In re Guardianship of Glasgow

[Cite as In re Guardianship of Glasgow, 2022-Ohio-1366.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
IN THE MATTER OF THE :
GUARDIANSHIP OF:
: CASE NO. CA2021-08-074
MARY ANN GLASGOW
: OPINION
4/25/2022
:
:
:
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. 20202098
Dearie, Fischer & Mathews, LLC, and John A. Fischer, for appellant.
Young & Alexander Co., LPA, and Anthony V. Graber & Eli T. Sperry, for appellee.
HENDRICKSON, J.
{¶1} Appellant, Mary Ann Glasgow, appeals a decision of the Warren County Court
of Common Pleas, Probate Division, finding her incompetent and appointing appellee, Eli
T. Sperry, as guardian of her person and estate. For the reasons that follow, we affirm the
probate court's decision.
{¶2} Glasgow is an 86-year-old woman who has been residing at Cedar Village, a
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nursing home in Warren County, Ohio since February 2019, following diabetes
complications that led to the amputation of her toes. Prior to March 2019, Glasgow resided
at her home in Amberly Village, Ohio. Once she moved into the nursing home, Glasgow,
with the assistance of friends, arranged for autopay of her home's utilities and for the
boarding of her cats. Glasgow believed insurance should pay for her stay at Cedar Village
and she was unwilling to cooperate in the Medicaid application process when insurance
would not cover the cost. Glasgow has an unpaid balance of over $315,000 for her stay in
the nursing home.
{¶3} On November 16, 2020, Sperry, an attorney, filed an application with the
probate court for appointment as guardian of Glasgow's person and estate. Sperry
contended Glasgow was incompetent by reason of a "neurocognitive disorder and
psychosis NOS." The application was accompanied by a statement of expert evaluation
prepared by Dr. Kara Marciani, a licensed clinical psychologist and board-certified forensic
psychologist. After meeting with Glasgow for one hour and fifteen minutes, speaking with
some of the nurses who provided care to Glasgow at the nursing home, and reviewing
medical records related to Glasgow's physical therapy plan of care, progress notes from
Glasgow's treating physician at the Neuropsych Center of Greater Cincinnati, history and
physical examination reports from a physician from Bethesda North Hospital who treated
Glasgow, and Glasgow's chart from Cedar Village, Dr. Marciani determined Glasgow was
mentally impaired as a result of dementia and mental illness. Dr. Marciani noted Glasgow
had been diagnosed with psychosis NOS and was receiving treatment for delusions.
Glasgow exhibited disorganized and tangential thought processes, interacted in a guarded,
suspicious, and paranoid manner, presented with deficits in memory and executive
functioning, and exhibited impaired orientation, motor behavior, thought processes,
memory, concentration, comprehension, and judgment. Dr. Marciani noted that Glasgow
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was also physically impaired, as she was bed-bound following the amputation of her toes.
Glasgow grossly minimalized the severity of her deficits, insisting that she could care for
herself and refusing assistance offered to meet her basic needs. Dr. Marciani opined that
Glasgow's conditions were stabilized at the nursing home but were not reversible. The
doctor recommended that a guardian be appointed for Glasgow's person and estate, as
Glasgow was physically unable to care for her basic needs, unable to appropriately identify,
prioritize, or develop a plan to meet her needs, unable to independently make decisions
concerning medical treatment and her diet, and unable to apply reason to the decision-
making process as it related to the management of her finances.
{¶4} The probate court appointed Jamie Carr to investigate the need for a
guardian. Carr evaluated Glasgow in December 2020 and filed an investigator's report with
the court on December 29, 2020. Carr's report indicated Glasgow had impairments in
orientation, thought process, memory, judgment, concentration, and comprehension. Carr
noted that "Glasgow does not appear to understand her medical conditions and abilities."
Carr also noted that due to Glasgow's physical impairments, Glasgow was incapable of
dressing, transferring from her bed, toileting, handling personal finances, shopping, driving,
preparing a meal, doing housework, or taking her medications without assistance. Carr
opined that Glasgow was "totally dependen[t]" on others for nearly everything except
feeding herself. Carr recommended the appointment of a guardian for Glasgow's person
and estate.
{¶5} Glasgow, through counsel, sought an independent medical examination. Dr.
