Mitchell, Matter of, 20057

• Decision Date: 31 January 1996
• Docket Number: No. 20057,20057
• Citation: 914 S.W.2d 844
• Parties: In the Matter of Orton MITCHELL, SSN#: 489-56-2021, Respondent/Appellant.
• Court: Missouri Court of Appeals

Page 844

914 S.W.2d 844

In the Matter of Orton MITCHELL, SSN#: 489-56-2021 Respondent/Appellant.

No. 20057.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 31, 1996.

Appeal from Circuit Court of Christian County; E. Mitchell Hough, Judge.

Bryan O. Wade, Farrington & Curtis, Springfield, for appellant.

Mark E. Orr, Ozark, for respondent.

BARNEY, Judge.

This is an appeal from an order of the trial court declaring Orton Mitchell totally disabled and incapacitated, and the appointment of a guardian and conservator. Mr. Mitchell cites three points on appeal: 1) the trial court erred in finding him totally disabled and incapacitated; 2) the trial court erred in its selection of a guardian and conservator; and 3) court appointed counsel failed to protect Mr. Mitchell's rights.

Orton Mitchell is an 84 year old man who has been blind since birth and is extremely hard of hearing. Before his brother, Clarence, passed away in 1992, he would help Mr. Mitchell with day to day activities as well as manage his checkbook. After Clarence's passing, Mr. Mitchell's sisters, Mary Stevens, Donnie Lemming, and Velma Hobbs, assumed the responsibility of looking in on him and seeing to his everyday needs. Mary Stevens also became a signatory on Mr. Mitchell's checking account. His monthly pension checks were deposited into their account or cashed. According to Ms. Lemming, another sister, Mary Stevens, used the check to pay for Mr. Mitchell's groceries, medicine, tobacco, and dog food and gave him $68.00 in spending money each month. In addition, she withdrew $3,000 of Mr. Mitchell's money from his account and placed it in a safe deposit box because there were too many people writing checks on his account. Also in 1992, some two years before the court hearing below, Mr. Mitchell conveyed his farm to his three sisters, reserving in himself a life estate. Shortly after the conveyance, Mr. Mitchell was quoted by Emmojean Hughes as saying, "... [W]ell, I did it. I signed the place over to the sisters, but I can live here as long as I want to." ¹ In July of 1994, Mr. Mitchell had a portion of his right leg amputated due to arteriosclerosis. Since that time, his sisters provided full-time, 24-hour care for him until they were no longer able to continue to care for him and on October 19, 1994, Mr. Mitchell was admitted to the Camelot Rose nursing facility. According to the testimony, Mr. Mitchell agreed to live at Camelot Rose.

On October 18, 1994, the day before he was to be admitted to the nursing home, Mr. Mitchell executed a general durable power of attorney naming David Moore his attorney-in-fact and giving him the authority to act in all of Mr. Mitchell's affairs, including care and medical treatment. David Moore is a resident of Strafford and has known Mr. Mitchell for approximately five years.

On December 13, 1994, Roger Crain, the public administrator for Christian County, at the request of the sisters, filed a petition for the appointment of a guardian and conservator for Mr. Mitchell. On December 14, 1994, John Waters was appointed as counsel for Mr. Mitchell in the guardian and conservatorship action. On December 22, 1994, David Moore removed Mr. Mitchell from Camelot Rose and he was not returned. At the hearing, Mr. Mitchell was also represented by private counsel, Bryan Wade.

The hearing took place on December 28, 1994. The trial court found Mr. Mitchell to be totally disabled (as to his ability to manage his financial affairs) and totally incapacitated (as to his ability to care for his physical needs) and appointed Roger Crain as his guardian and conservator.

Review of a court tried case is limited. The trial court will not be overturned unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Estate of Ewing v. Bryan, 883 S.W.2d 545, 550 (Mo.App.1994). On review of a court tried case, due regard is given the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(c)(2). ² Furthermore, "we accept as true all evidence which is favorable to the prevailing party, including all inferences reasonably deducible therefrom, and we disregard any contradictory evidence." Matter of Walker, 875 S.W.2d 147, 151 (Mo.App.1994). The person petitioning for appointment as a conservator or guardian has the burden of proving incapacity or disability by clear and convincing evidence. Matter of Hancock, 828 S.W.2d 707, 708 (Mo.App.1992). Mere old age and forgetfulness will not render a person incompetent, Matter of Nelson, 891 S.W.2d 181, 187 (Mo.App.1995). This court sets aside a judgment on the grounds that it is against the weight of the evidence only when we have a firm belief that the judgment is wrong. Id.

