Keyser v. Keyser

• Decision Date: 14 May 2002
• Docket Number: No. WD 59894.,WD 59894.
• Citation: 81 S.W.3d 164
• Parties: Larry KEYSER, et al., Respondents, v. Genevieve W. KEYSER, Respondent, Hollis Foley, Appellant.
• Court: Missouri Court of Appeals

Page 164

81 S.W.3d 164

Larry KEYSER, et al., Respondents, v. Genevieve W. KEYSER, Respondent Hollis Foley, Appellant.

No. WD 59894.

Missouri Court of Appeals, Western District.

May 14, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 2, 2002.

Application for Transfer Denied August 27, 2002.

Michael B. Lowe, Overland Park, KS, for Respondents Larry & Dwaine Keyser.

Frank J. Murphy, Kansas City, for Respondent Genevieve Keyser.

Wm. N. Marshall III, Kansas City, for Appellant Hollis Folley.

Before ELLIS, P.J., and EDWIN H. SMITH and HOWARD, JJ.

EDWIN H. SMITH, Judge.

Hollis Foley appeals the judgment of the Probate Division of the Circuit Court of Jackson County adjudicating her mother, the respondent Genevieve Keyser (mother), as being totally incapacitated and disabled, as defined in § 475.010,¹ and appointing the Jackson County Public Administrator the guardian of her person and conservator of her estate, in accordance with § 475.079. The judgment was rendered on the joint petition of the appellant's brothers, respondents Dwaine H. Keyser and Larry L. Keyser (the brothers).

The appellant raises two points on appeal. In Point I, she claims that the trial court erred in admitting, over her objection, the testimony of her brothers' expert witness, Dr. John Wisner, and finding that her mother was totally incapacitated and disabled and in need of a guardian and conservator because the record was insufficient to establish the requisite foundation for admission of such evidence. In Point II, she claims, in the alternative, that even if we find in Point I that the trial court did not err in finding that her mother was in need of and appointing a guardian and conservator, it nonetheless erred in appointing the public administrator as such, and not the appellant, based upon its riling that the durable power of attorney executed by her mother appointing the appellant her attorney-in-fact and nominating her for appointment as her mother's guardian and conservator was a nullity because the court's finding as to why the power of attorney was a nullity, that the appellant's mother lacked the mental capacity to execute it, was not supported by the record.

We affirm.

Facts

On October 18, 2000, the appellant's brothers filed a joint petition to appoint a guardian and conservator for their mother. The petition alleged that their mother, who at the time was an 84-year-old widow, whose husband, Claude, had died in April of 1995, was suffering from dementia and a decline in overall intellectual functioning and that, as such, she lacked the capability to care for herself and to manage her considerable financial resources.

Larry Keyser had assisted both of his parents in financial matters prior to his father's death and was named successor trustee for the trusts that his father had established for both himself and his wife. Larry continued to help his mother with financial matters after his father's death. In June of 1996, he assisted his mother as she looked into different living arrangements offered by John Knox Village, a retirement complex. One of the available options was guaranteed lifetime care, but, in order to qualify for this option, his mother had to undergo an interview with a John Knox employee. After the interview, his mother was turned down as a suitable applicant for this option because it was apparent that she was suffering from some Alzheimer's-like impairment in the form of memory loss. At trial, Larry testified that he had noticed that his mother suffered from some kind of dementia long before the incident with John Knox Village. His mother eventually did lease an apartment at John Knox Village, under different living arrangements, where she lived until June of 1997, when she moved in with the appellant, who was living at Lake Winnebago.

On April 8, 1997, the appellant took her mother to an attorney for the purpose of executing a durable power of attorney naming the appellant as attorney-in-fact and nominating her for appointment as the mother's guardian and/or conservator. On the same date, the appellant's mother amended her trust instrument naming the appellant successor trustee. At that time, the appellant knew that her mother had been turned down for the lifetime care program at John Knox Village because she suffered from an Alzheimer's-like memory loss; however, the appellant did not inform the attorney handling these legal matters of this fact. In addition, the appellant obtained loans and gifts from her mother's assets totaling $140,000, and she influenced her mother so as to alienate her from the rest of her family. The appellant's conduct resulted in a considerable amount of dissension between the appellant and her siblings.

