in Re Guardianship of Terry L. Gilmer, an Incapacitated Person ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00362-CV
IN RE GUARDIANSHIP OF Terry L. GILMER, Proposed Ward
From the County Court at Law, Kendall County, Texas
Trial Court No. 13-070-PR
Honorable Bill R. Palmer, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: June 10, 2015
REVERSED AND REMANDED
Daniel Gilmer and Sharlene Gilmer Anderson filed an application for the appointment of
a guardian of the person and estate of their mother, Terry L. Gilmer. The trial court appointed an
attorney ad litem to represent Terry in the proceeding, and the attorney ad litem filed a motion in
limine challenging Daniel and Sharlene’s standing on the basis that they have an interest adverse
to Terry. The trial court granted the motion and dismissed Daniel and Sharlene’s application. On
appeal, Daniel and Sharlene contend the trial court erred by: (1) taking judicial notice of the court’s
records in another court proceeding; and (2) concluding they lack standing because they have an
interest adverse to Terry. We reverse the trial court’s order and remand the cause for further
proceedings.
04-14-00362-CV
PROCEDURAL BACKGROUND
A. Application for the Appointment of a Guardian
Daniel and Sharlene filed a verified application for the appointment of a guardian for the
person and estate of Terry in May of 2013. At that time, Terry was 63 years old, and she and her
husband of forty-three years, Michael, were involved in divorce proceedings.
The verified application alleged Terry did not have the capacity to make proper decisions
concerning her living arrangements and her medical treatment. The application referred to specific
occurrences since June of 2012 to support the allegations, including the following:
1. Terry has hoarding tendencies and lacks the ability to provide for
her own hygienic care. For example, she filled the bathroom of her home with used
adult diapers.
2. On July 9, 2012, Terry moved to an assisted living center and was
classified as a level 2 resident on a scale of 1-3, with 3 being the highest level of
care. On July 21, 2012, Daniel received a phone call from the assisted living center
reporting that Terry was inconsolable but would not commit suicide due to her
religious beliefs.
3. On August 15, 2012, Terry voluntarily checked herself into
University Hospital for a psychological evaluation but was determined not to
exhibit an imminent threat to herself or others. The assisted living facility allowed
Terry to return subject to her undergoing a psychiatric evaluation at Laurel Ridge,
a psychiatric hospital, the following week.
4. On August 17, 2012, Laurel Ridge evaluated Terry and did not find
she exhibited an imminent threat to herself and others, but the assisted living facility
only allowed Terry to return based on her agreement to attend continuing outpatient
treatment at Laurel Ridge.
5. On August 23, 2012, Terry disappeared after her outpatient
treatment session. The family located Terry using credit card information and
found her at a hotel which reported Terry had a large diarrhea accident in the
breakfast area, and the person who accompanied her to the hotel had left. Terry
was incoherent when Daniel spoke with her on the phone, and Daniel asked the
hotel employee to call EMS. Terry was transported to Baptist Hospital, and her
primary care physician sent paperwork to have Terry admitted to Laurel Ridge.
The assisted living facility would not allow Terry to return without proper
psychological and medical treatment.
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6. On August 26, 2012, a friend went to visit Terry at Baptist Hospital
and found her walking around naked in her room crying. On August 27, 2012,
Sharlene received a phone call that Terry was refusing all services, and Sharlene
requested they coordinate with Terry’s primary care physician and Laurel Ridge.
On August 31, 2012, Terry was moved to the behavioral health unit of another
hospital after which she began communicating with family and friends. Terry told
Sharlene she needed help.
7. On September 4, 2012, Terry asked Daniel for blank checks when
he visited her at the hospital and was angry when he refused to provide them to her.
Terry’s purse had been lost, and she did not have her identification card or credit
card.
8. On September 6, 2012, Terry’s sister, Linda, arrived at the hospital
and took over Terry’s care. On September 7, 2012, Terry left the hospital with
Linda, and the hospital called the police because Terry still had a peripherally
inserted central catheter (PICC) line in her body. That same day, Sharlene received
a phone call that an employee of Adult Protective Services went to the hospital to
investigate a claim of abuse Terry made against Sharlene, but Terry had left the
hospital. Terry’s brother, Steven Meagher, reported that he spoke with Linda who
informed him Linda and Terry were removing the SIM card from their cell phone
so they could not be tracked, and they would have the PICC line removed at a clinic.