Marvin D. Reed, a clinical psychologist, was appointed by the probate court. On June 15,
2021, Dr. Reed met with and tested Glasgow for four hours. He also spent more than three
hours reviewing records of Glasgow's case history, including records from the probate court
and medical records from Cedar Village. Dr. Reed conducted a mental status exam, the
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Short Blessed Test, the St. Louis University Mental Status Exam, Rey Memory Tests, the
Subtests of the Wechsler Abbreviated Scale of Intelligence (WASI-II) and observed
impairment to Glasgow's motor behavior, thought process, affect, memory, judgment,
concentration, and comprehension. From his testing and observations, Dr. Reed found that
Glasgow was mentally impaired as a result of moderate dementia and mental illness,
specifically mixed-type delusional disorder. Glasgow was also physically impaired,
requiring "total care for her activities of daily living due to multiple medical diagnosis." In
Dr. Reed's opinion, Glasgow lacked the "physical mobility to care for her own activities of
daily living" and "lack[ed] the mental decision-making capability and competence to assure
medical treatments, diet and daily living." Dr. Reed noted that Glasgow's conditions were
not reversible and were not stabilized, as they would worsen as time went on. On June 25,
2021, he filed an expert evaluation with the probate court recommending that a
guardianship be established over Glasgow's person and estate.
{¶6} A hearing on Sperry's application for guardianship was held on July 20, 2021.
At that time, the probate court heard testimony from Dr. Marciani and Dr. Reed, as well as
testimony from Kara Stolly, a social worker at Cedar Village, Wendi Smith, the business
manager at Cedar Village, and from Glasgow. Dr. Reed and Dr. Marciani summarized their
written evaluations, which were admitted into evidence. Both doctors testified that to a
reasonable degree of medical certainty, Glasgow was incompetent and in need of
guardianship for her person and estate as she was unable to care for herself or manage
her finances. When questioned by Glasgow's counsel about whether Glasgow could leave
the nursing home and return to her own home, Dr. Reed indicated it might be possible if
she had a live-in caregiver and accommodations were made to the home to allow for a
wheelchair. Dr. Marciani disagreed, stating that Glasgow required intensive, hands-on care
beyond that which a traditional live-in caregiver could give. She noted that Glasgow needed
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"manual intervention and machines to help her function" and that staff at the nursing home
had to use a lift to transfer Glasgow from her bed into the wheelchair.
{¶7} Dr. Marciani testified that in addition to conducting her December 2019
evaluation of Glasgow, she met with Glasgow a second time for approximately one hour on
July 15, 2021, less than a week before the final hearing. Although Glasgow refused to
cooperate with testing during both visits, Dr. Marciani was able to observe Glasgow's
physical and mental impairments. Not only was Glasgow unable to walk on her own, cook,
clean, toilet herself, reposition herself to avoid bedsores, or bathe herself, but she was also
not capable of making decisions concerning her medical needs or finances. Dr. Marciani
opined that Glasgow lacked insight into the nature and severity of her physical and cognitive
defects and her decision-making abilities were substantially impaired by her inability to
appropriately identify her needs or execute plans to meet those needs. Dr. Marciani noted
that although Glasgow had lost her toes because she had not been properly managing her
diabetes, she continued to refuse to take insulin and other medications designed to treat
her diabetes and keep her healthy.
{¶8} Stolly testified that Glasgow was unable to handle daily living activities, other
than feeding herself, and Glasgow's needs were met by nursing home staff. Stolly
described an incident that had recently occurred, where Glasgow had tried to discharge
herself from the nursing home. Glasgow had a friend come to the nursing home to take her
away, but Glasgow was unable to transfer herself from her wheelchair into the friend's
vehicle. An ambulance had to be called to transport Glasgow to a nearby hospital after she
refused to return to Cedar Village. Stolly testified Glasgow would benefit from the
appointment of a guardian to help manage her finances and assist with decision-making.
Stolly expressed concern that Glasgow would try to return to her home and care for herself,
something Stolly believed Glasgow was unable to do. She stated that if Glasgow were
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permitted to return home, she expected Glasgow to "very quickly" end up back in the
hospital.
{¶9} Smith testified that Glasgow has been staying at Cedar Village since February
2019. Glasgow's insurance did not cover her stay at Cedar Village, a fact that had been
shared with Glasgow a number of times. Smith made multiple requests that Glasgow sign
a Medicaid application so that payment through Medicaid could be sought, but Glasgow
refused to cooperate. As of the date of the hearing, Glasgow had an outstanding balance
at Cedar Village of $315,646.25.
