In the Matter of the Guardianship of Robert A. Sands: Robert A. Sands v. Richard Brown, Guardian and Conservator

IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 60

APRIL TERM, A.D. 2013

May 15, 2013

IN THE MATTER OF THE
GUARDIANSHIP OF ROBERT A.
SANDS:

ROBERT A. SANDS,

Appellant
(Ward),
S-12-0209
v.

RICHARD BROWN, Guardian and
Conservator,

Appellee
(Guardian/Conservator).

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

Representing Appellant:
Mitchell E. Osborn, Cheyenne, Wyoming.

Representing Appellee:
No appearance.

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.
KITE, Chief Justice.

[¶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.1

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

1
In his brief, Mr. Sands states in his second issue that the district court erred when in November of 2011
it rescinded an earlier order terminating the guardianship. He contends the rescission exposed him to
additional expense beyond what Mr. Brown had already unjustifiably paid himself and his family for
unnecessary improvements to his property. Mr. Sands cites no authority and presents no argument
supporting his claim that the district court erred in rescinding its earlier order. We, therefore, decline to
address the issue. See Fix v. South Wilderness Ranch Homeowners Ass’n, 2012 WY 96, ¶ 15, 280 P.3d
527, 531-32 (Wyo. 2012) (we do not consider issues not supported by citation to pertinent authority or
cogent argument). Instead, we address the real focus of Mr. Sands’ second argument—whether the
district court erred in holding that Mr. Brown substantially complied with the statutory requirements and
did not violate his fiduciary duties.
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[¶3] In July of 2010, the director of the Wyoming Guardianship Corporation2 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.

2
According to the Wyoming Guardianship Corporation (WGC) website, WGC is a 501(c)(3) organization
that has been active since June 1997. It is governed by a board of directors and provides staff to serve as
guardians, conservators or substitute decision makers for incapacitated persons when no other appropriate
person is willing or able to serve.

2
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)3 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).4 He alleged that property belonging to him had gone missing

3
§ 3-3-1003. Court costs of conservatorship.

The ward or his estate shall be charged with the court costs of a conservatorship for a ward,
including the reasonable fees of the conservator and the attorney for the conservator.

§ 3-3-1103. Accounting to ward; notice of hearing.

Upon termination of a conservatorship, the conservator shall pay the costs of administration and
render a full and complete accounting to the ward or his personal representative and to the court. Notice
of hearing on the final report of a conservator shall be served on the ward or his personal representative
unless notice is waived. Notice shall be served at the time and in the manner prescribed by the court.
4
§ 3-1-111. Complaint against guardian or conservator.

(a) Any person having reason to believe that a guardian or conservator is not properly discharging
his duties shall report the allegations and relevant supporting facts in a verified writing to the clerk of the
district court that established the guardianship or conservatorship.
(b) The clerk shall immediately send a copy of the complaint report to the guardian or conservator
in the manner provided for service of process under Rule 4(l)(2) of the Wyoming Rules of Civil
Procedure.
(c) The guardian or conservator shall have twenty (20) days in which to respond to the complaint
report.
(d) Upon receipt of the guardian’s or conservator’s response, or at the expiration of the twenty
(20) day response time, whichever occurs earlier, the court shall either dismiss the complaint or set the

3
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

matter for hearing. The court may dismiss the complaint if the complaint report and response show there
is no basis for the allegations that the guardian or conservator is not properly discharging his duties.
(e) Notice of the hearing shall be sent to the complainant, the guardian or conservator and, when
ordered by the court, the ward.
(f) At the conclusion of the hearing, or after determining there is no basis for the allegations and
no need for a hearing, the court shall issue findings and enter an appropriate order.
(g) The court may, within its discretion, assess court costs and impose attorneys fees against any
party in an action instituted under this section.

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 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 person to serve as
guardian;
(iv) The residence of the proposed ward in the
county or his presence in the county;
(v) The facts to show that the best interest of the
proposed ward requires the appointment of a guardian in this
state;
(vi) The name and address of the person or facility
having the care, custody or control of the proposed ward; and
(vii) The interests of the petitioner.

