                                                                        FILED
                                                                   Jul 12 2016, 8:41 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEE
Alan D. Wilson                                             Matthew J. Elkin
Kokomo, Indiana                                            Kokomo, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Guardianship of Hellen                           July 12, 2016
Kinney Morris:                                             Court of Appeals Case No.
                                                           34A02-1510-GU-1809
                                                           Appeal from the Howard Superior
Mary M. Kinney and Patrick                                 Court
Kinney,
                                                           The Honorable Brant J. Parry,
Appellants-Respondents,                                    Judge

        v.                                                 Trial Court Cause No.
                                                           34D02-1407-GU-23

Paul Kevin Kinney,
Appellee-Petitioner.



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016                    Page 1 of 12
                                           Case Summary
[1]   After six siblings disagreed about how to take care of their elderly mother with

      dementia, one faction of siblings filed a petition to appoint guardians for their

      mother while the other faction maintained that a power of attorney in effect was

      sufficient to care for their mother. The trial court found that the mother is

      incapacitated and appointed all six siblings as co-guardians over different areas

      of their mother’s life. The losing siblings now appeal, arguing that their mother

      is not incapacitated and that guardians are not necessary.

[2]   The record supports the trial court’s finding that the mother is incapacitated

      because there is evidence that she requires assistance to manage her property

      and provide self-care due to dementia and that she is unable to do either one

      without substantial around-the-clock help. However, because the mother’s

      attorneys in fact are different than her guardians, according to Indiana Code

      section 30-5-3-4(b) the attorneys in fact are in control, and the guardians do not

      have any power with respect to their mother’s property and health care. But

      because it does not appear that the trial court considered the effect of the power

      of attorney when it determined that guardians were necessary, we reverse and

      remand this case for the trial court to determine whether guardians are

      necessary in light of the power of attorney and, if so, to give due consideration

      to the matters listed in Indiana Code section 29-3-5-5, including the mother’s

      wishes and her existing attorneys in fact. We therefore affirm in part and

      reverse and remand in part.



      Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016   Page 2 of 12
                              Facts and Procedural History
[3]   Helen Kinney Morris, age eighty-nine, is a widow with six adult children:

      Michael Kinney, Bridget Aaron, Paul Kevin Kinney (“Kevin”), Patrick Kinney,

      Mary M. Kinney (“Molly”), and Gabrielle Kinney. Helen owns “significant

      property, both real and personal.” Appellants’ App. p. 65.

[4]   In March 2004, Helen executed a durable power of attorney appointing two of

      her children—Kevin “or” Molly—as her attorneys in fact. Id. at 45.1 Helen

      selected Kevin because he had always helped her with her business affairs and

      Molly because the two of them were close. Tr. p. 21. The power of attorney

      gave Kevin and Molly powers with regard to real-property transactions;

      tangible personal-property transactions; bond, share, and commodity

      transactions; banking transactions; business-operating transactions; insurance

      transactions; beneficiary transactions; gift transactions; fiduciary transactions;

      claims and litigation; family maintenance; benefits from military service;

      records, reports, and statements; estate transactions; health-care powers;

      consent or refusal of health care; delegating authority; and all other possible

      matters and affairs affecting Helen’s property. Appellants’ App. p. 45; see also

      Ind. Code ch. 30-5-5. The power of attorney specifically provided that it was




      1
        Indiana Code section 30-5-4-3 authorizes the appointment of more than one attorney in fact. It provides
      that unless the power of attorney says otherwise, “if more than one (1) attorney in fact is named, each
      attorney in fact may act independently of the other attorney in fact in the exercise of a power or duty.” Ind.
      Code § 30-5-4-3(a).

      Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016                           Page 3 of 12
      “not affected by the fact that [Helen] might become incompetent hereafter, but

      shall remain in full force and effect.” Appellants’ App. p. 45.2

[5]   Helen was later diagnosed with mild to moderate dementia. Helen’s dementia

      has remained stable since around 2011 due to medication. Helen has been able

      to stay in her home because of around-the-clock help from family. This help

      has included providing all meals for Helen, taking care of her home, helping her

      bathe, doing her laundry, taking her to doctor appointments, doing her

      shopping, paying her bills, and having someone spend every night with her.

