No. 94-252
IN THE SUPREME COURT OF THE STATE OF
1994
In the Matter of the Estate of
DON C. WEST
Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry L. Seiffert, Billings, Montana
For Respondent:
R. Bruce Harper, Harper & Stusek, Billings, Montana
Submitted on Briefs: October 28, 1994
Decided: December 20, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the District Court of the Thirteenth
Judicial District, Yellowstone County, of an order establishing a
limited guardianship and terminating the general guardianship of
Don C. West. The order also continued a conservatorship with
Norwest Capital Management and denied a joint petition from the
protected person, his guardian and the conservator to substitute
the conservatorship with a trust. We affirm.
The questions for review are:
I. Did the District Court err in establishing a limited
guardianship?
II. Did the District Court err in denying the joint petition
to terminate the conservatorship?
Don C. West (Don) is a "protected person" whose personal and
financial interests have been managed by his mother, Mary Lou West,
as guardian, and Norwest Capital Management Co.-Montana, formerly
Northwestern Union Trust Co., as conservator, since 1978. In
October of 1976, Don sustained severe injuries in a motor vehicle
accident in New Mexico, when a vehicle in which he was a passenger
collided with an oil tanker. As a result of this accident, Don
suffered extensive physical injuries, including burns, blindness
and head and leg injuries. He suffers from motor difficulties in
his legs and has some deformity in his legs and ankles which
requires him to wear braces. His head injuries caused some mental
impairment and he has also lost physical sensitivity in his fingers
because of burns.
2
Following the accident, Don remained in a coma for over three
months. In November of 1976, a New Mexico state court declared Don
an incompetent person "until such time he is able, unassisted to
properly manage and take care of himself and his property." The
New Mexico court also appointed his mother, Mary Lou West, as
guardian ad litem. In her capacity as guardian ad litem, Mary Lou
West initiated a personal injury suit in New Mexico on Don's
behalf. The lawsuit resulted in a negotiated settlement in the
spring of 1978.
In May of 1978, following the settlement, the Montana district
court appointed Northwest Union Trust Co., now operating as Norwest
Capital Management & Trust Co.-Montana (Norwest Capital), as
conservator of Don's financial affairs. The conservatorship was
initially funded with $463,319. By the end of 1978, after payment
of medical expenses and other bills on Don's behalf, the value of
the conservatorship was reduced to $374,323. Social Security
Disability Payments have been deposited into the conservator-ship
during the years of Norwest Capital's management of Don's estate.
During the years since 1978, the conservatorship has increased in
value under Norwest Capital's management, with the result that at
the time of the hearing on this matter, the conservatorship held
assets in the amount of $1,084,239. In recent years, the annual
income of the conservatorship has consistently exceeded the amount
necessary to meet Don's needs.
In June of 1978, the Montana district court also appointed
Mary Lou West as general guardian. Mary Lou West has made several
3
personal care arrangements for her son in the years since 1978. III
the last few years, however, she has been increasingly less
involved in making such arrangements.
After being released from the hospital in January 1977, Don
completed a rehabilitation program at St. Vincent's Hospital in
Billings, Montana. His guardian then placed him in a
rehabilitation program for the blind in Topeka, Kansas; followed by
the Lighthouse Program for the Blind in Seattle, Washington; and
then in High Hopes Brain Trauma Learning Center in Costa Mesa,
California. After the High Hopes program, Don had live-in
assistance in two separate living arrangements in Orange County,
California. After being notified by California authorities that
the second of those arrangements was unsatisfactory and had to be
terminated within two days, Mary Lou West arranged for Don to fly
to Billings, where he resided with her for a short time before
being enrolled by her in The Villa in Greeley, Colorado.
Don was unhappy with the arrangements made by his mother in
Greeley and, after a short time, he enrolled himself in the
Colorado Rehabilitation Center, in Denver, Colorado. This program
taught mobility, daily living skills, Braille typing and other
skills to enable him to live on his own. With the assistance of
these rehabilitation programs and physical therapy, Don has
gradually recovered and achieved a great deal of self-reliance in
many aspects of his life. At the time of the hearing in this
matter, he had lived on his own for over a year.