9. On September 12, 2012, Michael filed a missing persons report. The
police located Terry and reported she was in good health. The family subsequently
discovered Terry was with Linda in Arizona. On September 28, 2012, Terry
removed all of the funds from one of her and Michael’s joint bank accounts.
10. On October 2, 2012, Michael filed for divorce. On October 10,
2012, Terry was served with citation. On October 15, 2012, Terry filed a police
report claiming Michael, Daniel, Sharlene and the assisted living center poisoned
her.
11. On December 11, 2012, Terry refused to enter the courtroom during
a hearing on interim spousal support. When Daniel tried to hug Terry, Terry
accused him of trying to murder her.
12. On January 8, 2013, Michael was informed that Terry had filed
insurance claims with their insurance company relating to a stolen Dodge Caravan
and a burglary of their home where Michael was still living. Terry also filed a
police report regarding the burglary. Michael informed the insurance company and
the sheriff that Terry’s report was false. Terry also changed the contact information
at the bank where Terry and Michael had their checking and savings accounts to
Linda’s phone number, email, and address.
13. On April 17, 2013, Terry filed a lis pendens against Daniel’s home,
claiming it was purchased with community property funds. Terry’s attorney in the
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divorce proceeding sent a letter to Michael’s attorney stating Terry was very ill
from renal cysts, which were to be tested for malignancy, and collapsed vertebrae
in her neck. The letter stated Terry was taking pain medication and would not be
able to attend a scheduled deposition. Terry’s attorney included a letter from
Terry’s doctor stating he was in the process of scheduling Terry for cervical spinal
fusion surgery.
In addition to alleging Terry did not have the capacity to make proper decisions regarding
her medical treatment and living arrangements, the application also alleged Terry was unable to
handle her own financial affairs. The application stated Terry was a beneficiary of a trust created
by her mother-in-law called the Nana Seeley Gilmer Trust (“Trust”), and the value of the property
Terry was entitled to receive from the Trust had an approximate value of $1,000,000. 1 The
application further stated Terry had filed a 2012 income tax return stating she was single and
earned $57,000 in income.
In the application, neither Daniel nor Sharlene requested to be appointed as guardian.
Instead, they requested the appointment of a qualified and suitable individual or institution as
guardian. After the application was filed, the trial court immediately appointed an attorney ad
litem, who filed an answer generally denying the allegations.
B. Motion to Undergo an Independent Mental Examination
In July of 2013, Daniel and Sharlene filed a motion for Terry to undergo an independent
mental examination. The trial court held a hearing and verbally granted the motion on October
21, 2013; 2 however, the trial court did not sign the written order until February 6, 2014. The
written order required a “supplemental” forensic medical examination to be completed by March
6, 2014. The use of the term “supplemental” is an apparent reference to a prior examination Terry
1
The Trust terminated when Terry’s mother-in-law passed away on July 21, 2012; however, no distributions from the
Trust have been made.
2
No reporter’s record from this hearing is included in the appellate record.
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underwent in connection with the divorce proceeding. 3 The report produced as a result of that
examination stated the doctor had not reviewed “any substantive collection of medical records”
but relied on Terry’s self-reporting. Even with those limitations, the report concluded Terry will
“need the assistance of a neutral party to help manage her estate in her best interests.”
On February 27, 2014, Terry’s attorney ad litem filed a motion in limine challenging Daniel
and Sharlene’s standing. The motion quotes excerpts from emails and a recorded telephone
conversation and asserts Sharlene is antagonistic toward Terry and both Daniel and Sharlene seek
to preserve the Trust’s funds for their own benefit. The motion asserts Daniel and Sharlene have
a financial interest in Terry’s assets that is adverse to Terry.
C. Evidentiary Hearing before the Trial Court
The trial court held an evidentiary hearing on the motion in limine on April 1, 2014. Daniel,
Sharlene, and Terry’s brother Steven testified at the hearing. In addition, several emails and the
recorded phone conversation referenced in the motion in limine were introduced into evidence.
