In the Matter of the Guardianship of the Person and Estate of Lucia G. McDonald, Ward ( 2023 )

IN THE SUPREME COURT OF GUAM
IN THE MATTER OF THE GUARDIANSHIP
OF THE PERSON AND ESTATE OF
LUCIA G. McDONALD.
Supreme Court Case No. CVA21-001
Superior Court Case No. SP0087-20
OPINION
Cite as: 2023 Guam 3Appeal from the Superior Court of Guam
Argued and submitted on December 16, 2022
Hagåtña, Guam
Appearing for Appellant Lucia G. McDonald: Appearing for Appellee Claire Meno:
Jacqueline Taitano Terlaje, Esq. Jefferey A. Cook, Esq.
Law Office of Jacqueline Taitano Terlaje, P.C. Cunliffe & Cook
284 W. Chalan Santo Papa A Professional Corporation
Hagåtña, GU 96910 210 Archbishop Flores St., Ste. 200
Hagåtña, GU 96910
In re Guardianship of McDonald, 2023 Guam 3, Opinion Page 2 of 8
BEFORE: ROBERT J. TORRES, Presiding Justice; KATHERINE A. MARAMAN, Associate
Justice; and ALEXANDRO C. CASTRO, Justice Pro Tempore.1
PER CURIAM:
[1] Among the many fundamental rights in our society is the right to control one’s person and
decide for oneself, despite the wishes of others. It is one of the hallmarks of a free society. At the
same time, not everyone can make proper decisions on one’s own behalf. Whether through age,
disease, or other cause, sometimes a person is unable to properly manage and take care of
themselves or their property. When a person is unwilling or incapable of admitting this, and is
likely to be deceived or imposed upon by artful or designing persons, courts have the power to
appoint a guardian. Court intervention should not come lightly, and there are important procedural
protections in place to protect the fundamental liberty of potential wards.
[2] Because these protections were not respected here, we vacate the Order of the trial court
appointing the Public Guardian to serve as a temporary guardian for Lucia Garcia McDonald (“Tan
Lula”)2 and remand this case to the trial court for further proceedings not inconsistent with this
Opinion.3
I. FACTUAL AND PROCEDURAL BACKGROUND
[3] This case began with an Ex Parte Petition for the Appointment of Guardians of the Person
and Estate of an Incompetent Person (“Petition”) filed by Dolores M. Pangelinan and Claire M.
Meno out of concern for their mother, Tan Lula. Dolores and Claire asserted that their mother
1
The signatures in this Opinion reflect the titles of the justices when this matter was argued and submitted.
2
Counsel for Lucia Garcia McDonald refers to her client by the CHamoru term of respect for an elderly
woman (“Tan”) followed by Mrs. McDonald’s “better known as” name (“Lula”). See Appellant’s Br. at 1 (July 9,
2021). In deference to counsel’s preferred designation of her client as Tan Lula, and in recognition that referring to
Mrs. McDonald as “Tan Lula” rather than simply by her first name is considered more culturally respectful, the court
will refer to Lucia Garcia McDonald in this Opinion as Tan Lula.
3
This Opinion supersedes the Order issued by this court on December 22, 2022.
In re Guardianship of McDonald, 2023 Guam 3, Opinion Page 3 of 8
suffers from severe dementia and is unable to manage her own financial, legal, or medical affairs.
The evidence for this assertion was a letter from a doctor stating that, in his view, Tan Lula suffers
from severe dementia. At oral argument before this court, Tan Lula represented this doctor does
not speak CHamoru—her preferred language. Oral Arg. at 10:15:11-10:15:18, 10:17:46-10:17:50
(Dec. 16, 2022).
[4] Several of Tan Lula’s other children and Tan Lula herself objected to the Petition filed by
Dolores and Claire. The trial court held a hearing to consider the viewpoints of the several parties.
Though she was present, Tan Lula was not served the Petition that started these proceedings, nor
a notice for the hearing. No testimony was taken at this hearing. Given the disagreement among
the parties as to whether Tan Lula needed a guardian in the first place and who, if needed, that
guardian should be, the Superior Court decided that Public Guardian Marcelene C. Santos would
serve temporarily as guardian of Tan Lula until completion of the ex parte proceedings.
[5] Tan Lula objected to this appointment. She pointed out that per Guam law, a guardian can
be appointed over a ward in a hearing only where the prospective ward has at least five days’ notice
of such a hearing. In response, the trial court said, “We’ll have a hearing on [February] 26th, and
the result will still be the same. . . . [W]e’ll have a Zoom hearing and I would just tell you the
same what I’m saying now. Okay?” Transcript (“Tr.”) at 20 (Ex Parte Appl., Feb. 17, 2021). Tan
Lula was given notice of this hearing. At the hearing on February 26, the trial judge appointed the
Public Guardian to be the guardian of Tan Lula pending the proceedings in the ex parte action.
