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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Protective Proceedings of G.J.F (2/14/2025) sp-7746
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Protective )
Proceedings of ) Supreme Court No. S-18721
)
G.J.F. ) Superior Court No. 3AN-22-02441 PR
)
) O P I N I O N
)
) No. 7746 - February 14, 2025
)
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Adolf V. Zeman, Judge.
Appearances: Travers Gee, Assistant Public Advocate, Beth
Goldstein, Deputy Director, and James Stinson, Public
Advocate, Anchorage, for Office of Public Advocacy, Public
Guardian Section. Elizabeth D. Friedman, Law Office of
Elizabeth D. Friedman, Prineville, Oregon, for G.J.F.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
PATE, Justice.
CARNEY, Justice, dissenting.
INTRODUCTION
After receiving a referral from a homeless shelter, a nonprofit social
services organization provided intensive case management support to a client with
intellectual and developmental disabilities. At first the client was resistant to the
organization's assistance and "fired" several counselors, but eventually one clinician
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was able to establish a consistent therapeutic relationship. The organization helped the
client obtain housing and some government benefits, and provided other assistance. But
the organization provided services that were above and beyond what it typically offers.
The organization petitioned the superior court to appoint the Public
Guardian as a full guardian for the client. The client agreed to a full guardianship, but
the Public Guardian objected on the grounds that less restrictive alternatives were
feasible and adequate to meet the client's needs. The court determined that less
restrictive alternatives could not meet the client's needs, granted the organization's
petition for a full guardianship, and appointed the Public Guardian. We affirm the
superior court's order appointing the Public Guardian as a full guardian for G.J.F.
FACTS AND PROCEEDINGS
A. Facts
G.J.F.1 moved to Alaska in 2021 as a young adult. In September G.J.F.
was referred by a homeless shelter to Volunteers of America Alaska (VOA), a nonprofit
organization that provides social services to young adults, youth, and their families.
VOA accepted G.J.F. for counseling services to address their intellectual and
developmental disabilities, and helped G.J.F. find housing.
Initially, G.J.F. was not receptive to services and "fired" several VOA case
managers and peer support specialists. But VOA's clinical supervisor eventually
established a relationship and became G.J.F.'s primary clinician. The clinical
supervisor began working with G.J.F. on a weekly basis in December, providing
individual counseling and assisting G.J.F. with completing basic tasks like paying bills
and buying groceries. VOA also helped G.J.F. apply for a variety of benefits, including
1 We refer to G.J.F. by initials to protect their privacy and use "they/them"
pronouns at their request.
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food stamps (SNAP benefits); a Medicaid individualized supports waiver;2 a second,
3 4
more comprehensive, Medicaid waiver; and Social Security disability benefits.
B. Proceedings
In September 2022 VOA's program director filed a petition to appoint the
5
Office of Public Advocacy 's (OPA's) Public Guardian as a full guardian for G.J.F.
The petition stated that G.J.F. had shown "sign[s] of limitation with decision[-]making"
and limited "functionality around many life domains." The superior court appointed a
visitor and scheduled a hearing on the petition before a master in December.6 The court
visitor interviewed G.J.F., the VOA program director, G.J.F.'s primary clinician (who
is also VOA's clinical supervisor), and G.J.F.'s case manager. The visitor filed her
report prior to the December hearing and attached a recent neuropsychological
7
evaluation of G.J.F.
2 Individuals with certain developmental disabilities may qualify for
individualized supports waivers (ISWs), which allow them to receive services beyond
the usual limits set by the Medicaid program. 7 Alaska Administrative Code (AAC)
130.206(a)(1).
3 Individuals with certain developmental disabilities may also qualify for an
intellectual and developmentally disabled (I/DD) waiver, which allows them to receive
a wider array of services beyond those covered by an ISW. Compare
7 AAC 130.206(a)(1), with 7 AAC 130.206(a)(2) (indicating I/DD waivers cover wider
range of services than ISWs). At the time of the superior court hearing, G.J.F. had
applied for but not yet received the I/DD waiver.
4 At the time of the hearing, G.J.F. had applied for but not yet received
Supplemental Security Income (SSI) benefits.
5 See AS 13.26.221(a) (enabling "[a]ny person" to petition court to appoint
guardian for any person found to lack capacity to manage affairs).
6 See AS 13.26.226(c) (requiring appointment of court visitor to "arrange
for evaluations to be performed and prepare a written report to be filed with the court").
7 See id. (requiring appointment of "expert who has expertise in regard to
the alleged or admitted incapacity to investigate the issue of incapacity").
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The neuropsychological evaluation listed several diagnoses for G.J.F.:
mild intellectual disability, major depressive disorder, generalized anxiety disorder, and
"other specified-trauma and stressor-related disorder." G.J.F. also reported having a
dissociative identity disorder with ten "alter egos," many of which "refuse to come out."
During the evaluation, G.J.F. "appeared much younger than [their] stated age" and
expressed that, at times, they have the "mind of a six-year-old." G.J.F. also had "little
awareness of organization or time," "considerable difficulty following instructions,"
and "significant difficulty remaining on task." The evaluator noted G.J.F.'s "impaired"
concentration and stopped one task because G.J.F. was unable to understand directions
despite "several repetitions."
The evaluation concluded that G.J.F. had "poor" insight and judgment and
scored G.J.F.'s intellectual functioning as "Exceptionally Low." The evaluation also
noted that G.J.F. struggled with decision-making and comprehension when "feeling
anxious, paranoid, or overwhelmed." The evaluator concluded that G.J.F. "would
benefit from guardianship or at the very least a payee" and recommended that G.J.F.
8
"receive any state services and financial assistance" they qualify for.
Following the hearing, the master recommended the appointment of a full
guardian for G.J.F., and the Public Guardian filed objections. The superior court
rejected the master's recommendations and scheduled an evidentiary hearing for March
2023.
