Guardianship: Michelle Steege (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 6, 2017
• Docket: 67A04-1603-GU-466
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 06 2017, 9:05 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANTS PRO SE ATTORNEY FOR APPELLEE Michelle Steege Delbert H. Brewer Speedway, Indiana Greencastle, Indiana Pamela Douglas Muncie, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Guardianship of: April 6, 2017 Phyllis Z. Tucker, Court of Appeals Case No. an incapacitated adult, 67A04-1603-GU-466 Appeal from the Putnam Circuit Michelle Steege and Court Pamela Douglas The Honorable Matthew L. Headley, Judge Appellants-Respondents, Trial Court Cause No. v. 67C01-1507-GU-23

Lynnette Rich, Guardian, Appellee-Petitioner.

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017 Page 1 of 7 Case Summary and Issue [1] In February 2016, the trial court appointed Lynnette Rich guardian of the

person and estate of her mother, Phyllis Tucker. Pamela Douglas, another of

Mrs. Tucker’s daughters, and Michelle Steege, one of Mrs. Tucker’s

granddaughters, appeal the trial court’s appointment of Rich as guardian,

contending she is unqualified. Because Mrs. Tucker passed away while this

appeal was pending rendering the issue raised moot, we dismiss.1

Facts and Procedural History [2] Because of our resolution of this case, we need not delve into the facts in great

detail and provide only a brief synopsis here. Mrs. Tucker has three daughters,

Rich, Douglas, and Suzanne Evans. In 2004, Mrs. Tucker signed a durable

power of attorney and health care power of attorney appointing Rich and Evans

as attorneys in fact. In 2011, Mrs. Tucker signed a new durable power of

attorney naming Rich and one of Rich’s daughters as her attorneys in fact.

[3] In August 2014, Mrs. Tucker moved from her home in Speedway into Rich’s

home in Greencastle. In the spring of 2015, Steege and her family began

residing in Mrs. Tucker’s Speedway home and paying the mortgage under a

renovation and caretaker agreement to improve the home for eventual sale. In

1 The parties have made numerous motions in this appeal which are disposed by separate order issued on this date.

Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017 Page 2 of 7 July 2015, Rich filed a petition seeking to be appointed guardian over Mrs.

Tucker who had been diagnosed with dementia. In August 2015, Steege filed a

motion to intervene in the guardianship due to her interest in the residence. In

November 2015, Douglas filed a counter-petition seeking to be appointed

guardian over Mrs. Tucker’s person and requesting a corporate trust officer be

appointed guardian over Mrs. Tucker’s estate. Following a hearing at which all

parties agreed Mrs. Tucker needed a guardian but could not agree who should

act as guardian, the trial court appointed Rich guardian over the person and

estate of Mrs. Tucker pursuant to Indiana Code section 29-3-5-5(a)(1) which

gives priority to a person designated in a durable power of attorney when

considering who to appoint as a guardian.

[4] Douglas and Steege thereafter initiated this appeal. In its initial iteration, the

appeal challenged the appointment of Rich as guardian of the person and estate

of Mrs. Tucker. In November 2016, Douglas and Steege moved to withdraw

their objection to the appointment of Rich as guardian of Mrs. Tucker’s person,

and proceed only with respect to the appointment of Rich as guardian of her

estate. Then, in December 2016, Rich filed a notice with this court that Mrs.

Tucker had passed away on December 5, 2016. Because of this, we issued an

order for Douglas and Steege to show cause why this appeal should not be

dismissed as moot. Douglas and Steege responded to this order and asked the

appeal be decided on its merits to “correct[ ] a mistake made by the lower Court

when appointing Mrs. Rich as [Mrs. Tucker’s] Guardian [and] change the

ruling [to] appoint a third party to review all of the accounts of Ms. Tucker[.]”

Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017 Page 3 of 7 Appellant’s Response to Show Cause for Appeal Case to Continue Despite

Death of Protected Person at page 5.

Discussion and Decision [5] Guardianship proceedings are guided by statute. If the trial court determines

the individual for whom a guardian is sought is an incapacitated person and the

appointment of a guardian is necessary to provide care and supervision of the

person and/or property of the incapacitated person, the trial court shall appoint

a guardian. Ind. Code § 29-3-5-3(a). The trial court shall appoint as guardian a

qualified person, taking into consideration several factors, including any request

made by the incapacitated person in a durable power of attorney. Ind. Code §

29-3-5-4(1). The trial court shall also consider “[t]he best interest of the

incapacitated person . . . and the property of the incapacitated person . . .,” Ind.