No testimony was taken at this hearing either. At oral argument before this court, Tan Lula claimed
she was never personally served a copy of the ex parte Petition which commenced these
proceedings. Oral Arg. at 10:18:47-10:19:11 (Dec. 16, 2022).
In re Guardianship of McDonald, 2023 Guam 3, Opinion Page 4 of 8
[6] Tan Lula timely appealed the appointment of the Public Guardian to this court. Her appeal
was then delayed as Dolores and Claire filed a Notice that they were withdrawing their Petition in
the Superior Court. The Superior Court could not rule on that notice, however, as the case was
stayed because of Tan Lula’s pending appeal. This court remanded the case to the Superior Court
to address the Notice of Withdrawal and determine what effect that withdrawal had upon the
appointment of the Public Guardian for Tan Lula.
[7] After this remand, Claire announced that she wished to withdraw her Notice to Withdraw
her Petition; in other words, she wished to continue to seek the appointment of a guardian for Tan
Lula. Though Claire now asks for different relief, the trial court noted its “jurisdiction continues
over Claire M. Meno’s reinstituted Petition for appointment of guardianship over [Tan Lula] based
on the fact that [Tan Lula] is an incompetent person unable to care for herself.” Record on Appeal
(“RA”), tab 95 at 4 (Dec. & Order, Aug. 29, 2022). In the meantime, Public Guardian Marcelene
Santos remains the guardian for Tan Lula. This court was satisfied that it could proceed with the
case. Order at 2 (Nov. 18, 2022).
II. JURISDICTION
[8] This court has jurisdiction over appeals from orders granting or revoking letters of
guardianship. 15 GCA § 4801 (2005); 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 117-
262 (2022)); 7 GCA § 3107 (2005).
III. STANDARD OF REVIEW
[9] “[T]he Superior Court’s power to appoint a guardian is an issue of statutory interpretation
reviewed de novo.” In re Guardianship of Moylan (“Moylan V”), 2018 Guam 21 ¶ 7.
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IV. ANALYSIS
[10] Tan Lula raises three issues on appeal: (1) the refusal by the trial court to let her testify on
her own behalf before appointing the Public Guardian violated 15 GCA §§ 3802 and 3803; (2) the
failure to hold an evidentiary hearing deprived her of her constitutional right to due process; and
(3) the appointment of the Public Guardian was not authorized as Tan Lula’s daughter, Lucilla
McDonald, was willing to serve as guardian.4 See Appellant’s Br. at 3 (July 9, 2021).
[11] We begin with the statutory argument. As Tan Lula correctly notes, Guam’s current
guardianship statutes were modeled on historical California ones. See Moylan V, 2018 Guam 21¶ 13 (citing Guam Probate Code § 1461 (1953) (Foreword)). The 1930s version of California’s
law is largely the same as Guam’s current code. Compare Cal. Prob. Code §§ 1460-62 (1931),
with 15 GCA §§ 3801-03 (2005). Thus, California decisions adjudicating the historical California
code are persuasive authority in interpreting Guam’s current law. See In re Guardianship of
Moylan (“Moylan VI”), 2021 Guam 15 ¶ 21.
[12] Tan Lula is right to cite In re Waite’s Guardianship in analyzing the present
situation. There, an elderly woman appealed a trial court decision granting letters of guardianship
because she was incompetent. In re Waite’s Guardianship, 97 P.2d 238 (Cal. 1939) (in bank). The
appellant in that case had wanted to testify on her own behalf but was refused by the trial court
during a hearing to appoint a guardian. Id. at 238. The California Supreme Court reversed,
4
Whether the issue of defective notice was properly raised on appeal is not clear. Tan Lula was never served
with a notice for the first hearing, but she does admit to getting a notice for the February 26 hearing. Appellant’s Br.
at 7-8. Her brief does not explain if this second notice complied with our past holdings on notices for guardianship
hearings. See In re Guardianship of Moylan (“Moylan VI”), 2021 Guam 15 ¶ 24. Because we resolve this case on
other grounds, we need not spend too much time on this issue. Still, we want to reemphasize our holding that
notice must: be personally served on the potential ward at least five days before the hearing; detail
the time, place, and location of the hearing; and be served in a form that can reasonably apprise the
potential ward of the purpose of the hearing so that the potential ward can prepare objections.
