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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilson v. State, Dept. of Law (9/4/2015) sp-7046
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
)
HELEN WILSON, ) Supreme Court No. S-15496
)
Appellant, ) Superior Court No. 3PA-13-00109 PR
)
v. ) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT ) No. 7046 - September 4, 2015
OF LAW, and STATE OF ALASKA, )
OFFICE OF PUBLIC ADVOCACY, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Third Judicial District, Palmer, Eric Smith, Judge.
Appearances: Shelley K. Chaffin, Law Office of Shelley K.
Chaffin, Anchorage, for Appellant. Laura Fox, Assistant
Attorney General, Anchorage, and Craig W. Richards,
Attorney General, Juneau, for Appellee State of Alaska,
Department of Law. Elizabeth Russo, Assistant Public
Advocate, and Richard K. Allen, Public Advocate,
Anchorage, for Appellee State of Alaska, Office of Public
Advocacy.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
Helen Wilson is an elderly woman residing at the Palmer Pioneer home.
Helen previously lived in her own house but was unable to manage her medications and
nutrition independently. Her son and grandson lived with her but were unable or
unwilling to help. After Adult Protective Services received several reports of harm, a
temporary emergency guardian was appointed for Helen; the guardian placed her in an
assisted living facility and then in the Pioneer Home. Despite her limited financial
means, Helen continues to support her son and grandson, who remain in her house.
Helen appeals the appointment of a partial public guardian and full conservator. We
affirm.
II. FACTS AND PROCEEDINGS
A. Helen's Living Situation
1 is an elderly woman who lives at the Palmer Pioneer Home
Helen Wilson
with her husband, who is in very poor health and has an appointed public guardian.
Helen and her husband own a house in Wasilla, to which Helen wants to return after her
husband's death. Helen's son and grandson reside in Helen's house. Helen's son's
fiancée also stays at the house periodically but does not live there.
Deborah Rumbo from Adult Protective Services (APS) became involved
with the Wilsons when Helen, her husband, and her grandson were all living in the
Wasilla house. Helen's husband called APS reporting that he had been left home alone
and needed help, and he was subsequently placed in assisted living. Helen's husband
had been receiving in-home personal care assistant services, which incidentally
benefitted Helen. These services ceased when Helen's husband moved out of their
1 We use a pseudonym to protect the appellant's privacy.
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house, but out of concern for Helen, Rumbo arranged for approximately six hours a week
of personal care assistant services through the Alzheimer's Resource Agency.
B. The Guardianship And Conservatorship Proceedings
In early 2013 APS received at least seven reports of harm regarding Helen.
On April 1 Rumbo met with Helen, who was in the hospital at the time, to "follow up"
on these reports. Later that month Rumbo filed a petition seeking the appointment of a
public guardian. In the petition Rumbo stated that Helen was in the hospital "with
complaints of pain" and that "her grandson who lives in the home with her reportedly
refused to assist her." As Rumbo further alleged, Helen "was worried [that] her
grandson or her son would take her and her husband's money and property while she
was hospitalized" and no longer wanted her family living in the house, given that they
did not contribute or assist her.
According to Rumbo, Helen's grandson had prevented her from calling 911
"in times when she needed treatment" because Helen had "agreed to be a third party
custodian for him in a criminal matter." Rumbo also alleged that the grandson
"attempted to get [Helen] to take Benadryl to aid her in sleeping[,] against medical
advice" and despite "[contraindications] with her other pain medications." The petition
further stated that Helen "indicated that [the] recent decline of her health resulted in
multiple transports and admits to the hospital." Rumbo reported that Helen agreed with
the guardian request and wanted help getting placed in the Pioneer Home. Rumbo
requested a full guardian because Helen was unable to manage the application process
for the Pioneer Home, and she requested a public guardian since she believed that no
2
other appropriate individuals were available.
2 See AS 13.26.113(e)-(f). If a person "is able to perform some, but not all,
of the functions necessary to care for" herself, "the court may appoint a partial guardian,
(continued...)
