MEMORANDUM DECISION                                                           FILED
                                                                        Apr 09 2018, 5:33 am

Pursuant to Ind. Appellate Rule 65(D), this                                   CLERK
Memorandum Decision shall not be regarded as                              Indiana Supreme Court
                                                                             Court of Appeals
precedent or cited before any court except for the                             and Tax Court

purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rhonda Yoder Breman                                       James F. Olds
Breman Law LLC                                            A. Shane Hobson
Indianapolis, Indiana                                     Stuart & Branigin, LLP
                                                          Lafayette, Indiana
Bryan H. Babb
Bose McKinney & Evans LLP
Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re the Guardianship of                                 April 9, 2018
John T. Aldrich, an Adult,                                Court of Appeals Case No.
                                                          08A02-1704-GU-821
                                                          Appeal from the Carroll Circuit
Brock L. Aldrich,                                         Court.
Appellant (Cross-Petitioner Below),                       The Honorable Benjamin A. Diener,
                                                          Judge.
                                                          Trial Court Cause No. 08C01-1610-
     v.                                                   GU-32

Sandra Aldrich,

Appellee (Petitioner Below).




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018               Page 1 of 14
[1]   Brock L. Aldrich appeals the trial court’s judgment appointing him and Sandra

      Aldrich to serve as co-guardians for the person and estate of John T. Aldrich,

      an incapacitated adult. We affirm.


[2]   John and his first wife had two children, Brock and Kelti. After John’s first

      wife died in the mid-1980s, he began a relationship with Sandra. They have

      been together for approximately thirty years and have been married for over

      nine years. Further, the two adopted Sandra’s granddaughter, Ariel Huffer,

      when Ariel was sixteen years old.


[3]   In 2003, John executed a will naming Brock and Kelti as co-personal

      representatives. Under the will, John devised 10% of the proceeds of his auto

      parts business to Ariel in trust and divided the remainder evenly between Brock

      and Kelti. In 2008, John and Sandra executed a premarital agreement setting

      forth their individual assets and stating that neither has any interest in the

      property of the other.


[4]   In 2012, John was diagnosed with mild dementia. As John’s condition

      worsened, his family sought to take steps to ensure that John and his property

      would be looked after. In April 2015, Sandra and John met with an attorney.

      On April 20, 2015, John executed a durable power of attorney (POA1)

      appointing Sandra and Brock as joint attorneys-in-fact over his business,

      property, health, and medical matters. Brock did not learn of the existence of

      POA1 until August 2016. Tr. Vol. I, p. 96.




      Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 2 of 14
[5]   Later, Brock and John met with a different attorney without consulting Sandra.

      On December 4, 2015, John executed a “General Durable Springing Power of

      Attorney” (POA2) which purportedly revoked all prior grants of powers of

      attorney and named Brock as his sole attorney in fact. Appellant’s App. Vol. II,

      p. 89. POA2 specifies that Brock’s powers will take effect after two physicians

      determine in writing that John is unable to manage his affairs. Also on

      December 4, 2015, John executed an Appointment of Health Care

      Representative and Living Will Declaration, in which he named Brock as his

      health care attorney in fact. Sandra did not learn of the existence of POA2 and

      the health care appointment until late 2016. Tr. Vol. I, p. 17.


[6]   On March 30, 2016, John executed a document transferring ownership of his

      auto parts business to a revocable trust, of which Brock was the trustee. John

      further deeded to Brock the real estate upon which the business was located.

      Neither John nor Brock discussed the matter with Sandra.


[7]   During 2015 and 2016, Brock and Sandra disagreed about the management of

      John’s finances and medical care and further accused each other of

      improprieties in handling John’s money. This case began on October 17, 2016,

      when Sandra filed a verified petition asking that she be appointed as sole

      guardian over John’s person and estate. On December 29, 2016, John, through

      separate counsel, filed a verified motion for temporary restraining order and

      preliminary injunction seeking to enjoin and restrain Brock from acting as

      John’s attorney in fact.



      Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 3 of 14
[8]   On December 30, 2016, Brock filed a cross-petition for appointment of guardian

      over the estate and person of John, asserting he should be John’s sole guardian.

      Brock later filed a response to John’s motion for temporary restraining order

      and preliminary injunction, asserting that only he had the authority to hire

      attorneys to represent John. Meanwhile on December 16, 2016, John, through

      yet another attorney (who had been contacted by Brock), filed a petition to

      dissolve his marriage to Sandra. The outcome of that case is not discussed in

      the record.


[9]   The trial court held an evidentiary hearing, after which the parties submitted

      proposed findings of fact and conclusions thereon. On March 29, 2017, the

      trial court entered findings of fact, conclusions thereon, and judgment. The

      court noted that neither party “argued strongly” to nullify POA1 or POA2 on

      grounds of mental incapacity, even though John’s doctor indicated that John

      may have lacked capacity to execute either document. Appellant’s App. Vol.