5
 § 3-2-104. Appointment of guardian.

(a) The court may appoint a guardian if the allegations
of the petition as to the status of the proposed ward and the
necessity for the appointment of a guardian are proved by a
preponderance of the evidence.
(b) The order appointing a guardian shall state the
findings of the court, including:
(i) The reasons why the ward is in need of a
guardian;
(ii) The appointment of the guardian;
(iii) The duration of the appointment for a specified
term or permanent, subject to W.S. 3-3-1101;
(iv) The limited or plenary duties of the guardian.

[¶16] The conservatorship statutes provide in relevant part as follows:

§ 3-3-101. Petition for involuntary appointment of
conservator.

(a) Any person may file with the clerk a petition for
the involuntary appointment of a conservator. The petition
appointment shall state:
(i) The name, age and address of the proposed ward;
(ii) The status of the proposed ward as a minor,
incompetent person or a mentally incompetent person and the
reasons for the petition;
(iii) The name and address of the proposed
conservator, and his qualification to serve as conservator;
(iv) The name and address of the person or
institution having the care, custody or control of the proposed
ward;
(v) The fact that the residence of the proposed ward
is in the county, or is a nonresident, or that his residence is
unknown;
(vi) The fact that the best interest of the proposed
ward requires the appointment of a conservator in Wyoming;
(vii) The estimated current value of the real estate,
the estimated value of the personal property and the estimated
gross annual income of the estate;
(viii) Any money payable or to become payable to
the proposed ward from any source; and

6
 (x) The interests of the petitioner.

§ 3-3-104. Appointment of conservator.

(a) The court may appoint a conservator if the
allegations of the petition as to the status of the proposed
ward and the necessity for the appointment of a conservator
are proved by a preponderance of the evidence.
(b) The order appointing a conservator shall state
the findings of the court, including:
(i) Reasons why the ward is in need of a
conservator;
(ii) Appointment of the conservator;
(iii) The duration of the appointment for a specified
term or permanent, subject to W.S. 3-3-1101;
(iv) The limited or plenary duties of the conservator.

[¶17] After hearing the evidence, the district court found that Mr. Sands “was living
under horrifying conditions in a house filled with hoarded articles and trash.” His home
had been without running water since 2006 and had no toilet or shower facilities. The
kitchen was piled with trash and debris, making it unusable; Mr. Sands cooked on the
front porch. The heating system did not work so Mr. Sands heated the home with space
heaters. The electrical system was defective and dangerous. Mr. Sands had eighty
loaded firearms, including semi-automatic weapons, some with rounds in the chamber,
scattered around the house among the trash and other items. His bed was piled with
debris, leaving only a small corner for him to sleep on. Although he owned a number of
vehicles, his daily transportation was a moving van that was filled with trash and debris.
He stopped paying for garbage collection because he thought the $15 per month charge
was too expensive, but continued to pay $200 per month for a telephone at a business that
had not operated since 2006. He chose to shut off the water in his home rather than pay
to have a sewer leak fixed. The sewer leak contaminated debris in the basement and was
never cleaned up. Like the home, a warehouse and airplane hangar Mr. Sands rented, as
well as recreational vehicles and trucks parked on his property, were filled with hoarded
articles and trash. He had fifty-seven scavenged computer hard drives in his house.
Police reports indicated Mr. Sands had threatened Mr. Brown and others and had been
banned from a bank because of his behavior. Mr. Sands had not filed a tax return since
2003. After Mr. Sands transferred $91,000 in investment funds from one account to
another, the IRS treated it as income and seized the entire amount. Mr. Sands contacted
an accountant; however, he did nothing further to remedy the alleged error. One
physician testified Mr. Sands suffered from dementia. Another testified Mr. Sands
suffered from Asperger’s syndrome which is a form of autism.

7
[¶18] From the evidence presented, the district court concluded Mr. Sands was unable to
properly manage and care for himself and his property as a result of mental illness or
deficiency and a guardian was necessary both at the time Mr. Brown was appointed and
at the time of the hearing in January 2011. Having reviewed the hearing transcript and
the evidence, including a video tape showing the condition of Mr. Sands’ home, we do
not find the district court’s findings or conclusions to be clearly erroneous. To the
contrary, they are well supported by the evidence presented.

