 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of                               Feb 07 2014, 9:55 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

REBECCA A. TRENT                                   LUCILLE P. UTTERMOHLEN
Brookston, Indiana                                 Monticello, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

In Re the Guardianship of                          )
Ruth Carter, an Incompetent Adult,                 )
                                                   )
COLLEEN F. BATT,                                   )
                                                   )
       Appellant-Respondent,                       )
                                                   )
               vs.                                 )       No. 91A02-1306-GU-538
                                                   )
MARSHA K. MOORE,                                   )
                                                   )
       Appellee-Petitioner.                        )


                       APPEAL FROM THE WHITE CIRCUIT COURT
                          The Honorable Robert W. Thacker, Judge
                              Cause No. 91C01-1210-GU-23



                                        February 7, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
   Colleen F. Batt (“Batt”) appeals the trial court’s order establishing guardianship for

the person and estate of her mother Ruth Carter (“Carter”), as an incapacitated adult. On

appeal, Batt raises the following restated issues:

       I.     Whether the trial court abused its discretion in determining that
              Carter was an incapacitated adult for whom guardianship over the
              person and estate was necessary; and

       II.    Whether the trial court abused its discretion in naming a third party,
              Rebecca A. Trent (“Trent”), and not Batt, as Carter’s guardian.

       We affirm.

                        FACTS AND PROCEDURAL HISTORY

       Carter, with her husband Charles Carter (“Charles”), had two children, Marsha K.

Moore (“Moore”) and Batt.           The relationship between Moore and her parents was

contentious and, in 2003, Moore and her parents became estranged.              During the

guardianship hearing, Batt and Moore each admitted that their relationship with each

other was also difficult. Tr. at 12 (Batt noted that she and Moore have had a “hostile

relationship” “for a long time”); Id. at 57 (Moore admitted that she “wants to have no

relationship with [her] sister”).

       On December 24, 2003, Carter executed a power of attorney, which designated

Charles as her attorney-in-fact and named Batt as the alternate attorney-in-fact in the

event that Charles was unable to serve in that position. Appellant’s App. at 19. Charles

died in June 2009, when Carter was almost eighty years old. Also in 2009, Moore and

her mother began to speak with each other on a limited basis.




                                              2
       Charles’s death resulted in Batt becoming Carter’s attorney-in-fact in 2009;

however, Batt did not regularly function as such until after her mother suffered a stroke in

March 2011. Tr. at 12. Carter had to move into a nursing home after her stroke, and Batt

oversaw her mother’s financial and medical affairs as Carter’s attorney-in-fact. Pursuant

to that power, Batt distributed Carter’s personal property to the families of Batt and

Moore, and then scheduled a public auction to be held on October 6, 2012, in order to sell

the remaining personal property.

       Prior to the auction, Moore filed a petition on October 1, 2012, to establish a

guardianship over Carter. She also filed a motion for restraining order without notice to

keep Batt from “removing, . . . selling, damaging, encumbering, transferring, concealing,

destroying or otherwise disposing of any property, real or personal belonging to

[Carter].” Appellant’s App. at 13. That same day, the trial court granted Moore’s request

and entered an order restraining both Moore and Batt from, in any way, disposing of

Carter’s property until after the guardianship hearing. Four days later, Batt filed a

petition to vacate the restraining order, arguing that she had entered into a contract, as

Carter’s attorney-in-fact, to auction items of Carter’s personal property and that a delay

of the auction would cause Carter to incur additional costs. Id. at 16-17. The trial court

granted Batt’s petition, which allowed the auction to proceed as planned. However, in

order to safeguard Carter’s assets, the trial court also ordered the auction service to

“deposit the proceeds of said auction along with a[n] itemized report of said sale with the

Clerk of White County,” pending a hearing on the petition for guardianship. Appellant’s

App. at 25.

                                             3
       The guardianship hearing commenced on February 26, 2013, but was adjourned

until April 24, 2013 to allow Moore to obtain appropriate documentation regarding

Carter’s capacity, tr. at 89-90, specifically the physician’s report required under “Local

Rule 91-TR81-PROB-30(13)(a).” Appellant’s Br. at 4. Moore submitted a package of

medical records for the trial court’s consideration, but did not file the requisite

physician’s report. Batt arranged for Carter to be examined by Dr. Kelly S. Earnst (“Dr.