As will be explained later in this opinion, this court must conduct a de novo review of the trial
court’s ruling. For this reason, the evidence presented at the hearing is set forth in great detail.
1. Exchanges between the Parties
a) January 8, 2013 Daniel Email to Steven
In January of 2013, Daniel sent Steven an email informing him about the changes Linda
and her mother had made to the joint bank accounts owned by his parents. Daniel attached to the
email the notice his father had received from the bank about the changes including the change to
Linda’s email address. Daniel also informed Steven about the reported burglary, and that he had
received a phone call from the police because his mother reported he had stolen things from his
3
The trial judge presiding over the guardianship proceeding is the same trial judge who ordered the examination in
the divorce proceeding and to whom the doctor addressed his report.
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parent’s house. Daniel attached the claim overview the insurance company sent his father. Daniel
stated he was to the point of considering legal action against his mother and Linda because “there
is only so much that I can be understanding before I need to protect myself and people I love.”
Daniel believed his father had held his mother in check for years but also believed his mother
would continue down a path of hate since she left his father.
b) March 14, 2013 Telephone Conversation between Daniel and Steven
In a recorded telephone conversation from March 14, 2013, Daniel told Steven even if his
parents get divorced, Linda needs to go home because she was destroying their family. Daniel
told Steven that his father was horrified by what was happening. Daniel also was horrified that his
mother was willing to trade her children and grandchildren for Linda, who his mother had called
crazy her entire life. Daniel wondered what influence Linda had over his mother. Daniel stated
his mother needed help, and he had moved from Utah to Texas to help her. Daniel informed Steven
his mother had an addiction to pain medication a few years earlier and stressed she needed to see
doctors and get situated with her medication. Daniel was calling Steven to let him know what to
expect because they would be fighting back really soon. They were trying to carry his dad through
the situation. In an effort to figure “this thing out,” Daniel informed Steven that his dad was taking
the lead on the divorce, and Daniel and Sharlene were taking the lead on the “‘undue influence’
against Linda.” Daniel stressed the Trust funds should not be going to the Meagher family. When
Steven interjected a question as to whether the assets would be going to Terry, Daniel asserted
everything that goes to his mother will go to Linda because Linda had “full medical and power of
attorney” authority and was signing all of his mother’s checks. Daniel stated Linda needed to go
home so he could have direct communication with his mother so they “can start figuring this out.
We cannot figure this out because we are being blocked left and right because of Linda.” Daniel
told Steven about his mother accusing his father of poisoning her with radiation. Daniel was
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“scared” for his mother and could not sit back any longer. Daniel stressed his plan was to proceed
with an undue influence claim against Linda which had nothing to do with his parent’s divorce.
In response to Steven’s question about what would happen to Terry if Linda left, Daniel stated he
had doctors lined up for his mother, including nutritionists and physical therapists. Daniel
expressed concern that Linda would receive all of his paternal grandmother’s “stuff” including any
family heirlooms his mother would receive. Daniel expressed his desire to meet with his mother
and find out if she actually believed her accusations. Daniel stressed they needed to “move against
Linda, to basically help my Mother. And if my Mother doesn’t want that, that’s what we need to
know.”
c) March 14, 2013 Daniel Email to Terry’s Attorney
On the same day as this phone conversation, Daniel sent an email to Terry’s attorney in the
divorce proceeding, stating he did not believe his mother was in control of her actions but was
being influenced by Linda. Daniel stated he was unable to have direct contact with his mother and
was sad and fearful of the situation because he was unable to talk to his mother without Linda
monitoring the communication. Daniel asked the attorney to tell his mother that he was concerned
about her well-being and was always willing to help her in any way he could. The attorney
responded that she would give Daniel’s message to Terry.
d) March 26, 2013 Daniel Email to Terry’s Attorney
Daniel sent a second email to Terry’s attorney on March 26, 2013, noting talks between
his parents had “broken down.” Daniel asked the attorney to tell his mother that he wanted to talk
to her because her family and friends were “all worried about her situation and [their] lack of
knowledge of what [was] going on in her life.” Daniel expressed concern that Linda was
controlling his mother and wanted his mother to know he would support her. Daniel stated, “I am,
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and will always be her only son and it pains me what has happened and is still happening with my
Mother.”