Although Don is now 43 years old, currently lives alone and
4
has learned to be quite self-sufficient, he continues to require
some assistance. At the time of the hearing, he employed a
personal care manager, who assisted him with safety issues,
personal hygiene, social activities and money management. Don
hired his care manager after approval from Mary Lou West. The care
manager communicates regularly with Mary Lou West concerning Don's
personal affairs. Don has also hired other people--and sometimes
fired them when they did not work out satisfactorily--to get his
mail, pay his bills, clean his apartment and cook for him. He can
cook some meals on his own using a microwave oven, but sensory loss
in his fingers causes problems with cooking on an electric range.
Don uses the aid of customer assistance at stores when he
purchases his food, clothing and other personal items. He arranges
for his own transportation using taxis and can complete sales
transactions on his own. However adept he has become, he
recognizes that he must rely on the assistance of helpers and
recognizes his limitations when it comes to managing his money and
making investments. He testified that he knows that he needs
assistance in financial matters and appreciates the manner in which
Norwest Capital has handled his finances.
All the interested parties in this action agree that Don no
longer needs the extensive assistance from others to manage his
affairs that he needed at the time the guardianship and
conservatorship were established in 1978. Indeed, the District
Court emphas,ized and it is clearly evident in the record that Don
has made a phenomenal recovery since that time, culminating in his
5
present ability to live independently and to arrange for necessary
assistance from third persons without his guardian's help.
Evidence was presented at the hearing from several physicians
to establish that Don no longer needs extensive assistance and to
establish that he is capable of managing many of his personal
affairs. However, the evidence also established that he has some
"mental status abnormalities" consistent with the head injury he
suffered in the 1976 accident and that some aspects of his
personality are impaired due to the head injury as well. The
physician preparing the report for purposes of this proceeding
stated that Don suffers extremely gross deficits in information
gathering (primarily due to the blindness), markedly impaired
concentration, slightly impaired memory and markedly impaired
mathematical skills. Despite these deficits, Don has recovered
remarkably well and is able to live a relatively normal life. He
brought this action to terminate the guardianship as he believes he
no longer needs assistance in his daily living arrangements and
feels he can handle such matters on his own.
Mary Lou West testified that she agrees that Don should have
more latitude in decisionmaking, but she thinks he needs guidance
in critical areas such as medical arrangements and education and
training arrangements. Pam Ness, Vice President and Trust Officer
for Personal Trusts for respondent Norwest Capital in Billings,
manages the Don C. West Conservatorship. She testified that
Norwest Capital objects to the complete removal of the guardianship
in this matter and would be opposed to a trust arrangement rather
6
than a conservatorship if a third person is not involved in
decisionmaking for Don. However, Mary Lou West and Norwest Capital
agreed that a trust arrangement would more fully and adequately
meet Don's current needs because it would allow Don to make some
financial decisions with guidance from a third person. To the
extent of his capacity to understand the nature of the proposed
trust, Don agreed with that approach as well.
The primary motivation for this arrangement, as testified to
by the witnesses, was to allow Don more latitude in gift-giving and
to allow him to have some involvement in his personal financial
affairs. According to the testimony, a trust could be tailored to
meet Don's individual needs, such as tax and estate planning.
Under the present conservatorship arrangement, financial
transactions are subject to continuing court supervision and
approval. Don has expressed an interest in giving money to his
nephews and nieces for their college expenses. He also wanted to
give his mother a new car as a surprise Christmas gift, but was
unable to do so because the conservatorship limits gifts to
approximately $12,000 per year, subject to court approval.
Dr. David B. Carlson of Deaconess Medical in Billings prepared
the report for the District Court in this matter at the request of
Don's counsel. He opined that Don does not need a full-time
general guardianship and that a less restrictive method of
providing for Don's needs would be appropriate for Don's best
interests.
The District Court relied on Dr. Carlson's opinion and
continued the guardianship, limiting the guardian's powers as
follows: to care and maintain Don, when and if he should become
incapable of doing so himself; to assert and protect Don's rights,
should he be unable to do so for himself; to provide timely and
informed consent to necessary medical procedures, in the event that
Don is unable to do so for himself; and to assist Don in obtaining
the necessary training and education. The District Court also
continued the conservatorship in its present form.