{¶10} Glasgow testified that no one from Cedar Village, including Smith, had talked
to her about the outstanding balance she owed at the nursing home. Rather, when she
questioned staff members about how her stay was being paid for, she claims she was told
that her insurance was covering everything. Glasgow denied that a guardianship was
needed, contending that she was able to manage her financial affairs. She believed that
the medical practitioners, nursing home staff, and Sperry were "in cahoots" with one another
to act against her. She also believed she was physically capable of caring for herself in her
own home and noted that for the past two years she had maintained her Amberly Village
home by setting her bills up on autopay and by having friends check on the house.
{¶11} After hearing the foregoing testimony and considering the experts' evaluations
of Glasgow, the probate court issued a decision finding Glasgow incompetent and granting
Sperry's guardianship application over Glasgow's person and estate. The court concluded
that "Glasgow is unable to live independently and has no viable plan for her to live in her
residence even with round-the-clock services provided." The court further found that there
was not a less restrictive alternative to guardianship.
{¶12} Glasgow appealed the probate court's decision, raising the following as her
sole assignment of error:
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{¶13} THE TRIAL COURT ERRED BY APPOINTING A GUARDIAN OVER MS.
GLASGOW'S PERSON AND ESTATE.
{¶14} Glasgow contends there was not sufficient evidence introduced at the hearing
to demonstrate that she was incompetent and that a guardianship over her person and
estate was necessary. She further contends that the medical evaluations conducted by Dr.
Reed and Dr. Marciani were not reliable as they were "quick, cursory, and not appropriate
to fully evaluate" her physical or mental condition.
{¶15} R.C. 2111.02(A) provides that "[i]f found necessary, a probate court on its own
motion or on application by any interested party shall appoint, subject to divisions (C) and
(D) of this section and to section 2109.21 and division (B) of section 2111.121 of the
Revised Code, a guardian of the person, the estate, or both, of a minor or incompetent[.]"
An "incompetent" is "[a]ny person who is so mentally impaired, as a result of a mental or
physical illness or disability, as a result of intellectual disability, or as a result of chronic
substance abuse, that the person is incapable of taking proper care of the person's self or
property * * *." R.C. 2111.01(D)(1). The applicant for a guardianship of an alleged
incompetent individual bears the burden of proving incompetency by clear and convincing
evidence. R.C. 2111.02(C)(3). Clear and convincing evidence is "that measure or degree
of proof which is more than a mere 'preponderance of the evidence,' but not to the extent
of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which
will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established." Cross v. Ledford, 161 Ohio St.3d 469 (1954), paragraph three of the
syllabus. When evidence of a less restrictive alternative to guardianship is introduced, the
probate court must consider such evidence. R.C. 2111.02(C)(5). A probate court may deny
guardianship based upon a finding that a less restrictive alternative to guardianship exists.
R.C. 2111.02(C)(6).
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{¶16} "In matters relating to guardianship, the probate court is required to act in the
best interest of the ward." In re Guardianship of Collins, 12th Dist. Warren No. CA2013-08-
072, 2014-Ohio-5750, ¶ 9, citing In re Estate of Bednarczuk, 80 Ohio App.3d 548, 551 (12th
Dist.1992). "When an alleged incompetent objects to the appointment of a guardian, as is
the case here, the probate court must be very cautious in proceeding." Id., citing In re
Guardianship of Corless, 2 Ohio App.3d 92, 94 (12th Dist.1981). A probate court, however,
has broad discretion in appointing guardians and decisions regarding the appointment of a
guardian will not be reversed on appeal absent an abuse of discretion. Id. at ¶ 10; In re
Guardianship of Smith, 12th Dist. Butler No. CA2013-09-165, 2014-Ohio-2119, ¶ 19. An
abuse of discretion connotes more than an error of law or judgment; it implies that the trial
court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983).
{¶17} Following our review of the record, we find Sperry presented clear and
convincing evidence through the testimony of both expert and lay witnesses that Glasgow
is incompetent and cannot take proper care of herself or her property. The evidence shows
that Glasgow is physically impaired, either confined to her bed or a wheelchair, and is wholly
dependent on others for her daily living needs. She cannot cook, clean, toilet herself, bathe
herself, or reposition herself to avoid bedsores. Glasgow is also mentally impaired, as she
suffers from dementia, mixed-type delusional disorder, and psychosis NOS. Both Dr.