e) March 27, 2013 Daniel Email to Terry’s Attorney
On March 27, 2013, Daniel sent a third email to Terry’s attorney, thanking her for her
efforts and sharing the content of a text message he received from his mother. The message stated
for Daniel and Sharlene to stop the untrue emails to her attorney. The message stated Daniel and
Sharlene were no longer part of her life, asserting, “How many ways will it take for you to realize
you have been disinherited and have no power over me any more [sic].” In his email to the
attorney, Daniel made a formal request for a meeting with his mother, offering to bring a sheriff,
her brother, and any of her hundred family friends with him; however, Daniel emphasized Linda
was not invited to the meeting. Daniel expressed four reasons for the meeting: (1) to know his
mother is the one disinheriting her children and grandchildren; (2) to understand what he had done
to deserve “this” after moving his family to Texas to help her; (3) to ask her the reasons she is
doing these and other actions against our family and friends; and (4) to tell him in person that she
wants him to stop being her only son.
f) March 27, 2013 Daniel Email to Steven
Daniel also sent a follow-up email to Steven sharing the content of the text message from
his mother. Daniel stated Linda is an evil person and needed to leave his family alone. Daniel
stated he loved his mother and the situation was getting out of control. Daniel offered to buy
Steven a plane ticket to Texas to come and help “fix this.” Daniel refused to believe his mother
had sent the text message, stating, “she would never be this low to me and my family.”
g) March 27, 2013 Sharlene Email to Steven
Sharlene also sent an email directed to Steven in response to her mother’s text message,
stating she no longer desired to have her mother back in her life and describing Linda and her
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mother as “the most evil, greedy, manipulative people I’ve ever dealt with.” Sharlene expressed
that Linda and her mother were creating a world of lies and deceit and “are laying in the filth they
created and chose for themselves.” Sharlene expressed anger that Daniel was getting rebukes and
threats for his effort to reach out to their mother. Sharlene stated Linda was using Terry for her
money, and Terry was using Linda for “validation of her own selfish desires.”
h) March 30, 2013 Terry’s Attorney Email to Daniel
On March 30, 2013, Terry’s attorney emailed Daniel informing him she forwarded his
email requesting a meeting to Terry, and Terry asked the attorney to respond. The attorney stated
Terry was safe and was addressing her medical needs. Although Terry loved Daniel and Sharlene,
she did not want any further contact until the divorce was finalized. Terry was upset that they
were writing her off as mentally ill and willing to institutionalize her instead of recognizing she
had medical issues. Terry voluntarily left the hospital with Linda because she was informed she
would be “going to a lock down unit in a nursing facility, upon her release.” Terry believed the
motivation was money.
i) Daniel Response to Terry’s Attorney’s Email of March 30, 2013
Daniel responded to the attorney’s email stating the problem was a lack of communication.
Daniel wanted the opportunity to talk to his mother, to answer her questions, and to obtain her
answers to his questions. With regard to the money, Daniel stated he loved his paternal
grandmother, and her estate was created for her children, grandchildren, and great grandchildren.
Daniel stressed, “Its [sic] not about money its [sic] about family priorities.” Daniel stated he
moved his family to Texas “to help figure this out with my mother,” and that is why he wanted to
talk to her.
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2. Steven Testimony
In addition to identifying several of the foregoing exhibits at the hearing, Steven testified
he first started to hear about the guardianship matter in 2012, when he spoke with Terry by
telephone and she told him a guardianship was being pursued. When questioned about his reason
for recording the telephone conversation with Daniel, Steven stated he felt the need to protect his
family from bodily harm given the reports of his sisters being poisoned. Although he had not been
threatened, his sisters were planning to visit him, and Steven was concerned his family would be
in danger because his sisters had been poisoned. Steven was willing to serve as Terry’s guardian
if the trial court decided to appoint a guardian and had contacted a lawyer to learn his
responsibilities in that regard. Based on the emails he received, Steven testified he believed Daniel
and Sharlene were making a claim against Terry’s assets.
