In the Matter of Guardianship of Healey, No. 58316-6-I (Wash. App. 8/27/2007)

Decision Date27 August 2007
Docket NumberNo. 58316-6-I,58316-6-I
CourtWashington Court of Appeals
PartiesIN THE MATTER OF THE GUARDIANSHIP OF GERTRUDIS HEALEY, An Incapacitated Person. TIMOTHY J. HEALEY, Guardian Ad Litem, ROBERT HEALEY and GERTRUDIS HEALEY, Appellants, MALAVOTTE & ASSOCIATES, Guardian of the Person and Estate of Gertrudis Healey; and GROUP HEALTH COOPERATIVE, Respondents.

Appeal from King County Superior Court. Docket No: 05-4-04281-5. Judgment or order under review. Date filed: 05/04/2006. Judge signing: Honorable Julie A Spector.

Counsel for Appellant(s), August George Cifelli, Lee Smart Cook Martin & Patterson PS, 701 Pike St Ste 1800, Seattle, WA, 98101-3929.

John Franklin Sherwood, Peterson Russell Kelly PLLC, 10900 Ne 4th St Ste 1850, Bellevue, WA, 98004-8341.

Counsel for Respondent(s), Courtland Theodore Shafer, Satterberg Healy Eeckhoudt, 9832 15th Ave Sw, Seattle, WA, 98106-2822.

Tim Healey (Appearing Pro Se), David L. Friend, Attorney at Law, 6850 E Green Lake Way N Ste 201, Seattle, WA, 98115-5412.

Michael L. Olver, Betts Patterson & Mines PS, 701 Pike St Ste 1400, Seattle, WA, 98101-3927.

Sheila Conlon Ridgway, The Law Office of Vance & Ridgway PS, 900 4th Ave Ste 1111, Seattle, WA, 98164-1001,.

DWYER, J.

Group Health Hospital petitioned the King County Superior Court to establish a guardianship over the person and estate of Gertrudis Healey, an 85-year-old woman suffering from several medical and psychological conditions, including delirium and psychosis. A superior court commissioner appointed a guardian ad litem (GAL) to represent Ms. Healey's interests and subsequently established a full guardianship over Ms. Healey's person and estate.

Ms. Healey's son, Robert Healey, who was incarcerated at the time, employed counsel to seek reconsideration of the commissioner's decision or vacation of the order appointing the guardian. Those motions were denied. Robert then filed a motion seeking revision of the commissioner's rulings. A superior court judge appointed independent counsel for Ms. Healey. Following a hearing, the superior court declined to revise the commissioner's rulings.

Gertrudis Healey and Robert Healey now jointly appeal from the superior court's order on the motion for revision, asserting that (1) the superior court's ruling on the motion for revision must be vacated because it was not accompanied by the entry of findings of fact and conclusions of law, (2) the commissioner erred by conducting the guardianship hearing in the voluntary absence of Gertrudis Healey, (3) the medical report considered by the judge did not demonstrate Ms. Healey's incapacity, (4) the superior court failed to adequately consider previous arrangements made by Ms. Healey as an alternative to imposing a guardianship, (5) Ms. Healey was entitled to a jury determination of her incompetence, (6) applicable requirements were not followed in the appointment of the GAL, and (7) numerous evidentiary and procedural rulings and fee awards made in the superior court were made contrary to law. We affirm.

FACTS

Ms. Healey was initially admitted to Group Health Hospital for complications from a urinary tract infection and cardio-respiratory issues. She was subsequently diagnosed as suffering from psychosis and delirium.

The hospital petitioned the superior court to establish a guardianship over Ms. Healey's person and estate. The petition recited that (1) Ms. Healey was a resident at the Group Health mental health facility, suffering from psychosis; (2) Ms. Healey's son Robert, "may have" power of attorney, but was incarcerated; and (3) Ms. Healey's next closest relative, a niece, believed that Robert used illegal substances, had threatened his mother, and had previously left her unattended when she was in his care.

The hospital proposed that Timothy Healy (no relation to the Healey family) serve as the GAL representing Ms. Healey's interests in the guardianship proceedings, because he is an experienced GAL and Ms. Healey's case was "a complex matter involving emergent circumstances." The commissioner found that the appointment of Healy was justified and appointed him to serve as Ms. Healey's GAL, even though Healy was not the "next in line" for appointment pursuant to the rotating GAL registry.1

GAL Healy subsequently submitted a report to the court. In his report, he stated that (1) he visited Ms. Healey and was "satisfied that Ms. Healey understood and was adequately cogn[izant] of most (but not all) of the implications of what [he] explained to her"; (2) Ms. Healey agreed with the establishment of a guardianship and the appointment of a professional guardian to assist her; and (3) "[t]he presence of the Alleged Incapacitated Person should not be waived. Gertrudis Healey is able to attend the hearing."