Code § 29-3-5-4(8), and act in that best interest, Ind. Code § 29-3-5-5(b). The

guardian is a fiduciary who must, among other things, protect and preserve the

property of the protected person subject to guardianship and conserve any

property of the protected person in excess of that required for the protected

person’s current needs. Ind. Code § 29-3-8-3(2), (3).

[6] A guardianship terminates upon the death of the protected person. Ind. Code §

29-3-12-1(b)(2); Estate of Prickett v. Womersley, 905 N.E.2d 1008, 1011 (Ind.

2009). When a guardianship terminates for this reason, the powers of the

guardian cease, except for specific actions directed by statute. Ind. Code § 29-3-

12-1(e). The guardian “may pay the expenses of administration that are

Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017 Page 4 of 7 approved by the court and exercise other powers that are necessary to complete

the performance of the guardian’s trust and may deliver the remaining property

for which the guardian is responsible to the protected person’s personal

representative . . . .” Id. With court approval, the guardian may also pay

certain expenses directly. Id. The guardian must also file a written verified

account of the guardian’s administration within thirty days of a guardianship

terminating. Ind. Code § 29-3-9-6(a)(2). In this final accounting, the guardian

is “bound to make full disclosure to the court of his transactions, and the law

requires of him the exercise of the utmost good faith.” Slanter v. Favorite, 107

Ind. 291, 4 N.E. 880, 884 (1886). The trial court must conduct a hearing on

such verified account after giving notice to each person entitled to notice that an

accounting has been filed and the court will act upon it on the date set in the

notice unless written objections are presented to the court. Ind. Code § 29-3-9-

6(d). Among those entitled to notice are adult children of the protected person,

and in the case of a protected person who has died, the personal representative

of the protected person’s estate. Ind. Code § 29-3-9-6(d)(1), (2). When the trial

court is satisfied that the guardian has delivered to the appropriate persons all

property for which the guardian is responsible, the court shall enter an order of

discharge which operates as a release from all duties of the guardian’s office.

Ind. Code § 29-3-9-6(h).

[7] The termination of the authority and responsibility of the guardian “does not

affect the liability of the guardian for prior acts or the obligation to account for

the guardian’s conduct of the guardian’s trust.” Ind. Code § 29-3-12-5.

Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017 Page 5 of 7 However, the trial court’s order of discharge acts as a bar to any suit against the

guardian unless the suit is commenced within one (1) year from the date of the

discharge. Ind. Code § 29-3-9-6(h).

[8] With that statutory framework in mind, we turn to this appeal. Douglas and

Steege appeal the Order on Permanent Guardianship. In that order, the trial

court appointed Rich, who had been named as Mrs. Tucker’s attorney in fact in

two successive durable power of attorney documents, as guardian over the

person and estate of Mrs. Tucker. The trial court did so after a hearing at which

Douglas and Steege presented their case for why they believed Rich was an

inappropriate person to be named guardian, primarily objecting to how Rich

had used Mrs. Tucker’s monthly income. Therefore, on appeal, Douglas and

Steege raised the sole issue of whether the trial court abused its discretion in

appointing Rich as guardian because she was not qualified and would not act in

Mrs. Tucker’s best interests.2

[9] When Mrs. Tucker passed away, the guardianship terminated and Rich’s

authority as guardian ceased except for the limited powers she is granted by

statute to wrap up the administration of the guardianship with the approval of

the court. The issue raised by Douglas and Steege is therefore moot. See In re

Commitment of J.M., 62 N.E.3d 1208, 1210 (Ind. Ct. App. 2016) (noting an issue

2 All trial court orders in a guardianship proceeding are in the discretion of the court. Ind. Code § 29-3-2- 4(a). Any other relief requested by Douglas and Steege in their brief is beyond the scope of appellate review. See Brief of Appellant (Corrected) at 36-43 (“Requests for Orders”).

Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017 Page 6 of 7 is moot when the court is unable to render effective relief to the parties). Issues

related to events occurring after the trial court’s order appointing Rich are not

properly before this court at this time. Rich will be required to file a final

accounting with the trial court before she may be discharged, and Douglas is

statutorily entitled to notice when that accounting is filed. Douglas will have

an opportunity to file written objections to the accounting at that time if she

believes it shows misconduct or has been fraudulently compiled. Only after the

trial court receives the final accounting and issues an order discharging Rich

will there be a final order regarding the conduct of the administration of Mrs.

Tucker’s estate.

Conclusion [10] The guardianship terminated upon Mrs. Tucker’s death and the question of

who should be guardian of her person and her estate is therefore moot. This

appeal is dismissed.

[11] Dismissed.

Kirsch, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017 Page 7 of 7