3. Daniel Testimony
Daniel testified the guardianship application was filed because they were concerned for
their mother’s safety. Daniel testified the concern began when Terry left Michael in June of 2012.
Based on this concern, Daniel moved his family from Utah, where he had lived for approximately
fifteen years, to Texas. Daniel testified about the numerous police reports his mother had filed,
and about the lis pendens filed against his home even though he paid for his own house. Daniel
was in fear for his mother because her reality was based on what Linda was telling her. Daniel did
not have any claims against his mother’s property and testified he was not a beneficiary of the
Trust. Daniel was unaware Steven had recorded their phone call and had reached out to him in an
attempt to obtain help from his mother’s side of the family, the Meaghers. Daniel’s
communication with Steven was “one directional” because Steven kept stating he was too far away
to help and was not financially able to help if Linda and Terry wanted to move to Washington.
Daniel applied for the guardianship because he was in fear for his mother and wanted to make sure
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she was in a good medical situation. A voicemail Daniel received from his mother in August of
2012 pleading for his help was played for the trial court. Daniel testified he received the voicemail
a few days before an incident at a hotel where his mother was found dehydrated with diarrhea.
Daniel did not want to be appointed as guardian but wanted a competent third party to be
appointed as guardian to handle his mother’s finances. Daniel stated he was not a doctor and
wanted competent people to watch over his mother. With regard to the statements he made in the
emails about the Trust, Daniel explained he believed his paternal grandmother wanted her money
to go to the Gilmer side of the family, which included his mother, not his mother’s side of the
family, the Meaghers. Daniel explained the Meaghers disliked the Gilmers because of their
religion, and he did not know any of the Meaghers. When his maternal grandmother died, food
providers discovered her dead in her home in Arizona, and Daniel testified his mother was
currently staying in a tent outside that home.
4. Sharlene Testimony
Sharlene testified she wrote the email calling her mother evil when she was really angry at
all of the accusations her mother had made against her father and brother. Sharlene testified her
mother needed a guardian for her estate because Linda was taking over and making decisions that
were not in her mother’s best interest, including incurring debt in her mother’s name. Sharlene
was concerned Linda would have access to the Trust assets her mother received because their bank
accounts were commingled. Sharlene described her mother’s history with drug abuse and
addiction and stated her mother has had “deep medical issues for at least 20 years.” Sharlene stated
her mother was a hoarder and would fill the bathrooms in their home with hundreds and hundreds
of water bottles. When Sharlene last visited her mother in June of 2012, before her mother left her
father, her mother had filled bathrooms full of her used adult diapers.
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Like her brother, Sharlene also did not want to be appointed as guardian but wanted a bank
to be appointed to manage her mother’s assets. In response to whether she favored her father over
her mother in the divorce action, Sharlene stated she was not involved in the divorce action.
Sharlene stated she did not have any beneficial interest in any of her mother’s property or in any
of her mother’s Trust distributions. Sharlene wanted her mother to be in a safe place where she
could get healthy. Sharlene was grateful her mother would receive the Trust money because her
mother’s medical care would be expensive, and the Trust would give her the resources to pay for
it. Sharlene wanted a team of medical professionals to decide the best place for her mother to live,
noting the assisted living facility had been unable to care for her.
At the conclusion of the hearing, the trial court announced its finding that Daniel and
Sharlene had an interest adverse to Terry and dismissed their application. Daniel and Sharlene
timely appealed.
JUDICIAL NOTICE
Daniel and Sharlene assert the trial court erred in taking judicial notice of the records from
the divorce proceeding pending between their parents. Specifically, Daniel and Sharlene contend
the trial court could not take judicial notice of the records without giving them prior notice of its
intent, and they did not discover the trial court took judicial notice of the records until they received
the trial court’s findings of fact and conclusions of law which were signed approximately one and
a half months after the hearing on the motion in limine. 4
A trial court may take judicial notice sua sponte; however, if the court takes judicial notice
before notifying a party, the party, on request, is still entitled to be heard. TEX. R. EVID. 201(c)(1),
(e); In re C.L., 304 S.W.3d 512, 515 (Tex. App.—Waco 2009, no pet.). In this case, Daniel and
4
The trial court held the hearing on April 1, 2014, and signed the order granting the motion on April 29, 2014. The
trial court signed the findings of fact and conclusions of law on June 18, 2014.
