In re Mesler

• Decision Date: 14 April 2022
• Docket Number: 37834-9-III
• Citation: 507 P.3d 864
• Parties: In the MATTER OF the GUARDIANSHIP OF: Joan N. MESLER, An Alleged Incapacitated Person.
• Court: Washington Court of Appeals

507 P.3d 864

In the MATTER OF the GUARDIANSHIP OF: Joan N. MESLER, An Alleged Incapacitated Person.

No. 37834-9-III

Court of Appeals of Washington, Division 3.

FILED APRIL 14, 2022

Dan Robert Young, Camille Diane Minogue, Attorneys at Law, 1000 2nd Ave. Ste. 3200, Seattle, WA, 98104-1074, for Appellant.

Kameron Lee Kirkevold, Helsell Fetterman LLP, 1001 4th Ave. Ste. 4200, Seattle, WA, 98154-1154, David Michael Therrien-Power, Yakima Law, PLLC, 212 N Naches Ave., Yakima, WA, 98901-2438, for Respondent.

PUBLISHED OPINION

Staab, J.

¶ 1 Joan Mesler appeals the superior court's order authorizing professional guardian fees and costs to be paid from her estate in the amount of $54,224.59 for guardian services provided during a period of 17 and one-half months. She raises numerous issues and challenges dozens of the court's findings of fact and conclusions of law. Mesler's primary challenge, however, is that the trial court erred in finding that these fees were necessary, reasonable, and beneficial to her person and estate.

¶ 2 Preliminarily, we reject Mesler's argument that our review is de novo and confirm that a superior court's award of guardian fees will be reviewed for abuse of discretion. We conclude, however, that in this case the court abused its discretion in several ways. First, by refusing to consider the Standards of Practice Regulations for certified professional guardians (CPG Standards) that set the minimum duties of certified professional guardians. In addition, the trial court's generalized findings of facts and conclusions of law are insufficient to provide meaningful review. In order to justify her fees, the guardian must demonstrate that the services provided were necessary, reasonable, and beneficial. When extraordinary fees such as this are requested, the guardian carries the burden of providing the court with a breakdown of charges by the task performed and the time spent on each task, along with the rates billed and the total charges. The superior court needs to make detailed findings reflecting the time spent on each category of tasks, the rate billed for those tasks, and the total charges.

¶ 3 In this case, the parties disputed the guardian's fees. They presented disputed evidence on the time spent on different tasks and the rates charged for those tasks. The trial court made generalized findings that the time expended and the rates charged were reasonable and necessary, but failed to place the burden on Kristyan Calhoun to present the court with billing information that would allow the court to independently evaluate the fees requested. The generalized findings are insufficient to support the court's conclusions that all of the fees proposed by Calhoun were necessary, reasonable, and beneficial.

¶ 4 While we remand for the court to enter more specific findings on the fees charged by the guardian, we affirm the court's approval of fees paid to HopeBridge Home Health for personal care. Payment to HopeBridge was specifically approved by the court in its initial budget and, unlike guardian fees, those fees are not subject to subsequent review. We also reject Mesler's evidentiary challenges. Even when evidence is presented by declaration, as the fact finder, the trial court is charged with determining the weight and credibility assigned to disputed evidence. The trial court did not abuse its discretion in rejecting Mesler's argument that Calhoun's for-profit business model created a conflict of interest. Calhoun's profit margin is irrelevant. The question before the court is whether the services and fees were necessary, reasonable, and beneficial.

BACKGROUND

¶ 5 Joan Mesler is an elderly widow. In 1995, she suffered a stroke

that paralyzed the right side of her body and left her with chronic pain. The stroke also impacted her speech, vision, balance, and memory. She has difficulty with numbers and gets easily frustrated. In December 2017, Mesler's husband died. Up until his death, the husband had managed the couple's finances. After Mesler's husband died, her four adult children disagreed about her ongoing care and finances. Shortly after her father's death, Janice Vickers, took her mother to an attorney and had her sign a durable power of attorney. The power of attorney was quickly revoked when the other adult children learned of it. At one point, a physical altercation took place with Mesler removing her adult son, Richard Mesler, from her home. There were numerous allegations among the siblings of theft and undue influence.

