In re the Guardianship of: Helen Kinney Morris, Mary M. Kinney and Patrick Kinney v. Paul Kevin Kinney (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 6, 2017
• Docket: 34A02-1702-GU-264
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 06 2017, 7:47 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE Alan D. Wilson Matthew J. Elkin Kokomo, Indiana Kokomo, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Guardianship of: July 6, 2017 Helen Kinney Morris, Court of Appeals Case No. 34A02-1702-GU-264 Mary M. Kinney and Appeal from the Howard Superior Patrick Kinney, Court The Honorable Brant J. Parry, Appellants-Respondents, Judge v. Trial Court Cause No. 34D02-1407-GU-23 Paul Kevin Kinney, Appellee-Petitioner.

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 1 of 11 Case Summary and Issue [1] Helen Kinney Morris is a ninety-year-old widow with six adult children:

Michael Kinney, Bridget Aaron, Paul Kevin Kinney (“Kevin”), Patrick Kinney,

Mary Kinney (“Molly”), and Gabrielle Kinney. In 2004, Helen executed a

durable power of attorney appointing Kevin and Molly as her attorneys in fact.

Years later, Helen developed dementia leading four of her children, Kevin,

Michael, Bridget, and Gabrielle, to believe a guardianship was necessary to care

for Helen. The trial court found Helen to be incapacitated and appointed all six

siblings as co-guardians over different areas of her life. Following a first appeal

by Molly and Patrick, we affirmed the trial court’s determination that Helen is

incapacitated but reversed and remanded with instructions for the trial court to

determine whether a guardianship is necessary in light of Helen’s 2004 durable

power of attorney, and, if so, to give consideration to the matters listed in

Indiana Code section 29-3-5-5 and Helen’s wishes. On remand, the trial court

entered a new order affirming its prior order establishing a guardianship. Molly

and Patrick again appeal, raising two issues for our review, which we

consolidate and restate as: whether the trial court abused its discretion in

establishing a guardianship. Concluding the trial court abused its discretion in

determining a guardianship is necessary, we reverse and remand with

instructions for the trial court to vacate its order establishing a guardianship

over Helen.

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 2 of 11 Facts and Procedural History [2] We succinctly summarized the facts of this case in its prior appeal:

In March 2004, Helen executed a durable power of attorney appointing two of her children—Kevin “or” Molly—as her attorneys in fact. Helen selected Kevin because he had always helped her with her business affairs and Molly because the two of them were close. The power of attorney gave Kevin and Molly powers with regard to real-property transactions; tangible personal-property transactions; bond, share, and commodity transactions; banking transactions; business-operating transactions; insurance transactions; beneficiary transactions; gift transactions; fiduciary transactions; claims and litigation; family maintenance; benefits from military service; records, reports, and statements; estate transactions; health-care powers; consent or refusal of health care; delegating authority; and all other possible matters and affairs affecting Helen’s property. The power of attorney specifically provided that it was “not affected by the fact that [Helen] might become incompetent hereafter, but shall remain in full force and effect.”

Helen was later diagnosed with mild to moderate dementia. Helen’s dementia has remained stable since around 2011 due to medication. Helen has been able to stay in her home because of around-the-clock help from family. This help has included providing all meals for Helen, taking care of her home, helping her bathe, doing her laundry, taking her to doctor appointments, doing her shopping, paying her bills, and having someone spend every night with her.

For most of Helen’s children’s lives, the family was close knit, with each child having a good relationship with their mother. But things changed after a tornado damaged Helen’s house in November 2013 and the siblings disagreed on whether to remodel Helen’s bathroom. The siblings took sides, with Molly and Patrick believing that Helen’s bathroom did not need to be remodeled and Michael, Bridget, Kevin, and Gabrielle believing that it did. After speaking with Molly, Helen decided not to have her bathroom remodeled. . . .

