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In the Matter of the Guardianship of Robert A. Sands v. Richard Brown

May 15, 2013

IN THE MATTER OF THE GUARDIANSHIP OF ROBERT A. SANDS: ROBERT A. SANDS, APPELLANT (WARD),
v.
RICHARD BROWN, GUARDIAN AND CONSERVATOR, APPELLEE (GUARDIAN/CONSERVATOR).



Appeal from the District Court of Laramie County The Honorable Michael K. Davis, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

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

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 typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] The district court entered orders appointing Richard Brown as guardian and conservator for Robert A. Sands. Mr. Sands sought to terminate the guardianship and the district court denied his petition. Six months later, however, the district court held a review hearing and terminated the guardianship. Mr. Brown filed a motion for attorney fees and costs and the district court reopened the guardianship for the purpose of deciding the motion. Before the motion was heard, Mr. Sands filed a complaint alleging that Mr. Brown had breached his duties. After a hearing, the district court entered an order ruling in favor of Mr. Brown on Mr. Sands' complaint and awarding Mr. Brown and his attorney fees and costs. Mr. Sands appeals claiming the district court erred when it denied his petition to terminate the guardianship, reopened the guardianship for the purpose of awarding fees and costs and dismissed his complaint. We affirm.

ISSUES

[¶2] We rephrase the issues Mr. Sands presents as follows:

1. Whether the district court properly continued the guardianship and conservatorship of Mr. Sands over his objection and the objections of his family members.

2. Whether the evidence supports the district court's holding that Mr. Brown substantially complied with the guardianship and conservatorship statutes and did not breach his fiduciary duties.*fn1

3. Whether the district court properly ruled on the matters asserted in Mr. Sands' complaint at the final hearing on Mr. Brown's petition for fees and costs.

Mr. Brown did not file a brief in this Court.

FACTS

[¶3] In July of 2010, the director of the Wyoming Guardianship Corporation*fn2 filed a petition for emergency appointment of a temporary guardian for Mr. Sands. She advised the district court that Mr. Sands, who was then seventy years old, suffered from dementia and other medical problems and was unable to care for himself. The district court entered an order appointing her as emergency temporary guardian and set a hearing to determine whether a guardianship was in fact needed.

[¶4] After the hearing, the district court held that a guardianship was necessary and appointed the emergency temporary guardian as permanent guardian. She declined the appointment so the district court entered an amended order appointing Mr. Brown, a long time friend of Mr. Sands, as guardian. After learning more about Mr. Sands' assets, Mr. Brown filed a motion to amend the order establishing the permanent guardianship to also appoint him as conservator for Mr. Sands. The district court entered an amended order consistent with Mr. Brown's motion.

[¶5] At about the same time, Mr. Sands filed a verified affidavit requesting termination of the guardianship. He alleged that he was in the hospital when the guardianship was ordered and had not been informed of the guardianship proceedings until after Mr. Brown's appointment. He also alleged that Mr. Brown had taken property belonging to him. Additionally, he filed a "Petition for Due Process" asserting that he was not given notice or an opportunity to respond or be heard prior to the appointment of a guardian. He asked the district court to dismiss the guardianship proceeding and require Mr. Brown to provide an accounting or, alternatively, for an evidentiary hearing to determine whether a guardianship was in fact appropriate and was being properly administered.

[¶6] Mr. Brown filed a response asserting that at the time the guardianship petition was filed Mr. Sands was in the hospital and was unable to care for himself or comprehend his situation. Mr. Brown stated that Mr. Sands was personally served with the guardianship petition with the assistance of a hospital social worker. Mr. Brown requested the guardianship and conservatorship be left in place until six months had expired. The district court set an evidentiary hearing to determine whether the guardianship should be terminated.

[¶7] After a day and a half of testimony, the district court entered an order finding that Mr. Sands was unable to care for himself or his property without assistance and the guardianship and conservatorship should continue. The court also found, however, that Mr. Sands should be given the opportunity to regain autonomy to the extent possible.

To that end, the court reduced Mr. Brown's role to that of standby guardian, meaning that while his court appointed powers would remain in place he would not be actively involved with Mr. Sands unless necessary to protect him or his property and only after consultation with Mr. Sands' support team. If Mr. Sands proved able to make safe and appropriate decisions for himself, the district court ordered the guardianship would automatically expire in one year.