[¶19] In addition to the district court’s findings, evidence showed that Mr. Sands was
admitted to the hospital in July of 2010 for a possible overdose of medications. A
psychiatrist, Dr. Tom Kirk, was asked to examine him because of concerns by other
medical professionals about his decision making capacity. Based upon his evaluation,
Dr. Kirk recommended that if Mr. Sands wished to be released from the hospital, there
needed to be someone to keep an eye on him and the Wyoming Department of Family
Services Adult Protection should be involved. Dr. Kirk also recommended the
appointment of a power of attorney or someone to oversee Mr. Sands’ decision making.

[¶20] Dr. Kirk testified that he saw Mr. Sands again in November of 2010 in the
emergency room where he had been placed on a mental health hold after being detained
by police for making threats against others. Dr. Kirk examined Mr. Sands and concluded
he was a potential danger to others. Mr. Sands was diagnosed with a form of dementia
that significantly impairs his cognitive functioning and decision making ability. Dr. Kirk
testified that he would not have released Mr. Sands from the hospital had the
guardianship not been in place. He also testified that in his opinion Mr. Sands needed a
guardian’s assistance with major decision making and that would not change because his
condition would not improve.

[¶21] Mr. Brown testified that the house was crammed with garbage and debris. The
front door would not open all the way and it was difficult to walk through the rooms they
were so filled with stuff. There was a path leading to the bedroom which was covered
with orange juice cartons two feet deep, causing Mr. Brown’s head to hit the ceiling as he
made his way. The bathroom and kitchen were unusable because they were crammed
with debris and did not have running water. Mr. Sands had painted the windows shut so
no air could get into the house. Extension cords ran all through the house over and under
the debris.

[¶22] After obtaining a bid of $10,000 to have the house cleaned out Mr. Brown paid
himself and his sons $7,000 from Mr. Sands’ funds to clean it themselves. Mr. Brown
testified that it took seven weeks to clean the house and they filled three 30-yard
dumpsters with trash and one and a half 15-yard dumpsters with electronic equipment. It
took two and a half hours to unload all of the guns they found in the home.

8
[¶23] After the house was cleaned, Mr. Brown spent $13,000 restoring the home to a
habitable condition. Mr. Sands had done his own electrical work and Mr. Brown could
not find an electrician willing to work on the home without first bringing it up to code. In
addition to having the electrical system restored to a safe condition, Mr. Brown had the
water and gas turned back on. He also had the house painted inside and out, the floors
redone and the windows fixed so they could be opened.

[¶24] While the cleaning and restoration were being done, Mr. Brown arranged for Mr.
Sands to live temporarily at Cheyenne Health Care and then at Pointe Frontier. The goal
was to have him living in his home again by January 1, 2011. Mr. Sands moved back
home on December 31, 2010.

[¶25] In addition to his testimony concerning the condition of Mr. Sands’ home, Mr.
Brown’s testimony supported the district court’s findings about Mr. Sands’ financial
decision making. At the same time he quit paying the $15 per month charge for garbage
collection and allowed the water to be shut off rather than pay to have the sewer leak
fixed, Mr. Sands continued to pay $200 per month for telephone service at a business that
was no longer operating and did not actively address the alleged IRS error in seizing
$91,850 from his investment account. There is simply no question the evidence
presented at the January 2011 hearing supported the district court’s findings and decision
to leave the guardianship in place.

2. Compliance with Statutory Requirements and Fiduciary Duties

[¶26] Although stated differently, the real focus of Mr. Sands’ argument in his second
issue is on Mr. Brown and the actions he took or failed to take while serving as guardian.
Mr. Sands contends, for example, that Mr. Brown failed to file the statutorily required
inventory of his property, paid family members thousands of dollars to clean up his home
and spent Mr. Sands’ money for unnecessary improvements to the home.

