In re Ex parte Jamison

• Decision Date: 09 April 2021
• Docket Number: 1190984
• Citation: 336 So.3d 175
• Parties: EX PARTE Meg M. JAMISON, individually and as next friend of John W. Jamison III (In re: The Estate of John W. Jamison III, an alleged incapacitated person)
• Court: Alabama Supreme Court

336 So.3d 175

EX PARTE Meg M. JAMISON, individually and as next friend of John W. Jamison III (In re: The Estate of John W. Jamison III, an alleged incapacitated person)

1190984

Supreme Court of Alabama.

April 9, 2021

Stella Tipton, Birmingham, for petitioner.

Yawanna N. McDonald and Sarah Beth Sanders of Campbell Partners, LLC, Birmingham, for respondent Gregory H. Hawley, as temporary conservator and guardian for John W. Jamison III.

Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Dianne Leigh Dunning, asst. att'y gen., Department of Human Resources, for respondent Jefferson County Department of Human Resources.

Wilson F. Green, Tuscaloosa, for amicus curiae John Wilson Jamison IV, in support of the respondents.

BOLIN, Justice.

Meg M. Jamison ("Meg"), individually and as next friend of her husband, John W. Jamison III ("John"), seeks a writ of mandamus directing the Jefferson Probate Court ("the probate court") to set aside its May 20, 2020, order automatically renewing temporary letters of guardianship and conservatorship regarding John.

Facts and Procedural History

In July 2018, Wilson Jamison ("Wilson") petitioned the probate court to have Meg, his mother, involuntarily committed. In support of his petition, filed pursuant to § 22-52-1 et seq., Ala. Code 1975, Wilson alleged that Meg had verbally and physically abused John and him. He also alleged that Meg had attempted to kill him, John, and herself. In September 2018, the probate court issued an "appearance order," stating:

"A sworn petition having been filed pursuant to § 22-52-1 et seq., Code of Alabama 1975, and the laws of the State of Alabama, alleging that the petitioner therein has reason to believe that the respondent is mentally ill and poses a real and present threat of substantial harm to self and/or others, and praying for respondent's commitment to the State Department of Mental Health, and the Court, having reviewed said petition, ... is of the opinion that the said respondent should be brought before this Court ... to determine what, if any, limitations or restrictions should be placed upon the said respondent pending examination and evaluation by a psychiatrist and/or other qualified persons concerning same."

However, after a hearing, the probate court dismissed Wilson's petition.

During this same period, the Jefferson County Department of Human Resources ("DHR") became involved with John after receiving reports in June 2018 and September 2018. The reports alleged that John suffered from dementia and was being physically, verbally, and emotionally abused by Meg. The reports also indicated that Meg was abusing her prescription medications and alcohol and had untreated mental-health issues. The reports further indicated that, because Meg was involved in an involuntary-commitment proceeding, no one would be at home to care for John.

After investigating the reports, DHR, on September 28, 2018, filed, pursuant to the Adult Protective Services Act ("the APSA"), § 38-9-1 et seq., Ala. Code 1975, a petition ("the adult-protective-services petition") in the Jefferson Circuit Court ("the circuit court"), alleging that John was an "adult in need of protective services."¹ See § 38-9-2(4), Ala. Code 1975 (defining "court," as used in the APSA, as "[t]he circuit court"). On October 1, 2018, the circuit court entered an emergency order requiring that John have a complete physical and mental evaluation at Grandview Hospital. The circuit court also set a hearing for October 11, 2018. Meg filed a motion to intervene, which the circuit court granted. Following the hearing, the circuit court entered an order finding that John was in need of continuing care and supervision and should remain at Grandview Hospital. The circuit court set a final hearing for November 9, 2018.

On October 12, 2018, DHR filed, pursuant to the Alabama Uniform Guardianship and Protective Proceedings Act ("the AUGPPA"), § 26-2A-1 et seq., Ala. Code 1975, petitions seeking temporary and permanent letters of guardianship and conservatorship regarding John ("the guardianship/conservatorship petitions") in the probate court. See § 26-2A-20(3), Ala. Code 1975 (defining "court," as used in the AUGPPA, as "[a] probate court of this State"). The guardianship/conservatorship petitions alleged, in pertinent part, as follows:

"(2) John Jamison is an incapacitated person in that he ... has a diagnosis of dementia

. Mr. Jamison is alleged to be receiving improper care in the home, and is prone to wandering, driving while intoxicated and having memory issues. There are additional concerns that he could be subjected to physical, verbal and emotional abuse in the home. ...