1. Superior court hearing
At the superior court hearing, the parties stipulated that G.J.F. was
incapacitated and that the Public Guardian would be appointed if the court ordered a
8 The visitor's report similarly noted that G.J.F. needed help with daily
living activities; "would benefit from food stamps, adult public assistance, and
Medicaid services"; and struggled with decision-making.
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guardianship. The parties also agreed to admit the neuropsychological evaluation into
evidence without the testimony of an expert.
The court was able to observe G.J.F.'s demeanor at the hearing. When
the hearing began, G.J.F.'s attorney advised the court that G.J.F. might need to take
breaks because some testimony would be "difficult for [G.J.F.] to hear." And at one
point, the attorney asked to pause the hearing so she could escort G.J.F. to the bathroom.
Only two witnesses testified: VOA 's program director and its clinical
supervisor. The program director testified that VOA typically provides "behavioral
health services to young adults, youth, and family," including "case management,
therapy, counseling, [and] crisis services." She then discussed her attempts to meet
G.J.F.'s needs and the services that VOA was providing. The director testified she had
helped G.J.F. move from a homeless shelter into an apartment. She also testified that
G.J.F. struggles with day-to-day care and finances, gets taken advantage of by others,
and requires additional support to live independently.
The program director confirmed that G.J.F. was working with VOA and
had obtained stable housing, but G.J.F. was initially not receptive to VOA's assistance.
The director acknowledged that VOA staff were giving G.J.F. some of the assistance
that she hoped a guardian would provide. She also confirmed she petitioned for a
guardian so that VOA could "work alongside the public guardian" to create "the best
situation [for G.J.F.] with services that meet [their] needs." But she testified that VOA
could not be a decision-maker for G.J.F. and indicated that G.J.F. needed assistance
from someone with decision-making powers.
The clinical supervisor testified next. She explained that G.J.F. required
significant assistance with daily living activities, which included helping G.J.F. "get[]
groceries, helping them . . . get household goods, pay[ing] their internet and phone bill,"
and "ensur[ing] that their rent portion is paid." She said the organization had to obtain
additional funding to provide G.J.F. with these services, which are "outside of the realm
of what [VOA] typically can provide" for other clients.
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The clinical supervisor described G.J.F. as "highly vulnerable to online
predators." She testified that G.J.F. was particularly vulnerable and struggled with
decision-making as a result of short-term memory loss, intellectual disability, and
dissociative identity disorder. For example, the supervisor testified that G.J.F. gave
away a stipend they had earned through a work program to someone whom they met
online. The supervisor explained that VOA's concern about finances was the impetus
for petitioning for a guardian, and VOA would work cooperatively with a guardian to
make sure all of G.J.F.'s needs were met.
The clinical supervisor testified that although G.J.F. had made "good
progress" with VOA, they still struggled "to engage fully" in counseling and could "not
typically function" independently in the community or meet their "medical or
financial . . . needs." The supervisor testified that VOA serves clients until their 25th
birthday, and G.J.F. would remain eligible until then. On cross-examination, she agreed
that "there isn't anything other than hitting age 25 which is a limit on the services that
are being provided as alternatives to guardianship." However, she then qualified that
statement, explaining that because VOA is a grant-funded nonprofit organization and
"grants are not guaranteed, there's no way that I can say . . . without any doubt that
we're going to continue to be there for [G.J.F.] through the age of 25." The supervisor
described how VOA was "expending a lot of our time and resources to work with
[G.J.F.] to ensure [their] safety and well-being," but the level of services was "outside
of the realm of what we typically do." She further explained that the atypical level of
services provided to G.J.F. restricted the resources VOA would otherwise be able to
make available to other clients.
After the supervisor testified, the court visitor related her observations to
the court. The visitor's report described G.J.F. as "childlike" and "unkept," and the
visitor explained during the hearing that G.J.F. had been "unable to have a deep
meaningful conversation" about their needs. The report also explained that VOA was
helping G.J.F. apply for social security benefits, and G.J.F. "would benefit from
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applying for [a]dult public assistance, food stamps, housing assistance, and the
Medicaid waiver program." However, the visitor did not testify under oath, and her
report was not offered or admitted as evidence.
2. Order appointing the Public Guardian
The superior court issued a written order appointing the Public Guardian
as G.J.F.'s full guardian. It determined that the testimony at the evidentiary hearing,
the visitor's report, and other documentary evidence constituted "clear and convincing
evidence [G.J.F.] is incapacitated and a guardian should be appointed."
The court acknowledged testimony explaining that G.J.F. was diagnosed
with a number of mental health conditions that profoundly affected their ability to
function as an independent adult. It also noted that G.J.F. struggled with decision-
making, was vulnerable to predators, and needed various forms of public assistance.
Finally, the court noted that VOA's resources were strained and its ability to maintain
the level of support it was providing to G.J.F. was uncertain.
The court then made findings under the guardianship statutes. It found
that the parties stipulated to G.J.F.'s incapacity and to the Public Guardian 's
appointment if the court determined that a guardian was necessary. Regarding G.J.F.'s
capabilities, the court found that "[w]hile [G.J.F.] can perform some tasks," they were
"incredibly vulnerable and subject to predation by others seeking to exploit." Although
VOA was providing "some services," the court found that those services were "not
typical" and "could cease at any moment," which would leave G.J.F. "vulnerable to
predation and ultimate[ly] homelessness." The court concluded that a guardian "would
be in a much better position to guard [G.J.F.'s] finances, assist in ensuring [G.J.F.] is
receiving all entitled benefits, [and] assist in coordinating proper housing services."