[¶27] At the final hearing in this matter, Mr. Sands called Mr. Brown as a witness. Mr.
Brown was questioned extensively by Mr. Sands’ counsel and on cross-examination by
his own counsel. After hearing his testimony, the district court stated:

This Guardianship/Conservatorship involved a
shocking case of hoarding. Mr. Sands had managed to create
a completely unsanitary, unhealthy environment in which no
human being could be expected to live.

[¶28] The district court summarized the evidence showing the condition of Mr. Sands’
home and continued:

9
 And into that environment Mr. Brown undertook a task
no one would want. It was a nightmare in terms of the
property that had to be rehabilitated. And I appreciate that
now there are family members here, and they’ve been helping
Mr. Sands; but at the time nobody was there. . . . There was
just one fellow who was willing to step up and try to do
something, and that was Mr. Brown.

[¶29] The court then found:

- under “filthy, disgusting” conditions, Mr. Brown proceeded to try
to make Mr. Sands’ desire to stay in his home possible;

- Mr. Sands was unable to understand that maintaining property
required spending money;

- Mr. Brown presented evidence that his family performed the work
necessary to clean up the house at a price below what other contractors
would have charged and Mr. Sands had not met his burden of proving
otherwise;

- although the initial inventory required by statute was not filed,
through the course of the reporting process Mr. Brown provided the court
with “extremely detailed” reports identifying the property that had value
which substantially complied with the statute;

- any financial harm Mr. Sands suffered as a result of the
guardianship/conservatorship proceedings was due to his “inability to make
a cost benefit analysis and the fact that he has enough money to hire
attorneys to engage in legal proceedings which can in no way be in his best
interest.”

[¶30] Based upon all of the evidence presented over the course of these proceedings, the
district court held that Mr. Brown substantially complied with the statutes and did not
violate his fiduciary duties. Having carefully reviewed the record in its entirely, we
conclude the district court’s findings are fully consistent with the evidence and are not
clearly erroneous or contrary to the great weight of the evidence.

3. Ruling on Mr. Sands’ Complaint

[¶31] In his final issue, Mr. Sands asserts the district court erred when it ruled on the
issues alleged in his complaint at the final hearing when the only issue scheduled for

10
consideration was Mr. Brown’s motion for fees and costs. At the commencement of the
hearing, the following exchange occurred:

THE COURT: . . . [W]e’re here for a number of
motions mostly related to closing . . . the Guardianship . . .
Conservatorship, and complaint that was filed . . . I guess I’m
at a loss as to who should begin under the circumstances. Do
you have a suggestion?
[MR. SANDS’ COUNSEL]: I was wondering
that. I think they should. The basis is . . . that they’ve . . .
filed their motion for fees. We objected to those fees, and
that’s why we’re here.
THE COURT: I agree. Is there a challenge to the
accounting?
[MR. SANDS’ COUNSEL]: There is a challenge
to the accounting. There is a challenge to the fees. . . . I
filed a request for this Court to just essentially go through the
file and avoid the time and expense of having to be here
today. That was in my request, for the Court to determine
fees and costs and to finally terminate the Guardianship . . .
without a hearing.
Essentially, Your Honor, we’ve stated in our objection
why we object. We put forth evidence within that motion
there was being checks and so forth written by the Guardian .
...
The essence is that we have basically been deprived of
the ability to do the check and balance because there was
never the check, the check being the beginning inventory.
That was never done. . . . [Mr. Brown’s counsel] . . . said that
preparation of the written inventory was impossible.
Well, it’s required by statute. And unless the Court
says it’s impossible, it’s not impossible. . . . we’re kind of
behind the eight ball when we say we contest the accounting.
We have filed a complaint of missing property in the estate.
It’s hard to verify, . . . because there was never any inventory
saying this is what is here to begin with. So that’s another
reason why we asked the Court to determine fees and costs
without the time and expense of all of us being here today.
THE COURT: I don’t know how that would
work procedurally if there are fact issues. I think we have to
have a hearing, unless you just want to waive it and have me,
you know, decide it like that. If everybody stipulates to that, I
could do so. But it doesn’t seem fair to Mr. Brown. He ought

