MEMORANDUM DECISION                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                                Apr 06 2017, 9:05 am

this Memorandum Decision shall not be                                      CLERK
                                                                       Indiana Supreme Court
regarded as precedent or cited before any                                 Court of Appeals
                                                                            and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANTS PRO SE                                        ATTORNEY FOR APPELLEE
Michelle Steege                                          Delbert H. Brewer
Speedway, Indiana                                        Greencastle, Indiana
Pamela Douglas
Muncie, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Guardianship of:                               April 6, 2017
Phyllis Z. Tucker,                                       Court of Appeals Case No.
   an incapacitated adult,                               67A04-1603-GU-466
                                                         Appeal from the Putnam Circuit
Michelle Steege and                                      Court
Pamela Douglas                                           The Honorable Matthew L.
                                                         Headley, Judge
Appellants-Respondents,
                                                         Trial Court Cause No.
        v.                                               67C01-1507-GU-23

Lynnette Rich, Guardian,
Appellee-Petitioner.




Robb, Judge.



Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017            Page 1 of 7
                                 Case Summary and Issue
[1]   In February 2016, the trial court appointed Lynnette Rich guardian of the

      person and estate of her mother, Phyllis Tucker. Pamela Douglas, another of

      Mrs. Tucker’s daughters, and Michelle Steege, one of Mrs. Tucker’s

      granddaughters, appeal the trial court’s appointment of Rich as guardian,

      contending she is unqualified. Because Mrs. Tucker passed away while this

      appeal was pending rendering the issue raised moot, we dismiss.1



                             Facts and Procedural History
[2]   Because of our resolution of this case, we need not delve into the facts in great

      detail and provide only a brief synopsis here. Mrs. Tucker has three daughters,

      Rich, Douglas, and Suzanne Evans. In 2004, Mrs. Tucker signed a durable

      power of attorney and health care power of attorney appointing Rich and Evans

      as attorneys in fact. In 2011, Mrs. Tucker signed a new durable power of

      attorney naming Rich and one of Rich’s daughters as her attorneys in fact.


[3]   In August 2014, Mrs. Tucker moved from her home in Speedway into Rich’s

      home in Greencastle. In the spring of 2015, Steege and her family began

      residing in Mrs. Tucker’s Speedway home and paying the mortgage under a

      renovation and caretaker agreement to improve the home for eventual sale. In




      1
       The parties have made numerous motions in this appeal which are disposed by separate order issued on this
      date.

      Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017            Page 2 of 7
      July 2015, Rich filed a petition seeking to be appointed guardian over Mrs.

      Tucker who had been diagnosed with dementia. In August 2015, Steege filed a

      motion to intervene in the guardianship due to her interest in the residence. In

      November 2015, Douglas filed a counter-petition seeking to be appointed

      guardian over Mrs. Tucker’s person and requesting a corporate trust officer be

      appointed guardian over Mrs. Tucker’s estate. Following a hearing at which all

      parties agreed Mrs. Tucker needed a guardian but could not agree who should

      act as guardian, the trial court appointed Rich guardian over the person and

      estate of Mrs. Tucker pursuant to Indiana Code section 29-3-5-5(a)(1) which

      gives priority to a person designated in a durable power of attorney when

      considering who to appoint as a guardian.


[4]   Douglas and Steege thereafter initiated this appeal. In its initial iteration, the

      appeal challenged the appointment of Rich as guardian of the person and estate

      of Mrs. Tucker. In November 2016, Douglas and Steege moved to withdraw

      their objection to the appointment of Rich as guardian of Mrs. Tucker’s person,

      and proceed only with respect to the appointment of Rich as guardian of her

      estate. Then, in December 2016, Rich filed a notice with this court that Mrs.

      Tucker had passed away on December 5, 2016. Because of this, we issued an

      order for Douglas and Steege to show cause why this appeal should not be

      dismissed as moot. Douglas and Steege responded to this order and asked the

      appeal be decided on its merits to “correct[ ] a mistake made by the lower Court

      when appointing Mrs. Rich as [Mrs. Tucker’s] Guardian [and] change the

      ruling [to] appoint a third party to review all of the accounts of Ms. Tucker[.]”


      Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017   Page 3 of 7
      Appellant’s Response to Show Cause for Appeal Case to Continue Despite

      Death of Protected Person at page 5.



                                 Discussion and Decision
[5]   Guardianship proceedings are guided by statute. If the trial court determines

      the individual for whom a guardian is sought is an incapacitated person and the

      appointment of a guardian is necessary to provide care and supervision of the

      person and/or property of the incapacitated person, the trial court shall appoint

      a guardian. Ind. Code § 29-3-5-3(a). The trial court shall appoint as guardian a

      qualified person, taking into consideration several factors, including any request

      made by the incapacitated person in a durable power of attorney. Ind. Code §

      29-3-5-4(1). The trial court shall also consider “[t]he best interest of the

      incapacitated person . . . and the property of the incapacitated person . . .,” Ind.