The court noted its obligation to "consider less-restrictive alternatives"
and acknowledged its authority to "order a partial guardianship, or implement other
forms of relief which may be a less-restrictive alternative to a full guardianship while
still protecting a respondent's basic needs." It found that a partial guardianship or less
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restrictive alternatives to guardianship were not feasible because G.J.F. required more
services than VOA could provide. The court found that G.J.F. needed assistance "with
financial decisions, ensuring all financial benefits are applied for and ultimately . . .
utilized for [G.J.F.'s] benefit," getting G.J.F. "into a group home setting," and
"organizing counseling services," all of which a guardian would be better equipped to
do than VOA. Finally, the superior court concluded that appointing a guardian would
provide G.J.F. with a "safety net to ensure future services continue without the fear of
lack of funding or taxing resources currently being experienced by [VOA]." The court
declared that "[t]he receipt of some services provided to the respondent simply cannot
be an automatic disqualifier to appointment of a guardian" and appointed OPA's Public
Guardian as a full guardian for G.J.F.
The Public Guardian appeals.
STANDARD OF REVIEW
"The decision to appoint a guardian for an incapacitated person is
committed to the sound discretion of the superior court and is reviewed for abuse of
discretion."9 There is an abuse of discretion if the superior court "considers improper
factors, fails to consider statutorily mandated factors, or assigns too much weight to
some factors."10 But we review "factual findings involved in determining whether a
guardian or conservator should be appointed for clear error."11 "A finding is clearly
erroneous when a review of the entire record leaves us with a definite and firm
12
conviction that the superior court has made a mistake."
9 In re Protective Proc. of W.A., 193 P.3d 743, 748 (Alaska 2008).
10 Wilson v. State, Dep't of Law, 355 P.3d 549, 555 (Alaska 2015) (quoting
Farmer v. Farmer, 230 P.3d 689, 693 (Alaska 2010)).
11 In re Protective Proc. of M.K., 278 P.3d 876, 881 (Alaska 2012) (quoting
Gunter v. Kathy-O-Estates, 87 P.3d 65, 68 (Alaska 2004)).
12 Id. (alterations omitted) (quoting Frank E. v. State, Dep 't of Health & Soc.
Servs., Div. of Fam. & Youth Servs., 77 P.3d 715, 717 (Alaska 2003)).
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DISCUSSION
The Public Guardian argues that the superior court abused its discretion in
appointing a full guardian because it failed to consider whether less restrictive
alternatives were feasible and adequate to meet G.J.F.'s needs. Alternatively, it argues
that the record "at best" supports imposition of a partial guardianship.
We disagree. The court 's findings indicate G.J.F. needed assistance from
someone with the decision-making powers of a full guardian, and those findings are
supported by the record. The record clearly establishes that support from VOA was
inadequate because VOA could not provide the kind of decision-making support that
G.J.F. needs. The record also demonstrates that the atypical level of services VOA
provided to G.J.F. strained the organization's resources and jeopardized its ability to
meet the needs of its other clients. Although the court erred in basing some of its
findings on information contained in the visitor's report, the same information was also
introduced through evidence properly in the record, so the error is harmless.
We begin with an explanation of the laws pertaining to the appointment
of a guardian, including the requirement that there be no less restrictive alternatives that
will meet the respondent's needs. We then explain why we hold that the superior court
did not abuse its discretion by appointing a full guardian. Finally, we conclude it was
error to rely on the visitor's report because it was not admitted into evidence, but the
error was harmless.
A. The Superior Court May Order A Full Guardianship If The
Petitioner Establishes That Less Restrictive Alternatives Cannot
Meet The Respondent's Needs.
Appointing a full guardian for an individual is a significant intrusion by
the government into a person's autonomy. Alaska Statute 13.26.201 recognizes the
gravity of this intrusion in noting that guardianship "shall be used only as necessary"
and "shall be ordered only to the extent necessitated" by a person's limitations. We
have described that language as evincing "a strong policy of restraint" on the part of
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state courts.13 Because of the extent of the intrusion, the petitioner must prove to the
14
court by clear and convincing evidence that a full guardianship is justified.
When a guardianship petition is filed, the court must hold a hearing before
determining whether the respondent is incapacitated.15 To assist with this
determination, the court must appoint a visitor, who in turn hires an expert to examine
the respondent and evaluate the level of the person's incapacity.16 "If the respondent
stipulates to incapacity, the court may" find "incapacity without obtaining evidence
from the expert," but the petitioner still bears the burden to prove incapacity by clear
17
and convincing evidence.
If the court finds the respondent is incapacitated, "the court shall
determine the extent of the incapacity and the feasibility of alternatives to guardianship
to meet" the respondent's needs.18 If the court finds "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." 19 If the court instead finds "that
the respondent is able to perform some, but not all, of the functions necessary to care
for the respondent, and alternatives to guardianship are not feasible or adequate to
provide for the needs of the respondent, the court may appoint a partial guardian, but
13 In re O.S.D., 672 P.2d 1304, 1306 (Alaska 1983).
14 See id. (holding that clear and convincing standard applies to "any
determination which may lead to the imposition of guardianship").
15 AS 13.26.226(a).
16 See AS 13.26.226(c) (requiring visitor to "arrange for evaluations" and
"for the respondent to be examined by the expert appointed" by court "to investigate
the issue of incapacity").
17 AS 13.26.251(b).
18 AS 13.26.251(c).
19 AS 13.26.251(d).
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may not appoint a full guardian."20 The court may appoint a full guardian only if it
finds "that the respondent is totally without capacity to care for the respondent and that
a combination of alternatives to guardianship and the appointment of a partial guardian
21
is not feasible or adequate to meet the needs of the respondent."
22
The relevant statutes suggest a range of alternatives to full guardianship.
If an individual is in need of court-ordered intervention, a court may appoint a
conservator to manage or protect the individual's money or property.23 If the individual
requires more than a conservator's intervention, the law requires the court to consider
appointment of a partial guardian whose powers must be limited to those necessary to
allow the individual to exercise the "maximum self-reliance and independence of the
person," and "only to the extent necessitated by the person's actual mental and physical
24
limitations."
B. The Superior Court Did Not Abuse Its Discretion By Appointing A
Full Guardian.
