In Re Guardianship of JY

942 N.E.2d 148, 2011 WL 529682
CourtIndiana Court of Appeals
DecidedFebruary 15, 2011
Docket27A02-1005-GU-744
StatusPublished

This text of 942 N.E.2d 148 (In Re Guardianship of JY) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Guardianship of JY, 942 N.E.2d 148, 2011 WL 529682 (Ind. Ct. App. 2011).

Opinion

942 N.E.2d 148 (2011)

In the Matter of the GUARDIANSHIP OF J.Y., an adult.
D.R., Individually and as Successor Trustee of the J.Y. Special Needs Trust, Appellant-Respondent,
v.
Carey Services, Inc., Guardian of the Person of J.Y., Appellee-Petitioner.

No. 27A02-1005-GU-744.

Court of Appeals of Indiana.

February 15, 2011.

Curtis E. Shirley, Indianapolis, IN, Attorney for Appellant.

Kyle C. Persinger, Spitzer Herriman Stephenson Holderead, Musser & Conner, LLP, Marion, IN, Attorney for Appellee.

OPINION

BAILEY, Judge.

Case Summary

D.R. appeals from the trial court's designation of Carey Services, Inc. ("Carey") as guardian of J.Y.'s person.

We affirm.

Issue

D.R. raises one issue for our review, which we restate as whether the trial court abused its discretion when it designated Carey as guardian of J.Y.'s person although Carey, a domestic nonprofit corporation, cannot serve as a domiciliary personal *149 representative of a deceased person's estate under Indiana law.

Facts and Procedural History

J.Y., who is sixty-five years old, has been adjudicated as incapacitated; though physically healthy, he has been diagnosed as mentally retarded and suffers from anxiety disorder, and cannot provide for his own personal care or financial management. Carey is a nonprofit corporation that specializes in support services for individuals with disabilities; it has provided daytime care for J.Y. since the 1960s, and began to provide additional support services at J.Y.'s home after J.Y.'s mother died in 2007. D.R. is J.Y.'s niece and is trustee of a special needs trust established for J.Y.

After an incident where J.Y. ran away from the home he shared with his sister and guardian, Willarose, on January 18, 2008, the Grant County Prosecutor and Indiana Adult Protective Services filed a petition for a hearing on Willarose's guardianship of J.Y. On January 23, 2008, the court ordered that J.Y. remain in Carey's care pending a hearing and decision on Willarose's continued service as J.Y.'s guardian. On March 31, 2008, Tia Brewer ("Brewer") was appointed J.Y.'s Guardian ad Litem ("GAL"). On April 15, 2008, the court reaffirmed Brewer's appointment as J.Y.'s GAL, appointed Carey as interim guardian of J.Y.'s person, and appointed STAR Financial Services ("STAR"), an Indiana financial services institution, as interim guardian of J.Y.'s estate. On October 20, 2008, STAR petitioned the court to remove Willarose as J.Y.'s guardian.

On May 1, 2009, D.R. filed a petition with the court seeking appointment as J.Y.'s permanent guardian of J.Y.'s estate. STAR filed a petition on June 3, 2009, requesting appointment as guardian of J.Y.'s estate and opposing D.R.'s petition. On June 23, 2009, Carey filed its petition for permanent guardianship over J.Y.'s person. D.R. objected to Carey's petition, requesting instead that she and her brother, Eric Yeley, be appointed as co-guardians of J.Y.'s person.

On July 7, 2009, Willarose submitted to the court her resignation as guardian of the estate and person of J.Y.; the court approved her resignation on July 10, 2009. A hearing on the appointment of permanent guardians was held on February 1, 2010, and February 2, 2010. On February 3, 2010, the trial court conducted an in camera interview with J.Y. After the hearing, the parties and J.Y.'s GAL submitted proposed findings and conclusions and supporting briefs. On April 19, 2010, the court entered its findings of fact, conclusions of law, and order, which appointed Carey as permanent guardian of J.Y.'s person and STAR as permanent guardian of J.Y.'s estate. D.R. remained trustee of J.Y.'s special needs trust.

This appeal followed.

Discussion and Decision

Standard of Review

D.R. challenges the trial court's appointment of Carey as J.Y.'s personal guardian. Appointment of a guardian is generally within the discretion of the trial court. We therefore review a trial court's appointment of a guardian, whether of an individual's estate or of an individual's person, for an abuse of discretion. In re Guardianship of Atkins, 868 N.E.2d 878, 883 (Ind.Ct.App.2007), trans. denied. Where, as here, the claimed abuse of discretion arises from an alleged error in statutory interpretation or other matter of law, we review the decision of the trial court de novo. In re Guardianship of Hollenga, 852 N.E.2d 933, 937 (Ind.Ct. *150 App.2006).[1]

Relationship of the Probate and Guardianship Statutes

Because D.R. grounds her argument in the substantive provisions of the Probate Code and guardianship statutes, we must first consider the relationship between and applicable statutory provisions of each body of law before we reach the merits of D.R.'s appeal.

Indiana Code section 29-3-5-1 sets forth the procedure governing petitions for the appointment of a guardian, stating in relevant part that "[a]ny person may file a petition for the appointment of a person to serve as a guardian." I.C. § 29-3-5-1(a) (emphasis added). A court must "appoint as guardian a qualified person or persons most suitable and willing to serve," taking into account the protected person's wishes, those of a spouse or individual acting on behalf of the protected person under a durable power of attorney, and the best interests of the protected person and his property. I.C. § 29-3-5-4 (emphasis added). The statutes also set forth a priority listing for individuals who may be considered for appointment as a guardian, but a court may disregard any individual with priority if such is in the best interests of the protected person. I.C. § 29-3-5-5.

The guardianship statutes define "guardian" as "a person who is a fiduciary and is appointed by a court to be a guardian or conservator responsible as the court may direct for the person or the property of an incapacitated person or minor." I.C. § 29-3-1-6 (emphasis added). The statutes define "person" to include not only natural persons (as "individuals") but also numerous other legal entities, including nonprofit corporations. Ind.Code § 29-3-1-12.

The crux of the matter before us is whether a nonprofit corporation may constitute a qualified person under section 29-3-5-4. The guardianship statutes do not define "qualified" as it appears in section 29-3-5-4, or "fiduciary" as it appears in section 29-3-1-6. While the guardianship statutes incorporate many of the procedural and substantive provisions of the Indiana Probate Code, Ind.Code 29-1-1 et seq., among the provisions not specifically adopted under the guardianship statutes are the Probate Code's definitions in section 29-1-1-3, including the Probate Code's definition of "fiduciary" at section 29-1-1-3(10) and "person" at section 29-1-1-3(20). I.C. § 29-3-2-6(b) (stating in relevant part "IC 29-1-1-6 through IC 29-1-1-7 . . . apply to guardianships under this article"). Nowhere is "qualified" defined in either body of law, except to require that guardians execute and file bonds unless a court permits otherwise, and to restrict from guardianship appointment persons who have been convicted of committing certain sexual offenses. I.C. § 29-3-7-7 (Indiana Code 29-3-7 is titled "Qualification and Bonding Requirements for Guardians").

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D.R. v. Carey Services, Inc.
942 N.E.2d 148 (Indiana Court of Appeals, 2011)

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942 N.E.2d 148, 2011 WL 529682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-guardianship-of-jy-indctapp-2011.