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 3 of 11 On July 28, 2014, Kevin filed a petition to appoint guardians for Helen because she “cannot care for herself nor make decisions on her own behalf.” He asked the trial court to appoint him and three of his siblings—Michael, Bridget, and Gabrielle—as co- guardians. The trial court appointed a guardian ad litem, who met with Helen as well as all six siblings. In its report, the guardian ad litem noted that Helen did not want a guardian. Although Helen recognized that she needed assistance, she was “happy with Molly and Pat[rick] and the way they are caring for her.” The guardian ad litem concluded that a guardianship was not necessary because there was a valid power of attorney that “seem[ed] to be working appropriately as it relates to Helen’s care and her overall well being.” In the event that the court appointed a guardian, however, the guardian ad litem recommended “Molly and/or Pat[rick].”

The trial court held a hearing on Kevin’s guardianship petition in August 2015. . . . Molly testified that although her mother had memory problems and could not do a lot of things by herself— like bathing, driving, yard work, shopping, cooking, and laundry—she could take care of her affairs with assistance and do other things by herself, like change her clothes, use the restroom, brush her hair and teeth, and put on her glasses and hearing aids. In contrast, the other four siblings testified that Helen’s memory problems were worsening and had placed her in situations in which she was endangered, that she could not take care of herself or her business affairs by herself, that Molly and Patrick were isolating Helen from them, and that they did not know anything about their mother’s finances or health. The guardian ad litem testified that although Helen was not able to take care of herself or her business affairs without assistance, Helen was getting that assistance from Molly and Patrick. . . .

In October 2015, the trial court issued an order in which it found that Helen was incapacitated. Specifically, the court found that Helen “is incapacitated for [the] reason that she cannot adequately care for her person and estate without assistance.” The court also found that guardians were necessary. In determining what sibling to appoint as guardian, the court found that the “foremost” consideration was Helen’s best interests and welfare. The court also considered “Helen’s happiness in her remaining years” and “the best way to attempt to repair the

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 4 of 11 family dynamic and the children’s relationships with Helen and with each other.” Based on these considerations, the court found that co-guardians—as opposed to one guardian—were necessary. Accordingly, the court appointed all six siblings as co-guardians. Each sibling was appointed guardian over a specific area of Helen’s life. . . .

Molly and Patrick declined their appointments, and in January 2016 the trial court transferred Patrick’s guardianship responsibilities to Kevin and Molly’s guardianship responsibilities to Bridget, Gabrielle, and Michael.

In re Guardianship of Morris, 56 N.E.3d 719, 721-23 (Ind. Ct. App. 2016).

Thereafter, Molly and Patrick appealed. This court upheld the trial court’s

determination Helen is incapacitated but reversed and remanded with

instructions for the trial court to determine whether any guardians are necessary

in light of the 2004 power of attorney. Id. at 725. On remand, the trial court

held a hearing and later issued its order leaving its prior orders in full force and

effect. The trial court’s order stated as follows:

ORDER FOLLOWING APPELLATE DECISION

***

1. The Court of Appeals remanded this cause for the Court to consider the priority of who may be considered for appointment as guardian pursuant to I.C. 29-3-5-5, including Helen’s wishes and her existing attorneys in fact (Kevin and [Molly]).

2. The following are entitled to consideration for appointment as a guardian under section 4 [IC 29-3-5-4] of this chapter in the order listed:

(1) A person designated in a durable power of attorney.

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 5 of 11 ***

(4) An adult child of an incapacitated person.

3. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. . . .

4. I.C. 20-3-5-4 indicates that “the Court shall appoint as guardian a qualified person most suitable and willing to serve . . .”

5. The first person to be considered would be a person who has been appointed a power of attorney for the incapacitated person. A person who has been appointed power of attorney shall be appointed guardian unless good cause or disqualification is shown.

6. In this case, Helen executed a durable power of attorney naming both Kevin and [Molly] as her attorneys in fact. Helen appointed both children as her attorneys in fact. It is the Court’s opinion that Helen appointed them together with the intention that they would work together as the attorneys in fact.