The Public Guardian argues that the superior court failed to apply the clear
and convincing evidence standard in its determination that G.J.F. needed a full
guardian. Consequently, it maintains that the court erred by determining that
alternatives to a full guardianship would not meet G.J.F.'s needs because there was
evidence of feasible and adequate alternatives. The Public Guardian argues that where
an incapacitated respondent "has, or can obtain, or has access to services and resources
outside of a guardianship that meets their needs, that is a disqualifier for a guardianship
20 AS 13.26.251(e).
21 AS 13.26.251(f).
22 See AS 13.26.251(d) (allowing court to "dismiss the action" if "it is found
that alternatives to guardianship are feasible and adequate to meet the needs of the
respondent").
23 AS 13.26.401(2).
24 AS 13.26.201; see also AS 13.26.251(e).
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appointment to meet those needs." It argues that the court "applied a standard that
defaulted to the imposition of a full guardianship unless clear and convincing evidence
showed that the services G.J.F. was receiving completely obviated the need for a full
guardianship."
Though the court's order could have been more explicit,25 the order
provides a clear indication that the court considered less restrictive alternatives to a full
guardianship, including a partial guardianship, and includes a determination that the
record contained clear and convincing evidence that those alternatives were not
"feasible and adequate" to meet G.J.F.'s needs.26 The court determined that continuing
VOA's atypical level of support was not feasible because those services could "cease
at any moment," and it was not an adequate alternative to guardianship because VOA's
services did not meet G.J.F.'s needs. Further, the court's order shows it found that
G.J.F. requires assistance from someone with the range of powers entrusted to a full
guardian. Clear and convincing evidence supports this finding. This finding
necessarily implies that the court considered less restrictive alternatives, including a
partial guardianship.
25 Although the superior court's findings regarding less restrictive
alternatives were not extensive, they need not be, so long as they "give us a clear
indication of the factors which the superior court considered important in exercising its
discretion or allow us to glean from the record what considerations were involved." See
In re Protective Proc. of M.K., 278 P.3d 876, 885 (Alaska 2012) (quoting Bird v.
Starkey, 914 P.2d 1246, 1249 (Alaska 1996)). But we emphasize again that both
AS 13.26.201 and our precedent recognize the importance of considering less
restrictive alternatives in guardianship proceedings. See In re O.S.D., 672 P.2d 1304,
1306 (Alaska 1983).
26 See AS 13.26.251(c)-(d).
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1. The superior court did not clearly err in finding there were no
feasible and adequate less restrictive alternatives to a full
guardianship.
The Public Guardian claims that "G.J.F. is capable of meeting some of the
functions necessary to care for themselves" if VOA continues to provide "supported
decision[-]making." Further, it argues that if the court had meaningfully considered
less restrictive alternatives to guardianship, it would have determined that alternatives,
including a partial guardianship with continued support from VOA, were feasible and
adequate to meet G.J.F.'s needs. The Public Guardian also claims that the court should
have explicitly considered ordering a payee or conservator for G.J.F before ordering a
guardianship.
The court's findings show that it determined no other alternatives to a full
guardianship would be adequate to meet G.J.F.'s needs because none can provide the
decision-making support that G.J.F. requires. The court acknowledged that G.J.F.
obtained benefits, housing, and basic necessities with VOA's help. But the court also
found that G.J.F. needed assistance from someone who could make a wide range of
decisions on G.J.F.'s behalf. And given G.J.F.'s history of "simply discontinu[ing] . . .
or fir[ing]" VOA employees, the court concluded that a guardianship was the
appropriate solution.
The record supports the court's finding that G.J.F. needs decision-making
support that alternatives to a full guardianship cannot provide. VOA's program director
testified that G.J.F. has "difficulty [with] a lot of life decision[-]making," and indicated
that VOA cannot make decisions on G.J.F.'s behalf.27 Testimony also indicated that
G.J.F. struggles to access and protect their financial resources. And although a
27 The superior court's order directly referenced this testimony, and thus
"allow[s] us to glean from the record what considerations were involved." See In re
M.K., 278 P.3d at 885.
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conservator or payee could help manage G.J.F.'s finances, neither can consent to
28
medical care or make other legal decisions.
Further, the superior court considered continued VOA involvement as an
alternative to a full guardianship and found that it would be inadequate. It rejected the
Public Guardian's argument that supported decision-making is sufficient to meet
G.J.F.'s needs because G.J.F. "requires more, which is where a guardian would come
into play." It found that unlike VOA, a guardian could "assist[] with financial decisions,
ensur[e] all financial benefits are applied for and ultimately . . . utilized for [G.J.F.'s]
benefit, work[] to get [G.J.F.] into a group home setting, and assist[] with organizing
counseling services."
The extent of VOA's involvement with G.J.F. leading up to the petition
supports the court's finding that VOA assistance is not a feasible or adequate alternative
to a full guardianship. In In re Protective Proceedings of W.A. , the respondent's family
29
had been providing him with housing, food, hygiene items, and personal belongings.
This evidence "reveal[ed] W.A.'s inability to make rational decisions regarding . . .
daily living" and supported the court's finding that alternatives to guardianship were
not feasible.30 Here, testimony established that VOA helped G.J.F. seek appropriate
medical treatment, apply for welfare programs, maintain daily hygiene, and obtain basic
necessities. Although these services helped G.J.F. achieve some degree of stability,
evidence that G.J.F. progressed because of an intensive and atypical level of assistance
from VOA supports the court's finding that G.J.F. "requires more" than VOA is
generally equipped to offer. The fact that VOA was understaffed and continuing to add
28 AS 13.26.500 (conservator's powers); 42 U.S.C. § 1383 (payee's
powers).
29 193 P.3d 743, 747-49 (Alaska 2008).
30 Id. at 750; c.f. id. at 749 (holding testimony that family provided housing,
food, and personal belongings supported court's conclusion that there was clear and
convincing evidence of respondent's incapacity).