Issue I: Guardianship
Did the District Court err in establishing a limited
guardianship?
Norwest Capital and Mary Lou West agree with the District
Court's termination of the general guardianship and appointment of
Mary Lou West as limited guardian. They oppose the complete
removal of a guardian. Don opposes any sort of guardianship.
Mary Lou West has handled many of Don's personal arrangements
since his accident in 1976. The record establishes that this
arrangement is not presently necessary. Don resides in Colorado
and Mary Lou West resides in Montana. She acknowledges his
remarkable recovery and testified that she now believes that Don is
capable of making most decisions about his property and his life.
She further recognizes that the constant supervision and protection
once required for Don is no longer necessary and that he needs some
independence
Pam Ness testified that Norwest Capital is opposed to dealing
directly with Don if a trust were to be established and that it
preferred to deal with a third person because of Don's physical
8
disabilities, particularly his blindness, and his inability to
comprehend mathematical and investment transactions well.
Don contends that the District Court's decision to retain a
limited guardian is incorrect for two reasons. First, he contends
that he no longer meets, the definition of "incapacitated person"
set forth in 5 72-5-101(l), MCA:
"Incapacitated person" means any person who is impaired
by reason of mental illness, mental deficiency, physical
illness or disability, chronic use of drugs, chronic
intoxication, or other cause (except minority) to the
extent that he lacks sufficient understanding or capacity
to make or communicate responsible decisions concerning
his person or which cause has so impaired the person's
judgment that he is incapable of realizing and making a
rational decision with respect to his need for treatment.
Don relies on In the Matter of the Guardianship and Conservatorship
of Swandal (1984), 210 Mont. 167, 171, 681 P.2d 701, 703, as
support for his argument that a guardianship is improper where a
person has physical disabilities but is not mentally infirm. Don
contends that the only disabilities that have continued are
physical and, as such, they are insufficient to constitute a
guardianship according to Swandal. This was not the finding of the
District Court. Dr. Carlson testified that Don was not likely to
improve beyond his present capabilities and that he has some mental
impairment, as noted below in more detail. The District Court
concluded that both Don's mental and physical impairments supported
a continuance of the guardianship, with limits on the powers of the
guardian.
Second, Don claims the court erred because the Conclusions of
Law and Order do not comply with the requirements of § 72-5-316,
9
MCA, because the statute does not permit the court to establish a
limited guardianship when the protected person can meet the
essential requirements for his physical health and safety. Section
72-5-316, MCA, provides in pertinent part:
(1) If the court is satisfied that the person for
whom a guardianship is sought is incapacitated and that
judicial intervention in his personal freedom of action
and decision is necessary to meet essential requirements
for his physical health or safety, it may appoint a .
. limited guardian having the powers described in the
order. If the court is satisfied that the allegedly
incapacitated person could handle the essential
requirements for physical health or safety if his
financial resources were managed by another, it shall
order that the petition be treated as a petition for a
protective order under part 4 of this chapter and proceed
accordingly. Alternatively, the court may dismiss the
proceeding or enter any other appropriate order that is
not inconsistent with the specific provisions of this
part. . .
Don further argues that the conditional powers given to Mary Lou
West here are for potential future needs, not for current needs,
and that the statute provides no basis for this sort of
guardianship when there is no current need for it.
The respondents, Mary Lou West and Norwest Capital, argue that
the guardianship statute contemplates this sort of arrangement by
requiring a guardianship to be tailored to those areas where it is
foreseeable that the protected person may require assistance in the
future; here, to prevent some person or persons from taking
advantage of Don, for making medical decisions for Don, and to
provide for the need to act on Don's behalf to obtain training and
education programs for him. Finally, the respondents contend that
someone must continue to act in the capacity of a limited guardian
in order that Don's best interests are served.
10
Section 72-5-306, MCA, describes the purpose and basis for
appointing a guardian, whether it be a full or a limited
guardianship:
Guardianship for an incapacitated person may be used only
as is necessary to promote and protect the well-being of
the person. The suardianshiu must be designed to
encourage the develoument of maximum self-reliance and
independence in the person and may be ordered only to the
extent that the oerson's actual mental and ohvsical
limitations rewire it. An incapacitated person for whom
a guardian has been appointed is not presumed to be
incompetent and retains all legal and civil rights except
those that have been expressly limited by court order or
have been specifically granted to the guardian by the
court. (Emphasis supplied.)
