Arizona Court of Appeals Strikes Down Arizona’s Guardianship Process That Determines Whether an Individual Has the Capacity To Vote

By Joseph Kanefield, Savannah Wix, and Heather Reed1

To vote in Arizona, an individual must not be “adjudicated an incapacitated person.” This is an addition to other requirements such as being over 18 years old, a U.S. citizen, and an Arizona resident. Capacity to vote arises in guardianship proceedings when an individual is no longer able to care for themselves and manage their financial affairs. In this situation, the question then becomes whether the individual retains sufficient understanding to exercise their right to vote. How this determination is made was the subject of a recent Arizona Court of Appeals decision, Wood v. Coconino (In re Wood)², which found the existing process unconstitutional.

In Wood, the superior court determined that Annette Wood, a 63-year-old woman residing in an assisted living facility, needed a guardian to make her financial and medical decisions. She had been diagnosed with dementia and other cognitive impairments, including memory loss, anxiety, and depression.

Under Arizona law, a person will be placed under a guardianship if the court finds the person incapacitated — unable to make decisions for themselves due to mental or physical illness, disability, or other chronic conditions — such that they require a guardian to provide for their needs. The Arizona Constitution, however, provides that “[n]o person who is adjudicated an incapacitated person shall be qualified to vote at any election.”³ In a general guardianship, a ward loses the right to vote without any recourse. A ward, however, may retain the right to vote under a limited guardianship if the ward files a petition, has a hearing, and a judge finds by clear and convincing evidence that the ward retains “sufficient understanding to exercise the right to vote.” Here, the court placed Ms. Wood under a general guardianship.

Although Ms. Wood agreed she required a guardian to assist with medical decisions, she still wished to retain her right to vote. To determine whether Ms. Wood retained sufficient understanding to vote, the court asked her a series of questions. For example, when asked, she was initially unable to recall the President’s name, but was able to describe the process by which she votes by mail. The court ultimately concluded she did not provide clear and convincing evidence to support that she retained sufficient understanding to vote and therefore denied her request. Ms. Wood subsequently challenged the constitutionality of the guardianship statutes under the Due Process Clause of the 14th Amendment to the extent the statutes disenfranchise her and other wards.⁴ 

On appeal, the court sided with Wood, holding that Arizona’s guardianship statutes violate the due process rights of wards to the extent they terminate their right to vote under a general guardianship without an assessment of the ward’s voting capacity. Moreover, the court held that the existing process improperly shifts the burden to the ward to prove they possess a “sufficient understanding to exercise the right to vote” under a limited guardianship.

Because this process implicates the right to vote, the court applied strict scrutiny to the guardianship statutes, evaluating whether they were narrowly tailored to serve a compelling state interest and employed the least restrictive means possible to achieve that interest. The court concluded that the statutes fell short on both analyses. The court further noted that the State failed to identify any state interest, compelling or otherwise, served by terminating a ward’s voting rights without assessing their voting capacity.

The court concluded that 1) terminating a ward’s right to vote without a hearing to assess the ward’s voting capacity and 2) placing the burden of proof on the ward to prove their voting capacity violate due process. In doing so, the court shifted the burden of proof to the guardian to prove by clear and convincing evidence that the ward lacks the capacity to vote. The court also clarified the definition of a “sufficient understanding to exercise the right to vote” as having enough comprehension to know that one is expressing a preference on a ballot for a particular candidate for a political office or, for or against a policy measure. The court made clear, however, that this analysis must be detached from “the wisdom of a particular vote (or a particular voter),” as this determination is subjective.

The court’s decision is likely to have a significant impact on wards in Arizona. Arizona courts must now hold hearings to determine a ward’s voting capacity prior to terminating their right to vote, and the petitioner seeking to become the individual’s guardian will bear the burden of showing that the ward lacks the ability to express their ballot preferences. The required clear and convincing evidentiary showing may result in fewer wards losing the right to vote, but only time will tell. Notably, however, the court did not address how the holding will affect the voting rights of wards currently under guardianships in Arizona.

As always, the Snell & Wilmer team will continue to monitor the developments in this area of the law.

