In re the Guardianship & Conservatorship of Benham

271 P.3d 1257, 47 Kan. App. 2d 83, 2012 Kan. App. LEXIS 14
CourtCourt of Appeals of Kansas
DecidedFebruary 17, 2012
DocketNo. 105,889
StatusPublished

This text of 271 P.3d 1257 (In re the Guardianship & Conservatorship of Benham) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Guardianship & Conservatorship of Benham, 271 P.3d 1257, 47 Kan. App. 2d 83, 2012 Kan. App. LEXIS 14 (kanctapp 2012).

Opinion

Marquardt, J.:

Bernetta F. Benham, an adult with progressive dementia, is represented by Kip Elliot of the Disability Rights Center of Kansas. She challenges the district court’s decision that her guardian, Karen Glenn, has placed her in the least restrictive setting appropriate to her needs that is reasonably available. Bernetta also appeals the denial of her motion to discharge her court-appointed attorney. We affirm.

Facts

Bernetta, a 79-year-old woman, currently resides at the Andbe Home, Inc., a 70-bed adult care nursing facility in Norton, Kansas. Bemetta’s husband, Wilbur, and her sister, Karen Glenn, also live in Norton.

Prompted by Bemetta’s declining health and financial problems, in April 2007, Bernetta and Wilbur moved from Arizona to Norton, Kansas. In August 2007, Bernetta began seeing Dr. Glenda Maurer, who diagnosed Bernetta with mild dementia, Ehlers Danlos Syndrome, glaucoma, hypertension, depression, and hyperlipidemia. Glenn believed that Bernetta was not receiving the care she needed from Wilbur and discussed her concerns with Dr. Maurer.

In die spring of 2008, Wilbur told family members that he intended to take Bernetta on an extended trip to Colorado. Glenn discouraged Wilbur from taking Bernetta to Colorado because of Bernetta’s health problems. Wilbur, notwithstanding the admonition, took Bernetta to Colorado. On July 11, 2008, Bernetta was admitted to a Colorado hospital where she was diagnosed with pneumonia and chronic obstructive pulmonary disease. She remained in the hospital for about a week before returning to Norton, where she was again hospitalized. She was discharged from the Norton hospital on August 1, 2008, to the Andbe Home, where she would receive rehabilitation, skilled supervision, and 24-hour nursing assistance. When Bernetta was admitted to the Andbe Home, she was unable to walk, could not eat, was on oxygen, and had a catheter because of a urinaiy infection. Throughout the fol[85]*85lowing months, Bemetta became more mobile and some of her health conditions stabilized.

On April 29, 2009, Glenn filed a petition to be appointed Bernetta’s guardian and conservator. The court appointed Glenn as Bemetta’s temporary guardian and set a date for a hearing on the petition. Glenn proposed a Guardianship and Conservatorship Plan (The Plan), which was approved by Ranee E. Ames, Wilbur’s attorney; Kip Elliot of the Disability Rights Center of Kansas (DRCK), who was acting as Bemetta’s attorney; and Melissa M. Schoen, Bemetta’s guardian ad litem. The Plan was filed with the court on January 27, 2010. The district court entered an order appointing Glenn as Bernetta’s guardian and conservator on March 29, 2010, and approved The Plan submitted by Glenn.

The Plan provided:

“[I]f the interested parties hereto cannot agree upon whether to move the ward to a less restrictive setting or continue her placement in the adult care nursing facility, the parties agree to submit the issue of where the ward shall reside to the Court for disposition on March 25, 2010.”

Elliot filed a motion on March 23,2010, to continue the hearing. The district court entered an order continuing the hearing to August 23 and 24, 2010; however, both Elliot and Glenn filed objections to some provisions of the order. The district court settled the objections in an order filed on April 22, 2010, stating that the only issue for determination at the hearing is “[w]hether the guardian has properly chosen Andbe Home, Inc., a nursing home, as the least restrictive setting appropriate to the needs of Bemetta Ben-ham, which is reasonably available as required by K.S.A. 59-3075(b)(4).”

The hearing began as scheduled on August 23, 2010; however, a mistrial was declared after District Judge Edward Bouker realized a conflict with a material witness. The hearing was rescheduled. After 3 days of testimony beginning on November 16, 2010, assigned Senior Judge Jack L. Burr determined by clear and convincing evidence that the Andbe Home was the least restrictive setting that was reasonably available to Bemetta. Elliott filed a timely notice of appeal on Bemetta’s behalf.

[86]*86The notice of appeal raises two issues:

“I. The district court erroneously determined that Glenn, Bemetta’s guardian, has placed her in tire least restrictive setting available.
“II. The district erroneously denied Mrs. Benham’s motion to discharge Melissa Schoen as her court appointed attorney.”

Standard of Review

On appeal, Elliot argues that the district court “erroneously determined that Glenn, Bernetta’s guardian, has placed her in the least restrictive setting available.”

The parties agree that the district court’s determination of whether a guardian’s placement of its ward is in the least restrictive setting available is a finding of fact.

“An appellate court generally reviews a district court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the district court’s conclusions of law. Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. In evaluating the evidence to support the district court’s factual findings, an appellate court does not weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact. A court ordinarily presumes that the district court found all facts necessaiy to support its judgment.” Hodges v. Johnson, 288 Kan. 56, Syl. ¶ 7, 199 P.3d 1251 (2009).

Burden of Proof

K.S.A. 2010 Supp. 59-3075 defines a guardian’s duties, responsibilities, powers, and authorities. In addition to the statutory duties, The Plan provides:

“The guardian will assure that the ward [Bernetta] resides in the least restrictive setting appropriate to the needs of the ward and which is reasonabljy] available. If proper and feasible, the guardian will assist the ward in moving to a less restrictive setting than her present adult care nursing facility, where she can reside with her husband, Wilbur Benham; provided that all the ward’s needs can be met with available, appropriate services. So long as the Ward’s needs are appropriately and sufficiently met in such less restrictive setting, the ward will not be placed in die adult care nursing facility setting without Court authorization after notice to all interested parties, including Wilbur Benham.” (Emphasis added.)

Elliot argues in his appellate brief that Glenn has an affirmative duty to prove that Bernetta is living in the least restrictive setting [87]*87available. However, during the August 2010 hearing, Elliot of the DRCK stated:

“[T]hat a guardian has the obligation to place die ward in die least restrictive environment. My understanding is tiiat the guardian in this case believes that’s the Andbe Nursing Home. We are challenging that.

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Related

Hodges v. Johnson
199 P.3d 1251 (Supreme Court of Kansas, 2009)

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Bluebook (online)
271 P.3d 1257, 47 Kan. App. 2d 83, 2012 Kan. App. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-conservatorship-of-benham-kanctapp-2012.