¶ 6 In January 2018, Vickers petitioned for a limited guardianship of Mesler's person and estate. A medical evaluation was ordered and a guardian ad litem (GAL) was appointed to investigate and report on Mesler's personal and financial needs. The GAL recommended a limited guardianship of Mesler's person and estate. The GAL reported that Mesler was capable of caring for herself and taking care of daily needs, but could use some assistance with certain tasks. "Her degree of physical incapacity is moderate, but communication incapacity as well as financial calculation incapacity and her inability to read are severe. Her cognitive and comprehension limitations are few, with trusted assistance," but she could be vulnerable to financial exploitation, especially on more complex financial concerns. Clerk's Papers (CP) at 961. The GAL indicated that Mesler was in need of some assistance with her daily activities such as bathing, cleaning, laundry, and meal preparation. She also needed assistance with shopping, transportation, and financial matters. The GAL reported that Mesler recognized that she needs assistance, but vacillated on whether she wanted a guardian.

¶ 7 The neuropsychologist, Dr. Jane Thompson, PhD, described Mesler's capabilities and limitations. After a medical examination, Dr. Thompson indicated that the stroke

had impacted Mesler's expression and comprehension. She could no longer speak, read, or perform math calculations. In addition, she lived with chronic pain. Nevertheless, Dr. Thompson concluded that Mesler "does not appear to be dementing" and was "decisional." CP at 979. Dr. Thompson confirmed that Mesler was capable of taking care of her daily needs and had impeccable grooming and hygiene, but she did need help with cooking, transportation, shopping, and paying bills.

¶ 8 Dr. Thompson recommended that "[g]iven the extreme level of rancor, accusations, and mistrust among her children, Ms. Mesler's finances, including the nuts and bolts of banking and paying bills, should be handled by an unrelated third party." CP at 980. Dr. Thompson also recommended that a limited guardian be appointed and in-home care service be provided to assist with daily living needs. While Dr. Thompson did not feel the need for full-time assistance, she recommended that Mesler have daily contact with someone to monitor her safety and ensure her needs were met.

¶ 9 Based on these recommendations, the court appointed Kristyan Calhoun, a certified professional guardian, as the limited guardian of Mesler's person and estate. Calhoun is a certified professional guardian and operates a professional guardian agency called Senior Avenues. The order appointing a limited guardian provided that Mesler would retain certain rights, including the right to consent to or to refuse medical treatment, but her right to choose who would provide care and assistance was revoked. The order also provided for a monthly allowance of $300 toward guardian fees, subject to final approval by the court.

¶ 10 Shortly after her appointment as Mesler's limited guardian, Calhoun petitioned for, and obtained, a vulnerable adult protection order protecting Mesler from her adult son, Richard, on the basis of "physical, emotional and financial exploitation." CP at 890.

¶ 11 Within 90 days of being appointed, Calhoun filed an inventory, personal care plan, and proposed budget. The personal care plan indicated that Calhoun had contracted with HopeBridge, a third party caregiving service, to provide six hours of daily care to Mesler, in two three-hour shifts at a rate of $4,500.00 per month. Calhoun also sought guardian fees for three months totaling $17,309.42. In addition, she indicated that while the court had set a monthly budget of $300.00 for her fees, she was requesting that she be allowed to pay herself her fees as they were incurred, without prior court approval, but subject to final review and approval by the court. On July 31, 2018, the court adopted the proposed care plan, budget, and disbursements, including the request to pay guardian fees as they were incurred without prior court authorization.

¶ 12 Over the next several months, Mesler made it difficult for the care providers to provide in-home care services. She would often refuse care. When she did so, the care providers would contact Calhoun who would visit Mesler to ensure that her needs were being met. Other times, Calhoun or her staff would visit Mesler, providing services such as grocery shopping, picking up mail, and running errands.

¶ 13 Mesler did not know the extent of her assets. Because Mesler could not communicate, Calhoun had to take the steps necessary to locate property and make sure it was being managed. It was learned that two of Mesler's children had control over two of her properties and were not paying rent, but it was not clear if this was what Mesler wanted. On two occasions, Calhoun sought clarifying instruction from the court with respect to the limited guardian's duties to the preservation of the assets as well as treatment of the income from the assets that were not in Mesler's control.

¶ 14 In April 2019, attorney Dan Young sought appointment as Mesler's counsel. Calhoun objected to the motion, suggesting that Young had been contacted by one of Mesler's children and he had a history of contentious litigation against Calhoun in other cases. The court appointed a GAL to determine if Mesler wanted Dan Young to represent her. The GAL confirmed...