Link, In re
| Decision Date | 15 July 1986 |
| Docket Number | No. 67529,67529 |
| Parties | In re Mildred Agatha LINK, Appellant. |
| Court | Missouri Supreme Court |
Clifford Schwartz, Charles M. Shaw, Clayton, for appellant.
Scott O. Marshall, St. Louis, James Robinson, Chesterfield, for respondents.
Mildred Agatha Link appeals from an order of the Probate Division of the Circuit Court of the County of St. Louis, declaring her incompetent, and appointing a guardian of her person, and a conservator of her estate. On appeal, Ms. Link alleges that the trial court erred by failing to follow § 475.075, RSMo Cum.Supp.1984, which sets out the procedure for hearings on capacity or disability. The Eastern District found no error, and affirmed the decision of the trial court. We granted transfer. Treating this case as on original appeal, Mo. Const. art. V, § 10, we reverse and remand.
Appellant is an 80-year-old, unmarried woman with substantial financial assets. Beginning in late 1983, she began to experience increasing loss of memory, confusion and disorientation. She also began to exhibit a growing lack of attention to her personal and financial affairs.
The event which seems to have precipitated the proceedings at issue is appellant's apparent decision in February, 1984, to give a valuable parcel of farm property to A.R. Strothman, the tenant-farmer who had been sharecropping the land. On various occasions prior to this decision, appellant had expressed displeasure with the manner in which Strothman had managed the farm. Thus, when appellant and Strothman met with appellant's banker for the purpose of notarizing appellant's signature on the deed to the land, the banker declined to notarize the document and suggested that appellant consult with counsel. 1
Notwithstanding her banker's advice, appellant allegedly directed Strothman to bring a different notary to her home to validate her signature on the deed. When this was accomplished, appellant allegedly handed the deed over to Strothman.
Shortly thereafter, attorney Robert Copeland was apprised of the transaction, and was told that Strothman wanted appellant to pay the gift tax on the farm. When Mr. Copeland advised against this, he was discharged.
Next, Strothman apparently took appellant to meet a new attorney, Northcutt Coil. Mr. Coil allegedly directed Strothman to return the deed to appellant to give her time to reconsider her decision. Strothman claims to have done so. Strothman further claims that he received the deed in the mail from a local abstract company a short time later. The deed had been recorded.
A few weeks later appellant developed breathing problems and had to be hospitalized. During her hospitalization, Mr. Coil prepared, and appellant signed, a power of attorney making Strothman appellant's agent. Under the aegis of this authority, Strothman twice went to appellant's bank the first time seeking financial information, presumably for tax purposes; and the second time seeking to have some funds transferred to an account in another bank. In both cases, the bank declined Strothman's request because the power of attorney had not been properly recorded.
Despite appellant's personal involvement in these events, when questioned by friends about the gift of the property and the power of attorney, appellant neither remembered nor approved of the actions taken. Appellant also allegedly asked that respondent Coulter assist her in regaining the property given to Strothman.
Accordingly, in early April, 1984, respondent Loretta Coulter filed a petition in Probate Court seeking her appointment as appellant's guardian and conservator. 2 Approximately one month later, a second petition was filed by appellant's estranged brother, respondent Andrew Link, and his attorney, respondent Scott Marshall, seeking appointment of Mr. Marshall as appellant's guardian and conservator. 3
Upon the filing of the respective petitions, the court issued notice to appellant pursuant to § 475.075. The notice informed appellant of the filing of the petitions, the date and time of the hearing, the name and address of appointed counsel, Timothy W. Kelly, and appellant's substantive rights under § 475.075. Among these rights were the right to a jury trial and the right to be present at the hearing. § 475.075.8(2), (8).
Appellant was served with notice on April 24, 1984. On May 21, 1984, Northcutt Coil entered his appearance as appellant's private counsel. On June 25, 1984, the trial court ordered appointed counsel to withdraw. There is no indication that Mr. Kelly met or spoke with appellant prior to his withdrawal. There is no indication that the court made any inquiries of either Kelly or Coil before authorizing Kelly's withdrawal.