Earnst”), a clinical neuropsychologist. The examination occurred over a two-day period,

March 8 and 12, 2013, and Dr. Earnst’s report was made a part of the record, but sealed

from public view. Following the continuation of the guardianship hearing on April 24,

2013, both parties submitted proposed findings of fact and conclusions thereon. On May

30, 2013, the trial court entered its guardianship order, which determined that Carter was

an incapacitated adult and the appointment of a guardian was necessary.1 In pertinent

part, the trial court’s order provided as follows:

       10. Dr. Earnst’s report finds that Carter suffers from moderate to severe
       dementia and shows generally global cognitive impairment, thus requiring
       assistance with most all of her daily activities and cannot make independent
       complex decisions.

       11.    Despite Carter’s cognitive limitations, Dr. Earnest was able to
       discuss with Carter the current situation of Batt providing decision making
       through the Power of Attorney, and Carter indicated that she was satisfied
       with Batt.

       12.    Dr. Earnst believed that Carter’s needs were being met by the efforts
       of Batt and the nursing home.




       1
         We commend the trial court on its Guardianship Order; the trial court’s thorough findings and
conclusions greatly aided appellate review.

                                                  4
13.    At the time of this hearing, Carter does not have the physical nor
cognitive ability to manage all of her personal needs, medical needs, and
the complex needs of her estate.

14.     Batt has been taking care of Carter’s financial and medical affairs
utilizing the Power of Attorney, and could continue to use the Durable
Power of Attorney to manage Carter’s needs.

15.    In this case, the purpose of the guardianship proceeding is to
determine if the alleged incapacitated adult person is legally incapacitated
requiring a guardianship as a reasonable and necessary legal entity to
manage such person’s personal, legal, and medical needs. Further, if
guardianship is required, then who should serve as guardian and should
such guardian be of the person, the estate, or both.

16.      Based upon the evidence presented, the Court FINDS and ORDERS
that Ruth Carter is an adult incapacitated person who suffers from mental
and physical disability due to stroke and dementia, and that a guardianship
is reasonable and necessary and in her best interest. The Court finds that a
guardianship is the best means to manage Ruth Carter’s personal and legal
affairs and medical needs. The Court finds that a guardianship is preferred
over a Durable Power of Attorney under the facts and circumstances
presented in this case. The sisters Moore and Batt do not communicate or
cooperate well enough with each other to either individual or jointly
adequately manage their mother’s affairs. The POA Batt has been dutifully
managing her mother’s affairs; however, as Power of Attorney she is at
odds with her sister as the POA and personally. The evidence presented
regarding the nature of the disagreements between the sisters, the nature of
the incapacity of the mother, and the extent of the mother’s assets and
liabilities, as a total set of circumstances convinces the Court that a
guardianship is reasonable and necessary and a preferred alternative to
simply a durable power of attorney. Additionally, the difficult family and
emotional circumstances also weigh heavily on the well-being of the
mother which indicates to the Court that a guardianship is more suitable to
meet the needs of the incapacitated mother specifically and the family
generally. Therefore, it is in the best interest of the incapacitated person
personally, financially, and medically, and for the family as a whole that a
guardianship of the person and estate be ordered and a guardian appointed.

....

18.    The Court FINDS and ORDERS that the most qualified and
suitable person to serve as guardian of the person and estate herein is

                                     5
        Rebecca A. Trent, who is well acquainted with Ruth Carter and her legal
        affairs and medical needs, as well as well acquainted with her family
        members.2 The Court finds that the sisters both indicated in their testimony
        in Court that they would accept Rebecca A. Trent as a qualified and
        suitable person to serve as guardian of the person and estate of their mother,
        Ruth Carter. . . . Further, the Court FINDS and ORDERS that the guardian
        shall formally vacate the Durable Power of Attorney upon the guardian’s
        qualification and issuance of Letters of Guardianship.

      ....
Appellant’s App. at 8-10. Batt now appeals both the determination that a guardianship is

warranted and the appointed of a third person as guardian.3 Additional facts will be

added where necessary.

