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a.  Standards of Proof

Guardianship of Anthony Rich, Ohio Appellate Court, 2000 Ohio App. Lexis 5360 (2000). In overturning a trial court finding of incompetence, the appellate court applied a clear and convincing standard and found that the lower court’s decision was against the manifest weight of the evidence. The record showed that the alleged ward cared for both himself and his infirm wife, including her medications; that he drove a car without incident; that he was vice president of the retirees chapter of his union local; and that he served on the City Housing Appeal Committee and Transportation Advisory Board. Although he may have showed poor judgment in giving over $14,000 to a neighbor to hold in trust, he did so to protect the money from his son, who had petitioned for guardianship.

In the Matter of Turnbough, An Incapacitated Person, Missouri Appellate Court, 34 S.W. 3d 225, 2000 Mo. App. Lexis 1843 (2000). Clear and convincing evidence showed that woman was in need of guardianship (county public administrator) and that the least restrictive environment was in a nursing home. Further, the appointment of a guardian was the least restrictive means to ensure the woman’s well-being and safety, due to the woman’s poor judgment as to her choice of residence and caregivers.

Matter of Guardianship of Hedin, Iowa Supreme Court, 528 N.W.2d 567 (1995). Clear and convincing evidence standard is appropriate one to apply in guardianship proceedings, including issues relating to appointment, modification, and termination of the guardianship. The burden of proof is on the petitioner.

In re Guardianship of Escola, Ohio Appellate Court, 534 N.E.2d 866, 41 OhioApp.3d 42 (1987). The burden rests on the ward to show that there is no further need for guardianship.

b.  Notice, Service of Process

Joel Wells v. The Guardianship of Myrtle Farley Wells, Indiana Appellate Court, 731 N.E.2d 1047, 2000 Ind. App. Lexis 1081 (2000). Where a temporary guardian was appointed without notice to a ward’s son, the appellate court found that an allegedly defective notice in the temporary guardianship proceeding did not prejudice the son, who appeared with counsel at the permanent guardianship hearing. The legislature intended for the courts to have wide discretion in such matters.

Flynn v. Scott, Missouri Appellate Court, 969 S.W.2d 260 (1999). In the third appeal to arise from the same guardianship case, the appellate court this time addressed the issue of payment of guardian’s fees. See Matter of Estate of Scott, below. After reiterating that the underlying guardianship case was void for want of personal service on the ward, the court found that over $18,000 in guardian fees would be disallowed, despite the guardian’s good faith in discharging duties on behalf of the “estate.”

In re Estate of Sofia Gebis, Illinois Supreme Court, 186 Ill.2d 188, 710 N.E.2d 385, 237 Ill. Dec. 755 (1999). Two co-guardians of the person argued over whether one of the two should be entitled to fees for over $361,000 for caring for the ward at the end of the ward’s life. The co-guardian sought her fees from the probate court supervising the guardianship, after the death of the ward. After a trial court declared unconstitutional a provision of Illinois law that allowed for the award of custodial claims for care givers after the death of an adult ward, the Supreme Court vacated the lower court’s judgment for want of jurisdiction. In doing so, the Supreme Court found that the probate court that had jurisdiction over the ward and her estate during her lifetime lacked jurisdiction to adjudicate a statutory custodial claim filed against the estate. The Supreme Court held that “once a disabled person dies, the guardianship terminates and the court supervising the guardianship estate loses jurisdiction to adjudicate a claim filed against that estate. The decedent’s estate is the only avenue for recovery.”

Matter of Estate of Scott, Missouri Appellate Court, 932 S.W.2d 413 (1996). A guardian ad litem=s fee award is improper when the order appointing guardian is found to be void for want of jurisdiction.

In re Estate of David Steinfeld, Illinois Supreme Court, 630 N.E.2d 801, 158 Ill. 2d 1, 196 Ill. Dec. 636 (1994). The absence of a statutorily required physician=s report supporting an adjudication of disability was not a jurisdictional defect, and the adjudication could not be considered void where there was no contention that the individual was not disabled within the meaning of the law. Court had jurisdiction over individual by virtue of service of summons and a copy of the petition not less than 14 days before hearing.

Matter of Estate of Williams, Michigan Appellate Court, 349 N.W.2d 247, 133 Mich.App. 1 (1984). Generally, relatives of a ward are preferred when selecting a guardian, but the best interests of the ward are the paramount considerations. In this case, the failure to give notice to a daughter with a last name that was different to the alleged ward was found to be a jurisdictional defect. The reviewing court found that the appointment of a county public guardian was improper, given Michigan statute that established a preference for family members over strangers to the ward.