      II, p. 16. The court thus “assume[d] validity of all legal instruments” despite

      “having severe reservations regarding John’s capacity since 2015.” Id. The

      court denied John’s request for a restraining order and injunctive relief. The

      court further ordered as follows:

              IT IS THEREFORE ORDERED, ADJUDGED AND
              DECREED: That Sandra Aldrich is appointed guardian over
              John Aldrich’s physical person and his estate, excepting all
              aspects of John’s health care as set out in John’s Appointment of
              Health Care Representative and Living Will Declaration,
              executed December 4, 2015.

      Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 4 of 14
                  IT IS THEREFORE ORDERED, ADJUDGED AND
                  DECREED: That Brock Aldrich is appointed guardian over
                  John’s health care as set out in John’s Appointment of Health
                  Care Representative and Living Will Declaration, executed
                  December 4, 2015, with the exception that Brock has no
                  authority to remove John from his marital residence without
                  Sandra’s consent.
                  IT IS THEREFORE ORDERED, ADJUDGED AND
                  DECREED: That pursuant to Ind. Code § 30-5-3-4, for good
                  cause shown, this Court DIRECTS Sandra to revoke POA1 and
                  POA2.

       Appellant’s App. Vol. II, p. 22. This appeal followed.


[10]   The trial court is vested with discretion in making determinations as to the

       guardianship of an incapacitated person. In re Guardianship of Atkins, 868

       N.E.2d 878 (Ind. Ct. App. 2007) (citing Ind. Code § 29-3-2-4 (2001)), trans.

       denied. Therefore, we review the trial court’s judgment for an abuse of

       discretion. In re Guardianship of M.N.S., 23 N.E.3d 759 (Ind. Ct. App. 2014). In

       determining whether the trial court abused its discretion, we review the court’s

       findings and conclusions, and we may not set aside the findings or judgment
                                                       1
       unless they are clearly erroneous. Id. We will not reweigh the evidence nor

       will we reassess the credibility of witnesses; instead, we will consider the

       evidence most favorable to the judgment with all reasonable inferences drawn

       in favor of the judgment. Id. We review questions of law de novo and owe no




       1
           We are grateful to the trial court for preparing extensive findings and conclusions, which aided our review.


       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018                  Page 5 of 14
       deference to the trial court’s legal conclusions. In re Guardianship of Phillips, 926

       N.E.2d 1103 (Ind. Ct. App. 2010).


[11]   Neither party disputes that John is incapable of managing his own affairs.

       Further, neither party challenges the validity of POA1 or POA2 on grounds

       that John lacked competency to execute those documents. Rather, they

       disagree as to how those documents apply to this guardianship proceeding.


[12]   Brock argues: (1) the trial court erred by establishing a guardianship when a

       valid power of attorney (POA2) already existed; or (2) if the trial court did not

       err in establishing the guardianship, the trial court erred by appointing Sandra

       as co-guardian with Brock over John’s person and estate.


                            1. Power of Attorney and Guardianship
[13]   Brock claims the trial court should not have appointed a guardian because

       POA2 was valid and takes precedent over a guardianship. Brock concludes the

       court should have simply allowed him to proceed as John’s attorney in fact and

       health care representative.


[14]   The statute that governs the appointment of guardians provides, in relevant

       part:

               if it is alleged and the court finds that:
               (1) the individual for whom the guardian is sought is an
               incapacitated person or a minor; 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 or minor;

       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 6 of 14
               the court shall appoint a guardian under this chapter.

       Ind. Code § 29-3-5-3 (1989). By contrast, if the court determines it is not in the

       incapacitated person’s best interests to appoint a guardian, the court may

       dismiss the proceedings. Id.


[15]   As noted, a trial court has discretion in issuing findings and orders in

       guardianship proceedings. Ind. Code § 29-3-2-4. When a protected person is

       represented by an attorney in fact pursuant to a power of attorney, the trial

       court has less discretion. Indiana Code section 30-5-3-4 (1991) states, “the

       court shall make an appointment in accordance with the principal’s most recent

       nomination in a power of attorney except for good cause or disqualification.”

       Further, Indiana Code section 29-3-5-5 (2016) prioritizes candidates to serve as

       a guardian, and “a person designated in a durable power of attorney” has the

       highest priority. The court “may pass over a person having priority and appoint

       a person having a lower priority or no priority” if the court concludes it is in the

       “best interest of the incapacitated person” to so conclude. Id. Finally, “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.”

       Ind. Code § 30-5-3-4(b).


