Weissinger, Matter of, 51760

• Citation: 720 S.W.2d 430
• Decision Date: 25 November 1986
• Docket Number: No. 51760,51760
• Parties: In the Matter of Roland P. WEISSINGER, Alleged Disabled Person. Petition of Patricia WALLACE.
• Court: Missouri Court of Appeals

Page 430

720 S.W.2d 430

In the Matter of Roland P. WEISSINGER, Alleged Disabled Person.

Petition of Patricia WALLACE.

No. 51760.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Nov. 25, 1986.

John P. Bradshaw, Cape Girardeau, for appellant.

David Beeson, Michael L. Jackson, Jackson, for respondent.

REINHARD, Judge.

Roland Weissinger appeals from an order declaring him a disabled person and appointing Patricia Wallace conservator of his estate. We affirm in part and reverse and remand in part.

Mrs. Wallace filed a petition for the appointment of a guardian and conservator for Mr. Weissinger, alleging that he was incapacitated and disabled within the meaning of § 475.010, RSMo Cum.Supp.1984. After counsel was appointed to represent Mr. Weissinger as guardian ad litem, a response was filed denying the allegations contained in the petition and expressing objections to petitioner's serving as guardian or conservator. Mr. Weissinger was given notice of his rights under § 475.075, RSMo Cum.Supp.1984, including his right to a trial by jury. No request was made for a jury trial; however, neither Mr. Weissinger nor his counsel waived his right to a jury trial affirmatively and on the record. ¹ Trial proceeded before the court and several witnesses testified, including Mr. Weissinger.

The evidence indicated that Mr. Weissinger is an 81-year-old man who has, for the most part, lived alone since the death of his wife approximately two years prior to the trial. The late Mrs. Weissinger's will provided that most of her property was to be placed in a trust for the benefit of Mr. Weissinger during his lifetime. Mrs. Wallace, who apparently was Mrs. Weissinger's niece, is the trustee, as well as one of the remaindermen under the trust. ² The trust res consists principally of some Certificates of Deposit and one-half interests in certain real estate owned jointly with Mr. Weissinger, including 30 acres of farmland near Mr. Weissinger's residence, two unimproved lots behind his home, and two rental houses in Cape Girardeau. The medical evidence indicated that Mr. Weissinger has high blood pressure and underwent surgery in July of 1985. In 1985 he went through a period of confusion during which he was hospitalized for mild uremia. His physician testified that Mr. Weissinger's general health is now better, and his only long term medical problem is hypertension. He also stated that Mr. Weissinger "probably would have a great deal of difficulty in making any complicated computations and would certainly need some help in the management of business affairs or something that would require more abstract thinking."

During the periods of hospitalization and recuperation, Mrs. Wallace has obtained nursing care for Mr. Weissinger. She has also assisted him in the payment of bills and filing of tax returns. The preparation of accurate tax returns has been hampered by Mr. Weissinger's habit of paying some bills in cash and failing to obtain receipts. Mr. Weissinger has trouble at times remembering which bills have been paid and which have not; as a result Mrs. Wallace has been contacted by various creditors of Mr. Weissinger in settling delinquent accounts. On those occasions when Mr. Weissinger makes purchases by check, he has other people fill out the check for him to sign.

Mrs. Wallace also has had problems in accounting for trust assets and performing her duties as trustee because of Mr. Weissinger's financial disorganization. Apparently Mr. Weissinger collects the rent from one of the rental houses somewhat sporadically and from the other on a fairly regular basis; however, he often fails to convey one-half of that income to the trust or inform Mrs. Wallace about what has been collected.

The testimony indicated that Mr. Weissinger has continued to maintain a small farm and raises hogs with the assistance of Orville Oelsen, who is his neighbor, and Paul Ford, a farmer who lives nearby. Mr. Weissinger makes the decisions in regard to his farm, deciding what to feed his livestock and when to sell them. Mr. Weissinger also has made some recent improvements on his residence after obtaining estimates.