In re Guardianship of Ralph F. Sodini, Illinois Appellate Court. 527 N.E.2d 530, 172 Ill.App.3d 1055, 123 Ill.Dec. 67 (1988). The failure to give notice of the guardianship hearing to a sister of a respondent is a jurisdictional defect. The legislature desired to make service upon those relatives listed in the petition a requirement for obtaining proper jurisdiction.

c.  Adult Protective Services and Protective Placements With Guardianships

Maureen Davis vs. Cuyahoga County Adult Protective Services, Ohio Appellate Court, 2000 Ohio App. Lexis 4754 (2000). Where evidence showed that alleged person in need of guardianship refused offers of services that were less restrictive than a full adjudication of guardianship, and where person suffered from Alzheimer’s type dementia which caused her to live in a house that had been found by the Department of Public Health to be a threat to the immediate health and safety of the woman, a guardianship appointment was appropriate. The woman had open sores on her face and arms and was found to have horded animals and possessions. Three men worked for ten full days in protective suits to clean out the house, which was heated and lit with kerosene stoves, and infested with rodents, fleas, cockroaches and animal feces. The appellate court found that the trial court did not abuse its discretion in relying upon a doctor’s report of incompetence.

Guardianship and Protective Placement of Goldie H., Wisconsin Supreme Court, 2001 WI 102, 629 N.W. 2d 189, 2001 Wisc. Lexis 453 (2001). Goldie H was protectively placed under a Wisconsin statute, meaning that she was 1) found by a court to have a primary need for residential care and custody, 2) was incompetent, 3) due to the infirmities of aging, and 4) the condition was likely to be permanent. The matter under appeal related to whether annual review of protective placements that had been previously ordered under the statute required a hearing and the entry of findings of fact. In this case, the reviewing court relied solely on the report of a guardian ad litem. The appellate court found that a hearing and findings of fact were required, but dispensed with the requirement in this case due to the persuasive nature of the GAL report. There was no evidence of any substantial argument in the case about Goldie H, or any of the statutory requirements. In a concurring opinion, a Wisconsin Supreme Court Justice concluded in dicta that the hearing requirement laid down by the majority court “may benefit no one but the attorneys paid to be present at such hearings.”

d.  Selection of Guardian: Who May Serve?

In The Matter of Hodge, Ohio Appellate Court, 2001 Ohio App. Lexis 3412 (2001). In a case where siblings stipulated as to the need for guardianship for their mother, and siblings did not get along with one another, the court weighed several factors in choosing a brother as guardian for his mother, instead of choosing the brother’s sister. As a preliminary step, the court carefully reviewed the stipulated evidence, to independently conclude that guardianship was necessary for the mother. Next, the court considered the qualifications of the siblings, noting that the brother had actually filed a petition for guardianship (the sister had only made an oral request) demonstrating the brother’s serious interest in serving. In addition, the brother was willing to re-arrange his schedule to be available to care for his mother. By contrast, the sister worked outside the home, questioned whether her mother was incompetent and required guardianship, and had taken her mother from her brother’s home without permission at a time when the brother served as temporary emergency guardian.

Conservatorship of Colleen Geldert, Minnesota Appellate Court, 621 N. W. 2d 285, 2001 Minn. App. Lexis 81 (2001). A mentally retarded woman had been a ward of the state since 1958. The ward’s mother, brother and two sisters maintained close contact with her over the years. The ward lived in a group home where she had thrived, and had responded positively to efforts to control the effects of Prader Willi Syndrome (PWI). In addition to PWI, the ward had been diagnosed with end stage renal failure requiring either kidney dialysis or a transplant. The state guardian agreed with the recommended treatment, consenting to dialysis. The family concluded that recommended dialysis treatment would interfere with the ward’s ability to enjoy life and aggravate her PWI symptoms, and petitioned for successor guardianship. The trial court, reasoning that the ward’s best interests would be met by the appointment of a family member, removed the state guardian and appointed a sister. The appellate court overturned the trial court decision, finding that the trial court should not have applied the standard for appointing a guardian in the first instance, but rather should have considered whether the actions of the public guardian were inconsistent with the best interests of the ward. Although recognizing that public guardianship was the most restrictive form of guardianship, and should be imposed only when no acceptable alternatives exist, the appellate court insisted that the inquiry should have been on whether the public guardian failed to perform its duties or acted in a manner that was inconsistent with the best interests of the ward.