[16]   In In re Guardianship of Morris, 56 N.E.3d 719 (Ind. Ct. App. 2016), a person

       executed a durable power of attorney appointing two of her six children as

       attorneys in fact. She later became mentally incapacitated, and the six children

       disagreed about their mother’s medical care and finances. Some of the children

       petitioned the court to appoint a guardian. The trial court appointed all six as

       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 7 of 14
       co-guardians. On appeal, the Court affirmed the determination that Morris was

       incapacitated but reversed for further proceedings, concluding the trial court

       failed to consider the impact of the power of attorney, pursuant to which the

       two attorneys in fact had specific authority over their mother’s person and

       estate. See also In re Guardianship of Hollenga, 852 N.E.2d 933 (Ind. Ct. App.

       2006) (reversing trial court’s appointment of a guardian and remanding to

       appoint the protected person’s attorney in fact as guardian unless good cause for

       disqualification was shown).


[17]   We conclude from the foregoing that a trial court is not barred from appointing

       a guardian simply because the incapacitated person previously executed one or

       more powers of attorney. Instead, by statute the court must prioritize naming

       the attorney in fact as guardian unless good cause exists for choosing another

       person, and the trial court must account for the attorney in fact’s powers when

       setting forth the guardian’s powers. As was shown in Morris and Hollenga,

       failure to comply with the statutes that govern the role of the attorney in fact in

       a guardianship proceeding may provide grounds for reversal.


[18]   In this case, the trial court was not barred from appointing a guardian for John

       because John had previously executed POA1 and POA2. The trial court

       acknowledged the existence of those documents and further acknowledged that

       an attorney in fact should generally receive priority in appointing a guardian.

       The court determined there was “good cause” in this case to place limitations

       upon Brock’s powers by appointing Sandra as co-guardian. Further, the court

       explained that Sandra’s authority over John’s person was subject to Brock’s

       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 8 of 14
       authority as health care representative. Appellant’s App. Vol. II, p. 18. We

       conclude the court gave due consideration to POA1, POA2 and statutory

       requirements, and this case is factually distinguishable from Morris and Hollenga.


[19]   Again, neither party disputes that John is incapacitated and unable to care for

       himself and his property. We cannot conclude the court abused its discretion

       by appointing a guardian merely because John had previously executed grants

       of powers of attorney.


                                        2. Selection of Guardian
[20]   Brock claims the trial court was required to select him as John’s sole guardian

       because he is John’s attorney in fact pursuant to POA2 and because there is no

       basis in the record to require him to share guardianship powers with Sandra.

       Sandra concedes Brock is entitled to primary consideration to serve as

       guardian. She argues the court found good cause to name her and Brock as co-

       guardians, and she further claims the record supports that determination.


[21]   When a trial court considers who to appoint as a guardian, “the court shall

       make an appointment in accordance with the principal’s most recent

       nomination in a power of attorney except for good cause or disqualification.”

       Indiana Code § 30-5-3-4. There is no dispute that POA2 (which names Brock

       as the sole attorney in fact) was more recent than POA1 (which names Brock




       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 9 of 14
                                                       2
       and Sandra as co-attorneys in fact). The key question is whether there was

       good cause to name Brock and Sandra as co-guardians instead of appointing

       Brock as sole guardian.


[22]   The trial court determined good cause existed to not name Brock as sole

       guardian because of Brock’s negative role in: (1) John’s December 2016

       petition to dissolve his marriage with Sandra; and (2) John’s placement of his

       business in a trust benefitting Brock and selling the business’s property to Brock.


[23]   The record supports the trial court’s determination as to Brock’s role in the

       attempted dissolution of John and Sandra’s marriage. John and Sandra had

       been a couple for thirty years, and married for over nine years. In addition to

       being John’s spouse, Sandra has been John’s primary live-in caregiver since the

       onset of his dementia, helping him with medical appointments and

       medications, preparing meals, and driving for him.


[24]   There is evidence that John was mentally incapacitated to the point that he was

       unable to manage his own affairs since at least September 2016. Tr. Ex. Vol.,

       Ex. 1. His doctor explained in a January 2017 deposition that John is unable to

       live alone and cannot make basic decisions about his own life, and John may




       2
         The parties dispute whether POA2 revoked POA1, thus extinguishing Sandra’s status as co-attorney in fact
       under POA1. This dispute is irrelevant because Indiana Code section 30-5-3-4 establishes that the most
       recent nomination of attorney in fact, POA2, takes precedence in selecting a guardian. There is also a
       dispute as to whether Brock qualifies as an attorney in fact pursuant to POA2 because that document requires
       two physicians to certify in writing that John is incapacitated before Brock’s powers take effect. For purposes
       of this appeal, we assume that POA2’s naming of Brock as attorney in fact, albeit contingent on proof of
       John’s incapacity, satisfies the requirements of Indiana Code section 30-5-3-4.

       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018              Page 10 of 14
       have been in this condition since December 2015. The doctor further stated

       John does not have many lucid moments where he could make rational

       decisions. While John could “articulate what he wants” at any given moment,

       he may not understand “the long-term effects.” Tr. Ex. Vol., Ex. 15, p. 30. In

       2016 Brock and John tried to call one of John’s prior attorneys to request a

       copy of his will, but Brock observed that John was unable to accomplish that

       task, having “difficulty speaking” and expressing his thoughts. Tr. Vol. I, p.

       124. It is undisputed that maintaining a routine, with familiar settings and

       people, is important to John’s mental and physical health.


[25]   Despite the foregoing evidence, in November 2016 Brock transported John to

       an attorney, Natalie Snyder, who prepared and filed a petition to dissolve John

       and Sandra’s marriage. The petition requested that John be given sole

       possession of the marital residence, thus requiring Sandra to move out. Neither

       John nor Brock discussed divorce with Sandra before the petition was filed, and

       she found out about the petition only through third parties. When Sandra

       asked John about it, he did not remember meeting with Attorney Snyder and

       said he would “never” divorce Sandra. Tr. Vol. I, p. 45. John testified at the

       evidentiary hearing, and although he clearly was not in full command of his

       faculties he stated that he did not want to divorce Sandra and wanted to

       continue living with her.


[26]   This evidence establishes that Brock arranged to have an attorney prepare and

       file a dissolution of marriage petition for John when Brock knew or should have

       known that John lacked the capacity to make such a momentous decision. The

       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 11 of 14
       result of the petition, if successful, would have been John’s separation from his

       wife and long-time primary caregiver, and such a major disruption was likely to

       have been detrimental to his mental health. Brock indicated he was concerned

       about Sandra’s alleged mismanagement of John’s money, but he did not pursue

       other protective legal measures, such as exercising his powers under POA1 or

       POA2. This potential disregard for John’s mental health in the name of

       protecting his money justified the trial court’s decision to appoint Sandra as

       John’s co-guardian, especially the restriction that Brock could not remove John

       from his home without Sandra’s agreement.


[27]   Brock points to evidence that John was not incapacitated when John and Brock

       met with Attorney Snyder in November 2016. Brock further points to his own

       testimony that John had been talking about divorce since the summer of 2015

       and that Sandra had threatened to leave John in 2016. These arguments are

       requests to reweigh the evidence. There is sufficient evidence to support the

       court’s determination that good cause exists to appoint Sandra and Brock as co-

       guardians despite Brock’s status as attorney in fact, and we find no abuse of

       discretion. See In re Guardianship of Brewer, 922 N.E.2d 82 (Ind. Ct. App. 2010)

       (affirming trial court’s choice of guardian; facts supported trial court’s

       determination that the court’s choice of guardian was in the best interest of the

       incapacitated person amid feuding between the person’s children and spouse).

       We need not discuss the circumstances of John’s transfer of his business to a

       trust benefitting Brock or transfer of his business’s building to Brock.




       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 12 of 14
[28]   On a related subject, Brock argues the trial court erred in ordering Sandra to set

       aside POA1 and POA2 because he concludes the court failed to comply with

       statutory requirements governing such revocations. Indiana Code section 30-5-

       3-4 (b) provides, in relevant part:

               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.

[29]   Brock argues the trial court failed to hold a hearing to determine whether POA1

       and POA2 should be revoked. We disagree. During the evidentiary hearing in

       this case, the parties presented evidence about the circumstances under which

       POA1 and POA2 were executed and presented competing claims as to the

       validity of those documents. Sandra stated in her petition for guardianship that

       she sought to be appointed sole guardian of John without limitation, which by

       necessity would have required the court to order the revocation of POA1 and

       POA2. Similarly, Brock’s request to be named sole guardian would have

       necessarily required the court to order the revocation of POA1. The potential

       revocation of either or both POAs was squarely before the court and the parties.

       Requiring the court to hold a second hearing on that subject would exalt form

       over substance. We find no abuse of discretion. See Guardianship of Brewer, 922

       N.E.2d 82 (rejecting appellant’s claim that the validity of a grant of a power of

       attorney was not an issue during trial proceedings; regardless of the specific

       allegations in the parties’ pleadings, the parties presented extensive evidence


       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 13 of 14
       questioning the circumstances under which the power of attorney was

       executed).


[30]   For the reasons stated above, we affirm the judgment of the trial court.


[31]   Judgment affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 08A02-1704-GU-821 | April 9, 2018   Page 14 of 14