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clients while it diverted a disproportionate share of resources to help G.J.F. supports the
superior court's conclusion that VOA was not a viable alternative to a full guardian.
We decline to adopt a precedent that effectively commits nonprofit social
service organizations to provide a level of service to a client that is above and beyond
what is typical, especially when doing so would risk the organization's ability to
provide necessary services to other clients. A determination that continued VOA
support is an adequate alternative to guardianship would force VOA to choose between
either continuing to provide G.J.F. an atypical level of support or discontinuing services
to a level that would leave G.J.F. vulnerable to predation. We will not place VOA in
31
this dilemma.
The court also found that continued VOA involvement was not an
adequate alternative to guardianship because VOA's services "could cease at any
moment." The court's order suggested this finding was based on testimony that grant
funding to support G.J.F. could become unavailable. Tenuous funding, however, was
not the only support in the record for the court's finding that the level of VOA's services
could end at any point. The court recognized that helping G.J.F. maintain stability
required VOA to provide G.J.F. with services that were "above and beyond" the norm
and "not typical," and the court specified that those services could "cease at any
moment."
Testimony describing the challenges VOA faced in working with G.J.F.
thus supports a finding that the level of services VOA was providing "could cease at
any moment." VOA's clinical supervisor testified that VOA's services to G.J.F. were
"outside of the realm" of what it provided to other clients, and VOA does not have
31 Cf. id. at 750 (affirming finding that no least restrictive alternative to
guardianship was feasible where caring for respondent put respondent's mother in
danger and evidence otherwise revealed "W.A.'s inability to make rational decisions
regarding his medical care, mental health, finances, and even daily living").
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funding to meet G.J.F.'s housing needs. The supervisor also explained that the
organization was understaffed and continuing to take on new clients, and providing
intensive support to G.J.F. restricted the services that VOA could provide for other
clients.
The record also contains evidence that VOA wanted to reduce the level of
services it was providing to G.J.F. The clinical supervisor testified that the resources
VOA was providing to G.J.F. were "expensive," and VOA "make[s] it work" but
needed capacity to take on more clients so it could meet the housing needs of others in
the community. She also testified that VOA petitioned for a full guardianship because
it was straining to provide services for G.J.F. that were "outside of the realm" of support
that VOA typically provides.
Further, the record establishes that VOA's support could end at any time
because G.J.F. might decide to refuse VOA services. VOA's program director testified
that when VOA began working with G.J.F., she thought G.J.F. would leave Alaska and
abandon VOA's services. The clinical supervisor testified that G.J.F. had "fired" all
their previous VOA counselors, and she was the only exception. In contrast, as the
court noted, G.J.F. cannot unilaterally "fire" a guardian.32 G.J.F.'s initial reluctance to
work with VOA and G.J.F.'s history of "firing" staff made it prudent for the court to
consider the relative instability of VOA assistance when determining whether
33
maintaining the status quo was a "feasible and adequate" alternative to guardianship.
Given G.J.F.'s need for a decision-maker with the authority of a full
guardian and the tenuous nature of the level of services VOA had been providing, the
court did not clearly err in finding that alternatives to a full guardianship were not
feasible and adequate to meet G.J.F.'s needs.
32 See AS 13.26.286.
33 AS 13.26.251(d).
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2. The superior court did not abuse its discretion in refusing to
appoint a partial guardian.
The Public Guardian argues that the superior court abused its discretion in
appointing a full guardian. It argues that the record "at best supports only a partial
guardianship," and therefore AS 13.26.251(e) precluded the court from ordering a full
guardianship.
Alaska Statute 13.26.251 provides only broad guidelines that a court must
consider when deciding whether to order a full guardianship instead of a partial
guardianship.34 However, AS 13.26.316(c) explains that a full guardian has the power
to secure housing; assure the ward's care, comfort, and maintenance; ensure the ward
receives services that are essential for their physical health and safety; protect the
ward's civil and human rights; consent to medical treatment for the ward; and make
financial decisions for the ward. It follows that for the court to appoint a full guardian,
it must find that the respondent is in need of a guardian who can exercise all of these
powers because (1) the respondent lacks capacity to do so, and (2) less restrictive
alternatives do not provide the necessary level of intervention.
The superior court's findings show it determined that G.J.F. needed
support in every area in which a full guardian is empowered to act. The court explicitly
found that G.J.F. needed assistance with finding housing; completing daily care, living,
and maintenance tasks; making financial decisions; and obtaining essential services.
Further, the court found, based on the neuropsychological evaluation, that
G.J.F. has an intellectual disability, suffers from short-term memory loss, and has a
dissociative identity disorder with ten alter egos, which means they can present as
someone as young as six years old. And "overwhelming testimony" established that
34 See AS 13.26.251(f) (stating that a court may appoint a full guardian
where "respondent is totally without capacity to care for the respondent" and "a
combination of alternatives" to full guardianship "is not feasible or adequate to meet"
the respondent's needs).
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G.J.F. is "incredibly vulnerable" to online predators and struggles to make decisions
that are in their best interests. Those findings make clear that G.J.F. needed assistance
from someone who can make financial, legal, and medical decisions. The record
contains ample support for these findings.
The program director and the clinical supervisor "saw other people taking
advantage of [G.J.F.]" and described G.J.F. as "highly vulnerable." The clinical
supervisor also testified that because of G.J.F.'s short-term memory loss, they "will
forget who in the past has taken advantage of them." Testimony also established that
G.J.F. needs help buying basic necessities, finding housing, applying for benefits, and
protecting their finances. Further, at times G.J.F. can "present as young as six years
old." At the hearing itself, G.J.F.'s attorney sought to protect them from upsetting
testimony and had to escort them to the restroom. G.J.F.'s demeanor at the hearing
tends to support assertions in the neuropsychological evaluation and testimony that
G.J.F. can appear "younger than [their] stated age" and reinforces the court's
35
determination that testimony about G.J.F.'s vulnerability was "particularly credible."
