 9 The court held an involuntary commitment hearing on June 30, 2003, and after testimony, it determined that the circumstances did not require such commitment. The following day, DAS filed a petition for appointment of temporary full co-guardianship of an incapacitated person due to DAJ's mental, emotional and inability to care for himself. The same day, the court held an emergency hearing to address DAS's petition.

¶ 10 Both DAS and DPHHS presented testimony regarding DAS's qualifications as DAJ's guardian, including his ability to meet DAJ's needs, and DPHHS's participation in DAJ's transition into society. After hearing testimony, the court determined, over DPHHS's objection, that DAJ required continuing care and supervision of temporary full co-guardians and designated DAS and a representative from DPHHS as such guardians pursuant to § 72-5-317, MCA. The court found that the requirements of § 72-5-317, MCA, to appoint temporary full co-guardians were met; that DAJ needed court protection as well as continuing care and supervision; that DPHHS failed to provide a satisfactory transition plan for DAJ thereby creating an emergency necessitating the court's protective powers; that DAS is an appropriate person to assist DAJ, however, he lacked certain qualifications, therefore the court created a co-guardianship whereby both DAS and DPHHS would act as guardians of DAJ's best interests; that the co-guardians would work together to ensure that DAJ received the medications he required; and that DPHHS would provide some financial assistance so DAS would be able to adequately care for DAJ. It is from this order that DPHHS appeals.

STANDARD OF REVIEW

¶ 11 We review a district court's conclusions of law related to the appointment of a guardian to determine if they are correct. In re Guardianship of D.T.N. (1996), 275 Mont. 480, 483, 914 P.2d 579, 580. Subject to statutory restrictions, selection of a person to be appointed guardian is a matter committed largely to the discretion of the appointing court, and an appellate court will interfere with exercise of this discretion only in case of clear abuse. Matter of Estate of Bayers, 1999 MT 154, ¶ 12, 295 Mont. 89, ¶ 12, 983 P.2d 339, ¶ 12.

DISCUSSION

ISSUE ONE

¶ 12 Whether an agency of the state or federal government may be appointed guardian of an incapacitated person pursuant to § 72-5-312(5), MCA, without consent, or over the objection, of that agency.

¶ 13 Section 72-5-306, MCA, dictates that designation of guardianship of an incapacitated person may only be used as necessary to enhance the well-being of a person and must be designed to promote as much independence and self-reliance as possible in the best interest of the ward. See Estate of West (1994), 269 Mont. 83, 90, 887 P.2d 222, 226

. We have said that a guardian appointment, subject to statutory restriction, is largely within the district court's discretion and we will not disturb such appointment absent an abuse of discretion. Bayers, ¶ 12. Section 72-5-312, MCA, identifies the persons/entities who are eligible for appointment as guardians of an incapacitated person, in order of priority, and states the following:

(1) Any competent person or a suitable institution, association, or nonprofit corporation or any of its members may be appointed guardian of an incapacitated person.

(2) Persons who are not disqualified have priority for appointment as guardian in the following order:

(a) a person, association, or private, nonprofit corporation nominated by the incapacitated person, if the court specifically finds that at the time of the nomination the incapacitated person had the capacity to make a reasonably intelligent choice;

(b) the spouse of the incapacitated person;

(c) an adult child of the incapacitated person;

(d) a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;

(e) any relative of the incapacitated person with whom he has resided for more than 6 months prior to the filing of the petition;

(f) a relative or friend who has demonstrated a sincere, longstanding interest in the welfare of the incapacitated person;

(g) a private association or nonprofit corporation with a guardianship program for incapacitated persons, a member of such private association or nonprofit corporation approved by the association or corporation to act as a guardian for the incapacitated person, or a person included on an official list of such association or organization as willing and suitable to act as guardian of incapacitated persons;

(h) a person nominated by the person who is caring for him or paying benefits to him.

(3) The priorities established in subsection (2) are not binding, and the court shall select the person, association, or nonprofit corporation that is best qualified and willing to serve.

(4) Except as provided in subsection (5), the court may not appoint a person, institution, association, or nonprofit corporation to be the guardian of an incapacitated person if the person, institution, association, or nonprofit corporation:

(a) provides or is likely to provide during the guardianship substantial services to the incapacitated person in the professional or business capacity other than in the capacity of guardian;

(b) is or is likely to become during the guardianship period a creditor of the incapacitated person, other than in the capacity of guardian;

(c) has or is likely to have during the guardianship period interests that may conflict with those of the incapacitated person; or

(d) is employed by a person, institution, association, or nonprofit corporation who or which would be disqualified under subsections (4)(a) through (4)(c).

(5) If the court determines that there is no qualified person willing and able to serve as guardian, the court may appoint an agency of the state or federal government that is authorized or required by statute to provide services to the person or to persons suffering from the kind of disability from which the incapacitated person is suffering or a designee of the agency, notwithstanding the provisions of subsection (4). Whenever an agency is appointed guardian, the court may also appoint a limited guardian to represent a specified interest of the incapacitated person. Whenever a limited guardian is appointed pursuant to this subsection, the specified interest of the incapacitated person is the sole responsibility of the limited guardian and is removed from the responsibility of the agency.

¶ 14 When we interpret a statute, this Court's purpose is to implement the objectives the legislature sought to achieve. Western Energy Co. v. State, Dept. of Revenue, 1999 MT 289, ¶ 11, 297 Mont. 55, ¶ 11, 990 P.2d 767, ¶ 11. If the intent of the legislature can be determined from the plain...