The GAL also stated that he reviewed medical records, including the medical report completed by Dr. Gendo, Ms. Healey's primary care physician, and interviewed the hospital personnel knowledgeable about Ms. Healey's case history and responsible for Ms. Healey's placement following her hospitalization.

The GAL also noted that, in 2001, Ms. Healey executed a document naming her son Robert and Harold Montgomery, a "long time friend of the family who resides in Florida," to serve jointly as her "attorneys in fact." This document, which the GAL refers to as a "durable power of attorney," was executed by Ms. Healey in Miami, Florida. During the course of these proceedings, Robert sought neither appointment as his mother's guardian nor to exercise any power under the terms of the "durable power of attorney" document.2

The GAL also stated that Dr. Gendo, the physician treating Ms. Healey for her urinary tract infection, was selected to perform a medical examination of Ms. Healey in the guardianship process and author a report for the court.3 Dr. Gendo's "Medical/Psychological Report" states that Dr. Gendo examined Ms. Healey on 18 occasions, and made a diagnosis of "psychosis/delirium." Dr. Gendo's report explains that Ms. Healey "needs near 24-hour assisted care, which can be lessened as she grows more accustomed and comfortable in her home environment." The report also states that Ms. Healey was taking a number of medications, including Haldol and long-acting morphine. The report states that, if Ms. Healey "is using Haldol regularly, it could change how she answers questions."

On September 15, 2005, the guardianship hearing was rescheduled from September 28, 2005, to October 11, 2005. Ms. Healey was served personal notice of the original hearing date, and was also served notice of the date of the re-scheduled hearing. Ms. Healey was not present at the hearing. The commissioner heard argument on the petition for guardianship. There was no witness testimony. The commissioner entered an order establishing a full guardianship over Ms. Healey's person and estate and appointing Malavotte & Associates Services as the guardian.4

After this hearing, Robert, through counsel, appeared in the action for the first time. He moved for reconsideration of the commissioner's ruling or, alternatively, for vacation of the order appointing the guardian. The court commissioner requested a response to Robert's motions from the GAL, the Guardian, and the hospital.5

A supplemental GAL report, filed in response to the motion for reconsideration, states:

Ms. Healey expressed no desire to be present at the hearing and indicated to me that she was satisfied with the prospect of the appointment of a professional guardian. My report states my belief that Ms. Healey should be present at the hearing on the issue of appointing a guardian for her because it was my judgment that she had the capacity to understand the scope of the duties, the nature of powers, and the responsibility that would be assigned to her appointed guardian.

The commissioner denied both the motion for reconsideration and the motion to vacate. In ruling on the motions, the commissioner found that (1) the order appointing the guardian complied with RCW 11.88; (2) Ms. Healey "chose not to appear" at the hearing; (3) the medical report, together with the evidence presented by the GAL, supported a finding of mental incapacity; (4) the GAL report accurately described that there were no effective alternative arrangements made by Ms. Healey prior to the petition for guardianship, as Montgomery, the family friend, "has not appeared, he lives in Florida and has to date presented no objection through counsel or pro-se" and "Robert Healey may not serve as a guardian or attorney in fact."6

Robert next filed a motion for revision of the order appointing the guardian. The superior court appointed an attorney to represent Ms. Healey as her independent counsel.7 Ms. Healey's newly-appointed counsel joined in the motion for revision.

In ruling on the motion for revision, the superior court struck three declarations proffered by Ms. Healey's independent counsel that were not a part of the original record before the commissioner. The superior court declined to revise the commissioner's rulings, and did not enter independent findings of fact or conclusions of law. In the superior court's order denying the motion for revision, the superior court ordered that Group Health and the guardian be paid their attorneys' fees and costs, totaling $8,300.01, from the guardianship estate. The superior court also entered judgment against Robert Healey and in favor of the guardian for $8,300.01, with instructions that the guardian reimburse the guardianship estate upon recovery of "part or all of" the judgment entered against Robert Healey.

DISCUSSION
Scope of Review

An appellate court engages in de novo review of questions of law. Rasmussen v. Bendotti, 107 Wn. App. 947, 954, 29 P.3d 56 (2001). In the context of a contested guardianship proceeding, the superior court's factual findings are reviewed to determine whether they are supported by substantial evidence from which...

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