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Appellate court upholds guardian appointment

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The Indiana Court of Appeals affirmed the appointment of a third-party guardian for an incompetent adult because a disinterested person may hopefully prevent unnecessary disputes caused by mistrust between the woman's children and husband.

In In the matter of the guardianship of Winona E. Brewer, adult; Debra J. Ault, Rebecca L. Pavone, and Elizabeth S. Elia-Gold v. Robert Brewer, No. 36A04-0907-CV-407, Winona Brewer's adult daughters appealed the appointment of Susan Bevers as guardian of Winona's estate. Their mother had married Robert Brewer later in life and kept separate accounts from Robert. She relied on the assistance of her daughters, Debra Ault, Rebecca Pavone, and Elizabeth Elia-Gold to help take care of her home in California and pay bills.

After suffering a stroke, Winona signed a general power of attorney document appointing her daughters as co-attorneys-in-fact. Nearly a month later, Robert filed a petition to be appointed as Winona's guardian; Ault then filed a petition to be appointed guardian. The trial court appointed Bevers as a guardian ad litem, who determined a guardian would be in Winona's best interest given how at some times she would be cognizant and other times she would "fade off."

The daughters then argued that appointing a guardian wasn't necessary because the power of attorney had been established and no petition had been filed to amend or revoke it. The trial court found Winona was incompetent when she signed the POA document, appointed Bevers as guardian, and allowed her to merge many of Winona's accounts into one to manage.

The daughters argued that the trial court abused its discretion by appointing a guardian because there was a durable power of attorney. Additionally, they argued that if a guardian was properly appointed, the trial court abused its discretion by not appointing one of the designated co-attorneys-in-fact.

But the general POA document wasn't valid because Winona had been found incompetent by her doctor just three days before signing it despite her apparent coherence the day she signed it. Bevers also found Winona's understanding was intermittent and noted that Winona didn't want Ault to be her guardian, which contradicted portions of the general POA, wrote Judge Patricia Riley.

The daughters are also estopped from denying their mother's incompetence because of the evidence showing she was incompetent just days before signing.

"Therefore, (Winona) made no nomination in a power of attorney that would make applicable the considerations of Indiana Code Section 30-5-3-4, or the priorities favoring attorneys-in-fact in Indiana Code Section 29-3-5-4 and 5," she wrote.

Also, given the hostility between Robert and the daughters, it's in Winona's best interest to have a third party appointed guardian to avoid a protracted legal fight.

The appellate court also affirmed the trial court authorization that Bevers could unify Winona's accounts for administration under her authority as guardian over the estate.

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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