11
 to be able to present some evidence. He has been accused of
some things, and he should have a chance to respond.
....
[MR. BROWN’S COUNSEL]: Your Honor, I just
would like to get clarification. When [Mr. Sands’ counsel]
and I spoke on Friday, I was told that the only issue for
today’s hearing, according to Mr. Sands, would have been the
. . . Guardian/Conservator fees and the attorney’s fees. I
understood from that conversation that it was no issue with
the accounting that was being pursued; and even though there
was a complaint against Mr. Brown filed on April 13th
regarding missing property, I understood as well that that was
not being pursued today.
So I guess I just want to be very clear about what the
expectation is as to the evidence to be presented today.
THE COURT: Yeah. I’m a little confused.
[MR. SANDS’ COUNSEL]: . . . . The fact is,
this hearing is set to determine whether or not the Court
approves or disapproves of the asserted fees and costs by Mr.
Brown and [his counsel]. That’s it.
And then once the Court makes the determination
whether or not those fees and costs are approved, we are
hoping that this estate, Guardianship/Conservatorship is
closed; and then everything is behind us.
THE COURT: But the basis you claim for me not
awarding those fees is that there was some misconduct on Mr.
Brown’s part. So it seems like somebody has to address that.
If that’s where you are – you’re contesting the fees, and
you’re basing it on some kind of misconduct – maybe you
ought to have to go first to prove that misconduct.
[MR. SANDS’ COUNSEL]: I would be glad to go
first.

[¶32] Mr. Sands’ counsel proceeded to make an opening statement in which he indicated
he would present evidence showing that Mr. Brown did not properly administer the estate
and should not be awarded fees. He then called Mr. Brown as a witness and questioned
him extensively about his actions and inactions while serving as Mr. Sands’ guardian. He
also called Mr. Sands’ nephew who testified that he came to Cheyenne while Mr. Brown
was working on Mr. Sands’ house and Mr. Brown told him he was moving everything
out of the house to get it ready to sell. Mr. Sands’ counsel stated he had no further
witnesses.

[¶33] At that point, the district court stated:

12
 Very well. I’m going to enter judgment on partial
findings in this case, now that you’ve been completely heard,
[counsel], on behalf of Mr. Sands. I don’t think it’s necessary
to receive any evidence from the Guardian, given the nature
of the case and what I’ve seen so far.

The district court summarized its reasoning and held that Mr. Brown substantially
complied with the statutes and did not violate his fiduciary duties.

[¶34] We have said:

Waiver occurs when there is an intentional relinquishment of
a known right manifested in an unequivocal manner.
Cathcart v. Meyer, 2004 WY 49, ¶ 21, 88 P.3d 1050, 1060
(Wyo. 2004); Jensen v. Fremont Motor Cody. Inc., 2002 WY
173, ¶ 16, 58 P.3d 322, 327 (Wyo. 2002). While the intent to
waive may be implied from conduct, the conduct should
speak the intent clearly. Id. Silence or delay in asserting a
right without more does not constitute the unequivocal
manifestation of intent required for a claim of waiver.
Jensen, ¶ 20, 58 P.3d at 327-28. To support a claim of waiver
there must be an obligation to speak or the silence or inaction
must be of such duration that is shows an intent to yield a
known right. Id.

Verheydt, ¶ 24, 295 P.3d at 1251.

[¶35] At no time during the hearing did Mr. Sands’ counsel object to the proceedings.
To the contrary, he voluntarily participated in the proceedings when, in response to the
court’s statement that somebody had to address the misconduct issue and maybe it should
be the party alleging it, counsel stated he “would be glad to go first” and proceeded to
make an opening statement and call and examine witnesses to testify in an effort to prove
Mr. Brown’s misconduct. Even when the district court stated that it intended to enter
judgment and informed counsel that he had been “completely heard,” no objection was
made. Likewise, when the district court made its ruling, counsel did not object. We
hold that any claim of error in the proceedings was waived by counsel’s unequivocal
manifestation of intent to participate and failure to object.

[¶36] Affirmed.

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