In re the Guardianship of Hellen Kinney Morris: Mary M. Kinney and Patrick Kinney v. Paul Kevin Kinney , 2016 Ind. App. LEXIS 224 ( 2016 )

FILED
Jul 12 2016, 8:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Alan D. Wilson Matthew J. Elkin
Kokomo, Indiana Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Guardianship of Hellen July 12, 2016
Kinney Morris: Court of Appeals Case No.
34A02-1510-GU-1809
Appeal from the Howard Superior
Mary M. Kinney and Patrick Court
Kinney,
The Honorable Brant J. Parry,
Appellants-Respondents, Judge
v. Trial Court Cause No.
34D02-1407-GU-23
Paul Kevin Kinney,
Appellee-Petitioner.
Vaidik, Chief Judge.
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Case Summary
[1] After six siblings disagreed about how to take care of their elderly mother with
dementia, one faction of siblings filed a petition to appoint guardians for their
mother while the other faction maintained that a power of attorney in effect was
sufficient to care for their mother. The trial court found that the mother is
incapacitated and appointed all six siblings as co-guardians over different areas
of their mother’s life. The losing siblings now appeal, arguing that their mother
is not incapacitated and that guardians are not necessary.
[2] The record supports the trial court’s finding that the mother is incapacitated
because there is evidence that she requires assistance to manage her property
and provide self-care due to dementia and that she is unable to do either one
without substantial around-the-clock help. However, because the mother’s
attorneys in fact are different than her guardians, according to Indiana Code
section 30-5-3-4(b) the attorneys in fact are in control, and the guardians do not
have any power with respect to their mother’s property and health care. But
because it does not appear that the trial court considered the effect of the power
of attorney when it determined that guardians were necessary, we reverse and
remand this case for the trial court to determine whether guardians are
necessary in light of the power of attorney and, if so, to give due consideration
to the matters listed in Indiana Code section 29-3-5-5, including the mother’s
wishes and her existing attorneys in fact. We therefore affirm in part and
reverse and remand in part.
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Facts and Procedural History
[3] Helen Kinney Morris, age eighty-nine, is a widow with six adult children:
Michael Kinney, Bridget Aaron, Paul Kevin Kinney (“Kevin”), Patrick Kinney,
Mary M. Kinney (“Molly”), and Gabrielle Kinney. Helen owns “significant
property, both real and personal.” Appellants’ App. p. 65.
[4] In March 2004, Helen executed a durable power of attorney appointing two of
her children—Kevin “or” Molly—as her attorneys in fact. Id. at 45.1 Helen
selected Kevin because he had always helped her with her business affairs and
Molly because the two of them were close. Tr. p. 21. The power of attorney
gave Kevin and Molly powers with regard to real-property transactions;
tangible personal-property transactions; bond, share, and commodity
transactions; banking transactions; business-operating transactions; insurance
transactions; beneficiary transactions; gift transactions; fiduciary transactions;
claims and litigation; family maintenance; benefits from military service;
records, reports, and statements; estate transactions; health-care powers;
consent or refusal of health care; delegating authority; and all other possible
matters and affairs affecting Helen’s property. Appellants’ App. p. 45; see also
Ind. Code ch. 30-5-5. The power of attorney specifically provided that it was
1
Indiana Code section 30-5-4-3 authorizes the appointment of more than one attorney in fact. It provides
that unless the power of attorney says otherwise, “if more than one (1) attorney in fact is named, each
attorney in fact may act independently of the other attorney in fact in the exercise of a power or duty.” Ind.
Code § 30-5-4-3(a).
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“not affected by the fact that [Helen] might become incompetent hereafter, but
shall remain in full force and effect.” Appellants’ App. p. 45.2
[5] Helen was later diagnosed with mild to moderate dementia. Helen’s dementia
has remained stable since around 2011 due to medication. Helen has been able
to stay in her home because of around-the-clock help from family. This help
has included providing all meals for Helen, taking care of her home, helping her
bathe, doing her laundry, taking her to doctor appointments, doing her
shopping, paying her bills, and having someone spend every night with her.