7. Kevin and [Molly] are opposing parties in this cause of action. Kevin indicated that he could attempt to communicate with [Molly]. [Molly] indicated that she did not believe that she and Kevin could communicate.

8. Additionally, since the initial disagreement concerning Helen’s restroom and the subsequent fallout between the siblings, Helen had virtually no contact with four of the children. During this time, Helen was in the most contact with [Molly] and Patrick. [Molly] and Patrick had “control” over Helen, and during that period, Helen ceased contact with her children that she had been very close to for many decades.

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 6 of 11 9. It would not be in the best interest of the ward to force Kevin and [Molly] to serve a[s] co-guardians over all aspects of Helen’s life. Therefore, although they had been named as co-attorneys in fact by Helen, the Court declines to appoint them as co-guardians over Helen.

10. After considering Helen’s wishes and the existing attorneys in fact, the Court determines that the Court’s prior Orders of October 14, 2015 and January 25, 2016 shall remain in full force and effect.

Appendix to Appellants’ Brief, Volume II at 21-23 (citation omitted). Molly

and Patrick now appeal.

Discussion and Decision I. Standard of Review [3] All findings and orders of the trial court in guardianship proceedings are within

its discretion. In re Guardianship of V.S.D., 660 N.E.2d 1064, 1066 (Ind. Ct.

App. 1996). Thus, we will review those findings under an abuse of discretion

standard. Id. We will find an abuse of discretion only when the decision of the

trial court is clearly against the logic and effect of the facts and circumstances

before the court, or if the court has misinterpreted the law. Id.

II. Necessity of the Guardianship [4] As an initial matter, we address Molly and Patrick’s argument the trial court

failed to follow this Court’s decision on remand. See In re Guardianship of

Morris, 56 N.E.3d at 724-25. In Morris, the trial court established a

guardianship over Helen and appointed all six of her children as co-guardians.

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 7 of 11 Molly and Patrick appealed the trial court’s determination a guardianship was

necessary. We affirmed the trial court’s determination that Helen was

incapacitated; however, we also recognized “if an incapacitated person’s

attorney in fact is different than the person’s guardian, the attorney in fact

remains in control unless the trial court holds a hearing and orders the guardian

to revoke the power of attorney.” Id. at 724 (internal quotation and citation

omitted). On this point, we remanded the case for the trial court to determine

whether guardians are necessary in light of the fact Helen executed a valid

power of attorney and the “[co-]guardians do not have any power with respect

to Helen’s property and health care.” Id.

[5] On remand, the trial court issued an order stating, “The Court of Appeals

remanded this cause for the Court to consider the priority of who may be

considered for appointment as guardian . . . .” App. to Appellants’ Br., Vol. II

at 21. The trial court’s order only addresses who may be appointed guardian

and their priority, not whether a guardianship is necessary. Although the

priority of who may be appointed guardian is a determination the trial court

eventually may have to make, our opinion remanded this case for the trial court

to determine whether a guardian is necessary at all in light of the fact Helen

already executed a valid power of attorney and her attorneys in fact held all

authority with respect to her property and health care. The record and the trial

court’s order do not demonstrate the trial court considered whether a

guardianship is necessary consistent with our prior opinion.

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 8 of 11 [6] In any event, we conclude a guardianship is not necessary in this case. Indiana

Code section 29-3-5-3(a) provides a trial court “shall appoint a guardian” if it

finds that (1) the person for whom the guardian is sought is an “incapacitated

person” and (2) the appointment of a guardian “is necessary as a means of

providing care and supervision of the physical person or property of the

incapacitated person.” However, in regard to the appointment of a guardian

when a power of attorney has already been executed, Indiana Code section 30-

5-3-4 states:

A guardian does not have power, duty, or liability with respect to property or personal health care decisions that are subject to a valid power of attorney. A guardian has no power to revoke or amend a valid power of attorney unless specifically directed to revoke or amend the power of attorney by a court order on behalf of the principal. A court may not enter an order to revoke or amend a power of attorney without a hearing. Notice of a hearing held under this section shall be given to the attorney in fact.