[6]   For most of Helen’s children’s lives, the family was close knit, with each child

      having a good relationship with their mother. But things changed after a

      tornado damaged Helen’s house in November 2013 and the siblings disagreed

      on whether to remodel Helen’s bathroom. The siblings took sides, with Molly

      and Patrick believing that Helen’s bathroom did not need to be remodeled and

      Michael, Bridget, Kevin, and Gabrielle believing that it did. After speaking

      with Molly, Helen decided not to have her bathroom remodeled. Since this

      incident—which Michael refers to as when “the iron curtain fell,” Tr. p. 178—

      Michael, Bridget, Kevin, and Gabrielle have had virtually no contact with their

      mother, as the locks have been changed and phone calls go unanswered.

      Michael, Bridget, Kevin, and Gabrielle blame Molly.




      2
          Helen did not designate anyone as her guardian in the 2004 power of attorney. See Appellants’ App. p. 45.


      Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016                          Page 4 of 12
[7]   On July 28, 2014, Kevin filed a petition to appoint guardians for Helen because

      she “cannot care for herself nor make decisions on her own behalf.” Id. at 25.

      He asked the trial court to appoint him and three of his siblings—Michael,

      Bridget, and Gabrielle—as co-guardians. Id. at 25-26. The trial court appointed

      a guardian ad litem, who met with Helen as well as all six siblings. In its

      report, the guardian ad litem noted that Helen did not want a guardian.

      Although Helen recognized that she needed assistance, she was “happy with

      Molly and Pat[rick] and the way they are caring for her.” Id. at 42. The

      guardian ad litem concluded that a guardianship was not necessary because

      there was a valid power of attorney that “seem[ed] to be working appropriately

      as it relates to Helen’s care and her overall well being.” Id. at 42-43. In the

      event that the court appointed a guardian, however, the guardian ad litem

      recommended “Molly and/or Pat[rick].” Id. at 43.


[8]   The trial court held a hearing on Kevin’s guardianship petition in August 2015.

      Five of the six siblings (not Patrick), the guardian ad litem, Helen’s personal

      attorney for many years, and other family members testified at this hearing.

      Specifically, Molly testified that although her mother had memory problems

      and could not do a lot of things by herself—like bathing, driving, yard work,

      shopping, cooking, and laundry—she could take care of her affairs with

      assistance and do other things by herself, like change her clothes, use the

      restroom, brush her hair and teeth, and put on her glasses and hearing aids. In

      contrast, the other four siblings testified that Helen’s memory problems were

      worsening and had placed her in situations in which she was endangered, that


      Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016   Page 5 of 12
      she could not take care of herself or her business affairs by herself, that Molly

      and Patrick were isolating Helen from them, and that they did not know

      anything about their mother’s finances or health. The guardian ad litem

      testified that although Helen was not able to take care of herself or her business

      affairs without assistance, Helen was getting that assistance from Molly and

      Patrick. Tr. p. 132, 135-36. When the trial court asked the guardian ad litem if

      Helen had decided for herself not to have any contact with Michael, Bridget,

      Kevin, and Gabrielle, the guardian ad litem said yes but added that Helen’s

      feelings toward them had recently started to “thaw[].” Id. at 138. The guardian

      ad litem aptly described the situation as “a fight between two factions of the

      family and Helen is the pawn.” Id. Finally, Helen’s attorney for many years

      (who had prepared Helen’s 2004 power of attorney appointing Molly and Kevin

      as attorneys in fact) testified that Helen did not recognize him during their last

      encounter and that after November 2013 he did not believe that Helen was able

      to take care of herself or competent to handle her own affairs. Id. at 28.


