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In re: THE GUARDIANSHIP AND CONSERVATORSHIP OF NINA H. v. NINA H. PARKHURST

December 1, 2010

IN RE: THE GUARDIANSHIP AND CONSERVATORSHIP OF NINA H. PARKHURST: CARL DOUGLAS BOYKIN, APPELLANT (PETITIONER),
v.
NINA H. PARKHURST, BY AND THROUGH HER ATTORNEY-IN-FACT RANDALL K. BOYKIN, APPELLEE (RESPONDENT).



The opinion of the court was delivered by: M. Gregory Weisz,

OCTOBER TERM, A.D. 2010

IN RE: THE GUARDIANSHIP AND CONSERVATORSHIP OF NINA H. PARKHURST:

Appellant (Guardian ad Litem), v. NINA H. PARKHURST, by and through her attorney-in-fact RANDALL K. BOYKIN, Appellee (Respondent). Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge

Representing Appellant:

Jason M. Tangeman and Julie M. Wickett of Nicholas & Tangeman, LLC, Laramie, Wyoming. Argument by Mr. Tangeman.

Representing Appellee:

William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Guardian ad Litem:

M. Gregory Weisz of Pence and Macmillan, LLC, Laramie, Wyoming.

Before KITE, C.J., and GOLDEN, HILL, VOIGT*, and BURKE, JJ.

*Chief Justice at time of oral argument.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

HILL, Justice.

[¶1] In documents signed by Nina H. Parkhurst (Parkhurst) in September of 2001, she designated one of her sons, Appellee Randall K. Boykin (Randall), as her attorney in fact, for purposes of managing her estate and day-to-day business matters. At that same time she also executed an Advanced Health Care Directive designating Randall as the individual to make health care decisions for her if she became incapacitated. Appellant, Carl Douglas Boykin (Douglas), is Randall's brother and also a son of Parkhurst. Douglas petitioned the district court seeking the appointment of a guardian and conservator for Parkhurst's person and estate, alleging that she was not being properly cared for and that her estate was vulnerable because of the broad scope of the Durable Power of Attorney Randall held. On December 29, 2008, the district court appointed a Guardian ad Litem (GAL) for the limited purpose of making an inquiry into the allegation made by Douglas and to then file a report with the district court.

[¶2] In Case No. S-09-0251, Douglas contends that the summary judgment the district court ultimately granted in favor of Randall, on October 15, 2009, was erroneous because the district court's November 5, 2008 decision to appoint a GAL decided the issue of whether a GAL was a "necessity," and that decision was binding on the district court pursuant to the law of the case doctrine. Douglas also contends that there are genuine issues of material fact with respect to the "necessity" for a guardian/conservator and, therefore, the district court erred in awarding summary judgment in Randall's favor.

[¶3] In Case No. S-09-0252, the GAL, M. Gregory Weisz, who was appointed by the district court to investigate the necessity for a guardian/conservator, filed a separate appeal. In that appeal, he contended that the district court erred in finding no necessity requiring appointment of a guardian/conservator because his inquiry concluded that more accountability was necessary in order to monitor the well being of Parkhurst's person, as well as her estate. Randall, acting for Parkhurst, contends that the appeal must be dismissed because the GAL does not have standing to appeal the district court's summary judgment order.

[¶4] We will dismiss the appeal in Case No. S-09-0252 on the basis that the GAL lacks standing to appeal in these circumstances. However, we have considered his brief which was filed in support of Douglas Boykin in Case No. S-09-0251. We will affirm the district court's summary judgment order in Case No. S-09-0251.

ISSUES

[¶5] Douglas states his issues as follows:

Whether the district court's November 5, 2008 decision letter was binding upon the court pursuant to the law of the case doctrine and the court erred by granting summary judgment contrary to its November 5, 2008 ruling.

The district court erred in granting summary judgment in this matter as ample evidence existed in the record that a guardian and conservator for Nina Parkhurst is necessary thus creating a genuine issue of material fact.

Parkhurst, by and through her attorney in fact Randall, states the issues thus:

I. Does the trial court's denial of a motion to dismiss considered solely on the pleadings preclude the trial court from later granting a motion for summary judgment based on the record?