[6] For most of Helen’s children’s lives, the family was close knit, with each child
having a good relationship with their mother. But things changed after a
tornado damaged Helen’s house in November 2013 and the siblings disagreed
on whether to remodel Helen’s bathroom. The siblings took sides, with Molly
and Patrick believing that Helen’s bathroom did not need to be remodeled and
Michael, Bridget, Kevin, and Gabrielle believing that it did. After speaking
with Molly, Helen decided not to have her bathroom remodeled. Since this
incident—which Michael refers to as when “the iron curtain fell,” Tr. p. 178—
Michael, Bridget, Kevin, and Gabrielle have had virtually no contact with their
mother, as the locks have been changed and phone calls go unanswered.
Michael, Bridget, Kevin, and Gabrielle blame Molly.
2
Helen did not designate anyone as her guardian in the 2004 power of attorney. See Appellants’ App. p. 45.
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[7] On July 28, 2014, Kevin filed a petition to appoint guardians for Helen because
she “cannot care for herself nor make decisions on her own behalf.” Id. at 25.
He asked the trial court to appoint him and three of his siblings—Michael,
Bridget, and Gabrielle—as co-guardians. Id. at 25-26. The trial court appointed
a guardian ad litem, who met with Helen as well as all six siblings. In its
report, the guardian ad litem noted that Helen did not want a guardian.
Although Helen recognized that she needed assistance, she was “happy with
Molly and Pat[rick] and the way they are caring for her.” Id. at 42. The
guardian ad litem concluded that a guardianship was not necessary because
there was a valid power of attorney that “seem[ed] to be working appropriately
as it relates to Helen’s care and her overall well being.” Id. at 42-43. In the
event that the court appointed a guardian, however, the guardian ad litem
recommended “Molly and/or Pat[rick].” Id. at 43.
[8] The trial court held a hearing on Kevin’s guardianship petition in August 2015.
Five of the six siblings (not Patrick), the guardian ad litem, Helen’s personal
attorney for many years, and other family members testified at this hearing.
Specifically, Molly testified that although her mother had memory problems
and could not do a lot of things by herself—like bathing, driving, yard work,
shopping, cooking, and laundry—she could take care of her affairs with
assistance and do other things by herself, like change her clothes, use the
restroom, brush her hair and teeth, and put on her glasses and hearing aids. In
contrast, the other four siblings testified that Helen’s memory problems were
worsening and had placed her in situations in which she was endangered, that
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she could not take care of herself or her business affairs by herself, that Molly
and Patrick were isolating Helen from them, and that they did not know
anything about their mother’s finances or health. The guardian ad litem
testified that although Helen was not able to take care of herself or her business
affairs without assistance, Helen was getting that assistance from Molly and
Patrick. Tr. p. 132, 135-36. When the trial court asked the guardian ad litem if
Helen had decided for herself not to have any contact with Michael, Bridget,
Kevin, and Gabrielle, the guardian ad litem said yes but added that Helen’s
feelings toward them had recently started to “thaw[].” Id. at 138. The guardian
ad litem aptly described the situation as “a fight between two factions of the
family and Helen is the pawn.” Id. Finally, Helen’s attorney for many years
(who had prepared Helen’s 2004 power of attorney appointing Molly and Kevin
as attorneys in fact) testified that Helen did not recognize him during their last
encounter and that after November 2013 he did not believe that Helen was able
to take care of herself or competent to handle her own affairs. Id. at 28.