[9]   In October 2015, the trial court issued an order in which it found that Helen

      was incapacitated. Specifically, the court found that Helen “is incapacitated for

      [the] reason that she cannot adequately care for her person and estate without

      assistance.” Appellants’ App. p. 15 (Finding No. 23). The court also found

      that guardians were necessary. Id. at 16 (Finding No. 26). In determining what

      sibling to appoint as guardian, the court found that the “foremost”

      consideration was Helen’s best interests and welfare. Id. at 15. The court also

      considered “Helen’s happiness in her remaining years” and “the best way to


      Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016   Page 6 of 12
       attempt to repair the family dynamic and the children’s relationships with

       Helen and with each other.” Id. Based on these considerations, the court found

       that co-guardians—as opposed to one guardian—were necessary. Accordingly,

       the court appointed all six siblings as co-guardians. Each sibling was appointed

       guardian over a specific area of Helen’s life. For example, Michael, a priest,

       was appointed guardian over Helen’s “spiritual needs and affairs”3 while

       Bridget, a hairstylist, was appointed guardian over Helen’s “health care needs

       and personal hygiene,” ensuring that Helen’s “hair and nails are styled on a

       regular basis.” Id. at 17. In addition, Molly was appointed guardian over

       Helen’s personal finances, while Kevin and Patrick were appointed co-

       guardians over Helen’s “business ventures.” Id. at 16. The court also created a

       spreadsheet-like schedule for visitation between Helen and each of her children.

       Id. at 18. Because the court believed that “Helen should have input on all

       decisions involving her affairs,” it ordered each guardian to “consider Helen’s

       input and feelings concerning a specific issue before making a decision. The

       guardian should consider her input in light of her physical and mental wellbeing

       at the time.” Id. at 16.


[10]   Molly and Patrick declined their appointments, and in January 2016 the trial

       court transferred Patrick’s guardianship responsibilities to Kevin and Molly’s




       3
        Because “Father Mike lives out of state,” Gabrielle was appointed co-guardian over her mother’s spiritual
       needs and affairs. Appellants’ App. p. 17.

       Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016                        Page 7 of 12
       guardianship responsibilities to Bridget, Gabrielle, and Michael. Appellees’

       App. p. 37.

[11]   Molly and Patrick now appeal.



                                   Discussion and Decision
[12]   Molly and Patrick contend that the trial court erred in appointing guardians for

       Helen. A trial court is vested with discretion in making determinations as to the

       guardianship of an incapacitated person. See Ind. Code § 29-3-2-4; In re

       Guardianship of Atkins, 868 N.E.2d 878, 883 (Ind. Ct. App. 2007), reh’g denied,

       trans. denied. This discretion extends to both its findings and its order. Atkins,

       868 N.E.2d at 883. Thus, we apply the abuse-of-discretion standard to review

       the trial court’s findings and order. Id. An abuse of discretion occurs when the

       trial court’s decision is clearly against the logic and effect of the facts and

       circumstances presented. Id.


[13]   A guardianship proceeding is initiated by filing a petition “for the appointment

       of a person to serve as guardian for an incapacitated person.” Ind. Code § 29-3-

       5-1. In relevant part, “incapacitated person” means a person who is unable:

               (A) to manage in whole or in part the individual’s property;


               (B) to provide self-care; or


               (C) both;



       Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016     Page 8 of 12
               because of insanity, mental illness, mental deficiency, physical
               illness, infirmity, habitual drunkenness, excessive use of drugs,
               incarceration, confinement, detention, duress, fraud, undue
               influence of others on the individual, or other incapacity . . . .


       Ind. Code § 29-3-1-7.5(2). The trial court “shall appoint a guardian” if it finds

       that (1) the person for whom the guardian is sought is an “incapacitated

       person” and (2) the appointment of a guardian “is necessary as a means of

       providing care and supervision of the physical person or property of the

       incapacitated person.” Ind. Code § 29-3-5-3(a). The court shall appoint as

       guardian “a qualified person or persons most suitable and willing to serve,

       having due regard to,” among other things, “[a]ny request made by a person

       alleged to be an incapacitated person” and “[a]ny person acting for the

       incapacitated person under a durable power of attorney.” Ind. Code § 29-3-5-4;

       see also Ind. Code § 29-3-5-5 (listing people entitled to consideration for

       appointment as guardian and the order of consideration).