Id.In re Guardianship of McDonald, 2023 Guam 3, Opinion Page 6 of 8
holding that the language of the law “seems to contemplate an examination.” Id. (quoting In re
Coburn, 131 P. 352, 358 (Cal. 1913)). The court stated that “the right of a party to testify in h[er]
own behalf is fundamental” and that “[i]t is difficult to conceive of a situation in which a party has
a greater right to, or need for, h[er] own testimony than in the type of proceeding . . . . [where]
[t]he right to control her own person and affairs was taken [away] . . . .” Id.[13] Even setting the California case aside, an independent review of the statute supports Tan
Lula’s position as well. Title 15 GCA § 3802 requires at least five days’ notice of the hearing
before a guardian can be appointed. That provision also requires that the potential ward, “if able
to attend, must be produced at the hearing.” 15 GCA § 3802 (emphasis added). Finally, 15 GCA
§ 3803 provides, “If, upon the hearing, it appears to the court that the person in question is insane
or incompetent, the court must appoint a guardian . . . .” 15 GCA § 3803 (emphasis added).
[14] “In cases involving statutory construction, the plain language of a statute must be the
starting point.” Pangelinan v. Gutierrez, 2000 Guam 11 ¶ 23. We find it instructive that the statute
requires the potential ward be at the hearing; the purpose of this requirement cannot only be to
make the potential ward a mere observer. This is confirmed by looking at the appointment
section. A trial court may appoint a guardian only if “it appears to the court” “upon [a] hearing”
that a prospective ward is incompetent. 15 GCA § 3803. Taken together, these phrases require
the trial court to hold some hearing before making its determination. Given that the statute requires
a hearing and requires the prospective ward to be at the hearing, we conclude that—at minimum—
the prospective ward must be allowed the opportunity to testify at such a hearing, assuming the
ward is capable of testifying. The trial court deprived Tan Lula of this opportunity, Oral Arg. at
10:15:45-10:16:29, 10:28:55-10:29:46 (Dec. 16, 2022), and, in doing so, violated 15 GCA §§ 3802
and 3803.
In re Guardianship of McDonald, 2023 Guam 3, Opinion Page 7 of 8
[15] Because we find a violation of 15 GCA §§ 3802 and 3803, we decline to consider Tan
Lula’s other arguments. See Hemlani v. Hemlani, 2015 Guam 16 ¶ 33 (“As a general appellate
principle, a court will not address issues unnecessary to the resolution of the case before it.”).
[16] Before concluding, we wish to note some restraint on the Opinion we issue today.
Sometimes, a prospective ward cannot make it to a hearing. Yet, a decision on the appointment
of a guardian could be critical. The statute requires the participation of the prospective ward “if
able to attend.” 15 GCA § 3802 (emphasis added). Affidavits and other testimony from clinicians
can create a—potentially rebuttable—presumption that a prospective ward cannot attend, and a
hearing where a guardian can be appointed can still be held. See In re Andrews’ Guardianship,
110 P.2d 399, 401-02 (Cal. 1941). This provides a limited exception when a guardian may be
appointed without the prospective ward being given the opportunity to be heard at the hearing.
[17] Still, in acting on behalf of prospective wards, courts must always keep in mind the wards’
best interests. See Moylan VI, 2021 Guam 15 ¶ 41 (citing In re Guardianship of Moylan (“Moylan
I”), 2011 Guam 16 ¶ 17). Just because a prospective ward is not present at a hearing does not
mean his or her perspective should be ignored by the court; the trial court must not be content to
simply accept the views of whomever happens to be bringing a Petition for Guardianship. Another
way this can be avoided is to ensure the prospective ward participates in the hearing in some form.
Gone are the days when all court proceedings had to be conducted in a courtroom. With online
video conferencing software like Zoom or even a telephone call, potentially immobile prospective
wards can still participate in these proceedings. Conducting a contested guardianship hearing
without the prospective ward’s involvement should be avoided if at all possible.
//
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In re Guardianship of McDonald, 2023 Guam 3, Opinion Page 8 of 8
V. CONCLUSION
[18] Tan Lula was not allowed to speak on her own behalf and explain her view as to why an
invasion of her fundamental right to control her person was unwarranted. That was error. The
Order appointing the Public Guardian to serve as Tan Lula’s temporary guardian is VACATED,
and this matter is REMANDED to the trial court for further proceedings not inconsistent with this
Opinion.
/s/ /s/
KATHERINE A. MARAMAN ALEXANDRO C. CASTRO
Associate Justice Justice Pro Tempore
/s/
ROBERT J. TORRES
Presiding Justice