Footnotes

1. Heather Reed is a 2024 summer associate at Snell & Wilmer and a 2025 J.D. candidate at the University of Arizona. She is not admitted to practice law. [Back]
2. No. 1 CA-CV 22-0710 (Ariz. App. May 30, 2024). [Back]
3. Ariz. Const. art. 7, § 2(C). [Back]
4. A.R.S. §§ 14 5101(3), 14 5304, 14 5304.02 (collectively, the “guardianship statutes”). [Back]

Full Article & Source:
Arizona Court of Appeals Strikes Down Arizona’s Guardianship Process That Determines Whether an Individual Has the Capacity To Vote

New Rulings from Michigan Court of Appeals Regarding Protection of Persons Subject to Guardianship

Written by:  Warner Norcross + Judd

In December 2022, the Michigan Court of Appeals issued two important opinions regarding guardianships in Michigan.

The first case, In re Guardianship of Roberta More Asplund, had to do with guardianship of an incapacitated adult. Docket No. 361556, 2022 WL 17724333 (Mich Ct App Dec 15, 2022) (unpublished). There, the probate court appointed a guardian for 91-year-old Roberta due to her cognitive impairment. Roberta’s son Randall filed “numerous petitions and other filings challenging the administration of Roberta’s guardianship[.]” Id. at *1. Randall “harassed Roberta’s caregivers, challenged every action taken by Roberta’s fiduciaries, and enlisted Roberta as an ally in his disputes with [his siblings], Roberta’s caregivers, and her fiduciaries.” Id. Randall “manipulated Roberta and prevented her from adjusting to her life changes.” Id. Eventually, the probate court appointed a limited-guardian solely for the purpose of supervising Randall’s visits with Roberta and ensuring that he did not raise prohibited topics with her. The limited-guardian eventually asked to resign because she could not prevent Randall from discussing prohibited topics with Roberta. Roberta’s foster care home also gave notice that Roberta would have to leave if Randall continued to visit her because of his arguments with staff and his filing of regulatory complaints against the facility.

Eventually, the probate court entered a personal protection order, prohibiting Randall from having any further contact with Roberta. Randall appealed, arguing that the probate court did not have the authority to prevent him from seeing his mother. The Michigan Court of Appeals disagreed. “The probate court ... entered the personal protection order as equitable relief stemming from its inherent authority under MCL 700.1302(c),” which is the statute granting the probate exclusive subject matter jurisdiction over guardianship proceedings. Id. at *2. “Accordingly, the probate court had the authority to enter injunctive relief ... to protect Roberta’s welfare and resolve the dispute over visitation.” Id.

This ruling is significant because it recognizes the probate court’s inherent authority to grant injunctive relief in matters within its jurisdiction, without relying on any express statutory authority to issue an injunction (such as MCL 700.1309). This decision will come in handy when an interested person seeks to enjoin a problematic family member from conduct that jeopardizes the ward’s wellbeing and best interests.

The second case, In re Guardianships of ER and GR, Minors, had to do with guardianship of minor children. Docket Nos. 362398 & 362399, 2022 WL 17726409 (Mich Ct App Dec 15, 2022) (unpublished). PT was appointed as guardian of his minor second cousins, ER and GR. The probate court ordered a review of the guardianships. The Department of Health and Human Services prepared a guardianship review report, identifying several concerns with the guardianships. The concerns included: PT had been found guilty of child neglect of her own children, including while the guardianships were in place; ER and GR, as well as PT’s own children, all had poor hygiene and truancy issues; GR needed but was not receiving mental-health treatment; there had been substance abuse and domestic violence issues in the home; and PT’s housing was unsafe. Id at *1. The probate court held a hearing and ordered that PT’s guardianship over ER and GR was terminated. PT appealed.

PT claimed that the probate court could not terminate the guardianship without first implementing a corrective plan. The Michigan Court of Appeals rejected that claim. However, the Court of Appeals did find a technical defect in the probate court’s ruling. While the probate court had generally considered the “best interests of the child” factors listed in MCL 700.5101(a), the probate court had not explicitly stated its findings and conclusions as to each factor on the record. The Court of Appeals remanded the case to the probate order, ordering the probate judge to re-run the hearing, consider each best interests factor, and explicitly state its findings and conclusions as to each factor on the record. In this regard, minor guardianship proceedings are identical to child custody proceedings. This ruling is significant because it provides clarity regarding the legal procedure that must be followed in order to remove a minor child from a problematic guardianship.