[14]   Molly and Patrick first argue that the trial court erred in finding that Helen is

       incapacitated because “she cannot adequately care for her person and estate

       without assistance.” Appellants’ App. p. 15 (Finding No. 23). They highlight

       that the guardian ad litem did not believe that a guardianship was necessary

       and that Helen’s own doctors believed that she was “capable of making her

       own decisions when it comes to her care, both personal and financial.” See id.

       at 48. But there is evidence in the record that Helen requires assistance to

       manage her property and provide self-care because of dementia and that she is

       unable to do either one without substantial around-the-clock help. We

       Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016      Page 9 of 12
       recognize that there is conflicting evidence on this issue; however, the trial

       court weighed all the evidence and concluded that Helen was incapacitated.

       We will not reweigh that evidence on appeal.


[15]   Molly and Patrick next argue that guardians are not necessary to care for and

       supervise Helen or her property as required by Section 29-3-5-3(a) because there

       is a valid power of attorney. Indiana Code section 30-5-3-4 limits a guardian’s

       power when there is a valid power of attorney:

               (b) A guardian does not have power, duty, or liability with respect to
               property or personal health care decisions that are subject to a valid power
               of attorney. A guardian has no power to revoke or amend a valid
               power of attorney unless specifically directed to revoke or amend
               the power of attorney by a court order on behalf of the principal.
               A court may not enter an order to revoke or amend a power of
               attorney without a hearing. Notice of a hearing held under this
               section shall be given to the attorney in fact.


       Ind. Code § 30-5-3-4(b) (emphasis added). According to this section, “if an

       incapacitated person’s attorney in fact is different than the person’s guardian,

       the attorney in fact remains in control unless the trial court” holds a hearing

       and orders the guardian to revoke the power of attorney. In re Guardianship of

       L.R., 908 N.E.2d 360, 365 (Ind. Ct. App. 2009); see also In re Guardianship of

       Shaffer, 711 N.E.2d 37, 41 (Ind. Ct. App. 1999) (“[O]nce a power of attorney is

       created, no guardianship can be imposed with regard to matters that are subject

       to the power.”), trans. denied.




       Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016         Page 10 of 12
[16]   Here, the record shows that in 2004, Helen executed a durable power of

       attorney appointing Molly and Kevin as her attorneys in fact. This 2004 power

       of attorney, which gives Molly and Kevin broad powers with respect to Helen’s

       property and health care, is valid.4 As a result, because Helen’s attorneys in fact

       (Molly and Kevin) are different than her guardians (Michael, Bridget, Kevin,

       and Gabrielle), according to Section 30-5-3-4(b) the attorneys in fact are in

       control, and the guardians do not have any power with respect to Helen’s

       property and health care. However, it does not appear that the trial court

       considered the effect of the power of attorney when it determined that

       guardians were necessary. For example, the trial court’s order appointing the

       six siblings as co-guardians does not revoke or amend the 2004 power of

       attorney, and the trial court appointed Bridget guardian over Helen’s health

       care when the 2004 power of attorney gives that authority to Molly and Kevin

       and appointed Patrick co-guardian over Helen’s business affairs when the 2004

       power of attorney also gives that authority to Molly and Kevin. Accordingly,

       we reverse and remand this case for the trial court to determine whether any

       guardians are necessary in light of the 2004 power of attorney and, if so, to give




       4
         In May 2014, a letter was apparently sent to Kevin revoking his power of attorney, and Helen
       allegedly executed a new durable power of attorney and health-care appointment naming just Molly as
       her attorney in fact. Appellants’ App. p. 15, 37. However, both sides proceed on appeal as if the
       2004—and not the 2014— power of attorney controls. See Appellants’ Br. p. 21, Appellees’ Br. p. 18.
       In addition, there is no indication in the record that the trial court has revoked or amended the 2004
       power of attorney. See Appellants’ App. p. 15 (Finding No. 21: “In March, 2004, Helen executed a
       Durable Power of Attorney appointing [Molly and Kevin] as attorneys in fact.”). Indeed, the only
       power of attorney included in the record on appeal is the 2004 power of attorney. See id. at 45.

       Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016                       Page 11 of 12
       due consideration to the matters listed in Section 29-3-5-5, including Helen’s

       wishes and her existing attorneys in fact (Molly and Kevin).

[17]   Affirmed in part and reversed and remanded in part.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 34A02-1510-GU-1809 | July 12, 2016   Page 12 of 12
