 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Guardianship of         )
                                             )       No. 73538-1-1                     po
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WILLIAM CHARLES SUTTON,                      )                                          cr-
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                                             )       DIVISION ONE                       zS*        np
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An Alleged Incapacitated Person.             )                                                          -&• —
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                                             )       FILED: May 9, 2016                   (JD
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       Trickey, A.C.J. — Two sisters appeal the superior court's dismissal of their

petition to appoint a guardian for their brother. While this appeal was pending, the

brother passed away. Because we hold that the issues raised by this appeal are

moot, we dismiss the appeal.

                                         FACTS


       In May 2009, William Charles Sutton appointed his son, Benjamin Sutton,

as his attorney-in-fact through a durable power of attorney.1 At the same time,

Charlie executed a health care power of attorney, which designated Ben as his

agent for health care decisions in the event that Charlie became incapacitated.

       Charlie lived alone in Sultan, Washington until 2010. With the help of his

sisters and son, Charlie sold his house in Sultan and bought a house in Ferndale,

closer to his son.     Charlie was diagnosed with Alzheimer's in June 2012.               In

February 2014, Ben convinced his father to move into Emeritus, an assisted living


1For the sake of clarity, we have adopted the parties' convention of referring to the father
as Charlie and the son as Ben. We intend no disrespect.
No. 73538-1-1/2



facility in February 2014.

       In March 2014, Ben moved Charlie to The Bellingham at Orchard, a facility

for patients with advanced dementia.

       In October 2014, Charlie's sisters, Cynthia (Brown) Murders and Claudia

Harris, suggested to Ben that they move Charlie to a house next to Harris's in rural

Washington. Ben did not approve the move.

       Harris and Murders contacted Adult Protective Services about Ben's

alleged financial and medical exploitation of Charlie in November 2014.         The

investigation did not reveal any wrongdoing.

       Harris and Murders filed a petition to have a guardian appointed for

Charlie's person and estate in December 2014. They alleged that Ben had placed

Charlie at The Bellingham against his will and was restraining him by use of

medication.


       The sisters based most of their claims about the involuntary nature of

Charlie's treatment and living situation on Charlie's reluctance to use medication

earlier in life and Charlie's comments years earlier that he would prefer dying at

home to living in a nursing home. Murders' declaration alleged that Charlie had

"begged [her] to help him get out of the nursing home.2 She also alleged that Ben

had denied her access to Charlie as retaliation against her contacting Adult

Protective Services and as a way to prevent her from seeing "the damage being

done to Charlie by the administration of drugs."3

       The court appointed a guardian ad litem (GAL) to assess Charlie. The GAL


2 Clerk's Papers (CP) at 29.
3 CP at 28.
No. 73538-1-1/3


met with Charlie and received oral or written reports from Charlie's doctors and

nurses, the executive director of the Bellingham, and the Adult Protective Services

investigator. The GAL recommended that the court not appoint a guardian for

Charlie at that time, because the power of attorney was functioning well and Ben

was meeting Charlie's needs.

      After receiving the GAL report, Ben moved to dismiss the guardianship

petition. Before the court ruled on that motion, the sisters filed a second petition

for guardianship, pro se, in February 2015.        They attached declarations from

Charlie's relatives and friends. They also attached Internet printouts from the Food

and Drug Administration and the Mayo Clinic about the dangers of using anti

psychotic medications to treat Alzheimer's.

       At a hearing in February 2015, the court expressed its reluctance "to

interfere with a person's selection of someone to be their power of attorney" and

noted that "normally the Court would not intervene ... in the absence of some

pretty clear evidence that the person empowered under the power of attorney . . .

is abusing that power."4 Itfound that there was not a "sufficient basis to establish

a guardianship" but deferred ruling on the motion to dismiss the guardianship

petition until Charlie underwent a neuropsychological examination.5 The court
stated that, "assuming that the neuropsychological evaluation indicates that Mr.

Sutton's care is appropriate and his medical regimen is appropriate to his

condition," the court would dismiss the petition.6 The court also ordered that the



4 Report of Proceedings (RP) (Feb. 27, 2015) at 17-18.
5RP(Feb. 27, 2015) at 33-34.
6RP(Feb. 27, 2015) at 34-35.
No. 73538-1-1/4



sisters should be allowed to visit Charlie.

       After    reviewing   the   neuropsychological    report,   the   GAL    again

recommended that the court not appoint a guardian. After that evaluation, Murders

and Harris filed a motion for an order to show cause why the superior court should

not find Ben and the executive director of The Bellingham in contempt for perjury

and failing to comply with the court's order.       They also filed a motion for

reconsideration, alleging that the neuropsychologist was neither neutral nor

independent.     They sought discovery to investigate Ben's decisions regarding

Charlie's finances.

       The superior court dismissed the guardianship petition after a hearing in

May 2015. The court ordered Murders and Harris to pay the attorney fees Charlie's

estate incurred responding to their motions for reconsideration and contempt. The

court reasoned that those two motions "were not well-founded," particularly in light

of its earlier rulings.7

       Murders and Harris appeal. Charlie passed away while the appeal was

pending.

                                     ANALYSIS


                                      Mootness


       "'A case is moot if a court can no longer provide effective relief.'" State v.

Ross, 152 Wn.2d 220, 228, 95 P.3d 1225 (2004) (quoting State v. Gentry, 125

Wn.3d 570, 616, 888 P.2d 1105 (1995)). We review de novo whether an appeal

is moot. Bavand v. OneWest Bank. FSB. 176 Wn. App. 475, 510, 309 P.3d 636



7 RP (May 8, 2015) at 11.
No. 73538-1-1/5


(2013).

       The parties informed the court that Charlie has died. Nonetheless, Harris

and Murders urge this court to grant relief by ordering disclosure of medical and

financial records.8 Ben agrees that the guardianship petition filed by Harris and

Murders is now moot but asserts the request for attorney fees remains in

controversy.

       The relief sought in the superior court was a guardianship over Charlie.

Because Charlie is deceased, that relief is no longer available. Except for the

attorney fees, we dismiss the appeal as moot, because we can no longer provide

effective relief.9

                                    Attorney Fees

          Ben seeks an award of attorney fees under RCW 11.96A.150.                    In

determining whether to award fees under this statute, "the court may consider any

and all factors that it deems to be relevant and appropriate." RCW 11.96A. 150(1).

Considering the resolution of this appeal, we exercise our discretion and do not

award attorney fees to Charlie's estate.

          Harris and Murders also assign error to the superior court's award of

attorney fees against them. We do not reach their attorney fee challenge, in part

because they waived this assignment of error by failing to argue it in their brief on

appeal. Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d

549(1992).


8 Murders and Harris initially asked this court to stay cremation until an emergency
motion to compel an autopsy can be heard. They have since informed the court that
Charlie has been cremated.
9We reject Ben's request to reach the merits of the appeal.
No. 73538-1-1/6


     We dismiss the appeal as moot.




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WE CONCUR:




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