NO. 82-466
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
IN THE MATTER OF THE GUARDIANSHIP
OF NAOMI NELSON, an incapacitated
person,
SHIRLEY GIARRANTANA,
Petitioner and ReSpondent,
CHRISTINE THOMPSON,
ReSpondent and Appellant.
Appeal from: DiStrict Court of the Third Judicial District,
In and for the County of Deer Lodqe,
The Honorab1e Robert Boyd, Judqe preSiding.
CounSel of Record:
For Appellant:
Leonard J. Haxby, Butte, Montana
For ReSpondent:
Daniel McCarthy; JohnSon, Skak1eS & Kebe,
Anaconda, Montana
James Dorr JohnSon, warm Springs, Montana
Nick Roterinq, Dept. of Institutions, He1ena,
Montana
Submitted on Briefs: March l7,
Decided: May l2, 1983
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Christine Thompson appeals from an order of the Third
Judicial District Court appointing respondent, Shirley
Giarratana guardian of the person and estate of Naomi Nelson,
an incapacitated person.
Naomi Nelson is a 56 year old single woman who has been
a patient at Warm Springs State Hospital since .Apri1 l8,
l94l. Christine Thompson and Shirley Giarratana are sisters
of Naomi. They both reside in California.
On March 25, l982, Christine Thompson filed a petition
requesting that Naomi be declared incapacitated and that she
be appointed Naomi's guardian. On May 25, l982, a second
petition for appointment was filed by Shirley Giarratana.
A hearing on the question of incapacity was held on May
26, l982. At that time, Dr. Myron K. Meinhardt, a
psychiatrist at the Warm Springs State Hospital, testified
that Naomi Nelson suffers from schizophrenia which is chronic
and undifferentiated. Dr. Meinhardt further stated in a
report filed with the District Court that Naomi Nelson "is a
severely regressed, institutionally dependent woman who will
never be able to autonomously care for herself independent of
the emotional structure and_ directions of trained. nursing
care staff."
Conde F. MacKay, a court-appointed visitor, also
testified at the hearing and filed a report with the District
Court. MacKay stated that when he visited with Naomi Nelson,
it was virtually impossible to communicate with her. A nurse
responsible for Naomi's care informed MacKay that his
experience of being unable to communicate in a meaningful way
with Naomi was typical. MacKay reported that he found the
facilities to be pleasant and clean, with trained staff
present at all times.
At the May 26, 1982 hearing, the District Court also
heard testimony regarding the guardianship proceeding.
Christine Thompson testified that although she lives in
California, she has visited with Naomi on two occasions in
the last two years. Mrs. Thompson testified that she sends
Naomi food packages, canteen money, and money for clothing.
It was revealed on cross-examination that Mrs. Thompson has
been the representative payee for Naomi's Social Security
benefits since l964. During that time, Mrs. Thompson has not
accounted for the disbursal of the Social Security funds to
any of her brothers and sisters, and has not made payments to
the State of Montana for Naomi's care and maintenance for at
least the past two years.
Raymond Nelson, a brother of Naomi Nelson, testified
that Christine Thompson should not be appointed guardian
because, among other reasons, Christine is prone to becoming
overly concerned with having her own way in spite of
consequences to others.
The guardianship proceeding was continued until
September l, l982, so that Shirley Giarratana, who had
suffered injuries in an automobile accident, could be
present. At that time, Shirley Giarratana testified that she
visits Naomi as often as possible and sends her packages.
Mrs. Giarratana. testified that she filed the guardianship
petition because Naomi's best interests would not be served
by the appointment of Christine Thompson as guardian.
Raymond Nelson, also present at the September l, 1982
hearing, testified that Shirley Giarratana should be
appointed guardian of Naomi because she is very responsible,
and is the only member of the family who has not had serious
mental, emotional, or alcoholic problems. Robert. Nelson,
another brother of Naomi Nelson, testified that Christine
Thompson should be appointed guardian of Naomi because she is
compassionate and understanding with disabled persons.
On September 27, l982, the District Court entered its
findings of fact and conclusions of law. Naomi Nelson was
found to be an incapacitated person who required the
appointment of a guardian. The District Court concluded that
both Christine Thompson and Shirley Giarratana were proper
persons to be considered for the appointment of guardians,
but that it was in Naomi's best interests that Shirley
Giarratana be appointed as guardian.
Christine Thompson appeals and presents the following
issues for our reviews
l. Did the District Court err in failing to designate
whether the guardianship is to be full or limited, pursuant
to section 72-5-3l6(2), MCA?
2. Did the District Court err in appointing a guardian
whose interests conflict with those of the ward, pursuant to
section 72-5-3l2(4)(c), MCA?
3. Did the District Court err in failing to consider
whether the appointed guardian would encourage the
development of maximum self-reliance and independence of the
ward, pursuant to section 72-5-306, MCA?
4. Did the District Court err in not allowing the
testimony of Dr. Meinhardt regarding alternative treatment
plans, pursuant to section 53-21-l27, MCA?
5. Did the District Court err in failing to determine
whether the appointed guardian would consider alternate
treatment plans for the ward, pursuant to section 53-21-l27,
MCA?
when reviewing guardianship proceedings, this Court is
governed by the following standard of review:
"Subject to statutory restrictions, the selection
of the person to be appointed guardian is a matter
which is committed largely to the discretion of the
appointing court, and an appellate court will
interfere with the exercise of this discretion only
in case of a clear abuse." 39 Am.Jur.2d Guardian
and Ward § 27, at 29.