II. In light of Parkhurst's Durable Power of Attorney, her Durable Power of Attorney for Health Care, and the facts and circumstances of this case, is there any evidence showing "necessity for the appointment" of a guardian or conservator?

FACTS AND PROCEEDINGS

[¶6] On September 24, 2008, Douglas filed his Petition for Guardianship and Conservatorship for Nina H. Parkhurst. He asserted that neither Parkhurst herself, nor her estate, were being properly cared for or managed by Randall. Douglas proposed that he, or some other third party, be appointed as conservator and guardian. On October 15, 2008, Randall filed a motion to dismiss that petition under W.R.C.P. 12(b)(6). That motion was premised on the circumstance that Parkhurst had made complete arrangements for the management of her affairs, during her lifetime, by means of a durable general power of attorney in Randall's favor, as well as a durable power of attorney for health care which was to become effective upon her incapacity. Those documents named Randall as her attorney in fact, as well as her conservator. Parkhurst also named a substitute agent to act in the event of Randall's death or incapacity (and that was someone other than Douglas). Randall recorded the two powers of attorney with the Carbon County Clerk and Recorder on November 30, 2007.

[¶7] In a decision letter dated November 5, 2008, and filed of record on November 6, 2008, the district court indicated that it had held a hearing into this matter on October 15, 2008, although there is not a transcript of that hearing in the record. The district court noted that Douglas initiated this litigation because he was concerned that Parkhurst was unable to manage her affairs or take care of herself or her property because she suffers from Alzheimer's disease. The district court also noted that Parkhurst had executed the powers of attorney noted above in favor of Randall on September 10, 2001. Continuing, the district court summarized the allegations made by Douglas to the effect that Randall appeared to be trying to isolate Parkhurst from her friends and family, as well as from Douglas and his family in particular, by moving her to her ranch, the Huston ranch. Douglas also claimed that Parkhurst was not receiving the level of care she needed under Randall's supervision. He asserted that much of her care was entrusted to Randall's woman friend and her 16-year-old daughter.

[¶8] The district court then recited the standards that a court is required to apply to such a motion to dismiss. The district court perceived the question posed in these circumstances to be: Where a proposed ward had executed a durable power of attorney as provided for in Wyo. Stat. Ann. § 3-5-101 (LexisNexis 2009), and an advanced healthcare directive as provided for in Wyo. Stat. Ann. § 35-22-403 (LexisNexis 2009), is there any necessity to appoint a guardian or a conservator. The district court recited applicable authorities and the allegations made by Douglas (that Parkhurst was not being properly cared for and that Randall was misusing her financial resources), and found "that there may be a 'necessity' to appoint a guardian and conservator" for Parkhurst. On that basis, the district court appointed a guardian ad litem to make an inquiry into the allegations made by Douglas and directed him to report back to the district court.

[¶9] The report from the GAL was submitted to the district court, under seal, on April 7, 2009. The report recommended the appointment of a guardian/conservator and that that person be Randall. In response to that report, Douglas filed a motion for the appointment of a temporary guardian/conservator. Randall first filed a motion to deny that petition, and then filed a motion for summary judgment. Accompanying that motion was Randall's affidavit that he had faithfully performed his duties as Parkhurst's attorney in fact, as well as a copy of the durable general power of attorney and the durable power of attorney for health care. Parkhurst executed those documents on September 10, 2001. In addition to copies of the executed documents, Randall's motion included an affidavit from Chuck Denison, Ph.D. Denison had examined Parkhurst at the time she signed the powers of attorney and ascertained that her testamentary capacity was not "compromised or even in question" at that time. Randall had taken Douglas's deposition on June 11, 2009, and a copy of that deposition was also attached to the motion for summary judgment.

[¶10] With respect to standing, we have held:

"Standing is a legal concept designed to determine whether a party is sufficiently affected to insure that the court is presented with a justiciable controversy." Pedro/Aspen, Ltd. v. Board of County Commissioners for Natrona County, 2004 WY 84, ¶ 8, 94 P.3d 412, 415, quoting Jolley v. State Loan and ...


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