In re Conservatorship of Doe

• Decision Date: 31 January 2022
• Docket Number: CAAP-17-0000567
• Parties: In the MATTER OF the CONSERVATORSHIP OF Jane DOE
• Court: Hawaii Court of Appeals

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 shall be terminated and the Special Master shall be discharged from further duties and responsibilities as Special Master[;]

C. Jurisdiction and venue are proper;

D. A basis exists for a special conservatorship;

E. The appointment of a special conservator is in the best interest of the Protected Person;

F. Andrew Smith, Esq. ("Smith") is qualified to serve as Special Conservator;

G. Smith is appointed as Special Conservator without bond;

H. The Special Conservator shall file with the Court within thirty (30) days of entry of this Order, a proposed budget of income and expenses for the Protected Person, pursuant to Rule 108 of the Hawai‘i Probate Rules, and a detailed inventory of the estate subject to the conservatorship, together with an oath or affirmation that the inventory is believed to be complete and accurate as far as information permits;

....

(Emphases added). The Order Appointing Conservator did not contain factual findings or any language citing to and determining that the statutory criteria for appointment of a conservator under HRS § 560:5-401(2)(A) and (B) had been met.

On June 30, 2017, the Probate Court entered Judgment on the March 8, 2017 Order. This timely appeal followed.⁶

The Hawai‘i Supreme Court has held that "it is not the function of the appellate court to conduct its own evidentiary analysis" where the probate court did not issue factual findings. In re Elaine Emma Short Revocable Living Tr. Agreement, 147 Hawai‘i 456, 465, 465 P.3d 903, 912 (2020).⁷ "[T]he absence of factual findings by the probate court" does not enable an appellate court "to meaningfully review the basis of the probate court order ...." Id. at 459, 465 P.3d at 906.

Appellant contends the record does not contain clear and convincing evidence of Appellant's inability to effectively manage her property and business affairs pursuant to HRS § 560:5-401(2)(A). Appellant argues that the statute requires "clear and convincing evidence" that Appellant cannot manage her property and business affairs effectively because of an impairment in her ability to receive and evaluate information or to make or communicate decisions, or because of another physical, mental, or health impairment. Appellant further argues that the Probate Court failed to "enter any findings of fact which reflected the proof standards in the statute." Appellant's contentions have merit.

HRS § 560:5-401(2)(A) requires proof of the individual's impaired ability "to manage property and business affairs effectively" by clear and convincing evidence. "[T]he clear and convincing evidence standard has been recognized as a more exacting standard that has been applied to a wide variety of civil cases where for policy reasons the courts require a higher than ordinary degree of certitude before making factual findings." Iddings v. Mee-Lee, 82 Hawai‘i 1, 13, 919 P.2d 263, 275 (1996) (brackets, internal quotation marks, and citations omitted). Clear and convincing evidence "is that degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established, and requires the existence of a fact be highly probable." Id. (citations omitted).

Here, the Probate Court specifically ordered the Special Master to address the criteria under HRS § 560:5-401(2)(A) in the report. While the Special Master's report addresses Appellant's physical health, mental condition and finances, the report did not specifically determine or express an opinion regarding Appellant's physical or mental "impairment

" within the meaning of the statute.⁸

The Order Appointing Conservator was based on the Special Master's report, that the Probate Court "adopted and approved" as the basis for its ruling. The order did not contain findings addressing the statutory requirements and standard of proof for the appointment of a conservator under HRS § 560:5-401(2)(A) and (B).

While HRS § 560:5-401(2)(B) (dealing with protection necessary to protect property or to provide needed money) contains requirements that must be proved by a preponderance of the evidence standard, the requirements in subsection (2)(A) are subject to a higher clear...