Guardianship of Mary Kate M., Wisconsin Appellate Court, 627 N. W. 2d 549, 2001 Wisc. App. Lexis 286 (2001). In 1985, Mary Kate was removed from her mother’s home due to neglect and abuse. In 2000, the mother of the 39-year-old adult disabled woman petitioned for the removal of a ARC-Milwaukee, a corporate guardian, claiming that she was a caring mother and that a corporate guardian should not be involved when a family member was willing to serve. As in Geldert, above, the appellate court found that in considering whether to remove a corporate guardian in favor of a family guardianship appointment, the trial court should not approach the matter as it might at the time of the original adjudication of disability. The focus should be on whether any allegations supported the removal of the current guardian. Since the petition failed to show any neglect or other failures on the part of the corporate guardian, the trial court denied the petition for removal and the appellate court affirmed.

In the Matter of Guardianship of Shawn Constable, Ohio Appellate Court, 2000 Lexis 2467 (2000). James Constable was denied guardianship for his adult mentally disabled son, and his access to his son was limited. The trial court found that, although James loved his son and Shawn loved James, James was found to be unsuitable as a guardian based on his animosity toward care providers. James was also found to have not required Shawn to take necessary medication, and not to require Shawn to wear protective headgear. The appellate court upheld the trial court’s finding and also rejected James’ claim that his parental rights were compromised.

Howse v. Johnson, Illinois Appellate Court, 303 Ill. App. 3d 696, 708 N.E.2d 466, 236 Ill. Dec. 880 (1999). Illinois does not employ a statutory hierarchy for selection of guardian. Although there may be a rational basis for preferring relatives to strangers, there is no rational basis for necessarily preferring one relative to another. The court listed a number of Illinois Appellate Court decisions that discussed considerations to be considered in selecting a guardian. In doing so, the court reiterated the best interest standard of In re Conservatorship of Browne, 54 Ill. App. 3d 556, 370 N.E.2d 148, and listed the following as important factors:

  • Recommendations of persons with kinship or familial ties
  • Relationships between the disabled person and the party being considered for appointment
  • Conduct by the disabled person prior to being adjudicated disabled which manifests trust or confidence in the proposed guardian
  • Prior actions by the proposed guardian which indicate concern for the well-being of the disabled person
  • The ability of the proposed guardian to manage the incompetent’s estate
  • The extent to which the proposed guardian is committed to discharging responsibilities, which might conflict with his or her duties as a guardian.

In re Cynthia Schmidt, Illinois Appellate Court, 298 Ill. App. 3d 682, 699 N.E.2d 1123, 232 Ill. Dec. 938 (1998). In a contested guardianship case where a husband was appointed guardian for his wife over the objection of the wife’s sister, the court held that a spousal relationship was properly considered by the trial court as one factor in determining who may serve as guardian of the person. The appellate court recognized the public policy of Illinois regarding spousal preferences, but did not establish spousal preference as a requirement in guardianship proceedings.

In Re Estate of Marjorie E. Roy, Illinois Appellate Court 265 Ill.App.3d 99, 637 N.E.2d 1228, 202 Ill.Dec. 492 (1994). Where the husband of a ward sought guardianship, but was denied on the basis of a 36-year-old felony conviction, as mandated by the Illinois Probate Act, husband was entitled to a hearing to show by a preponderance of the evidence that his appointment would be in the ward=s best interest and welfare. If the husband meets this showing, the court could find the statute was unconstitutionally applied and give due consideration to the ward=s preference to have her husband act as guardian.

In re Estate of Leon Mandel Barr, Illinois Appellate Court, 491 N.E.2d 1241, 142 Ill.App.3d 428, 96 Ill.Dec. 781 (1986). In determining the appropriateness of a person willing to serve as guardian, the court should consider the person=s past action and conduct with the ward, evidence of any self-serving motive, and whether the person has ample time and sufficient ability to discharge the duties of a guardian.

In re Estate of George Edward Robertson, Illinois Appellate Court, 494 N.E.2d 562, 144 Ill.App.3d 701, 98 Ill.Dec. 440 (1986). In determining the appropriateness of a person willing to serve as guardian, the court should consider the person=s business experience, age, and family situation. Evidence of fraudulent conduct in prior dealings between the proposed guardian and ward would preclude the selection as guardian.

In re Estate of Nellie Bania, Illinois Appellate Court, 473 N.E.2d 489, 130 Ill.App.3d 36, 85 Ill.Dec. 121 ( 1984). The paramount interest in the selection of a guardian is the well being of the disabled person, regardless of that person=s wishes.