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Just over a week after filing its original petition, APS filed a motion for an
expedited hearing and the appointment of a temporary guardian. According to the
accompanying affidavit, Rumbo received a report on April 24 that Helen "was found
lying in her bed with a black eye." Helen "indicated that she fell in the bathtub the prior
3
evening," but her son "did not provide any information." Helen "was reported to be
moaning and feeling dizzy[,] so she was taken to [the hospital]." Two days later Rumbo
received a report, presumably from the personal care assistant, that the "[personal care
assistant] was unable to enter [Helen's] home as nobody answered the door," despite the
presence of two vehicles on the property. When Rumbo attempted to visit Helen with
a police officer, Helen's son and his fiancée "became verbally combative" and refused
to let them in. According to Rumbo, Helen was hospitalized after a fall reportedly
sustained on April 27 and was also admitted for dehydration and poor nutrition.
Serving as a standing master for the superior court, Magistrate Judge
Craig S. Condie held an emergency hearing on May 2 and found that the appointment
of a temporary guardian was warranted. At the master's recommendation the superior
court appointed the Office of Public Advocacy (OPA) as Helen's temporary guardian
4
and conservator. In coordination with OPA, Helen was initially placed in an assisted
2 (...continued)
but may not appoint a full guardian." AS 13.26.113(e). If a person "is totally without
capacity to care for" herself "and the appointment of a partial guardian is not feasible or
adequate to meet the needs of the [person], the court may appoint a full guardian."
AS 13.26.113(f).
3
It is unclear whether Rumbo or someone else questioned Helen and her son.
4
A conservator manages property on behalf of someone who is unable to
manage their own property. See AS 13.26.165(2).
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----------------------- Page 5-----------------------
5
living facility. In July Helen underwent a neuropsychological examination conducted
by Dr. Russell Cherry, a neuropsychologist with substantial experience evaluating the
capacity of elderly people.
The long-term guardianship and conservatorship hearing was held in
September, by which time Helen was living in the Pioneer Home. The State presented
expert testimony from Dr. Cherry as well as testimony from Rumbo and Debra Heiker,
Helen's temporary public guardian. Helen also testified.
Dr. Cherry testified that Helen "presented as far more intact than [he]
expected given the records." He believed Helen had experienced "a several-month . . .
apparent delirium episode" that occurred "most likely due to pain medications." He
explained that "[d]elirium is a state of temporary confusion brought on by a medical
condition. . . . [T]here's very compelling evidence that [Helen] had prior issues with
delirium that resulted in her being misdiagnosed with dementia. But she wasn't delirious
during [the] evaluation." Dr. Cherry diagnosed Helen with "age-related cognitive
decline," "anxiety disorder," and "depressive disorder." He testified that Helen "had
reduced performances on some tests" but that her performance was inconsistent,
indicating that "something interfered with test performance." He speculated this could
have been due to Helen's hearing problems, vision problems, or fatigue. He opined
without reservation that Helen had "third grade math abilities."
In Dr. Cherry's opinion, Helen needed help managing her finances and
would need daily assistance from a personal care assistant or a "family member with no
prior history of predation or neglect" in order to live safely at home. His review of
Helen's medical records showed that "several medical providers indicated financial
5 AS 13.26.106(c) provides that upon the filing of a guardianship petition the
court shall "appoint an expert . . . to investigate the issue of incapacity," examine the
respondent, and prepare a written report.
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----------------------- Page 6-----------------------
predation" and that "[s]everal medical providers indicated that her grandson may have
been stealing her pain medications." His opinion was that Helen could be successful
living at home if she had assistance with obtaining food and preparing meals, taking her
medications, managing her finances, and doing paperwork necessary to obtain services
such as Medicaid and personal care assistants. He believed that without assistance
"[Helen] would probably have the same outcome as she had before," that "medications
would [likely] get out of whack," that "predation" or "neglect" could occur, and that she
would not succeed in "living completely independently." He testified that a conservator
and in-home services were the least restrictive options for Helen.
Rumbo testified that she received eight reports of harm between February
and April 2013 alleging "exploitation, self-neglect[,] and abuse." One report involved
bruising seen on Helen's face and another alleged that Helen's son had prevented her
personal care assistant from entering the house. Rumbo testified that during one attempt
to visit Helen, she was similarly prevented from entering the house, "verbally abused,"
and "told never to return." And she testified that when she spoke to Helen at the
hospital, Helen expressed concern about paying her bills and her family taking advantage
of her. Rumbo agreed with Dr. Cherry's assessment that Helen needed a conservator
and was incapable of arranging medical and personal care assistant services
independently.