In short, the evidence established that Mr. Weissinger needs some assistance in his financial affairs but is generally capable of providing for his daily needs for food, shelter, clothing, and safety. Mr. Weissinger himself admitted that he could use "some help" in taking care of his banking and paying his bills. His attorney stated in summation: "I think that a limited conservatorship would be the ideal solution to this, and if it doesn't work out, it can be remedied later."

Mr. Weissinger expressed a strong desire that Mr. Oelsen serve as conservator if one was appointed. He explained that Mr. Oelsen lived in close proximity to him, and the two men have become good friends. Mr. Oelsen has assisted Mr. Weissinger with errands and chores around his residence, and is often consulted by Mr. Weissinger on financial matters. For the past few months Mr. Oelsen has assisted Mr. Weissinger in paying his bills. Mr. Oelsen testified that he would be willing to serve as conservator. Mr. Oelsen, who is now retired, was in the retail meat business for eighteen years. Mrs. Wallace testified that her main concern is making sure that Mr. Weissinger is taken care of, and that she does not care who is appointed conservator so long as he or she is qualified. Her attorney stated that they had no objection to Mr. Oelsen's appointment, but that Mr. Oelsen must fully understand his duties as conservator and take the proper action regardless of its effect on his relationship with Mr. Weissinger.

After the hearing the court made the following findings of fact:

The Court ... finds that Roland P. Weissinger at the present time is not incapacitated and, therefore, is not in need of a guardian for his person.

The Court further finds that Roland P. Weissinger is unable by reason of physical and mental condition to receive and evaluate information or to communicate decisions to such an extent that the said Roland P. Weissinger lacks ability to manage his financial resources, because of his physical condition being somewhat crippled and his ill health due to chemical imbalances and prior surgeries. Further, as his mental capacity is somewhat diminished to the point of the need of a conservator due to age and ill health.

The Court further finds that the said Roland P. Weissinger's financial resources require supervision. Further, said supervision shall be maximum, except he shall be allowed to have a checking account for the farm. The Court further finds that Roland P. Weissinger shall continue to operate said farm and that Paul Ford and Orville Oelson may assist him. Further, Mr. Ford and Mr. Oelson should be able to sign the checks written on the farm account in order to assist Mr. Weissinger if he is unable to do so.

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* * *

The court declared Mr. Weissinger a disabled person and appointed Mrs. Wallace conservator of his estate. Mr. Weissinger brought an appeal from the court's order, and, upon Mrs. Wallace's motion, the court appointed her conservator ad litem. Mr. Weissinger also appeals from that order, and the two appeals have been consolidated. ³

While it is not clear from his points on appeal, Mr. Weissinger apparently contends that the court erred in appointing a "full" conservator. ⁴ Insofar as Mr. Weissinger's point relates to the scope of the conservatorship, we find it to be without merit. While the language of the order may indicate that the conservatorship established was "full", not limited, its terms indicate otherwise. Mr. Weissinger was allowed to maintain financial control over his farm operation, a concession which is consistent with the creation of a limited conservatorship as defined in § 475.010. Regardless of its classification, we find the scope of the conservatorship supported by the evidence.

Mr. Weissinger's principal point on appeal is that the court erred in appointing Mrs. Wallace conservator because, by virtue of her position as trustee and remainderman, there is a conflict between her interests and those of Mr. Weissinger, and because the court failed to follow the provisions of § 475.050(1), RSMo Cum.Supp.1984, in selecting Mrs. Wallace instead of Mr. Oelsen, who was nominated by Mr. Weissinger. Section 475.050 provides:

Before appointing any other person, organization or corporation as guardian of an incapacitated person, or conservator of a disabled 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 and communicate a reasonable choice, any eligible person or, with respect to the estate only, any eligible organization or corporation nominated by him;

(2) Any eligible person or, with respect to the estate only, any eligible organization or corporation nominated 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 a reasonable...