MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Jul 06 2017, 7:47 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         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:                               July 6, 2017
Helen Kinney Morris,                                     Court of Appeals Case No.
                                                         34A02-1702-GU-264
Mary M. Kinney and                                       Appeal from the Howard Superior
Patrick Kinney,                                          Court
                                                         The Honorable Brant J. Parry,
Appellants-Respondents,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         34D02-1407-GU-23
Paul Kevin Kinney,
Appellee-Petitioner.




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017           Page 1 of 11
                                Case Summary and Issue
[1]   Helen Kinney Morris is a ninety-year-old widow with six adult children:

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

      Mary Kinney (“Molly”), and Gabrielle Kinney. In 2004, Helen executed a

      durable power of attorney appointing Kevin and Molly as her attorneys in fact.

      Years later, Helen developed dementia leading four of her children, Kevin,

      Michael, Bridget, and Gabrielle, to believe a guardianship was necessary to care

      for Helen. The trial court found Helen to be incapacitated and appointed all six

      siblings as co-guardians over different areas of her life. Following a first appeal

      by Molly and Patrick, we affirmed the trial court’s determination that Helen is

      incapacitated but reversed and remanded with instructions for the trial court to

      determine whether a guardianship is necessary in light of Helen’s 2004 durable

      power of attorney, and, if so, to give consideration to the matters listed in

      Indiana Code section 29-3-5-5 and Helen’s wishes. On remand, the trial court

      entered a new order affirming its prior order establishing a guardianship. Molly

      and Patrick again appeal, raising two issues for our review, which we

      consolidate and restate as: whether the trial court abused its discretion in

      establishing a guardianship. Concluding the trial court abused its discretion in

      determining a guardianship is necessary, we reverse and remand with

      instructions for the trial court to vacate its order establishing a guardianship

      over Helen.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 2 of 11
                            Facts and Procedural History
[2]   We succinctly summarized the facts of this case in its prior appeal:


              In March 2004, Helen executed a durable power of attorney
              appointing two of her children—Kevin “or” Molly—as her
              attorneys in fact. Helen selected Kevin because he had always
              helped her with her business affairs and Molly because the two of
              them were close. 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. The power of
              attorney specifically provided that it was “not affected by the fact
              that [Helen] might become incompetent hereafter, but shall
              remain in full force and effect.”

              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.

              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. . . .


      Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 3 of 11
        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.” He asked the trial court to appoint him and
        three of his siblings—Michael, Bridget, and Gabrielle—as co-
        guardians. 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.” 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.” In the event that the court
        appointed a guardian, however, the guardian ad litem
        recommended “Molly and/or Pat[rick].”

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

        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.”
        The court also found that guardians were necessary. In
        determining what sibling to appoint as guardian, the court found
        that the “foremost” consideration was Helen’s best interests and
        welfare. The court also considered “Helen’s happiness in her
        remaining years” and “the best way to attempt to repair the

Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 4 of 11
        family dynamic and the children’s relationships with Helen and
        with each other.” 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. . . .

        Molly and Patrick declined their appointments, and in January
        2016 the trial court transferred Patrick’s guardianship
        responsibilities to Kevin and Molly’s guardianship
        responsibilities to Bridget, Gabrielle, and Michael.


In re Guardianship of Morris, 56 N.E.3d 719, 721-23 (Ind. Ct. App. 2016).

Thereafter, Molly and Patrick appealed. This court upheld the trial court’s

determination Helen is incapacitated but reversed and remanded with

instructions for the trial court to determine whether any guardians are necessary

in light of the 2004 power of attorney. Id. at 725. On remand, the trial court

held a hearing and later issued its order leaving its prior orders in full force and

effect. The trial court’s order stated as follows:


                ORDER FOLLOWING APPELLATE DECISION

        ***

        1.       The Court of Appeals remanded this cause for the Court to
                 consider the priority of who may be considered for
                 appointment as guardian pursuant to I.C. 29-3-5-5,
                 including Helen’s wishes and her existing attorneys in fact
                 (Kevin and [Molly]).