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Sharlene were not notified before the trial court took judicial notice and filed an objection to the
use of judicial notice approximately one week after the trial court signed the findings of fact and
conclusions of law.
In its findings of fact and conclusions of law, the trial court took judicial notice that Daniel
filed a motion in the pending divorce proceeding to expunge a lis pendens Terry filed. Even if we
assume the trial court erred in taking judicial notice of this filing, Daniel and Sharlene have not
shown how they were harmed by the trial court’s action. See TEX. R. APP. P. 44.1. Both Daniel
and Sharlene testified Terry filed the lis pendens which was expunged after Daniel filed his motion.
Accordingly, the trial court’s judicial notice was cumulative of evidence that was properly
admitted, making any error in the taking of judicial notice harmless. See Nissan Motor Co. Ltd. v.
Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (“Clearly, erroneous admission is harmless if it is
merely cumulative.”).
STANDARD FOR DETERMINING STANDING
V. STANDARD TO QUALIFY FOR APPOINTMENT
In its conclusions of law, the trial court refers to section 1104.354 of the Texas Estates
Code, which contains the standard for determining whether a person is qualified to be appointed
as a guardian. For example, under section 1104.354(1) of the Estates Code, a person may not be
appointed guardian if the person’s parent is a party to a lawsuit concerning or affecting the welfare
of the proposed ward unless the trial court makes requisite additional findings. TEX. ESTATES
CODE ANN. § 1104.354(1) (West 2014). In this case, the trial court cited section 1104.354(1) as
support for its conclusion that Daniel and Sharlene did not have standing because their father,
Michael, was a party to a pending divorce proceeding that concerned or affected Terry’s welfare.
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A. Standard of Review
A trial court’s conclusions of law present a legal question that we review de novo. BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). An erroneous conclusion of
law does not require reversal if the trial court rendered the proper judgment. Id.
B. Analysis
The standard for determining a person’s standing to file a guardianship application under
section 1055.001(b)(1) is distinct from the standard for determining whether a person is
disqualified from being appointed as guardian under section 1104.354. Compare TEX. ESTATES
CODE ANN. § 1055.001(b)(1) (West 2014) 5 with TEX. ESTATES CODE ANN. § 1104.354 (West
2014) 6. The standards are different because standing under section 1055.001(b)(1) is a threshold
requirement that must be met to simply proceed with an application which is unlike the merits-
based determination of which person should be appointed as guardian. A good example of these
differences arises in regard to the issue of debt. A person who is indebted to the proposed ward is
disqualified from serving as guardian unless the debt is paid before the appointment; however,
being indebted to the proposed ward does not automatically deprive a person of standing to apply
for a guardianship. In re Guardianship of Miller, 299 S.W.3d 179, 188–89 (Tex. App.—Dallas
2009, no pet.); Betts v. Brown, No. 14-99-00619-CV, 2001 WL 40337, at *4 n.2 (Tex. App.—
Houston [14th Dist.] Jan. 18, 2001, no pet.) (not designated for publication). Although there may
be instances in which evidence supporting disqualification under section 1104.354 also would
support a finding of an adverse interest under section 1055.001(b)(1), we disagree that a person
5
Section 1055.001(b)(1) states: “A person who has an interest that is adverse to a proposed ward or incapacitated
person may not file an application to create a guardianship for the proposed ward or incapacitated person.” Id.
6
Section 1104.354 prevents a person from being appointed guardian if the person: (1) “is a party or is a person whose
parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward, unless the court” makes two
specific, requisite findings; (2) “is indebted to the proposed ward, unless the person pays the debt before appointment;”
or (3) “asserts a claim adverse to the proposed ward or the proposed ward’s property.” Id.