[9] In October 2015, the trial court issued an order in which it found that Helen
was incapacitated. Specifically, the court found that Helen “is incapacitated for
[the] reason that she cannot adequately care for her person and estate without
assistance.” Appellants’ App. p. 15 (Finding No. 23). The court also found
that guardians were necessary. Id. at 16 (Finding No. 26). In determining what
sibling to appoint as guardian, the court found that the “foremost”
consideration was Helen’s best interests and welfare. Id. at 15. The court also
considered “Helen’s happiness in her remaining years” and “the best way to
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attempt to repair the family dynamic and the children’s relationships with
Helen and with each other.” Id. Based on these considerations, the court found
that co-guardians—as opposed to one guardian—were necessary. Accordingly,
the court appointed all six siblings as co-guardians. Each sibling was appointed
guardian over a specific area of Helen’s life. For example, Michael, a priest,
was appointed guardian over Helen’s “spiritual needs and affairs”3 while
Bridget, a hairstylist, was appointed guardian over Helen’s “health care needs
and personal hygiene,” ensuring that Helen’s “hair and nails are styled on a
regular basis.” Id. at 17. In addition, Molly was appointed guardian over
Helen’s personal finances, while Kevin and Patrick were appointed co-
guardians over Helen’s “business ventures.” Id. at 16. The court also created a
spreadsheet-like schedule for visitation between Helen and each of her children.
Id. at 18. Because the court believed that “Helen should have input on all
decisions involving her affairs,” it ordered each guardian to “consider Helen’s
input and feelings concerning a specific issue before making a decision. The
guardian should consider her input in light of her physical and mental wellbeing
at the time.” Id. at 16.
[10] Molly and Patrick declined their appointments, and in January 2016 the trial
court transferred Patrick’s guardianship responsibilities to Kevin and Molly’s
3
Because “Father Mike lives out of state,” Gabrielle was appointed co-guardian over her mother’s spiritual
needs and affairs. Appellants’ App. p. 17.
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guardianship responsibilities to Bridget, Gabrielle, and Michael. Appellees’
App. p. 37.
[11] Molly and Patrick now appeal.
Discussion and Decision
[12] Molly and Patrick contend that the trial court erred in appointing guardians for
Helen. A trial court is vested with discretion in making determinations as to the
guardianship of an incapacitated person. See Ind. Code § 29-3-2-4; In re
Guardianship of Atkins, 868 N.E.2d 878, 883 (Ind. Ct. App. 2007), reh’g denied,
trans. denied. This discretion extends to both its findings and its order. Atkins,
868 N.E.2d at 883. Thus, we apply the abuse-of-discretion standard to review
the trial court’s findings and order. Id. An abuse of discretion occurs when the
trial court’s decision is clearly against the logic and effect of the facts and
circumstances presented. Id.
[13] A guardianship proceeding is initiated by filing a petition “for the appointment
of a person to serve as guardian for an incapacitated person.” Ind. Code § 29-3-
5-1. In relevant part, “incapacitated person” means a person who is unable:
(A) to manage in whole or in part the individual’s property;
(B) to provide self-care; or
(C) both;
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because of insanity, mental illness, mental deficiency, physical
illness, infirmity, habitual drunkenness, excessive use of drugs,
incarceration, confinement, detention, duress, fraud, undue
influence of others on the individual, or other incapacity . . . .
Ind. Code § 29-3-1-7.5(2). The trial court “shall appoint a guardian” if it finds
that (1) the person for whom the guardian is sought is an “incapacitated
person” and (2) the appointment of a guardian “is necessary as a means of
providing care and supervision of the physical person or property of the
incapacitated person.” Ind. Code § 29-3-5-3(a). The court shall appoint as
guardian “a qualified person or persons most suitable and willing to serve,
having due regard to,” among other things, “[a]ny request made by a person
alleged to be an incapacitated person” and “[a]ny person acting for the
incapacitated person under a durable power of attorney.” Ind. Code § 29-3-5-4;
see also Ind. Code § 29-3-5-5 (listing people entitled to consideration for
appointment as guardian and the order of consideration).