Heiker testified that Helen's cognitive abilities appeared to have improved
from "what Dr. Cherry described as a [period of] delirium," and that she was operating
with "minimal assistance" at the Pioneer Home. Heiker thought Helen could live at the
house with personal care assistant services but had concerns about Helen living with her
son and grandson.
Heiker also offered extensive testimony regarding Helen's financial
situation. Heiker explained that so long as Helen remained at the Pioneer Home, her
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6
only income would be her monthly Social Security benefit of $497. If Helen moved
home she would receive an additional $1,427 per month from her husband's pension and
veteran's benefits, though Heiker testified that $631 of that would come from the
Veteran's Administration (VA) and could involve a "long process" to obtain. Assuming
Helen could obtain the VA money, her total income would be approximately $1,924 per
month.
According to Heiker, Helen's expenses, including a mortgage payment of
$965, utilities, homeowner's association fees, and car insurance, were $1,619. But this
excluded food, personal items, and personal care assistant services, and personal care
assistant services were expected to cost $130 to $150 per week unless Helen could obtain
a grant. Heiker's testimony made clear that there was no scenario under which Helen's
7
income exceeded her expenses.
Helen testified that she did not want to sell her house and that her son and
his fiancée had "promised to pay the house payment and the utility bills." She said, "I
didn't feel that it was right to charge my son to stay in the house. . . . But since [the
State] . . . want[s] the house so bad and want[s] to sell it so bad, I gave in to [my son] and
told him yes. . . ." Helen said she did not know why the State was telling her she
"need[ed] to sell the house."
6 A portion of that was supposed to pay for the Pioneer Home, but the
Pioneer Home was temporarily charging Helen a substantially reduced rate during the
pendency of the court proceedings.
7
The court visitor cited slightly different figures for Helen's income and
expenses but ultimately concluded that Helen would be unable to pay her mortgage and
living expenses without her husband's income. A court visitor is appointed by the court
under AS 13.26.106(c) and "arrange[s] for evaluations to be performed and prepare[s]
a written report to be filed with the court." "The visitor shall conduct the interviews and
investigations necessary to prepare the report . . . ." AS 13.26.106(c).
-7- 7046
----------------------- Page 8-----------------------
When questioned by her attorney she indicated that her grandson provided
some assistance around the house. She testified that her grandson "still works in the
house" by "pick[ing] up behind his daddy" and "keep[ing] the bathtubs clean." But she
later testified that she scrubbed the bathtubs, "clean[ed] [her] house from top to bottom
three days a week," and "[did] the washing." When asked if her grandson helps with
errands and shopping, she said yes. Helen denied that her grandson "scare[d] [her]
physically," "threatened" her, or "[took] money from [her] . . . without [her] permission,"
adding that he had never taken her medication either. She testified that she gave her
grandson money to buy books for college and "would do it again if [she] had to get out
and stand on the corner and beg for food." Helen initially testified that she did not know
whether her son was living at her house, but later said that "he may come and spend the
weekend or something like that" but never lived in the house.
The court visitor, Bonnie Burgan-Kelly, did not testify but submitted two
written reports completed in June and September 2013. Burgan-Kelly reported that
Helen "has a long history of undiagnosed emotional/mental health problems" and "a long
history of paranoid ideation." She also reported that Helen "was not able to identify her
current or past medications" and that "[t]here is concern by both family and hospital
employees that she abuses her pain medication." The report indicated that between
May 31, 2012, and April 27, 2013, Emergency Medical Services responded to Helen's
house 26 times. Between February 26 and April 27 of 2013, Helen was admitted to the
hospital six or seven times, most of which involved multiple overnights. During Burgan-
Kelly's visit with Helen at her assisted living facility, the conversation turned to "Jeff
and possible financial exploitation or abuse," and Helen "became very upset and began
yelling" and "then stated she was going to kill herself and began to choke herself."
In her June report Burgan-Kelly recommended a full guardian and
conservator. But Burgan-Kelly's September report added that Helen had resumed
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driving and was going home to do chores and stated that Helen "d[id] not meet the
criteria for incapacity and a guardian." However, the report concluded that Helen
"clearly need[ed] a conservator" because she was "very vulnerable to financial
exploitation" and "d[id] not have a clear picture of her financial needs and the results of
the decisions she makes."