The mother was still living with the appellant when the joint petition of the appellant's brothers to appoint a guardian and conservator was filed. Several months later, on December 1, 2000, the mother was examined by Dr. John Wisner, the Director of Inpatient Psychiatry at the University of Kansas Medical Center. Dr. Wisner described the nature of this examination when he testified at trial on the petition:

Q. On page 1 of your exhibit, you have a mental status examination. Can you tell the court what that is?

A. Sure. It's the standard set of questions that are used by psychiatrists along with observations of a person's demeanor and speech and behavior in order to assess mental processes that are going on at the time.

Q. Did you perform these common questions with Mrs. Keyser?

A. I made these observations, made these inquiries and performed the usual steps that go into a mental status exam.

Dr. Wisner also stated that the examination was conducted "to establish her capacity for memory, her capacity for taking in and understanding and using information and recalling old information."

Dr. Wisner testified that the mother did not know the current day, month, or year, could not tell him what medications she was taking, and could not name the President of the United States. After some hesitation, she said the year was 2000, but then changed her answer, saying "2000, no, no, no, 200." The mother did not know her age, and it took her four attempts to state her birthday. She could not do serial subtractions of the number seven. When asked to do serial subtractions of the number three, starting at twenty, she could give the answer for the first three subtractions, then could no longer recall what she had been asked to do.

In addition, Dr. Wisner told the mother three unrelated words and asked her to remember them. Thirty seconds later he asked her what those words were, and she could not remember. She also could not name her children or state their birth dates, and she could not remember the names of her grandchildren. The mother could not remember the date or year that she was married, the duration or details of her employments, or the date of her husband's death. She also could not tell how much time had passed during the examination, estimating that they had been talking for fifteen or twenty minutes when they had, in fact, been talking for forty-five minutes.

The mother knew that she lived with the appellant at Lake Winnebago, but she couldn't give the address, and she could not say how long she had lived there. To test how suggestible she might be, Dr. Wisner got her to agree that she had been living with the appellant at Lake Winnebago for two months, then for three months, then six months, and then twelve months. The mother did not have any idea what her monthly income or current expenses were. When Dr. Wisner asked her what a power of attorney was, she did not know, and when he asked her if she remembered ever signing one, she said no.

At trial, Dr. Wisner was asked if he had made a diagnosis of the mother:

Q. What was your diagnosis?

A. Dementia.

Q. In your report you say dementia of unknown cause but probably of Alzheimer's type. What do you mean by that?

A. Well, in the absence of x-ray and laboratory studies that would give me the specific status of various portions of Ms. Keyser's brain at this point in time, I can only diagnose the global diagnosis of dementia, so I can't specify as to cause; however, I can rule out, given the materials that I've subsequently examined since examining her, the records that I have seen, I can rule out many, in fact most of the common causes of dementia other than Alzheimer's disease.

Dr. Wisner further stated that, in this case, the dementia was "very far advanced and severe." Dr. Wisner added that, in arriving at this diagnosis, he reviewed medical records from a variety of sources, including the records of Dr. Michael Cooper, who indicated that the mother was showing the initial manifestations of Alzheimer's disease as early as 1991, and the records of John Knox Village and Research Belton Hospital, which further documented her memory loss.

Dr. Wisner was also asked whether, in or around April of 1997, the mother would have had the capacity to execute a durable power of attorney. Dr. Wisner replied:

It's my opinion that dementing illness was in progress at that time, was present at that time and that she would not have had the capacity to understand the nature of a durable power of attorney or the effect of a durable power of attorney, and this is based, of course, on some degree of extrapolation between the onset of her illness and its first signs and the context in which those signs were first noted and the severity of her illness, and also the lack of evidence of certain types of causality at the time of my examination, so on that basis I'm certain that she would not have had that capacity in 1997.

The medical records of Dr. Cooper also supported the trial court's finding that the mother was totally incapacitated and disabled, as they indicated that the mother was showing the initial manifestations of Alzheimer's disease as early as 1991.

At the conclusion of the hearing, the...