The Public Guardian argues that the only reason VOA petitioned for a full
guardianship is "because G.J.F. would age out of services in" several years. Some
testimony indicates that providing G.J.F. a long period to adjust to a guardian before
they became ineligible for VOA services motivated the timing of VOA's petition.
However, the record establishes that G.J.F. needed support from a decision-maker at
the time VOA filed the petition. And only a full guardian has the decision-making
power that meets the full range of G.J.F.'s needs.
The record contains clear and convincing evidence that G.J.F. requires
substantial assistance in nearly all dimensions of their life. And the court's findings,
35 Cf. Dara v. Gish, 404 P.3d 154, 163 (Alaska 2017) (holding "the superior
court was entitled to draw reasonable inferences from [a party's] testimony and
demeanor at trial" in custody case).
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which the record supports, show it granted the petition for guardianship based on a
determination that G.J.F. requires support with daily living tasks and decision-making
that only a full guardian can provide.36 Therefore, the court did not abuse its discretion
37
in appointing a full guardian as opposed to a partial guardian.
C. It Was Legal Error to Rely On The Court Visitor's Report, But The
Error Was Harmless.
The Public Guardian argues that the court visitor's report and remarks are
"essentially meaningless within the record" because the report was not admitted as
evidence, and the court visitor did not testify under oath. However, the Public Guardian
also recognizes that the visitor's report and remarks contained information that is
largely redundant with the neuropsychological report and witness testimony.
We have not previously considered whether and to what extent the
superior court may rely on a visitor's report in a guardianship case. The requirement
38
for a visitor and the visitor's role in guardianship proceedings are set out in statute.
But the relevant statutes do not specify the circumstances under which the court may
rely on the visitor's report in making findings in support of a determination of
incapacity or the scope of a guardianship.
The guardianship statutes require the visitor to "file" a report, but "filing,"
without more, does not allow the superior court to rely on the report as evidence.
Black's Law Dictionary defines "file" as "deliver[ing] a legal document to the court
36 See AS 13.26.251(f).
37 See Wilson v. State, Dep't of Law, 355 P.3d 549, 555 (Alaska 2015) ("A
court abuses its discretion if it considers improper factors, fails to consider statutorily
mandated factors, or assigns too much weight to some factors." (quoting Farmer v.
Farmer, 230 P.3d 689, 693 (Alaska 2010))); see also AS 13.26.251(f) (listing factors
justifying full guardianship).
38 AS 13.26.226(c) (setting out court visitor's responsibilities);
AS 13.26.236 (setting out requirements of court visitor's evaluation report).
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clerk or record custodian for placement into the official record."39 And in common
legal usage, "filing" generally describes the act of delivering a pleading or other
document to the courthouse.40 Here, the visitor's report was not admitted into evidence.
The visitor was not sworn in as a witness, so her statements to the court are not
testimony. Thus, the visitor's report and her statements did not become "part of the
collective mass of things for a tribunal's consideration," because they were never
41
"proffered and admitted as required by the rules of the tribunal."
Because the visitor's report was not in evidence, it was legal error to rely
on it, but the error here was harmless. We "disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties and act only when
the result is otherwise inconsistent with substantial justice."42 As the court noted, much
of the information it relied on was from the neuropsychological evaluation, which was
admitted into evidence by stipulation. And the remaining information from the visitor's
report that the court relied upon was encompassed by witness testimony. Therefore, the
43
error did not have "substantial influence" on the court's decision, and it was harmless.
39 File, BLACK 'S LAW DICTIONARY (12th ed. 2024); State v. Jeffrey, 170
P.3d 226, 232 (Alaska 2007).
40 See, e.g., Silides v. Thomas, 559 P.2d 80, 88 (Alaska 1977) (noting that
"the definition of 'file' is well established in the law" and that a document is "filed only
when the proper office has received it").
41 Diego K. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
411 P.3d 622, 628 (Alaska 2018).
42 Penn P. v. State, Dep 't of Health & Soc. Servs., Off. of Child.'s Servs., 522
P.3d 659, 665 (Alaska 2023) (internal quotation marks omitted) (quoting In re
Hospitalization of Rabi R., 468 P.3d 721, 732 (Alaska 2020)); see also Alaska R. Civ.
P. 61.
43 See Penn P ., 522 P.3d at 665 (quoting Martinez v. Bullock , 535 P.2d 1200,
1206 (Alaska 1975)). Moreover, G.J.F. does not allege a violation of their due process
rights. Cf., e.g., Lewis G. v. Cassie Y., 426 P.3d 1136, 1147 (Alaska 2018) (rejecting
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We recognize that, as a practical matter, the lack of guidance from the
statutes and our previous cases has led to courts relying on court visitor reports although
they were not entered into evidence. The practice in the analogous medication cases
may provide useful assistance. In such hearings, as a matter of course, the court visitor
44
is sworn as a witness to affirm the information in the report.
CONCLUSION
The superior court's order for a full guardianship is AFFIRMED.
appellant's argument that superior court denied right to due process by ignoring Alaska
Rules of Civil Procedure).
44 See, e.g., In re Hospitalization of Tonja P., 524 P.3d 795, 801 (Alaska
2023) (noting court visitor's testimony in medication administration hearing); In re
Rabi R., 468 P.3d at 728-29 (same); In re Hospitalization of Naomi B., 435 P.3d 918,
921 (Alaska 2019) (same).
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CARNEY, Justice, dissenting.
I agree with the court, the superior court, and G.J.F. and their supporters
that G.J.F. needs support to accomplish many tasks in their daily life. But I disagree
that G.J.F. currently needs a guardian to ensure that they receive the necessary support.
Because they do not need such support until or unless the services they currently receive
cease, I believe it was an abuse of discretion to appoint a full guardian. I respectfully
dissent.