"(3) John Jamison is a person in need of protection, whose diagnosis and behaviors render him unable to manage his property and business affairs, whose property will be wasted or dissipated unless proper management is provided, and for whom funds are continually needed for healthcare, support and maintenance, and for whom protection is necessary and desirable to obtain or to provide such funds.

"(4) John Jamison is a person in need of a guardian of his person in that he is unable to provide for his basic needs of shelter, food, clothing, and healthcare. His behaviors and diagnosis indicate that he is mentally and/or physically incapable of adequately caring for himself and his interests without serious consequences to himself or others; and due to his physical and/or mental impairments, he is unable to protect himself from abuse, neglect or exploitation by others.

"(5) DHR became involved with John Jamison after receiving reports from the community that Mr. Jamison suffers from dementia and ... is being physically, verbally and emotionally abused by

his wife. In addition, it was reported that Mr. Jamison's wife/caregiver abuses her prescription medication and has untreated mental health diagnoses. Concerns were noted as it relates to Mr. Jamison's well-being and safety in the home with his wife.

"(6) Mr. Jamison's wife had a mental health commitment petition filed concerning her welfare as to the above reports concerning her own behaviors; however the petition was dismissed by the Probate Court of Jefferson County. Mrs. Jamison is back at the couple's home. Due to the history of domestic disturbances in the home, DHR and Mountain Brook Police Department are very concerned for Mr. Jamison's health and well-being."

While the guardianship/conservatorship action was pending in the probate court, the circuit court apparently continued the final hearing set for November 9, 2018, in the adult-protective-services action. However, on November 28, 2018, DHR filed an emergency motion requesting that the circuit court require Meg to sign papers admitting John to an assisted-living facility because John had attempted to leave Grandview Hospital. Rather than asking that John be placed in the geriatric psychiatric unit at Grandview Hospital, DHR asked that John be placed in the "memory unit" of the assisted-living facility. Meg objected and requested that 24-hour care be provided to John at their home. On December 19, 2018, the parties agreed that John should be transferred to the assisted-living facility, and the circuit court reset the adult-protective-services action for a final hearing on January 10, 2019.

Also on December 19, 2018, the probate court entered an order appointing attorney Gregory Hawley as John's temporary guardian and conservator with the powers set out in § 26-2A-78 and § 26-2A-152, Ala. Code 1975. The probate court revoked all powers of attorney previously executed by John. The probate court's order provided that Hawley should file an inventory of John's assets within 90 days and that the "temporary letters of guardianship and conservatorship are automatically renewed every thirty (30) days without action by this court." The probate court also set the guardianship/conservatorship action for a final hearing on March 20, 2019.

On February 3, 2019, DHR filed, with the consent of the other parties, a motion to dismiss the adult-protective-services action because the probate court had appointed a temporary guardian and conservator for John. On February 5, 2019, the circuit court entered an order dismissing the adult-protective-services action. On February 6, 2019, the probate court entered an order authorizing Hawley, as John's temporary conservator, to pursue an action on behalf of John and against a trust to obtain sufficient income to pay for John's care and living expenses.

On March 13, 2019, Meg filed a motion to remove the guardianship/conservatorship action to the circuit court, pursuant to § 26-2-2 and § 26-2-3, Ala. Code 1975. DHR filed an objection to Meg's motion to remove the action to the circuit court. Hawley moved to intervene regarding the motion to remove, which the circuit court granted. Hawley then filed a motion to stay the removal, which the circuit court also granted.²

On March 26, 2019, Hawley filed with the probate court an inventory of John's assets indicating that John had no assets.³ On April 23, 2019, the probate court held a hearing on the petition for permanent letters of guardianship and conservatorship for John. However, the hearing had to be continued because of the number of witnesses expected to testify, and it was rescheduled for July 15, 2019. The probate court therefore entered an order stating that the temporary letters of guardianship and conservatorship "are automatically renewed every 14 days without action by this court." In that order, the probate court also directed Meg to provide the court with an accounting covering John's and Meg's assets for the preceding five years.

An issue arose regarding payment for John's care in the assisted-living facility, and on May 16, 2019, Hawley filed a motion for instructions, asking the probate court how to proceed because the assisted-living facility had issued a 30-day notice of John's discharge for lack of payment. On May 17, 2019, Meg...