In re H.O., DA 15-0565

• Decision Date: 31 May 2016
• Docket Number: DA 15-0565
• Citation: 2016 MT 133 N
• Parties: IN THE MATTER OF THE GUARDIANSHIP OF: H.O., A Protected Person.
• Court: Montana Supreme Court

2016 MT 133N

IN THE MATTER OF THE GUARDIANSHIP OF: H.O., A Protected Person.

DA 15-0565

SUPREME COURT OF THE STATE OF MONTANA

Submitted on Briefs: April 13, 2016

May 31, 2016

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DG-14-29 Honorable Robert L. Deschamps, III, Presiding Judge

District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DG-12-072C Honorable Heidi Ulbricht, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Julie R. Sirrs, Boone Karlberg P.C., Missoula, Montana

(Attorney for John H. Osorio)

John Michael Myers, Myers Law, PLLC, Whitefish, Montana

(Attorney for Karlene A. Khor and Debra D. Thorson)

For Appellee:

Fred Simpson, Reep, Bell, Laird, Simpson & Jasper, P.C., Missoula, Montana

(Attorney for Linda St. Peter)

Bill Hooks, Chief Public Defender, Eli Parker, Assistant Public Defender, Office of the Public Defender, Missoula, Montana

(Attorney for Protected Person H.O.)

Filed:

/s/_________

Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 John Osorio, Karlene Khor, and Debra Thorson (collectively, "the siblings") appeal orders of the Fourth Judicial District Court, Missoula County, dissolving a temporary co-guardianship and co-conservatorship between Osorio and Linda St. Peter, appointing St. Peter as H.O.'s permanent full guardian and conservator, and denying Osorio's motion to order St. Peter to remit payments made by H.O.'s estate for her attorney fees. We address: (1) Whether the District Court abused its discretion in appointing St. Peter as H.O.'s permanent guardian and conservator; and (2) Whether the District Court abused its discretion in denying Osorio's motion to order St. Peter to remit payments made by H.O.'s estate for her attorney fees. We affirm.

¶3 H.O. is ninety-one years old and has dementia. He currently resides at Hunter's Glen, an assisted living facility in Missoula, Montana. St. Peter, Osorio, Khor, and Thorson are H.O.'s children. In 1999, H.O. executed a General Durable Power of Attorney, naming his wife, Betty, as his agent and St. Peter as his substitute agent should Betty cease to act due to her death, incapacity, or resignation. In the same document, H.O. named Betty as his guardian and conservator of his estate and St. Peter as substitute guardian and conservator should Betty cease to act due to her death, incapacity, or resignation. In 2012, Betty was diagnosed with terminal cancer; she died in March 2013. In the spring of 2012, Betty asked H.O. and Betty's attorney, Richard DeJana, to draft an irrevocable trust naming St. Peter as trustee. The couple executed the trust in front of DeJana at their home. At the couple's request, DeJana also drafted a consent, which H.O. signed, appointing St. Peter as his guardian and conservator.

¶4 In November 2012, St. Peter petitioned the Eleventh Judicial District Court, Flathead County (Flathead County District Court), for appointment as H.O.'s guardian and conservator. Betty signed St. Peter's petition, thereby "consent[ing] to join [St. Peter] in asking the Court to appoint her as full Guardian and Conservator of the Estate of [H.O.] and that the appointment be for the remainder of his life." After St. Peter filed the petition, Betty and H.O. moved to Missoula.

¶5 In March 2013, the Flathead County District Court appointed St. Peter to temporarily serve as H.O.'s guardian and conservator. The siblings objected and cross-filed a petition to be appointed H.O.'s permanent guardian and conservator. In October 2013, after a hearing, the Flathead County District Court appointed Osorio to temporarily serve as H.O.'s co-guardian and co-conservator with St. Peter. In February 2014, venue transferred from the Flathead County District Court to the Fourth Judicial District Court, Missoula County. In March 2015, Osorio filed a motion to order St. Peter to remit payments made by H.O.'s estate for her attorney fees. The District Court held hearings on the petitions for appointment of H.O.'s guardian and conservator on June 29, August 21, and August 27, 2015. All parties appeared with their counsel, and H.O. appeared through his counsel.

¶6 On September 3, 2015, the District Court issued its findings of fact, conclusions of law, and order, dissolving the Flathead County District Court's temporary co-guardianship and co-conservatorship and appointing St. Peter as H.O.'s "permanent full guardian and conservator." On September 18, 2015, the District Court issued an order denying Osorio's motion to order St. Peter to remit payments made by H.O.'s estate for her attorney fees. The siblings jointly appeal these orders.