Prior to trial respondents Link and Marshall filed a motion with the court seeking a mental examination of appellant. When the trial court granted the motion, attorney Coil sought a writ of prohibition to prevent the examination. The application for the writ was denied. Respondents Link and Marshall also subpoenaed appellant as a witness at trial. Appellant's counsel filed a motion to quash the subpoena, which was granted.
The two petitions were consolidated and a trial was conducted on July 19 and 20, 1984. Since appellant's counsel did not request a jury, nor object to proceeding without one, the case was tried to the court. Appellant appeared through counsel. When the court asked if appellant were present, an unidentified woman claiming to be appellant's cousin attempted to inform the court that appellant wished to be present. Appellant's counsel objected. The court ruled that the woman was not a party and would have to confer with the attorneys before she would be allowed to speak. Counsel for respondent Coulter requested a moment to talk with the woman. Appellant's attorney objected claiming that any such conversation would "change [his] whole program" because things had been going on "behind [his] back" that he had just discovered. The court ruled that the hearing should proceed, and that any conversation with the alleged cousin would have to take place during a break in the proceedings. The record contains no further information regarding this individual or her allegation.
Several witnesses, including respondent Coulter and two physicians, testified on behalf of the petitioners. Much of the testimony centered on the circumstances surrounding the gift of the farm to Strothman. The lay witnesses testified that appellant was often confused, forgetful and inattentive to her personal habits and financial dealings. The two physicians testified that appellant showed symptoms of organic brain disease, a condition which was progressive, and from which recovery was unlikely. These lay and medical witnesses were actively cross-examined by appellant's attorney.
A.R. Strothman also testified for petitioners. His testimony however, was that appellant was competent throughout his dealings with her, and that with a little assistance she remained capable of taking care of herself. Strothman was not cross-examined by appellant's counsel.
No independent evidence was adduced on behalf of appellant.
On the basis of this record, the trial court found appellant to be completely incapacitated and disabled by reason of Alzheimer's disease and appointed respondent Coulter as her guardian and respondent Marshall as conservator of her estate.
Appellant contends that the trial court failed to adhere to the requirements of § 475.075. Specifically, appellant claims error in that she did not have a jury trial, was not personally present at trial, and did not receive the benefit of court-appointed counsel. 4
In support of her first claim of error, appellant argues that § 475.075.8(2) requires a jury trial in all competency proceedings. Appellant further argues that the right to a jury trial cannot be waived. Alternatively, appellant contends that the right to a jury trial can be waived only by the alleged incompetent and appointed counsel, on the record, in a manner consistent with Rule 27.01.
Appellant further argues that § 475.075.8(8) requires that the alleged incompetent be present at the capacity hearing. If not, appellant continues, the statute requires the trial court to make a record of the reasons for the alleged incompetent's absence.
Finally, appellant urges that the trial court erred by ordering the withdrawal of appointed counsel upon private counsel's entry of appearance. Appellant contends that by so doing, the trial court denied her the protection and benefit contemplated by the statutory requirement of appointed counsel.
Respondents counter that § 475.075 neither mandates the rights enumerated therein, nor requires that criminal procedural rules apply to the waiver of those rights. Respondents urge that under Rule 69.01(b), appellant's failure to request a jury trial, or to object to the proceedings as held, constituted a waiver of the right to a trial by jury. Respondents contend that appellant's trial counsel affirmatively waived her right to be present and, prior to trial, moved to quash the subpoena which would have compelled her attendance. Respondents submit that these actions are evidence that appellant's absence was voluntary. Respondents further contend that the trial court had no duty to make a record of the reasons for appellant's absence. Respondents claim that trial counsel adequately represented appellant and that the court did not abuse its discretion in ordering appointed counsel to withdraw.
Section 475.075, in pertinent part, reads as follows:
3. Upon the filing of a petition under the provisions of subsection 1 of this section or for the approval on behalf of the respondent of a transaction pursuant to section 475.092 or for the rendition of emergency medical treatment under the provisions of section 475.092 or for the rendition of emergency medical treatment under the provisions of section 475.123, the court shall...
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