        2.       The following are entitled to consideration for
                 appointment as a guardian under section 4 [IC 29-3-5-4] of
                 this chapter in the order listed:

                 (1)     A person designated in a durable power of attorney.


Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 5 of 11
                 ***

                 (4)     An adult child of an incapacitated person.

                 ***

        3.       With respect to persons having equal priority, the court
                 shall select the person it considers best qualified to serve as
                 guardian. . . .

        4.       I.C. 20-3-5-4 indicates that “the Court shall appoint as
                 guardian a qualified person most suitable and willing to
                 serve . . .”

        5.       The first person to be considered would be a person who
                 has been appointed a power of attorney for the
                 incapacitated person. A person who has been appointed
                 power of attorney shall be appointed guardian unless good
                 cause or disqualification is shown.

        6.       In this case, Helen executed a durable power of attorney
                 naming both Kevin and [Molly] as her attorneys in fact.
                 Helen appointed both children as her attorneys in fact. It
                 is the Court’s opinion that Helen appointed them together
                 with the intention that they would work together as the
                 attorneys in fact.

        7.       Kevin and [Molly] are opposing parties in this cause of
                 action. Kevin indicated that he could attempt to
                 communicate with [Molly]. [Molly] indicated that she did
                 not believe that she and Kevin could communicate.

        8.       Additionally, since the initial disagreement concerning
                 Helen’s restroom and the subsequent fallout between the
                 siblings, Helen had virtually no contact with four of the
                 children. During this time, Helen was in the most contact
                 with [Molly] and Patrick. [Molly] and Patrick had
                 “control” over Helen, and during that period, Helen
                 ceased contact with her children that she had been very
                 close to for many decades.



Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 6 of 11
              9.       It would not be in the best interest of the ward to force
                       Kevin and [Molly] to serve a[s] co-guardians over all
                       aspects of Helen’s life. Therefore, although they had been
                       named as co-attorneys in fact by Helen, the Court declines
                       to appoint them as co-guardians over Helen.

              10.      After considering Helen’s wishes and the existing
                       attorneys in fact, the Court determines that the Court’s
                       prior Orders of October 14, 2015 and January 25, 2016
                       shall remain in full force and effect.


      Appendix to Appellants’ Brief, Volume II at 21-23 (citation omitted). Molly

      and Patrick now appeal.



                                 Discussion and Decision
                                     I. Standard of Review
[3]   All findings and orders of the trial court in guardianship proceedings are within

      its discretion. In re Guardianship of V.S.D., 660 N.E.2d 1064, 1066 (Ind. Ct.

      App. 1996). Thus, we will review those findings under an abuse of discretion

      standard. Id. We will find an abuse of discretion only when the decision of the

      trial court is clearly against the logic and effect of the facts and circumstances

      before the court, or if the court has misinterpreted the law. Id.


                           II. Necessity of the Guardianship
[4]   As an initial matter, we address Molly and Patrick’s argument the trial court

      failed to follow this Court’s decision on remand. See In re Guardianship of

      Morris, 56 N.E.3d at 724-25. In Morris, the trial court established a

      guardianship over Helen and appointed all six of her children as co-guardians.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 7 of 11
      Molly and Patrick appealed the trial court’s determination a guardianship was

      necessary. We affirmed the trial court’s determination that Helen was

      incapacitated; however, we also recognized “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.” Id. at 724 (internal quotation and citation

      omitted). On this point, we remanded the case for the trial court to determine

      whether guardians are necessary in light of the fact Helen executed a valid

      power of attorney and the “[co-]guardians do not have any power with respect

      to Helen’s property and health care.” Id.