The limited guardianship in this case does not permit Mary Lou West
to intervene in most of Don's personal affairs. The guardianship
is now very limited and enumerates only certain decisions that Mary
Lou West may make for Don, and she can only make these decisions in
the event Don is unable to do so. Clearly, this complies with the
statutory mandate emphasized above to encourage the development of
maximum self-reliance and independence.
The evidence submitted to the court relative to Don's mental
and physical condition consisted of a series of letters from
physicians who had either provided medical services to or had
examined him for the purpose of the proceeding, persons who had
provided rehabilitative services and training to him and from the
court-appointed visitor. Some were authored in 1991 and did not
express opinions as to Don's condition at the time of the hearing.
The court-appointed visitor, who is also the person employed as his
care manager, opined that Don had the capacity of coordinating the
services he needs in managing his daily life, but felt that the
11
continuation of the guardianship was appropriate, with the
guardian's powers being limited to providing guidance in managing
Don's financial concerns regarding the gifting of money and
overseeing his financial portfolio.
Dr. Carlson also expressed the opinion that Don did not need
a full-time guardian, although he needs help in managing his
financial affairs. Dr. Carlson further stated that because of the
nature of Don's injuries, any clinical improvement beyond his
present condition was unlikely. As previously stated, Dr. Carlson
found that Don has deficits in information gathering,
concentration, memory and in mathematical reasoning and
calculating. Based on the foregoing, the court found that Don's
disabilities continue to exist and that he remains physically and
mentally incapacitated, although to a much lesser extent than when
the full guardianship was established. With that in mind, the
court designed an extremely limited guardianship arrangement. The
limited guardianship allows Don to have broad powers over his daily
living arrangements while he is able to live independently.
Don is presently able to provide for his own care. He
testified that he also would be able to provide for substitute
help, should the need arise, by contacting appropriate Colorado
authorities. However, his disability is of such nature and
character as to prevent him from fully and completely protecting
himself and his property interests from those who might take
advantage of him. The powers of the limited guardianship
contemplate that he may not be able to arrange for adequate care
12
providers, that he may not be able to make timely and informed
medical decisions, that he may need assistance in asserting and
protecting his rights and that he will likely need some form of
assistance in obtaining training and education. The mere fact that
he is currently providing for his personal needs does not support
a conclusion that he can do so in the future.
The District Court in this case narrowly formed the limited
guardianship to provide for Don's unique needs, in accord with the
testimony and other evidence presented at the hearing. Subject to
restrictions under the guardianship statutes, such decisions are
committed largely to the discretion of the court. This Court will
not interfere with the exercise of the appointing court's
discretion unless the court has abused its discretion. In the
Matter of the Guardianship of Nelson (19831, 204 Mont. 90, 94, 663
P.2d 316, 318. Section 72-5-316, MCA, gives the court discretion
in determining whether a guardianship should be a full or a limited
guardianship and, if limited, to determine the responsibilities
which are to be handled by the limited guardian.
The powers conferred on a guardian should be as clearly
defined as circumstances permit. We conclude the limited
guardianship arrangement formulated by the District Court will
allow Don to have almost total autonomy, except in the area of his
financial affairs, while still providing the guardian with powers
in the event the guardian becomes aware that Don is unable to
handle certain of his personal affairs. We conclude that the
District Court did not abuse its discretion in determining that a
13
limited guardianship was appropriate in light of the facts in this
case and the stated objective in 5 72-5-306, MCA, to encourage
maximum self-reliance and independence and to promote and protect
the well-being of the person.
We hold the District Court properly exercised its discretion
in establishing the limited guardianship in this case.
Issue II: Conservatorshio
Did the District Court err in denying the joint petition to
terminate the conservatorship?