In re Estate of Korman, Missouri Appellate Court, 945 S.W.2d 10 (1997). A Missouri statute establishes a hierarchy for trial courts to follow in appointing guardians (for the person) or conservators (for the estate). In this case, the trial court refused to appoint a brother as limited guardian and limited conservator, even though the ward had nominated him to be both guardian and conservator and had named him as a power of attorney within five years of the guardianship hearing. The appellate court found that the trial court had appropriately considered the evidence and found good cause to reject the brother, despite the statutory preference. However, the appellate court found that the trial court had erred in appointing a nephew, where the record showed adverse financial interests, family dissension and disharmony. In an unusual exercise of authority, the appellate court dissolved the trial court’s appointment of the nephew and appointed the public guardian, citing the need to finally dispose of the case since the ward had died during the course of the legal proceedings.

In re Estate of Romberg, Missouri Appellate Court, 942 S.W.2d 417 (1997). The preference expressed in the Missouri statute for the appointment of relatives in guardianship and conservatorship cases is not absolute. A non-relative may be appointed if the appointment would be in the best interests of the incapacitated person. This would be appropriate where there is dissension in the family, an adverse interest between the relative and the incapacitated person, or any other reason that would show a stranger to be the better choice.

Matter of Waldron, Missouri Appellate Court, 910 S.W.2d 837 (1995). A ward=s adult son was found to be unsuitable to serve as a conservator for his mother where he had surrendered his law license in part due to financial problems and the improper use of client funds, he owed more than $335,000 to a trust set up for the care of the mother under her deceased husband=s will, and he owed $185,000 directly to the mother=s estate. Not surprisingly, there was also dissension among siblings as to his serving in a position of trust.

Estate of Ewing v. Bryan, Missouri Appellate Court, 883 S.W.2d 545 (1994). Although a statute creates limited preference for appointment of relative as guardian and conservator, any eligible person named attorney in fact by the ward when competent would take priority over adult child relative, unless the incapacitated person is competent and able to nominate a reasonable choice at the time of the adjudication hearing.

In re Estate of Hancock, Missouri Appellate Court, 828 S.W.2d 707, 1992. Court chose a public administrator over an adult nephew of a ward where family disagreed about who should be appointed and court found nephews= proposed plan of guardianship to be inadequate.

Carr v. Carr, Indiana Appellate Court, 685 N.E.2d 92 (1997). Trial court did not abuse its discretion in appointing as successor guardian a bank in a new city in which ward would be residing after a move to a new nursing home.

Guardianship of Tina Marie W., Wisconsin Appellate Court, 573 N.W.2d 207 (1997). A father/guardian=s past sexual assault and abuse of his wife (mother of the ward) was deemed to be relevant evidence in an action to remove the father as guardian of his adult daughter. No person has a legal right to serve as a guardian; rather, the guardianship status is a privilege, with a concomitant duty, conferred upon the guardian by the trial court.

In re Guardianship of Sharon Kowalski, Minnesota Appellate Court, 478 N.W.2d 62 (1992). The trial court abuses its discretion where it denies a guardianship petition supported by uncontradicted expert testimony as to the suitability of the petitioner, and where there is insufficient evidence as to the chosen guardian=s qualifications or neutrality. See also, In re Guardianship of Sharon Kowalski, 382 N. W. 2d 861.

Schmidt v. Hebeisen, Minnesota Appellate Court, 347 N.W.2d 62 (1984). Court may appoint a disinterested third party as guardian for an adult where a family member was available and willing to serve, absent an objection as to the proposed guardian=s qualifications and willingness, if the court finds the appointment to be in the ward=s best interests. Best interests, not familial relationship, should be the decisive factor in choosing a guardian, with kinship a factor, but not the deciding one.

In re Medsker, Ohio Appellate Court, 583 N.E.2d 1091, 66 OhioApp.3d 219 (1990). Where a court finds a need for guardianship, the court has discretion as to the choice of the guardian, but must choose someone to whom the ward consents, per the state statute.

Matter of Estate of Williams, Michigan Appellate Court, 349 N.W.2d 247, 133 Mich.App. 1 (1984). Generally, relatives of a ward are preferred when selecting a guardian, but the best interests of the ward are the paramount considerations. In this case, the failure to give notice to a daughter with a last name that was different to the alleged ward was found to be a jurisdictional defect. The reviewing court found that the appointment of a county public guardian was improper, given Michigan statute that established a preference for family members over strangers to the ward.