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whose parents are parties to a divorce proceeding will always lack standing under section
1055.001(b)(1) to apply for a guardianship to be created for one of his or her parents. Therefore,
to the extent the trial court’s conclusion that Daniel and Sharlene lack standing is based on the
pendency of the divorce proceeding between their parents, we hold the trial court’s conclusion is
erroneous. As previously noted, however, the trial court’s erroneous conclusion will not require
reversal if the trial court’s conclusion that Daniel and Sharlene lack standing is supported on a
proper basis.
STANDING
The trial court’s order states Daniel and Sharlene lack standing under section
1055.001(b)(1) of the Texas Estates Code because they have an interest that is adverse to Terry.
Daniel and Sharlene assert the evidence is insufficient to support the trial court’s findings. Even
if the evidence is sufficient to support the findings, Daniel and Sharlene further assert the findings
do not support the trial court’s conclusion that they have an adverse interest under section
1055.001(b)(1).
A. Standard of Review
“A person who has an interest adverse to a proposed ward or incapacitated person may not
file an application to create a guardianship for the proposed ward or incapacitated person.” TEX.
ESTATES CODE ANN. § 1055.001(b)(1) (West 2014). The trial court must “determine by motion in
limine the standing of a person who has an interest that is adverse to a proposed ward or
incapacitated person.” Id. at § 1055.001(c). Whether a person has standing to file an application
to create a guardianship is a question of law which we review de novo. In re Guardianship of
Benavides, No. 04-13-00197-CV, 2014 WL 667525, at *1 (Tex. App.—San Antonio Feb. 19,
2014, pet. denied) (mem. op.); In re Guardianship of Miller, 299 S.W.3d at 188.
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B. Definition of Adverse Interest
As previously noted, a person lacks standing to file an application to create a guardianship
if the person has an interest that is adverse to the proposed ward. TEX. ESTATES CODE ANN.
§ 1055.001(b). The Estates Code does not define what constitutes an interest adverse to the
proposed ward. In re Guardianship of Miller, 299 S.W.3d at 189. Therefore, we must look to
appellate court decisions addressing standing challenges to formulate an understanding of how the
term has been applied in different contexts.
In Allison v. Walvoord, 819 S.W.2d 624, 625 (Tex. App.—El Paso 1991, orig. proceeding
[leave denied]), the wife of a proposed ward filed an application for the appointment of a limited
guardian for her husband. The plaintiffs in two pending lawsuits against the proposed ward sought
to contest the application, but the wife challenged the plaintiffs’ standing. Id. The trial court found
the plaintiffs had standing, and the wife filed a mandamus petition seeking to have the trial court’s
order vacated. Id.
The El Paso court held the plaintiffs were not interested in the welfare of the proposed
ward. Id. at 626. The court noted the plaintiffs’ interest was in obtaining a substantial judgment
against the proposed ward “which could only adversely affect his welfare.” Id. Because the
plaintiffs were not interested in protecting the proposed ward’s well-being, the El Paso court held
the plaintiffs lacked standing. Id. at 627.
In Betts v. Brown, the Houston court generally defined an adverse interest as an interest
that does not promote the well-being of the ward or an interest that adversely affects the proposed
ward’s welfare. 2001 WL 40337, at *4. After stating this broad definition, the Houston court then
examined the trial court’s finding that an applicant, Bonnie Jackson Brown, lacked standing to file
an application for a guardianship because she had an adverse interest to the proposed ward based
on the manner in which she had handled the proposed ward’s bank account. Id. Specifically, the
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court noted Brown was unable to account for checks written to Cash by fully explaining the
expenditures or producing receipts. Id. The court also noted Brown paid her own legal fees from
the proposed ward’s bank account. Id. Noting that the trial court’s findings might disqualify
Brown from being appointed as guardian, the Houston court asserted it could not conclude
Brown’s interest “so adversely affected the well-being of the ward as to deny her standing.” Id.
Distinguishing Allison, the court noted,
Unlike the contestants to the guardianship proceeding in Allison, whose sole
interest in contesting the guardianship was against the well-being of the proposed
ward, it cannot be said that Brown was not concerned with Jackson’s well-being.