Don filed a petition to terminate the conservatorship and the
guardian and conservator filed cross-petitions to terminate the
conservatorship. Mary Lou West and Norwest Capital desired to
establish a trust rather than a conservatorship in order that there
might be more flexibility in managing Don's finances. To the
extent of his capacity to understand the nature of a trust allowing
him to have more control over his money, Don also wants such an
arrangement. Don's desire for a trust instead of a conservatorship
is motivated by his wish to make gifts and to help others. The
court denied both petitions, stating that "[tlhe agreed facts do
not demonstrate that it is in the best interest of the protected
person to terminate the conservatorship."
Don testified that he desired to end the conservatorship so
that he might be permitted to make gifts to relatives and others,
particularly other victims of closed head injuries. Don wanted to
buy a car for his mother for Christmas and was disappointed in not
being able to do so because of the statutory limitation of 20% of
conservatorship income, which would have prevented a gift in excess
14
of $12,000. Don also wants to help his nieces and nephews with
their college education expenses. He maintains that he is totally
competent to make decisions about his finances, although he agrees
that his money needs some protection.
Mary Lou West and Pam Ness, a Trust Officer for Norwest
Capital, discussed the advantages of a trust arrangement as an
alternative to the conservatorship, particularly for estate tax
purposes, to address Don's needs and desires and to remove the
authority of the District Court to oversee Don's estate by annual
review of financial statements. Respondents contend that it is
unnecessarily time-consuming and costly to burden the district
courts with issues of this type whenever a protected person wants
to make a substantial gift and to limit the amount of gifts each
year to 20 percent of the income of the estate. Respondentsargue
that, as trustee instead of conservator, Norwest Capital would be
better able to handle this sort of transaction, taking into account
the provisions of the trust agreement, which could be structured in
order to protect Don's interests. Norwest Capital would have the
same fiduciary duty under either arrangement. The respondents
further argue that questions of whether gifts are appropriate are
best made in private by the trustee and not in a courtroom setting.
In considering these arguments, we notice the complete absence
of any estimation of Don's future needs and a balancing of those
needs with the desires of the parties.
In their petition to terminate the conservatorship and
establish a trust, the respondents also expressed the desire to be
15
able to consider the interests of and to benefit remainder
beneficiaries of Don's estate by gifting and tax planning. The
respondents claim that conversion of the Don West Conservatorship
to a trust would serve Don's best interests, needs and desires.
Don's "best interests," according to respondents, include the right
to consider and select the potential beneficiaries of his estate
and to formulate a plan to maximize gifts and minimize tax impacts.
Pam Ness testified that a trust would better serve Don's interests
for tax purposes although she testified that she could not explain
or specify any of the alleged tax advantages because she was not a
tax expert. Again, there has been no consideration of the
balancing of the potential benefit of a program of gifting and the
resultant tax impact with Don's future needs.
The conservator has handled Don's assets since 1978, investing
and reinvesting the funds, and has paid out funds to Don and to
others for Don's benefit. By September 17, 1993, the value of the
assets was $1,084,239 and the income from the assets is
approximately $60,000 per year, and consistently exceeds the amount
expended for Don's living expenses. The final pretrial Order
submitted to the District Court stated, as an agreed fact, that the
projected Montana inheritance and federal estate tax burden, in the
event of Don's death, amounted to approximately $230,000; and that
Don desired to make gifts to his mother, his brother, his sister,
and his nieces and nephews, but is not permitted to do so under
Montana conservatorship law. These agreed facts were the basis of
the petition by the guardian and the conservator to terminate the
16
conservatorship and to create a trust.
The District Court determined that these agreed facts do not
demonstrate that it is in the best interest of the protected person
to terminate the conservatorship. In denying the requests to
dissolve the conservatorship, the District Court stated:
It would seem to be in the protected person's best
interest to maintain what assets he has to protect him
against the uncertainties of the future. The only ones
to stand to benefit from a program of gifting would be
those who receive the gifts and possibly, those persons
who are the devisees of his estate upon his death.
Clearly, the District Court considered the uncertainties of the
future and the possibility that Don's monetary needs, although not
great at this time, may escalate in the years to come. We stress
again the absence of any testimony from any of the parties as to
the amount that will be needed to provide for Don's futiire needs.