      Code § 29-3-5-4(8), and act in that best interest, Ind. Code § 29-3-5-5(b). The

      guardian is a fiduciary who must, among other things, protect and preserve the

      property of the protected person subject to guardianship and conserve any

      property of the protected person in excess of that required for the protected

      person’s current needs. Ind. Code § 29-3-8-3(2), (3).


[6]   A guardianship terminates upon the death of the protected person. Ind. Code §

      29-3-12-1(b)(2); Estate of Prickett v. Womersley, 905 N.E.2d 1008, 1011 (Ind.

      2009). When a guardianship terminates for this reason, the powers of the

      guardian cease, except for specific actions directed by statute. Ind. Code § 29-3-

      12-1(e). The guardian “may pay the expenses of administration that are

      Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017   Page 4 of 7
      approved by the court and exercise other powers that are necessary to complete

      the performance of the guardian’s trust and may deliver the remaining property

      for which the guardian is responsible to the protected person’s personal

      representative . . . .” Id. With court approval, the guardian may also pay

      certain expenses directly. Id. The guardian must also file a written verified

      account of the guardian’s administration within thirty days of a guardianship

      terminating. Ind. Code § 29-3-9-6(a)(2). In this final accounting, the guardian

      is “bound to make full disclosure to the court of his transactions, and the law

      requires of him the exercise of the utmost good faith.” Slanter v. Favorite, 107

      Ind. 291, 4 N.E. 880, 884 (1886). The trial court must conduct a hearing on

      such verified account after giving notice to each person entitled to notice that an

      accounting has been filed and the court will act upon it on the date set in the

      notice unless written objections are presented to the court. Ind. Code § 29-3-9-

      6(d). Among those entitled to notice are adult children of the protected person,

      and in the case of a protected person who has died, the personal representative

      of the protected person’s estate. Ind. Code § 29-3-9-6(d)(1), (2). When the trial

      court is satisfied that the guardian has delivered to the appropriate persons all

      property for which the guardian is responsible, the court shall enter an order of

      discharge which operates as a release from all duties of the guardian’s office.

      Ind. Code § 29-3-9-6(h).


[7]   The termination of the authority and responsibility of the guardian “does not

      affect the liability of the guardian for prior acts or the obligation to account for

      the guardian’s conduct of the guardian’s trust.” Ind. Code § 29-3-12-5.


      Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017   Page 5 of 7
      However, the trial court’s order of discharge acts as a bar to any suit against the

      guardian unless the suit is commenced within one (1) year from the date of the

      discharge. Ind. Code § 29-3-9-6(h).


[8]   With that statutory framework in mind, we turn to this appeal. Douglas and

      Steege appeal the Order on Permanent Guardianship. In that order, the trial

      court appointed Rich, who had been named as Mrs. Tucker’s attorney in fact in

      two successive durable power of attorney documents, as guardian over the

      person and estate of Mrs. Tucker. The trial court did so after a hearing at which

      Douglas and Steege presented their case for why they believed Rich was an

      inappropriate person to be named guardian, primarily objecting to how Rich

      had used Mrs. Tucker’s monthly income. Therefore, on appeal, Douglas and

      Steege raised the sole issue of whether the trial court abused its discretion in

      appointing Rich as guardian because she was not qualified and would not act in

      Mrs. Tucker’s best interests.2


[9]   When Mrs. Tucker passed away, the guardianship terminated and Rich’s

      authority as guardian ceased except for the limited powers she is granted by

      statute to wrap up the administration of the guardianship with the approval of

      the court. The issue raised by Douglas and Steege is therefore moot. See In re

      Commitment of J.M., 62 N.E.3d 1208, 1210 (Ind. Ct. App. 2016) (noting an issue




      2
       All trial court orders in a guardianship proceeding are in the discretion of the court. Ind. Code § 29-3-2-
      4(a). Any other relief requested by Douglas and Steege in their brief is beyond the scope of appellate review.
      See Brief of Appellant (Corrected) at 36-43 (“Requests for Orders”).

      Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017                 Page 6 of 7
       is moot when the court is unable to render effective relief to the parties). Issues

       related to events occurring after the trial court’s order appointing Rich are not

       properly before this court at this time. Rich will be required to file a final

       accounting with the trial court before she may be discharged, and Douglas is

       statutorily entitled to notice when that accounting is filed. Douglas will have

       an opportunity to file written objections to the accounting at that time if she

       believes it shows misconduct or has been fraudulently compiled. Only after the

       trial court receives the final accounting and issues an order discharging Rich

       will there be a final order regarding the conduct of the administration of Mrs.

       Tucker’s estate.



                                               Conclusion
[10]   The guardianship terminated upon Mrs. Tucker’s death and the question of

       who should be guardian of her person and her estate is therefore moot. This

       appeal is dismissed.


[11]   Dismissed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 67A04-1603-GU-466 | April 6, 2017   Page 7 of 7