                                 DISCUSSION AND DECISION

                       I.      Determination of Need for Guardianship

        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,

883 (Ind. Ct. App. 2007) (citing Ind. Code § 29-3-2-4), trans. denied. Thus, we review

the trial court’s determination only for an abuse of that discretion. In re Guardianship of

J.K., 862 N.E.2d 686, 690 (Ind. Ct. App. 2007). In determining whether the trial court

abused its discretion, we look to the trial court’s findings of fact and conclusions thereon,

and we may not set aside the findings or judgment unless they are clearly erroneous. Id.


        2
         Trent had been Carter’s attorney for more than nine years, and served as Batt’s attorney during
the guardianship proceedings and in the instant appeal.
        3
         Prior to filing her appeal, Batt filed a “Motion to Stay” with the trial court. Appellant’s App. at
5. A CCS entry notes: “Court enters order Staying Final Judgment Dated May 30, 2013. The Court
Orders that appointment of Rebecca A. Trent as guardian and the vacation of the December 24, 2003
Power of Attorney is stayed until the determination by the Court of Appeals. It is further ordered that
Colleen F. Batt is directed to provide monthly accountings to Marsha K. Moore until further Order of this
Court. Filed and Ordered 6/21/2013.” Id.

                                                     6
In our review, we first consider whether the evidence supports the factual findings, and

second, we consider whether the findings support the judgment. Id. “‘Findings are clearly

erroneous only when the record contains no facts to support them either directly or by

inference.’” Id. at 690-91 (quoting Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)).

“We give due regard to the trial court’s ability to assess the credibility of witnesses.” Id.

at 691. “While we defer substantially to findings of fact, we do not do so to conclusions

of law.” Id. “We do not reweigh the evidence; rather we consider the evidence most

favorable to the judgment with all reasonable inferences drawn in favor of the judgment.”

Id. (citing Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999)).

       A guardianship action is initiated by filing “a petition for the appointment of a

person to serve as guardian for an incapacitated person,” Ind. Code § 29-3-5-1; however,

a guardian may not be appointed until the incapacity has been adjudicated. Ind. Code §

29-3-5-2. Indiana Code section 29-3-5-3(a) provides that a trial court “shall appoint a

guardian” if the court finds that: (1) “the individual 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.” Ind. Code § 29-3-5-3(a) (emphasis added).

       On appeal, Batt focuses on the second part of this two-part inquiry, whether

appointment of a guardian for Carter is necessary; however, we must first address the

incapacity component.     The following findings were part of the order granting the

guardianship petition:



                                             7
        10.      Dr. Earnst’s report finds that Carter suffers from moderate to severe
                 dementia and shows generally global cognitive impairment, thus
                 requiring assistance with most all of her daily activities and cannot
                 make independent complex decisions.
        ....

        13.      At the time of this hearing, Carter does not have the physical nor
                 cognitive ability to manage all of her personal needs, medical needs,
                 and the complex needs of her estate.

Appellant’s App. at 8. From this, the trial court concluded that “Ruth Carter is an adult

incapacitated person who suffers from mental and physical disability due to stroke and

dementia.” Id. The trial court did not abuse its discretion in finding that Carter was

incapacitated.

        Regarding the second part, Batt contends that the trial court abused its discretion

in determining that a guardian for Carter was necessary because Batt, as Carter’s

attorney-in-fact, could provide Carter with the appropriate medical and legal care. Batt

correctly notes that her power of attorney was not terminated by the incapacity of Carter.

Appellant’s Br. at 9 (citing Ind. Code § 30-5-10-3). Quoting from our opinion in In re

Guardianship of Shaffer, 711 N.E.2d 37, 41 (Ind. Ct. App. 1999), trans. denied, Batt also

suggests that the trial court cannot impose a guardianship over the person or estate of

Carter because they are already subject to a valid power of attorney. We disagree.

        In Shaffer we cited to Indiana Code section 30-5-3-4(b) and stated, “‘once a power

of attorney is created, no guardianship can be imposed with regard to matters that are

subject to the power.’”4 Shaffer, 711 N.E.2d at 41. However, in light of the facts before


        4
         In Shaffer, the issue before the court was whether it was an abuse of discretion for the trial court
to award attorney fees to the attorneys in fact for defending the validity of their powers of attorney in a
guardianship proceeding. In re Guardianship of Shaffer, 711 N.E.2d 37, 41 (Ind. Ct. App. 1999).