In this case, appellant Christine Thompson does not claim
that the District Court abused its discretion by appointing
Shirley Giarratana. as guardian of Naomi Nelson, We ‘will
therefore limit our review to whether any statutory
restrictions were violated in the guardianship proceeding.
Christine Thompson's first allegation of error is that
the District Court did not comply with section 72-5-3l6(2),
MCA, which states:
"The court may not invest a guardian with powers or
duties beyond those sought in the petition and may,
upon petition for full guardianship, create a
limited guardianship or conservatorship when the
court determines that a limited guardianship or
conservatorship is all that is required for the
care and protection_ of the incapacitated. person.
The order shall specify whether § full or limited
guardianship is being created. In the case of a
limited guardianship, the order shall specify the
particular powers and duties vested in the limited
guardian and the period for which the limited
guardianship is created." (Emphasis added.)
The District Court concluded in its order "that Shirley
Giarratana be and she is hereby appointed as Guardian of the
person and estate of Naomi Nelson, an incapacitated person
. ." Nowhere in the District Court's order is there a
specification of whether a full or limited guardianship was
created. However, a review of the findings of fact, which
are supported by the record, indicates that the condition of
Naomi Nelson is so serious that a limited guardianship or
conservatorship would not be sufficient to adequately provide
for her protection and care. As stated by the District Court
in its findings, ". . . Naomi Nelson suffers from symptoms of
schizophrenia, has serious social withdrawal, delusionary
thinking, unintelligible speech, erratic and impulsive
behavior, and total dependence as a child-like individual,
incapable of caring for herself and one who must be cared for
in some type of structured setting." This finding
demonstrates that the District Court's obvious intention was
to create a full guardianship. In addition, the order did
not "specify the particular powers and duties vested in the
limited guardian and the period for which the limited
guardianship is created" as is required by section
72-5-3l6(2), MCA. We therefore conclude that the term
"guardian" was used by the District Court to imply a full
guardian as permitted by section 72-5-305(3), MCA, and that
the appointed guardian is to possess all the legal duties and
powers of a full guardian as enumerated in section 72-5-32l,
MCA. In order to comply with section 72-5-3l6(2), MCA, the
District Court's order should be amended to specify that a
full guardianship was created.
Christine Thompson next contends that the District Court
did not comply with section 72-5-3l2(4), MCA, which states in
part, ". . . the court may not appoint a person . . . to be
the guardian of an incapacitated person if the person . . .
(c) has or is likely to have during the guardianship period
interests that may conflict with those of the incapacitated
person . . ." Mrs. Thompson contends that the appointment of
Shirley Giarratana as guardian creates a conflict of interest
because Shirley Giarratana is opposed to moving Naomi Nelson
to California to seek alternative treatment. Christine
Thompson asserts that this opposition demonstrates that
Shirley Giarratana does not have the best interests of her
ward in mind. A review of the record, however, reveals that
Shirley Giarratana has seriously considered moving Naomi
Nelson to California, but finds that course to be
impracticable. Shirley Giarratana testified that she
discussed the possibility of moving Naomi to California with
seven or eight doctors, none of whom recommended that Naomi
be moved. It is apparent from. the record that Shirley
Giarratana is only interested in Naomi Nelson's well-being.
We therefore can find no evidence that a conflict of interest
exists between Shirley Giarratana and Naomi Nelson.
The next allegation of error is that the District Court
failed to consider whether Shirley Giarratana would encourage
the development of maximum self-reliance and independence of
Naomi Nelson. Christine Thompson asserts that this
consideration is mandated by section 72-5-306, MCA, which
states in part:
"Purpose and basis for guardianship, Guardianship
for an incapacitated person may be used only as is
necessary to promote and protect the well-being of
the person. The guardianship must be designed to
encourage the development of maximum self-reliance
and independence in the person and may be ordered
only to the extent that the person's actual mental
and physical limitations require it . . ."
It is clear from this statute that a guardian must not
only encourage the development of maximum self-reliance and
independence, but must also promote and protect the
well-being of the incapacitated person. It is also clear
from a review of the record that Shirley Giarratana. will
promote and protect the well-being of her sister by ensuring
that she continues to receive the highest standard of care
and treatment available. In this case, the protection of
Naomi Nelson's well-being is the most important consideration
because, as stated by Dr. Meinhardt, "Mrs. Nelson is a
severely regressed, institutionally dependent woman who will
never be able to autonomously care for herself independent of
the emotional structure and directions of a trained nursing
care staff . . . Hence, she represents an incapacitated
person unable to perform any functions for personal life care
or her own personal business financial life outside of a
hospital setting."
The last two issues raised by Christine Thompson are not
properly before this Court because they involve statutes
which pertain to commitment proceedings, not guardianship
proceedings. Although the two proceedings may overlap, they
involve different procedures which must be followed to ensure
that incapacitated persons receive the full protection of the
law. "District Courts must identify and adhere to the proper
procedures and standards to be used in the proceedings before
them." In the Matter of Aschenbrenner (l979), 182 Mont. 540,
553, 597 P.2d ll56, ll64. (See also In Re the Guardianship
of Evans (l978), l79 Mont. 438, 587 P.2d 372, wherein this
Court distinguished the procedures involved in the
guardianships of minors and the guardianships of
incompetents.) In this case, the issue of commitment was not
before the District Court. The District Court did, however,
properly follow the procedures mandated by the statutes
pertaining to guardianship proceedings.
On remand, the District Court will amend its order to
specify that a full guardianship was created. The District
Court's order is affirmed in all other respects.
we Concur: