[Cite as In re Guardianship of Hilt, 2015-Ohio-3186.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


In re Guardianship of Isabelle A. Hilt                  Court of Appeals No. S-14-010

                                                        Trial Court No. 20122035



                                                        DECISION AND JUDGMENT

                                                        Decided: August 7, 2015

                                                  *****

        Howard C. Whitcomb, III, for appellant/cross-appellee.

        Alan R. McKean, Pamela A. McKean and Martin D. Carrigan,
        for appellees/cross-appellants.

                                                  *****

        PIETRYKOWSKI, J.

                                             I. Introduction

        {¶ 1} This is an appeal and cross-appeal from the judgment of the Sandusky

County Court of Common Pleas, Probate Division, which denied appellant’s, Thomas

Hilt, and cross-appellants’, Peter Hilt and Laura Smith, applications for appointment as
guardian of the ward, Isabelle Hilt, and ordered that the current guardian continue in her

appointment for an indefinite period of time. For the reasons that follow, we affirm.

       {¶ 2} Thomas, Peter, and Laura are the children of Isabelle. The record indicates

that on May 4, 2012, Thomas filed a motion in the Ottawa County Probate Court for an

emergency guardianship of Isabelle due to her alleged incompetency. On June 26, 2012,

following a hearing, the Ottawa County Probate Court declared Isabelle incompetent by

reason of mental impairment, and appointed Bree Noblitt Brown as her guardian. The

case was subsequently transferred to the Sandusky County Probate Court when Isabelle

changed residences. The present matter was initiated in the Sandusky County Probate

Court on November 5, 2012, when Isabelle’s children each applied to be appointed

guardian. Thomas applied to be appointed guardian of the person and estate of Isabelle.

Peter and Laura applied to be appointed guardian of the person only and estate only,

respectively.1

       {¶ 3} The trial court held a hearing on the competing applications for guardianship

over two days in March and May 2013. The facts elicited from the hearing and record

reveal that in April 2002, Isabelle established a trust for her benefit, naming herself and

Thomas as co-trustees. Eventually, Isabelle resigned, leaving Thomas as the sole trustee.

At the time of the hearing, Thomas was a financial advisor, and he indicated that the trust


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  Thomas and Laura also petitioned to be named guardian of the person and estate while
the proceedings were before the Ottawa County Probate Court. A consent judgment
entry was entered on July 3, 2012, in which the parties consented to Brown being
appointed temporary guardian for an undetermined period.




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was being managed for no fee, and was yielding textbook returns. As trustee, and also as

Isabelle’s power of attorney, Thomas testified that he was primarily responsible for

ensuring that Isabelle’s needs were cared for. Beginning in late 2011, Thomas received

reports and began to notice signs that Isabelle’s mental health was deteriorating.

Consequently, Thomas took Isabelle to see her longtime family physician, who

determined by March 2012 that Isabelle was no longer competent to manage her own

affairs.

       {¶ 4} As a result of Isabelle’s condition, Thomas began searching for a suitable

living arrangement for Isabelle as he was of the opinion that she was no longer capable of

living by herself in her home. Thomas settled on an assisted living facility at Otterbein.

He took Isabelle to visit the facility, but she expressed her displeasure and indicated that

she did not want to leave her home. Nevertheless, on April 20, 2012, Thomas admitted

Isabelle to Otterbein. On that day, Thomas picked his mother up at her home, and took

her out for the day to go shopping and to have her hair done. While they were out,

Isabelle’s belongings were moved into a unit at Otterbein. At the end of the day, Thomas

drove Isabelle to her new residence at Otterbein where all of her furnishings were set up

as they had been at her house.

       {¶ 5} Isabelle was upset by the move, and reached out to Peter and Laura for their

help. Peter contacted the local police department, and an adult protective services

investigation was conducted in the beginning of May 2012. The adult protective services

worker testified that her evaluation of Isabelle indicated that Isabelle was able to “self-




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determinate” as of May 17, 2012. Furthermore, she found that abuse had occurred based

on the manner in which Isabelle was moved to Otterbein.

       {¶ 6} Concurrently, Peter and Laura also contacted an attorney, and were referred

to Linda Kroeger-Baum. Kroeger-Baum met with Isabelle and acted upon Isabelle’s

wishes to revoke the power of attorney granted to Thomas, and to grant powers of

attorney to Peter and Laura. Those documents were executed on May 2, 2012. Included

in the power of attorney form was a clause nominating Peter and Laura as Isabelle’s

guardian. Eventually, Isabelle was returned to her home in Fremont, Ohio, by July 2012.

       {¶ 7} At the hearing on the guardianship applications, the parties presented

evidence and were cross-examined regarding their relative suitability to be appointed

guardian over Isabelle. Much of the testimony had its origin and related to a family

dispute that occurred several years earlier. When the parties’ father passed away, a

testamentary trust was created. Thomas and Laura were named as co-trustees of that

trust. At some point, Laura disagreed with some of the decisions that Thomas was

making, and filed a court action to resolve the dispute. Notably, Isabelle came to believe

that Laura was bringing the action against her. The matter eventually settled, however it

had created a fissure in the family relationships. The testimony revealed that for a couple

of years, Laura had minimal contact with her mother. Peter allegedly also had a period

where he did not have a close relationship with Isabelle. However, several months before

Isabelle was moved to Otterbein, Peter and Laura had been working to mend their

relationships with her. Notably, their relationship with Thomas has not been repaired.




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The lack of a relationship between Thomas and Peter and Laura caused Brown to be

concerned that if one or several of the children were named guardian, there would be

insufficient communication between them.

       {¶ 8} As to their qualifications to be guardian, Thomas testified that he has been

helping his mother manage her financial affairs since the death of his father, and that he

has had the most stable relationship with Isabelle. He stated that the act of moving

Isabelle to Otterbein was consistent with the recommendation of her family doctor, and

that he had solicited the advice of several people in determining how to make the

transition. On cross-examination, it was noted that Thomas lives approximately one and

one-half hours away from Isabelle, and that his job sometimes takes him out of town.

Further, Thomas was asked if his lack of a relationship with his siblings would hinder his

ability to be guardian, to which Thomas replied that he would do whatever the court

required him to do.

       {¶ 9} In support of his application to be guardian of the person, Peter testified that

he is very close with his mother, and visits her several times a week. Peter acknowledged

that an allegation was made that there was a period where he had little contact with his

mother, but he denied the allegation and insisted that he continuously had contact with

her. In addition, Peter testified that he is the closest in proximity to Isabelle, and is able

to be at her home within 30 minutes. Peter is also the person on whom Brown relied the

most at the beginning of the guardianship to give her access, and that he has continued to

ease the guardian’s burdens by checking in on Isabelle, occasionally taking her to




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doctor’s appointments, and acting as another line of communication with the caregivers

that come to Isabelle’s home. Regarding why he was seeking to be appointed guardian of

the person only, Peter admitted to having been convicted of several crimes involving

dishonesty, including theft and writing a bad check.

       {¶ 10} Laura testified that she would be a suitable guardian of the estate. She

stated that, as the only daughter, she has a unique, close relationship with Isabelle. She

talks with her mother several times a week, and has stayed with her whenever Isabelle

had surgeries. Further, she testified that she has had a power of attorney for her aunt, and

has managed the aunt’s financial affairs for the past 12 years. Finally, she offered that

she has a close relationship with Peter, and if Peter were named guardian of the person,

she does not anticipate any issues in communication between the two of them. She also

stated that she would communicate with Thomas if he were named guardian of the

person.

       {¶ 11} At the end of the trial, the court commented that it was evident that all of

the children loved their mother, and that Isabelle loved all of her children. Further, the

court recognized that this was not a situation where one of the children was trying to

harm Isabelle; instead they all wanted to do what was best for Isabelle, but disagreed on

what that should look like.

       {¶ 12} Following the hearing, on February 20, 2014, the trial court entered its

judgment, denying Thomas’s, Peter’s, and Laura’s guardianship applications. In its

judgment, the court stated “there were either consents, or at least acknowledgments, that




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there was a need for a guardianship to be established/continued, due to the ward’s

incompetence at that time; as well as further evidence establishing that there is no doubt

as to the underlying need for a guardian.” Further, the court found:

              17. That each applicant has distinctive, potentially disqualifying

       issues, as detailed on the record; including serious communication

       resistance with siblings, convictions for offenses of dishonesty, practical

       problems created by geographic distance, complications that arise from a

       desire or ability to only serve as guardian of the person or estate, and other

       various lapses in judgment as to their respective handling of certain

       situations and interactions with their mother and each other.

              18. That the Court is specifically finding that all three of the

       applicants are in fact unsuitable to be named guardian of the ward in this

       matter.

The court, therefore, ordered that Brown continue in her appointment as the guardian of

the person and estate for an indefinite period of time.

                                  Assignments of Error

       {¶ 13} Thomas has appealed the trial court’s February 20, 2014 judgment, raising

two assignments of error for our review:

              I. THE TRIAL COURT’S DENIAL OF APPELLANT’S

       APPLICATION FOR APPOINTMENT AS GUARDIAN CONSTITUTED

       AN ABUSE OF DISCRETION.




7.
              II. THE TRIAL COURT’S SUMMARY DENIAL OF

       APPELLANT’S APPLICATION FOR APPOINTMENT AS GUARDIAN

       WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 14} Peter and Laura have likewise cross-appealed, assigning as error:

              I. THE LOWER COURT INCORRECTLY RULED ON THE

       ISSUES BEFORE IT.

                                          Analysis

       {¶ 15} At the outset, we recognize that a probate court’s decision regarding the

appointment of a guardian will not be reversed absent an abuse of discretion. In re

Guardianship of Scobie, 6th Dist. Lucas No. L-07-1177, 2008-Ohio-364, ¶ 17; In re

Estate of Bednarczuk, 80 Ohio App.3d 548, 551, 609 N.E.2d 1310 (12th Dist.1992). An

abuse of discretion connotes that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 16} We will begin with Thomas’s assignments of error, and because they are

related, we will address them together. In his first assignment of error, Thomas contends

that the trial court’s judgment constituted an abuse of discretion because (1) it did not

articulate a reason why the application was denied, (2) it resulted in the status quo being

maintained, which will further deplete Isabelle’s limited resources, and (3) it did not

articulate a specific finding that Isabelle was incompetent.




8.
       {¶ 17} In response to his third argument, we agree with the premise that “When a

court considers a motion for appointment of a guardian, it must make a two-part

determination: ‘(1) it must first determine that a guardian is required; and (2) it must also

determine who shall be appointed guardian.’” In re Guardianship of Biro, 6th Dist.

Ottawa No. OT-10-024, 2011-Ohio-1834, ¶ 16, quoting In re Guardianship of Friend,

8th Dist. Cuyahoga No. 64018, 1993 WL 526643 (Dec. 16, 1993). However, the record

reveals that Isabelle had already been declared incompetent by the Ottawa County

Probate Court on June 26, 2012, in accordance with R.C. 2111.02. Further, the parties—

including Isabelle as represented by her attorney and guardian—in the proceeding before

the Sandusky County Probate Court conceded that Isabelle was still in need of a

guardian, and the trial court stated in its judgment that there was “evidence establishing

that there is no doubt as to the underlying need for a guardian.” Thus, we find Thomas’s

argument that the court abused its discretion by not first finding Isabelle incompetent to

be without merit.

       {¶ 18} In his first argument, Thomas contends that the trial court abused its

discretion because it did not articulate why his application was denied. Contrary to

Thomas’s assertion, however, the trial court specifically found that Thomas was not

suitable. In making its finding, the court referenced several factors that can be attributed

to Thomas from the record: “serious communication resistance with siblings, * * *

practical problems created by geographic distance, * * * and other various lapses in




9.
judgment as to their respective handling of certain situations and interactions with their

mother and each other.” Thus, Thomas’s first argument is without merit.

       {¶ 19} Thomas’s remaining argument in support of his first assignment of error

goes to the wisdom of the trial court’s decision to continue Brown’s appointment as

guardian. Similarly, Thomas’s second assignment of error asserts that the trial court

erred when it found him to be unsuitable. In support of that assignment of error, Thomas

highlights that he is best positioned to be Isabelle’s guardian because (1) he is a financial

advisor, (2) he has consistently and successfully managed Isabelle’s investments for no

fee, (3) he has Isabelle’s best interests in mind, (4) he has continuously taken care of

Isabelle since his father passed, (5) his relationship with Isabelle is stronger than that of

his siblings, and (6) he does not anticipate having any communication problems with his

siblings.