Without such evidence, the District Court had no basis for changing
the present conservatorship. The money initially deposited into
the conservatorship account, which under the management of Norwest
Capital has nearly tripled since the end of 1978, was the result of
a personal injury settlement intended to provide for Don's needs
for the remainder of his life. The Social Security Disability
payments are also intended for his benefit. At age 43 and in good
health, his present needs are likely less than his needs will be
toward the end of his life. Medical and other care expenses can
quickly exhaust the resources of critically ill persons and there
is no way to accurately forecast the amount that may be required in
the modern day world where the reality is that medical costs have
escalated at a much more rapid rate than most other costs. We
17
therefore strongly agree with the conclusions reached by the
District Court with regard to the uncertainties of the future.
Further, if the purposes of the estate included making
provisions for the best interests of heirs or devisees, then
certainly tax planning--including a program of gifting--would be
appropriate. However, we are not concerned with maximizing the
estate for such future heirs and devisees and that would not be a
stated purpose in establishing a trust for Don. These aspects
demonstrate the absence of apparent concern for Don's future needs.
With the present limited guardianship, whereby Don has very broad
powers to maximize his autonomy, creation of a trust as suggested
here is not appropriate. The guardian has no powers over financial
transactions; these would be vested with the trustee, who is not in
a position to know what will be needed for Don's care in the
future. Norwest Capital did not want to deal directly with Don in
the event that a trust was established. Therefore, in order to
maximize Don's independence, it is necessary to continue the
conservatorship.
Moreover, the sort of arrangement in place here--limited
guardianship and conservatorship--does not prevent Don from making
a will to dispose of his property upon his death. Under a
conservatorship, the court has certain enumerated powers which may
be exercised directly or through a conservator. These powers
include "all the powers over his estate and affairs which he could
exercise if present and not under disability, except the power to
make a will." Section 72-5-421(3), MCA. One of these powers is
18
the power to make gifts. However, there are limits on the power to
make gifts, because of the importance of that power. See § 72-5
428(2), MCA.
Establishment or, as in the present case, continuance, of the
conservatorship has no effect on the capacity of the protected
person. Section 75-2-421(5), MCA; and Montana Conference of the
Seventh-Day Adventist Church v. Estate of Miller (1981), 192 Mont.
468, 476, 628 P.2d 1100, 1105. As noted above, a limited
guardianship may be established because of limited mental or
physical incapacity in one particular area of functioning, but the
person may be entirely competent in other respects. Miller, 628
P.2d at 1105. Thus, the mere fact that a conservator has been
appointed does not mean that the protected person lacks the
capacity to make a will. The power to make a will for directing
the disposition of one's property upon death is expressly not given
to the court along with other statutorily granted powers in § 72-S-
421, MCA. The District Court addressed this point, stating:
The mere fact that a Conservator has been appointed does
not mean that the protected person lacks the capacity to
make a will. If the protected person, in this case,
should want to leave his property, in the event of his
death, to certain of his relatives, and it can be
determined that he possesses the necessary testamentary
capacity, such a will would be valid, notwithstanding the
fact that he has a Conservator.
We agree with this analysis of Don's capacity and rights concerning
the testamentary disposition of his property.
The District Court also concluded that the purpose of a
conservatorship is to conserve the assets for the benefit of the
protected person and that the mere fact that at this time, Don's
19
living expenses are less than the income from his estate, does not
mean it would be in his best interests to give away his estate.
During the hearing, the following exchange occurred:
THE COURT: Tell me, all I hear is magical words, tax
planning, what tax planning is appropriate for someone
who's 42 years old?
[Ms. Ness]: (No oral response.)
THE COURT: Do you have a crystal ball to tell anyone how
much it's going to take him to live out the rest of his
life?
THE WITNESS: No, we don't.
THE COURT: All right. Well, now, is there any tax
planning that you're aware? Are you an expert in the
field?
THE WITNESS: I do not profess to be an expert at all.
This was the extent of the testimony concerning tax planning and no
evidence was presented to estimate future needs. At 43 years of
age and in good health, there is no way to determine what Don's
needs may be in the future.
The purpose of the Don C. West Conservatorship estate is to
provide for Don's best interests and his present and future care.
Don is unable to manage his property and financial affairs not only
because of his physical disability (blindness), but also because he
is impaired in his ability to comprehend mathematics and, thus, his
ability to understand his financial affairs. He admits that he
needs this sort of help and also that his money needs protection.