Marciani and Dr. Reed testified that Glasgow has impaired motor behavior, thought
processes, memory, judgment, concentration, and comprehension. As a result, Glasgow
lacks the mental decision-making capabilities to manage her finances or ensure her medical
and daily living needs are met. Glasgow's impaired judgment and faulty decision-making
contributed to her diabetes complications and the amputation of her toes. Despite the loss
of her toes, Glasgow continues to refuse to take her insulin and other medications designed
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to keep her healthy. Her impaired judgment and decision-making capabilities also led
Glasgow to be over $315,000 in debt with Cedar Village, as she refuses to cooperate with
nursing-home personnel's requests to complete a Medicaid application.
{¶18} Both Dr. Marciani and Dr. Reed agree that Glasgow's conditions are not
reversible and are likely to worsen as time goes on. Both feel a guardianship of Glasgow's
person and estate is in Glasgow's best interest. Neither are overly optimistic that Glasgow
will be able to live independently or return to her home. Dr. Reed indicated it might be
possible if Glasgow has a live-in caregiver and alterations and accommodations are made
to the home to allow for a wheelchair. Dr. Marciani, however, feels Glasgow requires
intensive, hands-on care that goes beyond what a traditional live-in caregiver could give.
From Glasgow's testimony at the July 20, 2021 hearing, it does not appear that Glasgow
had a realistic plan in place that would allow her to return to her home or pay for in-home
care. Though Glasgow had arranged for the maintenance and care of her home and pets
during her two-year stay at the nursing home by having her pets boarded and her bills put
on autopay, Glasgow admitted her finances had been dwindling. When specifically asked
about arranging for in-home care, Glasgow indicated she intended to ask her family doctor
to write her a prescription for "Care Connection." However, Glasgow continued to maintain
that she could independently live by herself in her home.
{¶19} Accordingly, based on the evidence introduced at the hearing, we find that the
probate court acted within its discretion in concluding that there was not a less restrictive
alternative to guardianship available and that guardianship of Glasgow and her estate was
in Glasgow's best interest. We reject Glasgow's arguments that Dr. Marciani's and Dr.
Reed's evaluations were unreliable, cursory, and inappropriate to fully evaluate her physical
or mental condition. This court previously recognized that "in those cases in which the
application for appointment of a guardian is contested, there should also be, a[t] a minimum,
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one medical examination of the proposed ward conducted by an independent source
appointed by the court. This examination should be thorough, not merely a fifteen minute
examination supplemented by hearsay." In re Guardianship of Corless, 2 Ohio App.3d at
96. This process was followed with the appointment of Dr. Reed, who met with Glasgow
for four hours. During this time, Dr. Reed conducted a variety of tests, including a mental
status exam, a Short Blessed Test, the St. Louis University Mental Status Exam, the Rey
Memory Tests, and the WASI-II tests. In addition to the four hours he spent examining
Glasgow, the doctor spent more than three hours reviewing Glasgow's medical records and
case history. He then spent six hours scoring, interpreting, and writing conclusions based
on Glasgow's test scores. Dr. Reed's evaluation of Glasgow was thorough and reliable and
the probate court was entitled to rely on it in determining whether a guardianship was
necessary and in Glasgow's best interest.
{¶20} The court was also entitled to rely on Dr. Marciani's evaluation of Glasgow.
Prior to writing her written evaluation, Dr. Marciani met with Glasgow for one hour and fifteen
minutes, spoke with nurses who provided care to Glasgow, and reviewed various medical
records and nursing home care charts for Glasgow. Dr. Marciani attempted to conduct
several mental competency tests to supplement the observations she made while talking
with Glasgow, but Glasgow was uncooperative and refused to comply with the tests. Dr.
Marciani met with Glasgow a second time shortly before the July 20, 2021 hearing and
again attempted to conduct mental competency tests on Glasgow, but Glasgow remained
uncooperative. Nonetheless, based on her experience, training, and observations, Dr.
Marciani was able to reach the conclusion that Glasgow was mentally and physically
impaired and in need of a guardianship for her person and estate.
{¶21} The fact that Dr. Marciani was unable to run certain tests on Glasgow was
raised on cross-examination by Glasgow's counsel. The probate court considered Dr.
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Marciani's inability to conduct the tests in determining what weight to assign to her
testimony. The court ultimately found Dr. Marciani's report and testimony about Glasgow's
mental and physical conditions credible and consistent with Dr. Reed's testimony and
report. We find that the probate court did not abuse its discretion in relying on Dr. Marciani's
report and testimony. Such evidence was credible and relevant in determining that Glasgow
was incompetent and a guardianship of her person and estate was necessary. We
therefore overrule Glasgow's sole assignment of error.
{¶22} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.
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