The master found there was clear and convincing evidence that Helen was
incapacitated and required a conservator and "partial guardian because she is able to
perform some, but not all, of the functions necessary to provide for her own care." The
master found that "[t]he most compelling evidence of incapacity came from
[Dr. Cherry]" and that Helen "continues to exhibit some signs of decline and mental
distress." He found that "[w]hen [Helen] is not suffering from delirium, she keeps
herself sufficiently fed and groomed, and keeps the house clean and cared for. As such,
there is clear and convincing evidence only with regards to those parts of a guardianship
essential to helping [Helen] maintain a degree of independence."
The master observed that Helen needed help managing personal care
because she "was previously unable to maintain the level of necessary care prior to the
petition being filed" and her family had previously "interfered with [personal care
assistants]." And the master found that Helen needed assistance applying for benefits
and managing her assets due to her "limited math abilities," "age-related cognitive
decline," "tendency to give away more money than she can afford," and "extremely tight
budget," which made "[h]er ability to receive benefits . . . a major factor in maintaining
her current level of independence." Accordingly the master gave the guardian authority
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----------------------- Page 10-----------------------
8 9
to provide for Helen's personal care, apply for insurance and government benefits, and
"control [Helen's] estate and income . . . to pay for the cost of services that the guardian
10
He recognized that Helen should be free
is authorized to obtain on behalf of [Helen]."
to give away her discretionary income, but that she needed "a partial guardian [to] ensure
that she only gives money away after her own necessities, including adequate nutrition,
medication, and housing costs, have been met."
The master concluded a conservator was necessary because Helen was
unable to manage her finances, because "her family members are willing to take her
money without much regard as to whether her needs are being met," and because "she
is in a situation with extremely high potential for fraud." However the master
determined there was "not clear and convincing evidence that [Helen] lacks capacity to
decide on whether to sell her house." He noted it was unclear how Helen could "afford
to live in her house" and that there was "cause for concern [regarding] her ability to
make this decision" but concluded "at this point it should remain her decision to make."
Helen filed objections to the report, arguing that there was insufficient
evidence she required a conservator or partial guardian and objecting to the appointment
of a public guardian.
C. Rehearing Concerning The Sale Of Helen's House
In November, before the superior court ruled on the master's
recommendations, the public guardian filed a motion for sale of Helen's residence. The
master "treat[ed] this . . . like a motion for reconsideration" on the real property issue and
allowed the parties to present evidence regarding what had happened with the property
8 See AS 13.26.116(b)(4).
9 See AS 13.26.116(b)(5).
10 See AS 13.26.116(b)(7).
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----------------------- Page 11-----------------------
since the September 2013 hearing. Heiker testified that because Helen was still living
11
at the Pioneer Home, her house needed to be sold to pay for the cost of her care.
Heiker's testimony indicated that Helen was in a very precarious financial situation: her
bank account balance was only $2,276. Heiker had sent a lease for Helen's house to
Helen's family, but they did not reply or pay any rent. And according to Heiker, Helen
was continuing to make excessive, unnecessary expenditures on behalf of her family
despite Heiker's efforts to reduce her expenses.
Helen's attorney called Helen's son and his fiancée to testify. Helen's son
testified he had been living in Helen's house for approximately three years. He said he
had paid the gas and electric bills sometime around the prior October and had attempted
to pay them again in November or December but could not because of the pending action
to evict him from the house.12 Helen's son and his fiancée both testified that they refused
to sign the State's proposed lease because they objected to a provision prohibiting
"interfere[nce] in any way with the provision of care services to [Helen]" but that they
11 To qualify for payment assistance for the Pioneer Home, "[a] resident's or
a recipient's income and resources, up to the full amount of the income and resources if
necessary, must [first] be applied to the appropriate monthly or daily rate . . . and to
ancillary charges." 7 Alaska Administrative Code (AAC) 74.045(c)(1)(D);
AS 47.55.020(d) ("[A] resident of [the Pioneer Home] whose income, assets, and other
resources are insufficient to pay the monthly rate . . . and who does not have private
insurance to cover the cost of care, qualifies for payment assistance . . . ."). "[R]eal
property being used as the primary residence of the resident's . . . dependent" is exempt
from this requirement. AS 47.55.020(d)(8); 7 AAC 74.045(c)(1)(D). It is unclear
whether Helen's adult son and grandson are her dependents for purposes of this
requirement. See AS 47.55.900 (defining terms for purposes of Pioneer Home statute
but not defining "dependent"). But because Helen did not raise this argument before the
superior court or on appeal, we do not need to decide whether this exemption applies.
