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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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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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