[5]   On remand, the trial court issued an order stating, “The Court of Appeals

      remanded this cause for the Court to consider the priority of who may be

      considered for appointment as guardian . . . .” App. to Appellants’ Br., Vol. II

      at 21. The trial court’s order only addresses who may be appointed guardian

      and their priority, not whether a guardianship is necessary. Although the

      priority of who may be appointed guardian is a determination the trial court

      eventually may have to make, our opinion remanded this case for the trial court

      to determine whether a guardian is necessary at all in light of the fact Helen

      already executed a valid power of attorney and her attorneys in fact held all

      authority with respect to her property and health care. The record and the trial

      court’s order do not demonstrate the trial court considered whether a

      guardianship is necessary consistent with our prior opinion.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 8 of 11
[6]   In any event, we conclude a guardianship is not necessary in this case. Indiana

      Code section 29-3-5-3(a) provides a 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.” However, in regard to the appointment of a guardian

      when a power of attorney has already been executed, Indiana Code section 30-

      5-3-4 states:


              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) (1991). Therefore, if an incapacitated person’s attorney

      in fact is different than that person’s guardian, the “attorney in fact remains in

      control unless the trial court intervenes[,]” 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).


[7]   The trial court’s order establishing a guardianship over Helen appointed all six

      of her children as guardians. The trial court appointed Bridget as guardian over

      Helen’s “health care needs and personal hygiene”; Molly as guardian over

      Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 9 of 11
      Helen’s personal finances; Michael, a priest, as guardian over Helen’s “spiritual

      needs and affairs”;1 and Kevin and Patrick as co-guardians over Helen’s

      “personal care and business affairs.” App. to Appellants’ Br., Vol. II at 45-46.

      However, pursuant to Helen’s power of attorney, Molly and Kevin already hold

      all authority and power with respect to Helen’s health care and property.

      Helen’s power of attorney further states, “this Power of Attorney shall continue

      in full force and effect until revoked. I further state that this Power of Attorney

      shall not be affected by the fact that I might become incompetent hereafter, but

      shall remain in full force and effect.” Id. at 24. Although the trial court had the

      authority to order the guardians to revoke or amend Helen’s power of attorney

      following a hearing, it did not do so, leaving Helen with two attorneys in fact

      and six co-guardians, a situation which will only serve to create confusion and

      further division among Helen’s children as to who holds actual authority with

      respect to Helen’s needs and care. The current state of affairs essentially defeats

      the purpose of a guardianship, as it would not serve the welfare of Helen.2


[8]   Finally, we note the trial court was concerned with Molly’s testimony she did

      not think she could work with Kevin as Helen’s co-attorneys in fact. Molly did

      not resign or decline her designation as an attorney in fact, but stated she did




      1
       Gabrielle was appointed co-guardian over Helen’s spiritual needs and affairs because Michael lives in
      Texas. See App. to Appellants’ Br., Vol. II at 46.
      2
        We note, as we did in our prior opinion, that it appears Helen sent a letter to Kevin in May of 2014
      revoking his power of attorney. See In re Guardianship of Morris, 56 N.E.3d at 724 n.4. Helen then allegedly
      executed a new power of attorney naming only Molly as her attorney in fact. However, both parties proceed
      in this appeal as if the 2004 power of attorney naming Kevin or Molly as attorneys in fact is controlling.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017             Page 10 of 11
       not think she could work with Kevin “as a result of him bullying, trying to

       intimidate, antagonizing me anytime we have an encounter.” Transcript,

       Volume II at 17. 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

       states 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). Therefore, unless and until Helen’s

       2004 power of attorney is revoked or amended, all authority regarding her

       property and health care lies with Kevin and Molly, who may act

       independently of each other.


[9]    We conclude the trial court’s determination that a guardianship is necessary,

       without first revoking or amending Helen’s power of attorney, and appointment

       of all six of Helen’s children as co-guardians is clearly against the logic and

       effect of the facts and circumstances before the court.



                                               Conclusion
[10]   The trial court abused its discretion in establishing a guardianship over Helen.

       Accordingly, we reverse and remand with instructions for the trial court to

       vacate its order establishing a guardianship.


[11]   Reversed and remanded.


       Vaidik, C.J., and Bailey, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1702-GU-264 | July 6, 2017   Page 11 of 11