                                                     8
this court, we find that the Shaffer language is an incomplete statement of the law.

Indiana Code section 30-5-3-4(b) provides:

       (b) 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.

We agree with Batt’s assertion that the above language restricts a court’s power to

establish a guardianship over the person or estate of a person already subject to a valid

power of attorney and clarifies the limitations of a guardian’s power when a guardianship

and power of attorney co-exist for one person or that person’s estate. However, the

statute clearly contemplates that a guardianship may be established in place of a valid

power of attorney if certain conditions are met.       See Ind. Code § 30-5-3-4(b) (“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.”) (emphasis added).

       Batt also contends that the trial court abused its discretion in failing to follow Dr.

Earnst’s report, which in pertinent part provided:

       [Carter] is not capable of independent complex decision-making. At the
       same time, during the interview, Ms. Carter expressed awareness of her
       need for assistance with decision making, and her satisfaction with the
       current situation of receiving this assistance through her daughter/POA,
       [Batt], and nursing home staff.




                                             9
Appellant’s Br. at 9 (citing Appellant’s App. at 66). Batt maintains that the trial court

harbored concerns that Dr. Earnst’s report was biased in Batt’s favor5 and, as a

consequence, the trial court did not consider Dr. Earnst’s statement that Carter was

satisfied with Batt’s assistance as power of attorney.                   We disagree.        During the

guardianship hearing, the trial court noted:

        I don’t know whether I got a fair assessment of the patient’s capacity
        regarding the necessity of guardianship. I certainly got an assessment of
        [Dr. Earnst’s] view of whether or not this patient could continue to function
        reasonably appropriately or successfully with one of the patient’s daughters
        as the POA, and [Dr. Earnst] clearly is kind of approving of that and he’s
        not giving me an opinion about the patient being able to function in and of
        the patient’s own right.

Tr. at 125-26. The trial court did not discount this statement as biased; instead, the court

found that the statement was not relevant to the issue of whether Carter was

incapacitated—the only issue that Dr. Earnst was qualified to address.

        The parties were provided an alternative to guardianship.                      The trial court

adjourned the February 2013 hearing to allow the parties to obtain the necessary medical

report. At the close of the hearing, the trial court stated:

        10:00 a.m. Wednesday, April 24[, 2013] we’ll have further hearing and I
        mean, that’s fifty some days, you ought to be able to get the medical report
        exchanged and have some time to talk, is [sic] you all can do that. I’m, of
        course, suggesting and recommending that you do that, but, again, I can’t
        make you, I can only suggest that the sisters try to figure out some sort of
        truce and figure out a way to get accomplished what each of you want to try
        to accomplish without having to come to Court. I mean you can come to
        Court with an agreed guardianship; you can come to Court and tell the
        Court you don’t think you need one yet; I don’t know what the doctor’s
        going to recommend to you all either. . . .
        5
          The trial court, speaking with Batt, noted: “[Y]ou’re the one that chose him, so theoretically
objectively he’s working for his patient, but on the other hand, he’s working for you, and you’re the point
of controversy with the other party . . . .” Tr. at 125.

                                                    10
Id. at 89-90. When the hearing reconvened in April, the parties had not reached any kind

of an agreement.

       While the trial court recognized that Batt could continue to act as Carter’s

attorney-in-fact, it made a specific finding that “a guardianship is preferred over a

Durable Power of Attorney under the facts and circumstances presented in this case.”

Appellant’s App. at 9. Noting that (1) “[t]he sisters Moore and Batt do not communicate

or cooperate well enough with each other to either individually or jointly adequately

manage their mother’s affairs,” (2) “the nature of the disagreements between the sisters,

the nature of the incapacity of the mother and the extent of the mother’s assets and

liabilities, as a total set of circumstances convinces the Court that a guardianship is

reasonable and necessary and a preferred alternative to simply a durable power of

attorney”; and (3) “the difficult family and emotional circumstances also weigh heavily

on the well-being of the mother,” the trial court concluded that it was in “the best

interest” of Carter “personally, financially, and medically” . . . that the guardianship of

the person and estate be ordered and a guardian appointed. Id. The trial court did not

abuse its discretion in concluding that the appointment of a guardian was necessary to

provide for the care and supervision of Carter’s physical person and property.