[14] Molly and Patrick first argue that the trial court erred in finding that Helen is
incapacitated because “she cannot adequately care for her person and estate
without assistance.” Appellants’ App. p. 15 (Finding No. 23). They highlight
that the guardian ad litem did not believe that a guardianship was necessary
and that Helen’s own doctors believed that she was “capable of making her
own decisions when it comes to her care, both personal and financial.” See id.
at 48. But there is evidence in the record that Helen requires assistance to
manage her property and provide self-care because of dementia and that she is
unable to do either one without substantial around-the-clock help. We
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recognize that there is conflicting evidence on this issue; however, the trial
court weighed all the evidence and concluded that Helen was incapacitated.
We will not reweigh that evidence on appeal.
[15] Molly and Patrick next argue that guardians are not necessary to care for and
supervise Helen or her property as required by Section 29-3-5-3(a) because there
is a valid power of attorney. Indiana Code section 30-5-3-4 limits a guardian’s
power when there is a valid power of attorney:
(b) A guardian does not have power, duty, or liability with respect to
property or personal health care decisions that are subject to a valid power
of attorney. A guardian has no power to revoke or amend a valid
power of attorney unless specifically directed to revoke or amend
the power of attorney by a court order on behalf of the principal.
A court may not enter an order to revoke or amend a power of
attorney without a hearing. Notice of a hearing held under this
section shall be given to the attorney in fact.
Ind. Code § 30-5-3-4(b) (emphasis added). According to this section, “if an
incapacitated person’s attorney in fact is different than the person’s guardian,
the attorney in fact remains in control unless the trial court” holds a hearing
and orders the guardian to revoke the power of attorney. In re Guardianship of
L.R., 908 N.E.2d 360, 365 (Ind. Ct. App. 2009); see also In re Guardianship of
Shaffer, 711 N.E.2d 37, 41 (Ind. Ct. App. 1999) (“[O]nce a power of attorney is
created, no guardianship can be imposed with regard to matters that are subject
to the power.”), trans. denied.
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[16] Here, the record shows that in 2004, Helen executed a durable power of
attorney appointing Molly and Kevin as her attorneys in fact. This 2004 power
of attorney, which gives Molly and Kevin broad powers with respect to Helen’s
property and health care, is valid.4 As a result, because Helen’s attorneys in fact
(Molly and Kevin) are different than her guardians (Michael, Bridget, Kevin,
and Gabrielle), according to Section 30-5-3-4(b) the attorneys in fact are in
control, and the guardians do not have any power with respect to Helen’s
property and health care. However, it does not appear that the trial court
considered the effect of the power of attorney when it determined that
guardians were necessary. For example, the trial court’s order appointing the
six siblings as co-guardians does not revoke or amend the 2004 power of
attorney, and the trial court appointed Bridget guardian over Helen’s health
care when the 2004 power of attorney gives that authority to Molly and Kevin
and appointed Patrick co-guardian over Helen’s business affairs when the 2004
power of attorney also gives that authority to Molly and Kevin. Accordingly,
we reverse and remand this case for the trial court to determine whether any
guardians are necessary in light of the 2004 power of attorney and, if so, to give
4
In May 2014, a letter was apparently sent to Kevin revoking his power of attorney, and Helen
allegedly executed a new durable power of attorney and health-care appointment naming just Molly as
her attorney in fact. Appellants’ App. p. 15, 37. However, both sides proceed on appeal as if the
2004—and not the 2014— power of attorney controls. See Appellants’ Br. p. 21, Appellees’ Br. p. 18.
In addition, there is no indication in the record that the trial court has revoked or amended the 2004
power of attorney. See Appellants’ App. p. 15 (Finding No. 21: “In March, 2004, Helen executed a
Durable Power of Attorney appointing [Molly and Kevin] as attorneys in fact.”). Indeed, the only
power of attorney included in the record on appeal is the 2004 power of attorney. See id. at 45.
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due consideration to the matters listed in Section 29-3-5-5, including Helen’s
wishes and her existing attorneys in fact (Molly and Kevin).
[17] Affirmed in part and reversed and remanded in part.
Barnes, J., and Mathias, J., concur.
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