In re Conservatorship of Doe, CAAP-17-0000567

• Court: Court of Appeals of Hawai'i
• Citation: 502 P.3d 1026 (Table)
• Docket Number: CAAP-17-0000567
• Parties: In the MATTER OF the CONSERVATORSHIP OF Jane DOE
• Decision Date: 31 January 2022

502 P.3d 1026 (Table)

In the MATTER OF the CONSERVATORSHIP OF Jane DOE

NO. CAAP-17-0000567

Intermediate Court of Appeals of Hawai‘i.

January 31, 2022

On the briefs:

Mark M. Murakami (Damon Key Leong Kupchak Hastert), for Appellant Jane Doe

Thomas E. Bush (Thomas Bush Law Office, LLLC), for Plaintiff-Appellee Thomasene Brodhead and Interested Person Virginia La Pierre

(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

Respondent-Appellant Barbara J. Brodhead (Appellant )¹ appeals from the March 8, 2017 Order Granting Petition for Appointment of Conservator filed May 5, 2016 (Order Appointing Conservator ), and the June 30, 2017 Judgment on Order Granting Petition for Appointment of Conservator filed May 5, 2016 (Judgment ), filed by the Circuit Court of the First Circuit (Probate Court ).²

On appeal, Appellant contends that the Probate Court: (1) exceeded its authority in a conservatorship proceeding when it authorized the Special Conservator to oversee her healthcare and medical decisions, terminating her long-term caregiver and hiring others against her wishes; (2) abused its discretion when it appointed a Special Conservator without clear and convincing evidence of an impairment that prevented Appellant from making her own financial decisions; and (3) abused its discretion when it appointed a Special Conservator without first finding by a preponderance of evidence that her property would be wasted or dissipated unless she was removed from its management, and also erred when it did not determine that her property would be dissipated or wasted without management.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we address Appellant's contentions as follows, and we vacate and remand.

A Petition for Appointment of Conservator (Petition ) was filed on May 5, 2016, by Petitioner-Appellee Thomasene Brodhead and Interested Person-Appellee Virginia La Pierre, who are Appellant's siblings (collectively, Sisters ), seeking the appointment of a conservator under Hawaii Revised Statutes (HRS ) § 560:5-401(2)(2006 & Supp. 2016).³ Appellant had no children, and Sisters filed the Petition out of concern for the alleged neglect, isolation, and alleged improper influence and financial exploitation of Appellant by her caregiver and friend, Madeline Morales (Caregiver ). The Petition requested, among other things, the appointment of Andrew D. Smith, Esq., (Smith ) as Conservator to assist Appellant with the management of her business and financial interests, and to protect Appellant's interests against undue influence or encumbrance by others.

Following the completion of a July 29, 2016 report by a court-appointed Kokua Kanawai⁴ to review the matters raised in the Petition, the Probate Court appointed Smith to serve as Special Master,⁵ to prepare a written report regarding the appropriateness of a conservatorship. Specifically, the August 30, 2016 Order Appointing Special Master provided:

IT IS FURTHER ORDERED that the Special Master shall prepare a written report of his findings to the Court with respect to [Appellant's] understanding of her financial situation and options, her ability to exercise her rights accordingly, and the existence (if any) of an impairment in [Appellant's] ability to receive and evaluate information or make or communicate decisions regarding management of her property and business affairs, within the meaning of HRS § 560:5-401(2)(A).

The Special Master was also to report on the existence, if any, of undue influence or financial exploitation of Appellant.

Upon completion of his investigation, the Special Master filed his February 2, 2017 report recommending a limited special conservatorship. The report addressed, among other things, Appellant's physical health, mental condition, proposed care plan, and her finances. The report included the Special Master's conclusion regarding undue influence and financial exploitation of Appellant. However, the report did not address whether there was any "impairment in [Appellant's] ability to receive and evaluate information or make or communicate decisions regarding management of her property and business affairs, within the meaning of HRS § 560:5-401(2)(A)," as directed in the Order Appointing Special Master.

Following a February 16, 2017 hearing on the Petition, the Probate Court filed the March 8, 2017 Order Appointing Conservator, which, among other things, appointed Smith to serve as Special Conservator, and stated in pertinent part:

A. The Petition for Appointment of Conservator is granted, subject to the recommendations of the Special Master contained in the Special Master's Report filed on February 2, 2017, which are adopted and approved, and set forth herein, and subject to modification at a later date as set forth herein;

B. The appointment of the Special Master

...