12
Heiker had filed a forcible entry and detainer action to evict Helen's family
members from the house.
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----------------------- Page 12-----------------------
would be willing to negotiate a different lease agreement or consider purchasing the
house. Helen did not testify, but her attorney reiterated Helen's desire to stay at the
Pioneer Home until her husband's death and then return home.
The master submitted a supplemental report that recommended granting the
petition to sell the house because Helen "[was] unable to evaluate information related to
ownership and sale of her house sufficiently to prevent loss of the home due to her
mental deficiency and advanced age. The value of the home will clearly be wasted or
dissipated unless proper management is provided." The master explained that his
previous decision not to recommend the sale was "based in large part on [Helen's]
statements in court that she was going to work with her son . . . and grandson . . . on a
plan for them to assist with her finances." But the master reported that they had not
contributed and Helen had "made no progress on addressing the financial viability of the
home." The master stated that Helen's family "cannot cooperate with any outside
assistance for [Helen]"; thus, even if they started paying rent it would be unworkable for
them to live with her. And if Helen stayed at the Pioneer Home she was required to sell
her house. Accordingly the master concluded that it was impossible for Helen to keep
her house and that Helen lacked the understanding necessary to resolve these issues.
Helen filed objections to the master's supplemental report, reiterating her
living preferences. In February 2014 the superior court adopted the master's report in
full and ordered the sale of the house.
Helen appeals the appointment of a partial guardian and full conservator
and the order authorizing the sale of her house.
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III. STANDARD OF REVIEW
13 "[F]actual findings
A finding of incapacity is reviewed for clear error.
used to determine whether to appoint a conservator" are also reviewed for clear error.14
"Clear error is found when we are left with a definite and firm conviction based on the
15 The appointment of a guardian or
entire record that a mistake has been made."
16
conservator is reviewed for abuse of discretion. "A court abuses its discretion if it
considers improper factors, fails to consider statutorily mandated factors, or assigns too
much weight to some factors."17
IV. DISCUSSION
A. The Superior Court Did Not Clearly Err By Finding That Helen Was
Incapacitated And Did Not Abuse Its Discretion By Appointing A
Partial Guardian.
The superior court may grant a petition for guardianship upon a finding of
incapacity when the persons's "ability to receive and evaluate information or to
communicate decisions is impaired for reasons other than minority to the extent that the
13 Farmer v. Farmer , 230 P.3d 689, 693 (Alaska 2010) (citing In re W.A. ,
193 6P.3d 743, 748 (Alaska 2008)).
14 Id. (citing Gunter v. Kathy-O-Estates, 87 P.3d 65, 68 (Alaska 2004)).
15 Id. (quoting Casey v. Semco Energy, Inc. , 92 P.3d 379, 382 (Alaska 2004))
(internal quotation marks omitted).
16 Id. (citing Gunter, 87 P.3d at 68).
17
Id. (quoting H.C.S. v. Cmty. Advocacy Project of Alaska, Inc. ex rel. H.L.S. ,
42 P.3d 1093, 1096 (Alaska 2002)) (internal quotation marks omitted).
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----------------------- Page 14-----------------------
person lacks the ability to provide the essential requirements for the person's physical
18
health or safety without court-ordered assistance." Under AS 13.26.090,
[g]uardianship for an incapacitated person shall be used only
as is necessary to promote and protect the well-being of the
person, shall be designed to encourage the development of
maximum self-reliance and independence of the person, and
shall be ordered only to the extent necessitated by the
person's actual mental and physical limitations. An
incapacitated person for whom a guardian has been appointed
is not presumed to be incompetent and retains all legal and
civil rights except those that have been expressly limited by
court order or have been specifically granted to the guardian
by the court.
The petitioner must prove incapacity by clear and convincing evidence.19
The court may
20
appoint a full or partial guardian depending on the person's needs.
18 AS 13.26.005(5); AS 13.26.105(a). "[E]ssential requirements for physical
health or safety means the health care, food, shelter, clothing, personal hygiene, and
protection without which serious physical injury or illness is more likely than not to
occur." AS 13.26.005(2) (internal quotation marks omitted).
