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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

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  




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  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  BOLGER, Justice.  

----------------------- Page 2-----------------------


                   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  



         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.  

                                                           -2-                                                        7046  

----------------------- Page 3-----------------------

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  


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,  


                                                                  -3-                                                            7046

----------------------- Page 4-----------------------


                     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  



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  



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).  



                     It is unclear whether Rumbo or someone else questioned Helen and her son.  



                     A conservator manages property on behalf of someone who is unable to  

manage their own property.  See AS 13.26.165(2).  

                                                                  -4-                                                           7046

----------------------- Page 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.  

                                                              -5-                                                        7046

----------------------- 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  



                    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  

                                                             -6-                                                        7046

----------------------- Page 7-----------------------


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  



                    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  


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.   



                    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  

                                                              -8-                                                        7046

----------------------- Page 9-----------------------

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  

                                                               -9-                                                         7046

----------------------- 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  


                                                                       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).  

                                                              -10-                                                         7046

----------------------- Page 11-----------------------


since the September 2013 hearing.  Heiker testified that because Helen was still living  


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.  



                    Heiker had filed a forcible entry and detainer action to evict Helen's family  

members from the house.  

                                                              -11-                                                         7046

----------------------- 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.  

                                                          -12-                                                     7046

----------------------- Page 13-----------------------


                                                                                            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."  



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  



         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).  



                   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).  

                                                          -13-	                                                    7046

----------------------- Page 14-----------------------


 person lacks the ability to provide the essential requirements for the person's physical  


 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  


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).  



                     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.  




                     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  


                                                              -14-                                                          7046

----------------------- Page 15-----------------------

Helen argues the superior court's determination that she was incapacitated was clearly  



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  



opinion.          Thus a physician may base opinions on "statements by patients and relatives,  

           20        (...continued)  


            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).  



                      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.  

                                                                  -15-                                                            7046

----------------------- Page 16-----------------------


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  


'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 .  



                      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.  

                                                                 -16-                                                            7046

----------------------- 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  



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  


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  



                                                               -17-                                                          7046

----------------------- Page 18-----------------------


                   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  


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 . . . .").  

                                                           -18-	                                                     7046

----------------------- Page 19-----------------------


                                  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  



                       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  



                                                                       -19-	                                                                7046

----------------------- Page 20-----------------------


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  


Pioneer Home.             It argues that a conservatorship is " 'necessary or desirable to obtain or  


                                                      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  



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.  

                                                             -20-                                                       7046

----------------------- Page 21-----------------------

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.  


                   We AFFIRM the decision of the superior court.  

                                                          -21-                                                     7046

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