                                II.    Named Guardian

       Batt maintains that Indiana law gives a person holding a power of attorney

preference over others to be named guardian. Accordingly, Batt argues that the trial court

abused its discretion in naming attorney Trent, instead of her as guardian. The interplay



                                            11
between a guardianship and power of attorney must be divined from provisions in Title

29, which pertains to Probate, and Title 30, which pertains to Trusts and Fiduciaries.

       Article 29-3 of the Indiana Code specifically addresses “Guardianships and

Protective Proceedings.” Indiana Code section 29-3-5-4, in pertinent part, provides, that

a trial court shall appoint as guardian a qualified person or persons most suitable and

willing to serve, having due regard to the following: “Any request made by a person

alleged to be an incapacitated person, including designations in a durable power of

attorney . . . and [a]ny person acting for the incapacitated person under a durable power

of attorney.” Indiana Code section 29-3-5-5(a) sets forth persons who are “entitled to

consideration for appointment as guardian,” with the first being “[a] person designated in

a durable power of attorney.” Indiana Code section 30-5-3-4(a) requires the trial court to

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

power of attorney except for good cause or disqualification.” Noting that she was not

disqualified, Batt argues that the trial court stated no “good cause” for failing to name her

as guardian.

       Although the trial court did not explicitly state that there was “good cause” for not

appointing Batt, we can discern the reasons from the testimony and the trial court’s order.

During the guardianship hearing, Batt and Moore each admitted that their relationship

with each other was difficult.     Batt noted that she and Moore have had a “hostile

relationship” “for a long time,” tr. at 12; while Moore admitted that she “wants to have

no relationship with [her] sister.” Id. at 57. When asked what information she would

share with Moore, Batt stated that if she were guardian, she would share the information

                                             12
required by law. Tr. at 13. Batt, explained, however, that Moore’s questions to her are

barbed, have a word of skepticism and an “emotional jab,” and that she is not willing to

endure that kind of conversation or communication. Id. at 14. Moore said that she was

unable to obtain information about her mother’s health or financial affairs, and she did

not think that Batt was carrying out her mother’s wishes. Tr. at 38. She also stated that

she thought Batt was doing things with her mother’s money for her own benefit and not

that of her mother. Id. The trial court correctly found that animus exists between Batt

and Moore and concluded that the sisters do not communicate or cooperate well enough

to either jointly or individually manage their mother’s affairs. Appellant’s App. at 9.

This finding reflects the trial court’s belief that there was good cause not to appoint Batt

as guardian.

        Indiana Code section 29-3-5-5(b) provides the trial court with discretion to choose

as a guardian a person other than the power of attorney. That section provides, “The

court, acting in the best interest of the incapacitated person . . . may pass over a person

having priority and appoint a person having a lower priority or no priority under this

section.” Ind. Code § 29-3-5-5(b) (emphasis added). As to the choice of Trent, when

asked about who should be named guardian, Batt testified that if she could not be

guardian, she thought the guardian should be Trent, reasoning that Trent had been her

mother’s attorney since prior to 2003.6 Tr. at 144. Batt agreed that “the guardian,

whoever it is, ought to account to [Batt] and [Moore] about what’s going on. Id. at 145.

        6
         Regarding Trent as guardian, Moore testified, “I’d like a neutral party, and I’m not sure that Ms.
Trent can be since she’s my sister’s lawyer. Uhm, other than that, I just want a neutral party.” Tr. at 148.
While Moore was not in favor of the appointment of Trent as guardian, Moore does not appeal that
appointment.

                                                    13
The trial court found that Trent was “well acquainted with Ruth Carter and her legal

affairs and medical needs, as well as well acquainted with her family members.”

Appellant’s App. at 9. It is in Carter’s best interest both as to her health and her financial

affairs that her two daughters avoid engaging in a protracted legal fight.                The

appointment of Trent, an arguably disinterested party, as the guardian over Carter’s

person and estate hopefully will prevent unnecessary disputes caused by mistrust between

Batt and Moore. Therefore, we conclude that Batt has failed to demonstrate that the trial

court abused its discretion when it appointed Trent as guardian over Carter’s person and

estate.

          Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




                                             14
