In re Guardianship of Glasgow

2022 Ohio 1366

• Court: Ohio Court of Appeals
• Decided: April 25, 2022
• Docket: CA2021-08-074
• Status: Published

Opinion

[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 Warren CA2021-08-074

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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