19
AS 13.26.113(b); see also In re O.S.D., 672 P.2d 1304, 1305 (Alaska 1983)
("[A] clear and convincing evidence standard of proof applies to the capacity
determination." (internal quotation marks omitted)). If the person is found to be
incapacitated, the court must consider alternatives to guardianship, and if it determines
that "alternatives to guardianship are feasible and adequate to meet the needs of the
respondent, the court may dismiss the action and order an alternative form of protection."
AS 13.26.113(c)-(d). If alternatives to guardianship are not feasible, the court may
appoint a partial or full guardian. AS 13.26.113(e)-(f). The court did not explicitly
consider alternatives to guardianship, but Helen does not raise this issue on appeal, and
the implicit conclusion that there were no feasible alternatives is not clearly erroneous.
20
AS 13.26.113(e)-(f). "If it is necessary to appoint a guardian, the court
shall consider the ward's preference." AS 13.26.113(g). Although Helen previously
requested a different guardian, she does not appeal the superior court's choice of
(continued...)
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Helen argues the superior court's determination that she was incapacitated was clearly
21
erroneous. As a preliminary matter, we address Helen's claim that Dr. Cherry's
recommendation relied on unproven hearsay regarding Helen's grandson and her ability
to manage her nutrition and medications. To the extent Helen raises an evidentiary
argument, she failed to raise such an objection at trial, and "[a]bsent a proper objection,
hearsay is normally admissible."22 Even if Helen had objected, the rules of evidence
permit an expert witness to consider inadmissible information when formulating an expert
23
opinion. Thus a physician may base opinions on "statements by patients and relatives,
20 (...continued)
guardian.
21 Helen cites Farmer v. Farmer , 230 P.3d 689, for the proposition that the
superior court's "factual findings are not entitled to the deference usually enjoyed by the
trial court because [the trial court judge] did not conduct any of the hearings in this case
in order to assess the witnesses' credibility." However, Farmer merely noted that a
superior court's decision was particularly persuasive because the court "conducted a
hearing de novo and heard testimony from both parties"; it does not support the
proposition that a master's findings, where adopted by a superior court, will be subject
to less deferential appellate review. Id. at 694. As the State points out, "[t]he findings
of a master, to the extent that the court adopts them, shall be considered as the findings
of the court." Alaska R. Civ. P. 52(a); see also Alaska R. Prob. P. 2(b)(2)(B) (providing
for the appointment of masters to conduct guardianship and conservatorship hearings);
In re O.S.D. , 672 P.2d at 1306 & n.4 (rejecting "conten[tion] that incorporation of the
Master's Report in the superior court's order is inadequate").
22 Rusenstrom v. Rusenstrom , 981 P.2d 558, 560 (Alaska 1999).
23
Alaska R. Evid. 703. Such information "must be of a type reasonably relied
upon by experts in the particular field in forming opinions or inferences upon the
subject." Id.
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reports and opinions from nurses, technicians and other doctors, [and] hospital records"
despite the fact that "[s]ome of these sources would be inadmissible in evidence."24
Helen next argues that "[t]here is no evidence that Helen required any
special services." She claims that "[e]veryone, including many perfectly healthy young
and middle-aged adults[,] could benefit from in-home services to aid them in the
preparation of healthy meal[s] and with their finances." And she asserts that
"Dr. Cherry's opinion that Helen could benefit from . . . some minor in-home [personal
care assistant] services and some minor financial oversight 'like anybody who's eighty-
seven years old' does not constitute clear and convincing evidence that Helen is an
25
'incapacitated person.' "
We disagree. There was substantial evidence that Helen was incapacitated
and required assistance. Dr. Cherry testified that Helen had "age-related cognitive
decline," previously experienced a several-month delirium episode, and had "multiple
issues that could result in [another] delirium episode." He did recognize that most people
Helen's age could benefit from "at least [a] minimal level of assistance." But contrary to
Helen's characterization, Dr. Cherry unambiguously stated that she needed such
assistance. Specifically he testified that Helen should have personal care assistance
24 Alaska R. Evid. 703, cmt. The Commentary to Alaska Evidence Rule 703
specifically acknowledges that "[t]he rule may be most beneficial in the examination of
psychiatrists, who may often rely on data that is technically hearsay." Id .
