Kelly v. Elliston

910 P.2d 665, 184 Ariz. 514, 209 Ariz. Adv. Rep. 19, 1996 Ariz. App. LEXIS 9
CourtCourt of Appeals of Arizona
DecidedJanuary 25, 1996
DocketNo. 1 CA-CV 94-0520
StatusPublished
Cited by1 cases

This text of 910 P.2d 665 (Kelly v. Elliston) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. Elliston, 910 P.2d 665, 184 Ariz. 514, 209 Ariz. Adv. Rep. 19, 1996 Ariz. App. LEXIS 9 (Ark. Ct. App. 1996).

Opinion

OPINION

GERBER, Judge.

In this appeal, we consider whether the probate court abused its discretion (1) in finding that the appointment of an incapacitated person’s guardian was necessary and (2) in appointing an independent third party as guardian rather than one of the ward’s adult children. We hold that clear and convincing evidence supported the court’s determination that the ward was incapacitated and in need of a guardian. We further hold that under Arizona Revised Statutes Annotated (A.R.S.) section 14-5311 (1995), the court could appoint a person with lower priority than a family member, based upon its determination that the appointment of a family member was not in the ward’s best interest.

FACTS1 AND PROCEDURAL HISTORY

At the time this guardianship and conservatorship proceeding was initiated in February 1994, Francis H. Kelly (Mr. Kelly), the adult protected person, was 79 years old. His wife, Rose Kelly (Mrs. Kelly), had died in June 1993. She had managed the couple’s finances and taken care of Mr. Kelly for some time prior to her death. His mental capabilities had been declining for at least four years before Mrs. Kelly died.

Mr. Kelly had five grown children: Joyce Kelly (Joyce), Connie Buessing (Connie), and Patricia Kaltenbaugh (Pat), who lived in Arizona, and Donald Kelly (Donald) and Joan Bowser (Joan), both of whom lived out-of-state. He also had a 30-year-old grandson, Jeffrey Kelly (Jeffrey), whom he had helped raise during the time Jeffrey and his mother, Connie, lived with Mr. and Mrs. Kelly.

As an adult, Jeffrey visited his grandparents at least twice a week. He continued to visit his grandfather at least that often after his grandmother died. Connie saw her parents almost daily after she moved out of their house. After her mother’s death, she had lunch with her father at least six days a week. Connie also helped her father with his finances.

During the probate of Mrs. Kelly’s will, the family learned that Mr. Kelly’s will, which had been executed in 1992, provided that the couple’s house be left to Jeffrey. The remainder of Mr. Kelly’s estate was to be divided equally among his five children and Jeffrey.

In late October 1993, Donald took Mr. Kelly to an attorney who drafted a new will providing that his estate be divided equally among the five children and that Jeffrey take nothing. Mr. Kelly also executed a power of attorney naming Donald as his attorney-in-fact. Thereafter, Donald placed all of Mr. Kelly’s money, which exceeded $400,000, into joint accounts bearing his and his father’s names.

Before Mrs. Kelly’s death, Joyce, a registered nurse, was estranged from her parents. However, after her mother’s death, she began providing dinner for Mr. Kelly every evening.

[517]*517On October 31, 1993, Connie, Pat, Donald, Joyce, and Jeffrey met to discuss Mr. Kelly’s care and his will. The meeting broke up when Mr. Kelly physically threatened Connie and Jeffrey—conduct which had never occurred previously. A few days after the family meeting, Joyce moved in with her father to care for him. Connie and Jeffrey no longer visited Mr. Kelly because he made verbal threats against them. They felt Joyce was hostile toward them and was provoking Mr. Kelly’s hostile behavior.

In February 1994, Connie sought a court-ordered evaluation of Mr. Kelly to determine his need for a conservator. She also filed a petition for her appointment as conservator. Connie later amended her petition to request that the court also appoint her as Mr. Kelly’s guardian. Donald and Joyce objected to the petition and asked the court to appoint Donald or a private fiduciary as conservator and, if it determined a guardian was necessary, to appoint Joyce as guardian. At the hearing regarding the conservatorship, the parties agreed to have a private fiduciary, Nancy Elliston, appointed as conservator.

Early in the court proceedings, the court ordered a geriatric evaluation of Mr. Kelly. The team that conducted the evaluation reported to the court that Mr. Kelly was suffering from mild to moderate dementia, probably caused by Alzheimer’s Disease. This condition caused Mr. Kelly to experience difficulty in paying his bills, shopping for food, providing adequate housing, taking medication, and making appropriate decisions to protect himself personally, physically and financially. The evaluators believed that he needed 24-hour supervision.

The psychologist who evaluated Mr. Kelly concluded that he required supervision of day-to-day activities and that he did not have the ability to make his own safety decisions. She recommended that a guardian be appointed. She noted that Mr. Kelly had acknowledged to her that he needed help and should not live alone. The geriatric evaluation reported that Mr. Kelly was independent in some activities of daily living, such as dressing, bathing, and eating, but that he needed assistance with transportation, medication, grocery shopping, meal preparation, and laundry.

Both the psychologist and court visitor recommended that a third party rather than a family member be appointed as Mr. Kelly’s guardian due to continuing disputes among the family members. The psychologist reported that “both sides believe themselves in the right regarding his needs and care, and he is in the center of the tug of war---The only way I can see to diminish the conflict and aggressiveness of the family is to remove them one step from the decision-making process.”

At the hearing on the guardianship petition, a psychiatrist called by Joyce and Donald testified that Mr. Kelly had only a mild type of dementia characterized by difficulties in memory and that he did not need a guardian at that time because his mental decline had not affected his daily living activities. The psychiatrist related that Mr. Kelly had told him that Joyce was doing a good job as his caretaker. The probate court found by clear and convincing evidence that Mr. Kelly was incapacitated under A.R.S. sections 14-5304 and 14-5101 and that the appointment of a guardian was necessary to provide for his welfare. The court also determined that due to the hostility among his family members, it was in Mr. Kelly’s best interest to have an independent third-party guardian, despite the statutory priorities in A.R.S. section 14-5311. Accordingly, the court denied the petition for appointment of Joyce as guardian and granted the cross-petition for appointment of Elliston as guardian. Donald and Joyce timely appealed from the order of guardianship. We have jurisdiction pursuant to A.R.S. section 12-210KJ) (1994).

DISCUSSION

A. The Need for a Guardian

On appeal, appellants argue that the trial court erred in finding that Mr. Kelly needed a guardian because there was no evidence that his short-term memory problem rendered him unable to understand or make responsible decisions for himself. They note that at trial the psychiatrist testified that Mr. Kelly did not need a guardian [518]*518because he was able to effectively communicate and carry out decisions concerning his personal safety and basic necessities.

To obtain reversal of a guardianship order, the appellant must show that the trial court abused its discretion in ruling as it did. In re Wilmot’s Guardianship, 74 Ariz. 344, 346, 248 P.2d 995, 996 (1952).

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Related

Matter of Guardianship of Kelly
910 P.2d 665 (Court of Appeals of Arizona, 1996)

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Bluebook (online)
910 P.2d 665, 184 Ariz. 514, 209 Ariz. Adv. Rep. 19, 1996 Ariz. App. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-elliston-arizctapp-1996.