Ind. Code § 30-5-3-4(b) (1991). Therefore, if an incapacitated person’s attorney

in fact is different than that person’s guardian, the “attorney in fact remains in

control unless the trial court intervenes[,]” holds a hearing, and orders the

guardian to revoke the power of attorney. In re Guardianship of L.R., 908 N.E.2d

360, 365 (Ind. Ct. App. 2009).

[7] The trial court’s order establishing a guardianship over Helen appointed all six

of her children as guardians. The trial court appointed Bridget as guardian over

Helen’s “health care needs and personal hygiene”; Molly as guardian over

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 9 of 11 Helen’s personal finances; Michael, a priest, as guardian over Helen’s “spiritual

needs and affairs”;1 and Kevin and Patrick as co-guardians over Helen’s

“personal care and business affairs.” App. to Appellants’ Br., Vol. II at 45-46.

However, pursuant to Helen’s power of attorney, Molly and Kevin already hold

all authority and power with respect to Helen’s health care and property.

Helen’s power of attorney further states, “this Power of Attorney shall continue

in full force and effect until revoked. I further state that this Power of Attorney

shall not be affected by the fact that I might become incompetent hereafter, but

shall remain in full force and effect.” Id. at 24. Although the trial court had the

authority to order the guardians to revoke or amend Helen’s power of attorney

following a hearing, it did not do so, leaving Helen with two attorneys in fact

and six co-guardians, a situation which will only serve to create confusion and

further division among Helen’s children as to who holds actual authority with

respect to Helen’s needs and care. The current state of affairs essentially defeats

the purpose of a guardianship, as it would not serve the welfare of Helen.2

[8] Finally, we note the trial court was concerned with Molly’s testimony she did

not think she could work with Kevin as Helen’s co-attorneys in fact. Molly did

not resign or decline her designation as an attorney in fact, but stated she did

1 Gabrielle was appointed co-guardian over Helen’s spiritual needs and affairs because Michael lives in Texas. See App. to Appellants’ Br., Vol. II at 46. 2 We note, as we did in our prior opinion, that it appears Helen sent a letter to Kevin in May of 2014 revoking his power of attorney. See In re Guardianship of Morris, 56 N.E.3d at 724 n.4. Helen then allegedly executed a new power of attorney naming only Molly as her attorney in fact. However, both parties proceed in this appeal as if the 2004 power of attorney naming Kevin or Molly as attorneys in fact is controlling.

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 10 of 11 not think she could work with Kevin “as a result of him bullying, trying to

intimidate, antagonizing me anytime we have an encounter.” Transcript,

Volume II at 17. Indiana Code section 30-5-4-3 authorizes the appointment of

more than one attorney in fact. It provides that unless the power of attorney

states otherwise, “if more than one (1) attorney in fact is named, each attorney

in fact may act independently of the other attorney in fact in the exercise of a

power or duty.” Ind. Code § 30-5-4-3(a). Therefore, unless and until Helen’s

2004 power of attorney is revoked or amended, all authority regarding her

property and health care lies with Kevin and Molly, who may act

independently of each other.

[9] We conclude the trial court’s determination that a guardianship is necessary,

without first revoking or amending Helen’s power of attorney, and appointment

of all six of Helen’s children as co-guardians is clearly against the logic and

effect of the facts and circumstances before the court.

Conclusion [10] The trial court abused its discretion in establishing a guardianship over Helen.

Accordingly, we reverse and remand with instructions for the trial court to

vacate its order establishing a guardianship.

[11] Reversed and remanded.

Vaidik, C.J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017 Page 11 of 11