¶7 We review a district court's appointment of a guardian and conservator for a clear abuse of discretion. In re Guardianship & Conservatorship of A.M.M., 2015 MT 250, ¶ 16, 380 Mont. 451, 356 P.3d 474. "A district court abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds of reason." Cleveland v. Ward, 2016 MT 10, ¶ 9, 382 Mont. 118, 364 P.3d 1250. We determine de novo whether a district court correctly interpreted and applied the relevant guardianship and conservatorship statutes. In re J.A.L., 2014 MT 196, ¶ 7, 376 Mont. 18, 329 P.3d 1273.

¶8 We review a district court's findings of fact for clear error and conclusions of law for correctness. A.M.M., ¶ 14. "A finding of fact is clearly erroneous if substantial evidence does not support it, if the district court misapprehended the effect of the evidence, or if, after reviewing the record, this Court is left with a firm conviction that a mistake has been made." A.M.M., ¶ 14 (quoting Redies v. Cosner, 2002 MT 86, ¶ 11, 309 Mont. 315, 48 P.3d 697). We review for abuse of discretion a district court's evidentiary rulings. Cleveland, ¶ 9. ¶9 1. Whether the District Court abused its discretion in appointing St. Peter as H.O.'s permanent guardian and conservator.

¶10 The siblings' contentions that the District Court abused its discretion in appointing St. Peter as H.O.'s guardian and conservator are summarized as follows: (1) the District Court incorrectly interpreted and applied the guardianship and conservatorship statutes regarding priority of appointment; (2) the District Court erred in finding that St. Peter did not breach her fiduciary duties to H.O.; and (3) the District Court abused its discretion in not considering certain evidence and did not properly weigh the evidence it did consider.

¶11 Priority of appointment of a guardian is determined pursuant to § 72-5-312, MCA; priority of appointment of a conservator is determined pursuant to § 72-5-410, MCA. Pursuant to § 72-5-312(2)(a), MCA, a competent person "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" has guardianship priority over other competent persons. However, this priority is "not binding, and the court shall select the person . . . that is best qualified and willing to serve." Section 75-5-312(3), MCA. Pursuant to § 72-5-410(1), MCA, the court may appoint, in the following order, a person as conservator of the estate of a protected person:

(a) a conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court . . . ;

(b) an individual nominated by the protected person if the person is 14 years of age or older and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice . . . .

However, "[t]he court, for good cause, may pass over a person having priority and appoint a person having less priority or no priority." Section 72-5-410(3), MCA.

¶12 After holding three separate hearings, in which it heard testimony from numerous witnesses, experts, and the parties themselves, the District Court concluded: "Apart from [Osorio]'s self-serving assertions, the evidence on this issue was one-sided and pointed solely to [St. Peter] as the person that [H.O.] and Betty wanted to serve as [H.O.]'s guardian and conservator when the need arose." The Court emphasized the "multiple estate planning documents demonstrating that [H.O.] and Betty reposed their trust in [St. Peter] to handle their affairs." St. Peter was named as the personal representative in H.O. and Betty's wills; as trustee of the irrevocable trust established by H.O.; as H.O.'s substitute agent, guardian, and conservator under H.O.'s Power of Attorney; and as H.O.'s guardian and conservator in the consent H.O. signed. The District Court found that, although there was some evidence that H.O. may have revoked his Power of Attorney on December 19, 2012, the purported revocation "was not effective" because: (1) it was not filed with the County Clerk; (2) H.O. never delivered the revocation to St. Peter; (3) the proceedings in this matter were filed, and St. Peter was H.O.'s lawfully-appointed and acting guardian and conservator, before St. Peter or the Court became aware of the alleged revocation; and (4) Adult Protective Services (APS) Regional Supervisor Janice Hinze administered a cognitive test of H.O. on December 28, 2012, on which he scored significantly below normal, so his capacity to knowingly revoke his Power of Attorney was "at best suspect."

¶13 In addition, at the June 19, 2015 hearing, H.O.'s attorney, Eli Parker, stated that H.O. supported St. Peter's petition because St. Peter had been caring for him "all along," and H.O. had no complaints regarding her care. DeJana testified that H.O. and Betty clearly intended to name Linda as guardian, conservator,...