In re Estate of Schooler, WD 65910.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Ronald R. Holliger
• Citation: 204 S.W.3d 338
• Parties: ESTATE OF Loel Grace SCHOOLER. Michael W. Torrey, Appellants, v. Joseph Jay Hemenway, Defendant, Carolyn Sealine, Respondent.
• Docket Number: No. WD 65910.,WD 65910.
• Decision Date: 31 October 2006

204 S.W.3d 338 ESTATE OF Loel Grace SCHOOLER.
Michael W. Torrey, Appellants,
v.
Joseph Jay Hemenway, Defendant,
Carolyn Sealine, Respondent. No. WD 65910. Missouri Court of Appeals, Western District. October 31, 2006.

Page 339

COPYRIGHT MATERIAL OMITTED

Page 340

Russell A. Fracassa, Liberty, for appellant.

Thomas J. Keedy, Unionville, for respondent.

RONALD R. HOLLIGER, Judge.

Michael W. Torrey ("Torrey") appeals a judgment of the probate court removing him as successor guardian of the person of his aunt, Loel Grace Schooler ("Schooler"). Torrey raises two points on appeal. In his first point, Torrey claims that the probate court erroneously applied the law by limiting his authority as guardian despite the absence of any limitations in the letters of guardianship. In point two, he claims that the probate court's judgment is not supported

Page 341

by the evidence because there is "no evidence of record" that the guardian failed to discharge his statutory duties or failed to act in the best interests of the ward. We find that the probate court had the authority to require its approval of a change in the ward's residence and that its judgment removing Torrey as guardian was supported by substantial evidence and not against the weight of the evidence.

Judgment affirmed.

Factual and Procedural Background

Mrs. Schooler, who is 86 years old, was diagnosed as having progressive Alzheimer's disease, and determined to be incapacitated by the probate court in Mercer County in June of 2000. At the time of that determination, Jack Torrey, Schooler's brother, was appointed as her guardian, and the Public Administrator of Mercer County, was appointed as her conservator. Since sometime in early 2000, Schooler has resided at Bristol Manor ("Bristol"), a residential care facility in Princeton, Missouri.

Sometime in 2003, Jack Torrey's son, Michael Torrey, at the request of his father, placed Schooler on a waiting list to be admitted as a resident to Seasons Care Center ("Seasons"), a Skilled Nursing Facility in the Kansas City area specializing in treating Alzheimer's patients. In February of 2005, just prior to the death of his father, Torrey filed a request to succeed his father as guardian, and the Public Administrator filed her own motion to be appointed successor guardian.

On May 10, 2005, the probate court held a hearing on both motions. At that hearing, the probate court heard testimony from Schooler and others expressing a concern that a change in guardianship might result in a change of Schooler's residence from Princeton to somewhere in the Kansas City area, where Torrey lives. Torrey testified at that hearing that if appointed, he had no intention of moving Schooler from Princeton, although he did express a desire that she be medically evaluated. Torrey made no mention of the waiting list at Seasons at this hearing. On the same day this hearing was conducted, Joy Schult, R.N. ("Schult"), visited Schooler at Bristol to conduct an evaluation. Schult is a geriatric nurse and placement specialist who ultimately recommended moving Schooler from Bristol to Seasons.

The probate court appointed Torrey as successor guardian on May 20, 2005, noting in its judgment the concerns about a potential change in Schooler's residence, along with Torrey's assurance that he did not intend to move her. The judgment appointing Torrey also recited that: "Before there could be a change of residence, should such a change be proposed, there would first need to be approval by the Court."

Less than two months after the hearing that resulted in his appointment as guardian, Torrey left Bristol with Schooler, telling the staff that he was taking her out to eat. After stopping to eat at a McDonald's, he drove Schooler to Kansas City, arriving at Seasons three hours later. Sometime that same afternoon, Torrey's attorney called Bristol and the Public Administrator to inform them that Schooler would not be returning to Bristol that day, and was in Kansas City. During the next three weeks, Schooler underwent evaluations by doctors in Kansas City.

In the meantime, the court, apparently having been informed of Torrey's actions by the Public Administrator, scheduled a review hearing, at which Torrey testified as to the above described events. On the day of that hearing, Torrey filed a request to change Schooler's residence from Bristol to Seasons. The court appointed a

Page 342

guardian ad litem and scheduled a second hearing, at which the motion to change residence was taken up along with a continuation of the court's review of Torrey's guardianship. On the same day as the second hearing, Torrey filed a motion for maintenance and support, covering the bill for Schooler's stay at Seasons up to that point.

At that hearing, the court heard further testimony from several witnesses, including Torrey, Schult, and Dr. Tammy Hart ("Hart"), who had treated Schooler for the five years she resided at Bristol.

Both Schult and Hart testified that a move from one facility to another can cause stress for an Alzheimer's patient. Schult testified that, given the progressive nature of the disease, she was of the opinion that Seasons would be a better facility for Schooler in the long-term, and that a move would be less stressful if made before the patient's condition deteriorates to the point of necessitating such a move. Conversely, Dr. Hart testified that such a move can precipitate deterioration in the patient's condition. She also testified that Schooler was receiving appropriate care at Bristol, and that further evaluations of Schooler's condition would have been possible without moving her to Kansas City for an extended period.

Following the second review hearing, the probate court entered a judgment removing Torrey and appointing the Public Administrator as Schooler's successor guardian. Torrey appeals that judgment.

Discussion

In his first point on appeal, Torrey argues that the probate court erroneously applied the law. A court-tried probate case is reviewed under the standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Under that standard, the probate court judgment will be sustained "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Id. at 32.

Torrey's argument that the probate court misapplied the law relies upon the final sentence of subsection 10 of section 475.075 of the Revised Statutes of Missouri for the proposition that the probate court was without authority to remove him as Schooler's guardian. This argument, however, is predicated on a misinterpretation of the meaning and purpose of section 475.075.10.

That subsection codifies the "least restrictive environment" principle. The least restrictive environment principle embodies a "desire to defer in close cases to the dignity and personhood of the alleged incapacitated or disabled person rather than to take a strict paternalistic approach of utmost security." Matter of Nelson, 891 S.W.2d 181, 187 (Mo.App. W.D.1995). Toward this end, the probate code mandates a hierarchy of preferred remedies where incapacity is alleged.

Under this statutory regime, the probate court considers the degree of supervision necessary, including whether the person alleged to be incapacitated might be appropriately served without appointing a guardian. Section 475.075.10, RSMo (2000). If a guardian is to be appointed, the first preference is for a guardian ad litem. Id. If more than a guardian ad litem is required, the court should consider the appointment of a limited guardian. Id. Finally, and as a last resort, the court will consider the appointment of a general guardian.¹ Id.

Page 343

In the event that the court determines the appointment of some form of guardian is necessary, the code requires that "[t]he limitations imposed upon the authority of the guardian or conservator as set forth in the findings of the court shall be stated in the letters of the guardian or conservator and shall be set forth in the notice of first publication of letters of conservatorship granted." Id. Torrey's argument misconstrues this last sentence.

Torrey extracts this final sentence from its context, suggesting that it stands for the proposition that the court can place no limitation on the guardian not contained in the letters of guardianship. This reading of the statute would suggest that once a guardian has been appointed, the probate court is without any authority to limit the discretion of that guardian. A reading of the statute in context, however, makes clear that the "limitations" contemplated by this sentence consist merely of the appointment of a limited guardian or a guardian ad litem, as opposed to the appointment of a general guardian.

Thus, in the present case, the absence of limitations "stated in the letters of the guardian" suggests no more than that Torrey was appointed as a general — rather than limited — guardian. The distinction...