As the court observes, appointment of a full guardian is such an extreme
deprivation of a person's liberty that the legislature has decreed it "shall be used only
as necessary" and "only to the extent necessitated."1 In fact, the deprivation of
individual autonomy is second in its extremity only to the involuntary commitment or
medication of a person for mental health treatment.2 We have recognized that as a
result, the statute mandates a "strong policy of restraint,"3 requiring a petitioner to
4
demonstrate by clear and convincing evidence the need for a full guardian.
The statute also requires the court to determine the extent of the person's
incapacity and whether less restrictive alternatives to a full guardianship - ranging
from a representative payee to handle the person's government benefits to a conservator
to handle property and finances to a partial guardianship tailored to the person's
5
demonstrated needs only - will suffice.
1 Opinion at 10.
2 At oral argument, the Public Guardian pointed out that guardianship is
"not a resource" to be employed out of beneficence, but rather a deprivation of
constitutional rights to be imposed only out of necessity.
3 In re Protective Proc. of Nora D. , 485 P.3d 1058, 1062 (Alaska 2021)
(quoting In re O.S.D., 672 P.3d 1304, 1306 (Alaska 1983)).
4 AS 13.26.251(b).
5 AS 13.26.251(c).
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A. It Was Clear Error To Find That VOA Services Could Cease At Any
Moment.
G.J.F. was 22 years old when VOA petitioned for appointment of a full
guardian. At the time, they were receiving full wraparound services6 from VOA. They
were housed, receiving mental health and independent living counseling and support,
receiving SNAP, Medicaid, and ISW services, and waiting for approval of their
applications for an I/DD waiver and Social Security benefits. The record makes clear
that the VOA staff who work with G.J.F. are devoted to them and work diligently to
support G.J.F. as they enter the adult world.
In order to assist G.J.F., VOA staff petitioned the court to appoint a full
guardian for them. Following an initial hearing at which no evidence was presented
and at which the petitioner did not even appear, a superior court master recommended
the appointment of a full guardian. The superior court properly rejected the
unsupported recommendation and convened a hearing.
At that hearing it was the petitioner's burden to present clear and
convincing evidence that G.J.F. was, at that time, in need of a full guardian.7 But neither
the petitioner nor the VOA clinical supervisor testified that G.J.F. currently needed a
guardian or seemed to have a clear idea of what a guardian could do beyond what VOA
was doing. The petitioner, in fact, testified that even though, "I've been working with
OPA . . . a lot the last ten years, I don't know what [the Public Guardian] usually does."
The clinical supervisor testified repeatedly that the reason for the petition
was to ensure that G.J.F. had support when they turned 25 and "aged out" of VOA
6 "Wraparound services" is a term of art and refers to comprehensive,
holistic services delivered by a supportive, integrated team of providers to an individual
experiencing serious mental health or behavioral challenges. See Wraparound Basics
Frequently Asked Questions, NATIONAL WRAPAROUND INITIATIVE (Jan. 2019),
https://nwi.pdx.edu/pdf/wraparound-basics.pdf.
7 AS 13.26.215(b).
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services. The clinical supervisor testified that VOA "won't be able to meet [G.J.F.'s]
needs long-term." She reiterated that "VOA will not be able to work with [G.J.F.] and
help to continue to apply for those, renew those, keep those supports in place once they
are awarded beyond the age of 25." When the Public Guardian clarified that "the reason
that a guardian would become needed is when [G.J.F.] turns 25, these services that have
been provided . . . won't be available," the supervisor responded, "Yeah . . . we are
doing our due diligence to ensure all of [their] needs are met before [they] end[] services
with us." And when questioned directly about why she was supporting the appointment
of a guardian at age 22 when G.J.F. would not lose VOA services until age 25, the
supervisor responded that it "makes sense to me for us to have that transition."
The court does not acknowledge this testimony. It focuses instead on the
supervisor's response to G.J.F.'s attorney's prompt about whether there was "an
urgency" beyond G.J.F.'s 25th birthday. The supervisor answered that G.J.F.'s services
would end at 25, "but we're a grant-funded program, too. There's no way that we can
. . . say without a doubt that we're going to continue to be there for [G.J.F.] through the
age of 25."
Based upon this testimony the court concludes that the superior court
properly found that VOA services "could cease at any moment." I disagree. The record
demonstrates only that VOA staff, out of genuine concern for G.J.F.'s welfare,
preemptively filed a petition in anticipation of G.J.F.'s 25th birthday, still over two
years away. The mere fact that VOA, like many nonprofit organizations, relies on
grants for funding does not support the superior court's finding that its services could
"cease at any moment." Few organizations, grant-funded or not, can guarantee "without
a doubt" their ability to continue to provide services. And an organization that faces
the risk of losing sources of funding must exercise its discretion to prioritize its delivery
of services to clients in light of its funding constraints. The court explicitly recognizes
that VOA exercised this discretion to "continu[e] to add clients while it diverted a
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disproportionate share of resources to help G.J.F."8 There was no testimony that VOA's
funding constraints would result in discontinuing the services provided to G.J.F. That
VOA was "grant-funded" and that some grants might not be renewed do not support
the finding that the services VOA provides to G.J.F. were at imminent risk of ending.
In my opinion it was clear error to find that VOA's services could cease at any moment.
B. It Was An Abuse Of Discretion To Conclude That There Were No
Feasible Less Restrictive Alternatives To A Full Guardianship.
VOA did not present any evidence that less restrictive alternatives to a full
guardianship were not feasible. In fact the evidence and testimony at the hearing
seemed to show just the opposite. G.J.F.'s counselor testified that VOA had used its
resources to apply for benefits for G.J.F. "to pay for all of [G.J.F.'s] financial needs."
