                                No.    92-307

             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1992


IN RE THE MATTER OF THE
GUARDIANSHIP OF:
MARGIE M. r n L E Y ,
      An Incapacitated Person.




APPEAL FROM:       District Court of the Nineteenth Judicial District,
                   In and for the County of ~ i n c o l n ,
                   The Honorable Robert S. Keller, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                   William A.    Douglas,     Douglas   &   Sprinkle,   Libby,
                   Montana
            For Respondent:
                   L. Charles Evans, Libby, Montana



                                Submitted on Briefs:        November 12, 1992
                                                ~ecided: January 21, 1993
Filed:                                   ,q



  J N 2 1 1993
  A
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from an order of the Nineteenth Judicial
District    Court,   Lincoln    County,   awarding   Shirley   Taylor
Guardianship and Conservatorship of her mother and her mother's
estate and finding Jerry Hanley in contempt of court. Reversed and
remanded.
     The issues on appeal are:
1.   Was the service of process adequate with regards to the
alleged incapacitated person, Margie M. Hanley?
2.   Did the District Court err in holding Mrs. Hanleyvsson, Jerry
Hanley, in contempt of court for not producing Mrs. Hanley for a
medical examination in Montana?
     Margie M. Hanley (Mrs. Hanley) is 8 4 years old and is the
mother of seven children.      She is a widow who resided in Montana
until August 15, 1991, when one of her two sons took her to
California to live with his family.
     Five of the children initially wished Mrs. Hanley to be put
into the Libby Care Center.     Two of the daughters, Shirley Taylor
and Sandra Jackson, did not wish their mother placed in a nursing
home, but would rather have taken care of her themselves.        Much
discussion followed Mrs. Hanleyls deteriorating health condition,
with no consensus concerning her care occurring.
     From March until August of 1991, Mrs. Hanley visited various
children.   On August 15, 1991, after a petition to the Nineteenth
District Court, temporary guardianship and conservatorship were
issued to Shirley Taylor. Also on this date, Mrs. Hanley was taken
                                   2
to California by Jerry Hanley and has remained there with his
family since that date.
     All children except for Shirley Taylor and Sandra Jackson,
retained an attorney and submitted affidavits in opposition to
Shirley Taylor being appointed guardian.    A hearing was held on
October 7, 1991 in response to five of the children's motion to set
aside the appointment.    Only William Hanley testified at this
hearing which was subsequently continued until October 18, 1991,
and again until January 2, 1992.
     On December 24, 1991, Shirley Taylor filed a motion to require
her brother Jerry and her brother William to deliver their mother
to the court on January 2, 1992, in order that she be examined by
a doctor and a visitor of the court. Mrs. Hanley was not delivered
to the court in Montana, but the parties again entered negotiations
among themselves concerning their mother's care.       Negotiations
among the children were again unsuccessful and on February 7, 1992
a hearing was held with appearances by Shirley Taylor, Sandra
Jackson, and their attorney.
     The court set a hearing date of March 2 to hear the petition
of Shirley Taylor for appointment of guardian.   Jerry and William
Hanley were also ordered to appear in court on that day to show
cause why they should not be found in contempt of court for their
failure to deliver Mrs. Hanley. Jerry Hanley petitioned the court
for a two week continuance which was granted.    The court then, on
its own, continued the hearing until March 30, 1992.
     There is no record of personal service upon Mrs. Hanley.   At
the March 30 hearing, the court found Jerry Hanley in contempt of
court and ordered him to spend five days in the county jail and pay
the amount of $500 for not producing his mother.    The court also
ordered that Shirley Taylor be appointed guardian and conservator
of her mother and her mother's estate. Counsel for the Hanley sons
objected stating that the District Court did not have jurisdiction
to award guardianship; the objection was overruled as untimely.
This appeal followed.


Was the service of process adequate with regards to the alleged
incapacitated person, Margie M. Hanley?
     Appellants argue that J S 72-5-314, MCA, and 72-5-403, MCA,
mandate that Mrs. Hanley must be personally served with notice
concerning any hearing involving her guardianship.      Appellants
contend that failure to comply with such statutory mandate combined
with the lack of any waiver by Mrs. Hanley indicates that she has
been denied due process of law. Respondents argue that sufficient
service was made.
     Our statutes make it clear that the person for whom a guardian
or conservator is sought, must be personally served or appear
personally at the hearing.     Section 72-5-314, MCA, states in
pertinent part:
     Notices in guardianship proceedings. (1) In a proceeding
     for the appointment or removal of a guardian of an
     incapacitated person other than the appointment of a
     temporary guardian or temporary suspension of a guardian,
     notice of hearing shall be given to each of the
     following:
     (a) the ward or the person alleged to be incapacitated
     ...
    (2) Notice shall be served ~ersonallv on the allecred
    incapacitated person and   ... Waiver of notice by the person
    alleged to be in capacitated is not effective unless he
    attends the hearing or his waiver of notice is confinned in an
    interview with the visitor. Representation of the alleged
    incapacitated person by a guardian ad litem is not necessary.
    [Emphasis added.]
Waiver of notice is affected by 5 72-5-403, MCA, which states in
pertinent part:
     (1) On a petition for appointment of a conservator or other
     protective order, the person to be ~rotectedand his spouse
     or, if none, his parents must be served ~ersonallvwith notice
     of the ~roceedinaat least 14 davs before the date of hearinq
     if they can be found within the state    . . . Waiver by the
     person to be protected is not effective unless he attends the
     hearing    ... [Emphasis added.]
     The statutes make it clear that personal service on the person
to be protected is required.      The record reveals that personal
service was not made on Mrs. Hanley, the alleged incapacitated
person. Service was upon the son in whose home she now resides and
does not constitute personal service on Mrs. Hanley.    This Court
has no alternative but to reverse the District Court orders
appointing a guardian and conservator, and remand for further
consideration.
                                11.

Did the District Court err in holding Mrs. Hanleyls son, Jerry
Hanley, in contempt of court for not producing Mrs. Hanley for a
medical examination in Montana?
     In view of our reversal of the orders appointing a guardian
and conservator, the contempt order also is reversed and remanded
forthe District Court's further determination of whether the order
is warranted.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
     Reversed and remanded.

                                                                      1




We Concur:
                                    January 21, 1993

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


William A. Douglas
Douglas & Sprinkle
P.O. Box 795
Libby, MT 59923

L. Charles Evans
Attorney at Law
120 W. Sixth St.
Libby, MT 59923


                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF MONTANA
