Wurm, Matter of

• Decision Date: 14 February 1977
• Docket Number: No. 3--975A191,3--975A191
• Citation: 360 N.E.2d 12,172 Ind.App. 170
• Parties: In the Matter of Petition for Appointment of Guardian for Martha A. C. WURM, an aged and infirm person. Martha A. WURM, Appellant, v. Kay HAESSLY et al., Appellees.
• Court: Indiana Appellate Court

Page 12

360 N.E.2d 12

172 Ind.App. 170

In the Matter of Petition for Appointment of Guardian for Martha A. C. WURM, an aged and infirm person Martha A. WURM, Appellant, v. Kay HAESSLY et al., Appellees.

No. 3--975A191.

Court of Appeals of Indiana, Third District.

Feb. 14, 1977.

John F. Lyons, Fort Wayne, for appellant.

Howard S. Grimm, Jr., Auburn, for appellees.

HOFFMAN, Judge.

This is an appeal from a judgment appointing respectively Marilyn R. Molargik and the Garrett State Bank as guardians over the person and estate of Martha A. C. Wurm. The issues presented concern whether the trial court properly interpreted the meaning of the term incompetent as used in IC 1971, 29--1--18--6 (Burns Code Ed.), and IC 1971, 29--1--18--1(c)(2) (Burns Code Ed.), and accordingly, under an appropriate construction, whether there was sufficient evidence to support that portion of its judgment pertaining to the appointment of a guardian over the estate of appellant.

Martha Wurm was 77 years old when she and her husband Victor moved away from their farm in DeKalb County so that he could enter the hospital and she could live with her daughter and son-in-law, Marilyn and Aloysius A. Molargik. On August 13, 1974, just after they moved, Martha and Victor Wurm signed a general power of attorney allowing the Molargiks to dispose of their 160-acre farm and take care of their other personal assets in the same capacity as themselves.

Victor Wurm died on August 24, 1974. 'After the funeral dinner' five of his children, Kathryn C. Haessly, Vincent R. Wurm, Victor J. Wurm, Charles R. Wurm and Donald W. Wurm, convinced their mother, Martha, that she should sign documents naming the City National Bank of Auburn as the guardian of her estate. Her assets at that time consisted of the farmland, several buildings, an automobile, some furniture, some personal possessions and some cash.

On August 30, 1974, Martha Wurm filed a petition to enjoin the filing of any guardianship action over herself, naming as defendants the aforementioned children and their counsel. On September 4, 1974, Charles Wurm, Victor Wurm and Vincent Wurm filed a petition for the appointment of a guardian for the person and the estate of their mother. After consolidating the two petitions, a trial to the court resulted in a judgment which found, in pertinent part, that Martha Wurm was 'incompetent and accordingly incapable of either managing her property or caring for herself by reason of old age, infirmity, and her inability to withstand undue and inappropriate pressures exerted upon her by certain of her children, jointly and severally; * * *.'

The Indiana Probate Code, IC 1971, 29--1--18--6, supra, provides for the appointment of a guardian in those cases where a person has been found to be incompetent. The criteria upon which a finding of incompetency can be based are prescribed in IC 1971, 29--1--18--1(c)(2), supra, which reads as follows:

'(c) An 'incompetent' is any person who is

(1) * * *

(2) Incapable by reason of insanity, mental illness, imbecility, idiocy, senility, habitual drunkenness, excessive use of drugs, old age, infirmity, or other incapacity, of either managing his property or caring for himself or both.'

In this context it should be noted that no Indiana cases have construed the meaning of 'incompetent' as it relates to the appointment of a guardian under the present statute. ¹ Thus, Mrs. Wurm's assertion that she is mentally competent to manage her property draws into question how comprehensive the definition of incompetent should be. She argues that the only reason given for appointing a guardian over her estate arose from the trial court's improper emphasis on her physical attributes as they relate to managing a 160-acre farm. She relies heavily on the case of Schafer v. Haller (1923), 108 Ohio St. 322, 140 N.E. 517, which held unconstitutional, as a denial of due process, a statute defining incompetency to include purely physical grounds.