25
In this same vein, Helen denies that her husband's personal care assistant
"performed any function on behalf of Helen other than those functions performed for
[her husband] which equally benefitted Helen." But any past reliance on personal care
assistance did not appear to significantly inform the master's findings; rather, the master
looked to Dr. Cherry's expert testimony, the necessity of personal care assistance, and
the possibility that Helen's family might interfere with the provision of this care.
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----------------------- Page 17-----------------------
services on a daily basis and that he could not envision Helen living independently absent
assistance with meals, medication, and financial management.
Finally Helen contends she is capable of managing her medications,
attributing her medication problems to her doctors' errors. But this argument is
unpersuasive. Helen contends that "her licensed medical providers prescribed dangerous
medications based on their misdiagnosis of Helen's medical condition" but provides no
evidentiary support for this claim. According to Dr. Cherry, Helen was incorrectly
diagnosed with dementia when she was actually suffering from delirium. But Helen does
not point to any evidence that she was prescribed dementia medication or that such
medication was dangerous. And Dr. Cherry's testimony was that Helen's pain
medications caused the delirium that was initially misdiagnosed, not that she was
prescribed dangerous pain medications because of the misdiagnosis. It is possible Helen
is referring to a different diagnosis prior to the delirium, as she references "unnecessary
sedative medications," but there is not enough information in her brief to permit
26
consideration of this argument. Dr. Cherry testified that Helen's medication intake
would likely "get out of whack" if she were left to manage her medications
independently, and this opinion is supported by both his and Burgan-Kelly's observation
27
that Helen could not name any of her medications.
26 See, e.g., Barnett v. Barnett , 238 P.3d 594, 598 & n.11 (Alaska 2010)
(deeming arguments inadequately briefed on appeal waived).
27 Courts have considered an individual's awareness of his or her medications
and ability to manage them when determining whether an individual is incapacitated.
See, e.g., E.J.F. ex rel. J.V., No. 2081, 2013 WL 6122275, at *1-3 (N.Y. Sup. Nov. 18,
2013) (affirming guardianship for man with acute short term memory loss in part because
man was "likely to suffer harm because he is unable to provide for his personal needs
such as his medications . . . ."); In re Guardianship of Robinson, No. 40966-6-II, 2012
WL 830483, at *1 (Wash. App. Mar. 13, 2012) (affirming guardianship of man who
(continued...)
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Therefore there is substantial evidence that Helen was incapacitated and
needed a partial guardian. The superior court conducted a careful analysis and reached
a well-reasoned conclusion that Helen required only a partial guardian because she was
able to manage some, but not all, of her essential needs. Although the Pioneer Home may
be able to manage some aspects of Helen's care, a guardian remains necessary because
Helen is incapable of managing paperwork or her residency at the Pioneer Home, as
evidenced by her inability to appreciate the fact that she could not afford her care at the
28
Pioneer Home without selling her house. We affirm the superior court's appointment
of a partial public guardian.
B. The Superior Court Did Not Clearly Err By Finding That Helen Was
Unable To Manage Her Property And Affairs, And The Court Did Not
Abuse Its Discretion By Appointing A Public Conservator.
Alaska Statute 13.26.165(2) permits a court to appoint a conservator if the
court determines that
(A) the person is unable to manage the person's property
and affairs effectively for reasons such as mental
27 (...continued)
among other problems had frequent "hospitaliz[ations] because he [was] unable to handle
his complex medication regimen and personal care, as well as his hydration needs" and
"was aware of needing only one medication, although he had been prescribed
seventeen"); In re Guardianship of Healy , No. 58316-6-I, 2007 WL 2411688, at *7 &
n.12 (Wash. App. Aug. 27, 2007) (affirming guardianship for elderly woman despite
objection that trial court failed to adequately consider that her medications may have
impacted her ability to understand the guardianship proceedings).
28 See 7 AAC 74.045(c)(1)(D) ("A resident's or a recipient's income and
resources, up to the full amount of the income and resources if necessary, must be
applied to the appropriate monthly or daily rate . . . and to ancillary charges.");
AS 47.55.020(d) ("[A] resident of [the Pioneer Home] whose income, assets, and other
resources are insufficient to pay the monthly rate . . . and who does not have private
insurance to cover the cost of care, qualifies for payment assistance . . . .").