[¶8] Five months later, Mr. Sands filed a motion requesting a review hearing and an order terminating the guardianship and conservatorship. The district court held a hearing and entered an order finding there was no longer a need for the guardianship or conservatorship, terminating them and directing Mr. Brown to make a final accounting within thirty days. Mr. Brown complied and after reviewing his submission the district court discharged him from his duties. Mr. Brown then filed a motion for fees and costs. The district court determined, however, pursuant to Wyo. Stat. Ann. § 3-3-1003 and § 3-3-1103 (LexisNexis 2011)*fn3 that the guardianship and conservatorship should not have been terminated before an accounting and determination of fees and costs. The court set aside its previous order terminating Mr. Brown's appointment and scheduled a hearing for consideration of a final accounting and fees and costs.

[¶9] Prior to the hearing, Mr. Sands filed his complaint against Mr. Brown pursuant to § 3-1-111 (LexisNexis 2011).*fn4 He alleged that property belonging to him had gone missing since Mr. Brown's appointment. He attached a five and a half page list of items that he claimed were missing.

[¶10] The district court convened a hearing for consideration of the final accounting, conservator/guardian's fees, attorney fees and Mr. Sands' complaint. Mr. Brown, Mr. Sands and their attorneys were present. The district court heard testimony and received evidence and subsequently entered an order. The district court found that Mr. Brown had substantially complied with the spirit and intent of the inventory, accounting and reporting requirements and had not violated his fiduciary duties. The district court awarded Mr. Brown conservator/guardian fees and attorney fees in the amounts requested, $5,340.00 and $7,426.50 respectively. The court also ordered Mr. Brown to make Mr. Sands' piano (the one piece of property the court determined was still in Mr. Brown's possession) available to Mr. Sands for pick up at a specified time. Mr. Sands filed a notice of appeal to this Court.

STANDARD OF REVIEW

[¶11] In reviewing Mr. Sands' claim that the district court erred in continuing the guardianship, we presume the district court's findings of fact are correct and will not set them aside unless they are inconsistent with the evidence, clearly erroneous or contrary to the great weight of the evidence. DJM v. DM (In re SRB-M), 2009 WY 22, ¶ 8, 201 P.3d 1115, 1117 (Wyo. 2009). The same standard applies to Mr. Sands' claim that the district court's finding that Mr. Brown did not violate his fiduciary duties was clearly erroneous.

[¶12] Addressing Mr. Sands' final claim that the district court acted improperly in dismissing his complaint after a hearing that he contends was convened for the purpose of deciding only Mr. Brown's motion for fees, we conclude the claim is waived. While the question of waiver is often one of fact, when the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law which we consider de novo. Verheydt v. Verheydt, 2013 WY 25, ¶ 21, 295 P.3d 1245, 1250 (Wyo. 2013).

DISCUSSION

1. Order Continuing Guardianship

[¶13] The district court entered the order establishing the guardianship in July of 2010. Four months later, in November, Mr. Sands filed an affidavit seeking termination of the guardianship on the grounds that he had not been served with the guardianship documents and the guardian was appointed without his knowledge; he had the financial means to pay for a guardian ad litem and an attorney and wanted to confront the evidence; and the guardian had taken assets belonging to him, including cash, real property, vehicles, guns, and diamonds. In January of 2011, the district court heard the testimony of witnesses over the course of three afternoons and ruled from the bench that the guardianship and conservatorship should continue, although with less direct contact between Mr. Sands and Mr. Brown.

[¶14] Mr. Sands contends the district court findings were clearly erroneous. He concedes that he was having health problems in July and August of 2010 when the guardianship was set up but claims his condition had greatly improved by the time of the January 2011 hearing, making continuation of the guardianship unnecessary. He asserts that rather than showing the guardianship should continue, the evidence presented at the hearing showed it was causing great concern and anxiety for him. He contends the district court's finding that it should continue was not only clearly erroneous but cruel.

[¶15] The guardianship statutes provide in pertinent part as follows:

§ 3-2-101. Petition for appointment of guardian.

(a) Any person may file with the clerk a petition for the appointment of a guardian. The petition shall state:

(i) The name, age and address of the proposed ward;

(ii) The status of the proposed ward as a minor, an incompetent person or a mentally incompetent person and the reasons for the petition;

(iii) The name and address of the proposed guardian, and his qualification as a fit and proper ...


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