I.

For his first point, appellant contends that the trial court erred in finding him totally disabled and incapacitated. A review of the record on appeal reveals that the evidence was sufficiently clear and convincing to support the trial court's determination that appointment of a guardian and conservator was warranted.

A guardian is appointed for those persons adjudged to be incapacitated. A conservator is appointed for those adjudged to be disabled. § 475.030.1. ³ Section 475.010(9) defines an incapacitated person as:

"one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur...."

(Emphasis added.)

A disabled person is defined in § 475.010(4)(a) as one who is:

"(a) Unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his financial resources."

(Emphasis added.)

The determination of whether or not to appoint a guardian or conservator is based on the respondent's condition at the time of the hearing. Nelson, 891 S.W.2d at 187. Mr. Mitchell is blind, very hard of hearing and is a partial amputee. He has always been aided by family and friends and since the time of his partial amputation, he has had to have constant care. His three sisters, along with a neighbor, shared the responsibility of providing this care until they were no longer able to do so; accordingly, Mr. Mitchell was admitted to the Camelot Rose Nursing Home. Pamra Thurman, the nursing home administrator and a registered nurse, testified that her staff provided 24-hour care for Mr. Mitchell. Because of his physical limitations he was assisted with bathing, toileting, dressing, and meal preparation and was unable to perform these tasks without assistance. Ms. Thurman also testified that Mr. Mitchell was often disoriented as to time and place. Mr. Mitchell is taking approximately five medications at different intervals of the day, administered by the nursing home staff.

There was evidence presented at the hearing that Mr. Mitchell has always had help with his finances. Before his brother passed away, he would write checks on Mr. Mitchell's account and since his passing, his sisters have taken over that responsibility. Currently, his only asset and source of income is his monthly disability check in the amount of $373.00. Mr. Mitchell's cousin, Emmojean Hughes, a next door neighbor all her life, also testified that Mr. Mitchell was "listless and ... wouldn't want to talk much." She also had the opinion that he was unable to take care of himself. Ms. Thurman testified that based on her overall experience of observing and taking care of dozens of nursing facility patients, and in particular her experiences and daily observations of Mr. Mitchell, that he was not capable of meeting his daily needs nor did she feel that he would be able to balance his checkbook or manage his own financial resources. She further testified that Mr. Mitchell would be unable to make independent evaluations of information presented to him and he would be susceptible to influence from others. Lastly, it is noteworthy that in the lawsuit filed against the sisters by David Moore, as next friend of Mr. Mitchell, he stated that:

"Plaintiff is a resident of the state of Missouri, County of Christian. Plaintiff is 84 years old, legally blind, infirm, incapable of managing his own affairs."

(Emphasis supplied.)

As the trial court observed:

"If these lawyers and Mr. Moore had believed that Mr. Mitchell was competent, it would appear to me that they would have brought this lawsuit in Mr. Mitchell's name without the necessity of a next friend because of his admitted or alleged incompetency."

There is substantial evidence to support the hearing court's determination that Mr. Mitchell requires the appointment of a guardian and conservator. Point denied.

II.

Appellant's second point is that the trial court erred in appointing Roger Crain as Mr. Mitchell's guardian and conservator instead of David Moore, Mr. Mitchell's attorney-in-fact through a durable power of attorney.

Section 475.050 in pertinent part states:

"1. Before appointing any other eligible person as guardian of an incapacitated person, the court shall consider the suitability of appointing any of the following persons who appear to be willing to serve:

(1) If the incapacitated or disabled person, is at the time of the hearing, able to make a reasonable choice, any eligible person nominated by him;

(2) Any eligible person nominated in a durable power of attorney executed by the incapacitated or disabled person, or in an instrument in writing signed by the incapacitated or disabled person and by two witnesses who signed at his request, before the inception of his incapacity or disability, at a time within five years before the hearing when he was able to make and communicate...