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illness, mental deficiency, physical illness or disability,
advanced age, chronic use of drugs, chronic
intoxication, fraud, confinement, detention by a foreign
power, or disappearance; and
(B) the person has property that will be wasted or
dissipated unless proper management is provided, or
that funds are needed for the support, care, and welfare
of the person or those entitled to be supported by the
person and protection is necessary or desirable to
obtain or provide funds.
A conservatorship "does not require that a person be altogether incompetent in all aspects
of life. . . . [T]he need for a conservator must be assessed in context of the person's
incapacity and the specific matters for which management or protection may be
required."29
Helen argues that the conservatorship and the order to sell her house should
be reversed because the superior court's determination that she "is unable to effectively
manage her property and affairs is clearly erroneous." She argues that she "pa[id] all of
her bills prior to the temporary delirium ca[u]sed by her prescribed
medication, . . . amassed $100,000 in equity in the home, owed nothing on her remote
property or her vehicle, and had no unusual credit card debt." She asserts that the finding
that she had not made progress on the financial situation with her house was erroneous
because it was "based on the trial court's ridiculous finding that Helen knew that her
family would not be allowed to live with her in her home." Helen claims that "[t]he sole
29 In re S.H. , 987 P.2d 735, 740 (Alaska 1999). At first glance the master's
initial determination that Helen was incapable of managing her finances but capable of
deciding whether to sell the house may seem contradictory. But the master appropriately
considered the specific matters Helen faced; he determined she may have been "able to
understand big picture issues" even if she was unable to handle the minutia of public
assistance programs or restrain herself from giving away more money than she could
afford.
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basis" for the master's revised findings regarding the house "appears to be that Helen did
not force her family to sign the guardian's unilateral lease." She also argues that "there
is no evidence Helen's family was aware of the requirement that the family home be sold
while Helen remained at the Pioneer Home." Finally she contends that she could not "be
expected to [make] financial arrangements" because Heiker refused to give her financial
documents and did not "t[ell] Helen her home was on the brink of foreclosure."
The State counters that there was no choice but to sell the house because the
"house constituted an asset that had to be used to pay for the cost of [her] care" at the
30
Pioneer Home. It argues that a conservatorship is " 'necessary or desirable to obtain or
31
Although Helen eventually wanted to return home,
provide funds' for [Helen's] care."
the superior court found that she could only afford to return home if her family was living
with her and paying rent, but she could not live with her family because they would not
32
cooperate with the personal care assistants. And if Helen did not return home, she
would "be required to sell the home as a condition of remaining [in] the Pioneer Home."
The superior court concluded that Helen's "proposal on how to proceed from here does
30 See note 28, supra.
31 See AS 13.26.165(2)(B). See also, e.g., Farmer v. Farmer , 230 P.3d 689,
691-92, 696 (Alaska 2010) (affirming partial limited conservator to manage sale of home
facing foreclosure where person was unable to prioritize financial obligations, for
example by making unnecessary expenditures instead of paying his utilities).
32 Helen argues the finding that her family would not cooperate with personal
care assistants was erroneous because it was based on "unproven, speculative
allegations" and "[t]here is no evidence anyone in the family ever interfered with the
obligations of [Helen's husband's personal care assistants] to provide any service to the
[Wilsons.]" This finding was not erroneous because Helen's family testified that they
objected to allowing personal care assistants in the home.
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not reflect any meaningful understanding of these issues" and that she was "not capable
of making a decision regarding [the] sale of the home."
Helen's other arguments also fail to demonstrate that the superior court
clearly erred in its findings. Her ability to pay her bills and amass equity in her house in
the past is not relevant to her present financial situation. And Helen's assertion that
Heiker would not provide her with financial information is contradicted by Heiker's
testimony that she met with Helen "[a] couple" times and that Helen refused to meet with
her on another occasion. Although it is true "[t]here is no evidence Heiker told Helen her
home was on the brink of foreclosure," the "master informed her [at the September
hearing] that she needed to develop a plan towards financial stability with regards to the
house or she would not be able to afford it." Despite this warning, she was unable "to
develop any workable ideas [in] four months." The superior court did not clearly err in
finding clear and convincing evidence that Helen was unable to manage her financial
affairs and did not abuse its discretion by appointing a public conservator.
V. CONCLUSION
We AFFIRM the decision of the superior court.
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