Under earlier Indiana law ² our Supreme Court in the case of Kutzner v. Meyers (1915), 182 Ind. 669, 108 N.E. 115, focused on a similar argument. Kutzner involved an action against the appointment of a guardian on the grounds that the statute constituted a denial of the due process of law in the taking of liberty and property without a showing of mental incapacity. In upholding the appointment the court held that no State taking was involved, rather a protection was afforded the ward for the sake of his best interests. Therein the court, at 672 of 182 Ind., at 116 of 108 N.E., stated:

'It has been always the policy of the State to protect those who by reason of youth or incapacity were incapable of managing their estates by placing their property in the hands of guardians or conservators. There is no reason apparent to the court why the same protection should not be extended to persons in their second childhood as is given to infants and persons of unsound mind or habitual drunkards. Devin v. Scott (1870), 34 Ind. 67.'

In reviewing the sufficiency of the evidence and denying the motion for a new trial, the Kutzner court relied on several facts of disability including a showing that a conveyance of land without consideration was obtained through undue influence. The court, at 674 of 182 Ind., at 117 of 108 N.E., further stated:

'Having in mind the age of appellant and his mental condition incident thereto as shown by the evidence, it was proper for the court to consider these facts in determining whether a guardian should be appointed.'

From the foregoing it appears that a concern for the mental condition of the potential ward served as the primary basis for the appointment and as an implicit justification for State intervention to protect his interests.

Under the same statute, in Silver v. Newcomer (1923), 80 Ind.App. 406, 140 N.E. 455, the Appellate Court upheld a petition for the appointment of a guardian stating that the jury had sufficient reason for finding the ward incapable of managing his estate and business based upon evidence of old age and stroke paralysis.

Two years later the court in Harvey v. Rodger (1924), 84 Ind.App. 409, 143 N.E. 8 (transfer denied), upheld the appointment of a guardian on other grounds. However the Harvey court would have refused to do so if the evidence had not been sufficient to have warranted a finding that appellant by reason of her age or infirmity, was not mentally incapable of managing her estate and business affairs. In Perry v. Perry (1940), 108 Ind.App. 93, 27 N.E.2d 133, the appointment of a guardian was again upheld on grounds of old age and infirmity. But in Perry the capacity to manage one's affairs was specifically framed in terms of evaluating the mental lapses involved in correctly attending to the rents and debts concerning three pieces of property.

Through these cases we perceive a general commitment to the principle that the appointment of a guardian over one's estate must be grounded on a finding that the person was unable to reasonably deal with his business affairs because of an impairment in his mental judgment, albeit with the recognition that mental attributes can be affected by physical disabilities. Thus no matter how incapacitated a person may be physically, he still has the option of managing his property through an agent, if the function of his mind is unimpaired. To exclude an evaluation of a person's mental awareness, under the rubrics 'old age, infirmity or other incapacity' would make the possibility for a finding of incompetency too broad. Instead the evaluation of whether a person is incompetent should concern his total physiology both physical and mental. Loss v. Loss (1962), 25 Ill.2d 515, 185 N.E.2d 228; Uniform Laws Annot., Probate Code, § 5--303, Comment, p. 524 (1972); 39 Am.Jur.2d, Guardian and Ward, § 21, at 24; Annot., 9 A.L.R.3d 774 (1966).

In the case at bar little oral testimony was heard to the effect that Martha Wurm was mentally incapable of handling her affairs. Of her seven children, four stated that she was physically incompetent to manage the business of her farm while simultaneously attesting to her mental capacity. Two of her children and her doctor opined that she was competent to manage her business affairs. Only one definitely felt that his mother was incompetent and incapable of understanding the extent of her property or the nature of her business affairs or her personal affairs. Such a mixture of testimony alone would appear to be inadequate in light of the important concerns we have expressed in protecting an aged person's free will.

However, it should be noted that other direct evidence in the record discloses that appellant had problems with advanced age and its attendant infirmities of confusion such as would support the judgment of the trial court. Eleven days prior to her husband's death, Martha Wurm executed a power of attorney prepared for her through her daughter Marilyn. She failed to understand that the essential thrust of that instrument was to authorize Marilyn and her husband to sell her farm and manage her affairs. On the night of her husband's funeral Martha Wurm expressed a desire for the appointment of a guardian and accompanied several of her children to an attorney's office to effectuate that desire. Subsequently she became hostile toward these offspring and at the apparent instigation of Marilyn attempted to renounce the guardianship document she had signed.

The evidence further showed that Martha Wurm was confused about the amounts of her savings and where they were located. She at one time apologized to her doctor for not being able to write him a check though capable of doing so. And, finally, she was unaware of how much the Molargiks were spending from her checking account.

It is not within our province or purview to sift between the interests of seven children to determine the differences between their concerns for their mother and her property. The trial court...