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Appellate court upholds guardian appointment

March 2, 2010

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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