       {¶ 20} “In making a determination as to who should serve as a guardian, the

probate court’s primary responsibility is to ensure that the person appointed will act in the

best interests of the ward.” In re Guardianship of Thomas, 148 Ohio App.3d 11, 2002-

Ohio-1037, 771 N.E.2d 882, ¶ 96 (10th Dist.). Here, we do not find that the trial court

acted unreasonably, arbitrarily, or unconscionably when it determined that the continued

appointment of Brown as guardian is in Isabelle’s best interest. Although the continued

appointment of Brown will be more costly to the estate, and although Thomas has some

qualities that would support him being a suitable guardian, the potential lack of

communication between Thomas and his siblings as evidenced by their fractured




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relationship, the practical difficulty of Thomas living one and one-half hours away, and

the manner in which Thomas decided to execute Isabelle’s move to Otterbein all support

the trial court’s determination. Therefore, we hold that the trial court’s decision did not

constitute an abuse of discretion.

         {¶ 21} Accordingly, Thomas’s first and second assignments of error are not well-

taken.

         {¶ 22} In their assignment of error on cross-appeal, Peter and Laura argue that the

trial court erred when it failed to appoint them as guardians pursuant to R.C. 2111.121.

Initially, we must address Peter and Laura’s argument that because the issue turns on the

interpretation of a statute, we should review the trial court’s decision de novo. We

disagree. As we will discuss, the trial court did not base its decision on an interpretation

of the statute. Rather, the court’s decision was based on the application of the statute in

light of its determination that Peter and Laura were unsuitable to be appointed as

guardians. Therefore, as with our analysis of Thomas’s assignments of error, we will

review the trial court’s decision for an abuse of discretion.

         {¶ 23} Turning to the merits of Peter and Laura’s argument, R.C. 2111.121

authorizes an individual to nominate, in writing, persons to be named as guardian in the

event the individual becomes incompetent. Division (B) of R.C. 2111.121, in effect at

the time the nomination was made and at trial,2 states:


2
 R.C. 2111.121(B) was amended effective March 20, 2014. The current version
provides, in relevant part:




11.
              If a person has nominated, in a writing as described in division (A)

       of this section, another person to be the guardian of the nominator’s person,

       estate, or both, and proceedings for the appointment of a guardian for the

       person are commenced at a later time, the court involved shall appoint the

       person nominated as guardian in the writing most recently executed if the

       person nominated is competent, suitable, and willing to accept the

       appointment.

       {¶ 24} Peter and Laura assert that they were nominated guardians in the power of

attorney executed by Isabelle on May 2, 2012. Moreover, they assert that they are

competent, suitable, and willing to accept the guardianship. Thus, they conclude that the

trial court erred when it failed to appoint them as guardians “because they were so named

in the power of attorney executed by Isabelle Hilt when she was competent to do so.”

       {¶ 25} However, as we recognized in Scobie, 6th Dist. Lucas No. L-07-1177,

2008-Ohio-364, at ¶ 22, the trial court is not required to “blindly give meaning to any

valid power of attorney which identifies a prospective guardian.” Instead, appointment of

the nominated person is required only where the court has determined that the person is




               A person’s nomination, in a writing as described in division (A) of
       this section, of a guardian of the nominator’s person, estate, or both * * * is
       revoked by the person’s subsequent nomination, in a writing as described in
       division (A) of this section, of a guardian of the nominator’s person, estate,
       or both * * * and, except for good cause shown or disqualification, the
       court shall make its appointment in accordance with the person’s most
       recent nomination.




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“competent, suitable, and willing to accept the appointment.” Id. Here, the trial court

found that Peter and Laura were not suitable. Specifically, the trial court referred to their

communication issues with Thomas, Peter’s convictions for offenses of dishonesty, the

complications that arise from serving only as guardian of the person or estate, and “other

various lapses in judgment as to their respective handling of certain situations and

interactions with their mother and each other.” Based on the court’s findings as

supported by the record, we cannot conclude that the trial court abused its discretion

when it denied Peter’s and Laura’s applications to be appointed guardian.

       {¶ 26} Accordingly, Peter and Laura’s assignment of error on cross-appeal is not

well-taken.

       {¶ 27} For the foregoing reasons, we find that substantial justice was done the

parties complaining and the judgment of the Sandusky County Court of Common Pleas,

Probate Division is affirmed. Pursuant to App.R. 24, costs of this appeal are to be split

evenly between appellant and cross-appellants.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




13.
                                                                     In re Guardianship
                                                                     of Hilt
                                                                     C.A. No. S-14-010




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Stephen A. Yarbrough, P.J.                                JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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