She testified that VOA had helped G.J.F. apply for "SNAP benefits," "Medicaid
renewal," and an ISW waiver. Both the petitioner and G.J.F.'s counselor testified that
VOA provided G.J.F. with therapy and counseling. And the counselor admitted that
VOA was "capable of providing those needs, but the request is for the guardian, to the
extent that they could do those things, be appointed instead."
Alaska Statute 13.26.251 obligates the superior court to "determine . . .
the feasibility of alternatives to guardianship to meet the needs of the respondent"9 and
impose a guardianship only if there are no feasible less restrictive alternatives to meet
a respondent's needs.10 The burden is on the petitioner to present clear and convincing
evidence of that proposition. But VOA failed to provide any evidence and the superior
court failed to consider less restrictive alternatives such as maintaining the status quo,
8 Opinion at 15.
9 AS 13.26.251(c).
10 AS 13.26.251(d)-(f).
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appointing a representative payee or a conservator, or a partial guardian to meet G.J.F.'s
11
needs.
The superior court found that G.J.F. "requires more [than VOA services],
which is where a guardian would come into play" and "pick up where [VOA] cannot
assist," but it made no findings about what "more" G.J.F. required or what a guardian
could do to meet any unspecified need. Although the court listed assisting G.J.F. "with
financial decisions, ensuring all financial benefits are applied for[,] . . . working to get
[G.J.F.] into a group home setting, and assisting with organizing counseling services"
as examples of needs requiring the appointment of a guardian, testimony at the hearing
showed that VOA was already assisting G.J.F. with these functions at the time of the
hearing. And when asked whether she thought a guardian could do more than VOA
was already doing for G.J.F., the supervisor acknowledged that VOA was "capable of
providing those needs" but was requesting that a guardian "be appointed instead."
The superior court's order does not identify any of G.J.F.'s needs that were
not being met by VOA services. Identifying those needs is a necessary step in the less
restrictive alternative analysis. It was manifestly unreasonable to conclude that less
restrictive alternatives to a full guardian were not adequate or feasible to meet G.J.F.'s
needs without even determining what those unmet needs are.
The court brushes aside the superior court's failure to require the petitioner
to demonstrate that less restrictive alternatives were not feasible, noting that the statutes
provide "only broad guidelines" for the court to follow in making its decision.12 But
11 We have clarified in the somewhat analogous context of mental health
commitment cases that the petitioner must affirmatively disprove the feasibility of less
restrictive alternatives. See In re Hospitalization of Sergio F., 529 P.3d 74, 80 (Alaska
2023). And we have vacated commitment orders when no such evidence was presented
to the court. See id. at 80-82; In re Hospitalization of Declan P. , 538 P.3d 318, 325-28
(Alaska 2023).
12 Opinion at 18.
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those guidelines give substance to the legislative dictate that the court's power to
appoint a guardian "shall be used only as necessary" and "only to the extent
13
necessitated."
14
The court compares this case to In re Protective Proceedings of W.A .
15
But unlike G.J.F., W.A. was in need of new guardian at the time of the hearing.
W.A.'s mother had apparently served as his guardian for some time.16 But in light of
her age (81), declining health, and W.A.'s dangerously deteriorating condition, W.A.'s
sister filed an emergency petition for immediate appointment of a temporary guardian
to replace her mother.17 There is no such emergency in G.J.F.'s case.
The court proclaims that it will not force "non-profit social service
organizations to provide a level of service to a client that is above and beyond what is
typical, especially when doing so would risk the organization's ability to provide
necessary services to other clients" and "will not place VOA in this dilemma."18 But
in addition to overplaying the risk to other clients, the court overlooks that it was VOA
that exercised its discretion to provide services to G.J.F. And if VOA were to decide to
scale back its services, at that time it might well be able to demonstrate by clear and
convincing evidence that G.J.F. needs a guardian.
The superior court is required to determine whether any less restrictive
alternative to full guardianship is feasible.19 It is to make that determination based upon
the clear and convincing evidence presented by a petitioner. Where, as here, no
13 Opinion at 10.
14 193 P.3d 743 (Alaska 2008).
15 Id. at 745.
16 See id.
17 Id.
18 Opinion at 16.
19 AS 13.26.251(c)-(f).
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evidence was presented relating to any less restrictive alternative, it was an abuse of
discretion to conclude that none existed.
C. It Was An Abuse Of Discretion To Appoint A Full Guardian.
In its order appointing a full guardian for G.J.F., the superior court noted
that a guardian "will provide [G.J.F.] with a safety net to ensure future services continue
without the fear of lack of funding or taxing resources." The court declared that the
"receipt of some services provided to [G.J.F.] simply cannot be an automatic
disqualifier to appointment of a guardian."
It is unclear to me what impact the court's statement had on its decision.
While the statement is accurate, the implication - that receipt of services need not be
considered when determining whether, and to what extent, a guardian should be
appointed - misapprehends the law. Contrary to that implication, receipt of services
may in some cases "disqualify" an individual from appointment of a guardian. And in
many cases, receipt of services may help the court to define the limits of the needed
guardianship.
To respect the "strong policy of restraint" embodied in the guardianship
statutes,20 the superior court is required to determine the feasibility of less restrictive
alternatives and appoint a guardian only if no less restrictive alternatives are feasible or
adequate to meet a respondent's needs.21 To make its determination the court must
evaluate the services being provided, any needs that existing services are not meeting
and that a guardian could meet, and whether there are other less restrictive alternatives
to full guardianship to meet those needs. The superior court failed to identify any needs
that were not being met by G.J.F.'s VOA services and whether less restrictive
alternatives to full guardianship could meet those needs if they existed. It was an abuse
of discretion to appoint a full guardian for G.J.F.
20 In re Protective Proc. of Nora D. , 485 P.3d 1058, 1063 (Alaska 2021).
21 AS 13.26.251(c)-(f).
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I would vacate the guardianship appointment and remand for the superior
court to reevaluate G.J.F.'s current needs in light of evidence presented by the
petitioner. I therefore respectfully dissent
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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