He also needs proper management to preserve his estate to provide
for his support, care and welfare in the present and in the future.
It is unfortunate that Don does not have the ability to make
20
detailed mathematical judgments to determine his future needs. His
major expenses in the past have been totally handled by either his
guardian or conservator. Under the present limited guardianship,
the District Court has structured an arrangement that will give Don
broad control over his personal care needs in order to maximize his
self-determination and independence while maintaining control of
his finances to assure his future needs are provided for as fully
as possible. In today's world, anyone and particularly a severely
handicapped person can use up a million dollars in a relatively
short period of time if physical and mental health decline. Again,
there was no evidence presented addressing this possibility,
although one of the physicians noted that a person who has
previously sustained the sort of head trauma experienced by Don may
be a victim of premature senility, with an onset as early as age 55
years. The sort of trust desired by the parties does not consider
such possibilities and there was a noted absence of consideration
by the parties on this topic.
In fact, the nature of the evidence presented in this case
emphasizes the desires of the parties without the appointment of a
guardian ad litem to specifically address these future needs in
relation to Don's best interests. Don's counsel represented Don
and addressed Don's wishes. However, the limited evidence
presented indicates that Don does not have the capacity to compare
his own needs to those of others. In other cases of this nature,
where the guardian has interests possibly adverse to the best
interests of the ward, it may be appropriate for the court to
21
appoint a guardian ad litem to specifically address the protected
person's future needs for purposes of the proceeding.
We also conclude that tax planning for purposes of the estate
tax burden upon the incident of Don's death is simply not a
consideration which is in the best interests of providing for his
care while he is alive. Gifting for the purpose of reducing the
amount of estate tax is, in and of itself, insufficient to justify
the gifting of the estate and does not preserve the estate for the
purpose of providing for Don's needs.
Under the present guardianship, the guardian has very limited
powers. If the conservatorship were to be converted to a trust, it
would be necessary to appoint a guardian with very broad powers and
the capacity to make well-reasoned financial decisions as Don does
not have an adequate capacity to compare his own needs to those of
others. It is apparent that the District Court carefully
considered Don's best interests, both present and future, by
structuring a limited guardianship with few powers and continuing
the conservatorship to ensure that Don's future needs are met.
Don's desire to establish a trust to replace the conservatorship is
motivated by his wish to make gifts and to help others. Don also
testified that he was interested in counseling other victims of
head injuries. During the hearing, he testified extensively and it
is apparent to this Court that he has substantial mental capacity
despite his particular impairments, that he is an empathetic
individual who cares deeply about other persons, and that he was
able to respond appropriately to lengthy questioning directed
22
toward his ability to care for his personal needs. He has made a
remarkable recovery from his situation in 1978, referred to by the
court-appointed visitor from the Montana Department of Social and
Rehabilitative Services as "unable to manage for himself in
society."
The District Court determined that the only persons to be
benefited by a program of gifting and other estate tax planning,
according to the evidence presented at the hearing, are the persons
to receive the gifts and the devisees of his estate upon his death.
This Court will uphold the decision of the District Court unless
the District Court has abused its discretion. In exercising its
discretion, the District Court must be guided by the best interests
of the protected person. Clearly, the court considered Don's best
interests in deciding to continue the conservatorship. We conclude
that the record supports the finding that Don's future needs are
best served by a continuance of the present conservatorship and
that the reasons proposed by the parties do not constitute
sufficient justification for dissolving the conservatorship and
establishing a trust.
We hold the District Court properly exercised its discretion
in continuing the conservatorship in this case.
Affirmed.
We Concur:
Y.-
vvA /, --
23
j
I Justices
24
Justice James C. Nelson specially concurs:
I concur in the result of our opinion and, for the most part,
with our legal analysis. Aside from that, I do not concur in
certain statements that are made in the opinion.
25
December 20, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Terry L. Seiffert
Attorney At Law
Box 31181
Billings MT 59107-1181
R. Bruce Harper, Esq.
Harper & Stusek
Box 7067
Billings MT 59103-7067
ED SMITH
CLERK OF THE SUPREME COURT