The record reflects that prior to the initiation of these guardianship proceedings,
Brown in fact did care for Jackson. Jackson stayed with Brown, Brown took
Jackson to her doctor’s appointments, and Brown actively sought out residential
facilities that could care for Jackson. Brown’s interest did not rise to such a level
as to be against the well-being of Jackson.
Id. Based on the foregoing, the Houston court held the trial court erred in finding that Brown
lacked standing. Id.
C. Analysis
In this case, the trial court based its conclusion that Daniel and Sharlene have an adverse
interest on findings that they supported their father in the divorce proceedings and wanted to “make
sure Terry Gilmer’s trust money remains with the Gilmer family.” Although there is some
evidence to support these findings, we must determine whether these findings establish that Daniel
and Sharlene had an interest that rose “to such a level as to be against [Terry’s] well-being.” Id.
Although Daniel stated they were helping their father deal with the emotional trauma of
the divorce, the evidence also showed the actions Daniel had taken in his effort to support his
mother, including moving his family from Utah to Texas to help his mother. Daniel was concerned
that his mother’s reality was off, using Terry’s reporting that Michael was poisoning her with
uranium as an example. After describing his mother’s voicemail pleading for his help, Daniel
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testified that he feared for his mother’s health and safety. Daniel stated he wanted competent
people to watch over his mother’s health. Similarly, Sharlene testified she wanted her mother safe
and to understand her family loves her and is not trying to kill her. Sharlene explained they had
received reports that their mother had been falling and had renal failure. Sharlene testified she
wanted a team of competent medical professionals to determine a safe place for Terry to live.
With regard to the Trust, Sharlene testified about her concern that Linda was manipulating
her mother. For example, Sharlene stated her mother’s name had been added to one of Linda’s
credit cards with $30,000 in debt. Sharlene explained Linda was on all of her mother’s bank
accounts, and any money her mother received would be deposited into these commingled accounts.
Although Daniel and Sharlene expressed concerns about the manner in which their mother might
spend the Trust money, neither Daniel nor Sharlene were trustees of the Trust or controlled the
Trust’s assets. In addition, neither Daniel nor Sharlene sought to be appointed as the guardian, but
wanted an independent third party appointed as guardian who would be able to develop the best
plan to manage their mother’s assets. Finally, as previously noted, Daniel and Sharlene were aware
of a doctor’s report opining that their mother needed the assistance of a neutral party to help
manage her estate.
After reviewing the entire record and considering the issue of standing under our de novo
standard of review, we hold the trial court’s findings do not support its conclusion that Daniel and
Sharlene lack standing. Although the evidence showed that Daniel and Sharlene expressed an
interest in their father’s emotional well-being and in their mother’s ability to manage the assets
she would receive from the Trust, the evidence did not show that those interests were sufficient to
establish a lack of standing by rising “to such a level as to be against [Terry’s] well-being.” Id.;
see also In re Guardianship of Parker, 275 S.W.3d 623, 632 (Tex. App.—Amarillo 2008, no pet.)
(holding evidence that guardianship applicant’s son believed his mother was concerned about
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future inheritance from her mother’s (the proposed ward’s) trust was insufficient to support a
finding of adverse interest).
The only other finding the trial court made to support its conclusion was that Daniel filed
a motion in the divorce proceeding to expunge the lis pendens Terry filed against his home. This
court has held that a person who is suing a proposed ward or incapacitated person has an interest
adverse to the proposed ward or incapacitated person. In re Guardianship of Benavides, 2014 WL
667525, at *1; In re Guardianship of Valdez, No. 04–07–00712–CV, 2008 WL 2332006, at *2
(Tex. App.—San Antonio June 4, 2008, pet. denied) (mem. op.). In this case, however, the
evidence established that the motion to expunge was granted, and Daniel no longer has any pending
claim against Terry. Therefore, unlike the cited cases, Daniel is not “suing” Terry because he is
not currently involved in litigation against her.
CONCLUSION
The trial court erred in concluding Daniel and Sharlene lacked standing to file an
application seeking the appointment of a third person as the guardian of the estate and person of
their mother. Therefore, we reverse the trial court’s order granting the motion in limine and
dismissing the application for the creation of a guardianship.
Patricia O. Alvarez, Justice
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