Full Article & Source:
New Rulings from Michigan Court of Appeals Regarding Protection of Persons Subject to Guardianship

Minnesota Court of Appeals Confirms Immunity from Financial Liability for Guardians

by Amy Erickson, Marya P. Robben

The Minnesota Court of Appeals ruled that, under Minnesota law, guardians are immune from liability for negligently performing their duty to provide care for a person subject to guardianship. The opinion continues the strong protections from liability in place for those who serve as court-appointed guardians in Minnesota.

The Opinion

In Zika v. Elder Care of Minnesota, (Minn. Ct. App. Aug. 22, 2022), the Personal Representative of the Estate sued the decedent’s guardian, alleging that the guardian had negligently performed her duties, and sought monetary damages. In 2012, the decedent had moved to an assisted living facility after she was diagnosed with Alzheimer’s. The guardian was appointed in 2013 to make decisions about the decedent’s care, comfort, and maintenance. In 2016, the decedent was sexually assaulted in her room by an employee of the assisted living facility. Although the guardian was immediately informed of the assault, she failed to inform the decedent’s family members and did not provide trauma care to the decedent after the assault.

The district court dismissed the claims against the guardian, and the court of appeals affirmed, concluding that guardians are immune from liability under Minnesota law for negligently performing their duty to provide care, comfort, and maintenance needs for the person subject to guardianship. In making this determination, the Court of Appeals relied on the plain language of Minnesota Statute Section 524.5-313(c)(2), which specifically provides that “[f]ailure to satisfy the needs and requirements of this clause shall be grounds for removal of a private guardian, but the guardian shall have no personal or monetary liability.”

The Court of Appeals also reasoned that the legislative history of the guardianship statutes confirms that the legislature intended for a guardian’s immunity to be broad. For example, the Court of Appeals pointed to a different statute — Minnesota Statute Section 524.5-315 — which provides a guardian with immunity from liability related to wrongful acts of third persons if the guardian exercised reasonable care in choosing the third person to provide care. The Zika court explained that the immunity granted in Section 524.5-315 is an additional, specific immunity granted to guardians and not a limitation on or clarification of the protections granted to guardians under Section 524.5-313(c)(2).

As noted above, one of the key issues in the Zika case was whether the guardian could be held liable for her failure to notify the decedent’s family about the sexual assault. More specifically, the decedent’s son testified that, had the family known about the assault, they would have sought trauma treatment for the decedent and would have found her a different long-term care facility. Although the Court of Appeals held that the guardian was immune from liability for failure to notify decedent’s family about the assault, it is worth noting that a 2020 legislative change now requires guardians to communicate with all interested persons concerning, among other things, significant health or unexpected health changes or a medical condition requiring treatment or hospitalization. See Minnesota Statutes Section 524.5-316(d).

Key Takeaways

Guardians, interested persons, and persons subject to guardianship should take note of the decisions in Zika v. Elder Care of Minnesota, as the case provides several important takeaways:

1.  Minnesota law provides immunity from financial liability for guardians.
2. The laws protecting guardians from immunity are in place due, in part, to the need for court-appointed guardians in Minnesota and the hesitancy persons nominated as guardians would have to serve if doing so came with risk of significant financial liability. Although guardians cannot be held financially liable for their negligence as guardian under the Minnesota law, they may still be removed.
3. Guardians today have a duty to communicate with interested persons. Those requirements are fully set forth in Minnesota Statutes Section 524.5-316(d).

Our Trusts & Estates team is experienced in representing guardians and conservators. If you have questions, please contact us to see if we can assist you.

Full Article & Source:

Minnesota Court of Appeals Confirms Immunity from Financial Liability for Guardians

San Luis Obispo man loses manslaughter conviction appeal

Christopher Skiff

The California Court of Appeal rejected an attempt by the former owner of the Manse on Marsh to overturns his convictions for manslaughter and elder dependent abuse over the 2014 death of a dementia patient who walked away from the assisted living facility and was struck by a car.

A few days before Christmas 2014, Mauricio Edgar Cardenas, 65, was hit and killed as he wandered across Los Osos Valley Road. Because of the darkness, the 26-year-old driver of the vehicle was unable to stop.

Shortly afterwards, a whistleblower accused Manse on Marsh owner Christopher Skiff and Executive Director Gary Potts of fraud and elder abuse because they admitted Cardenas, who was diagnosed with dementia, even though the facility was not licensed to house patients with memory issues. Employees accused Skiff and Potts of violating laws for financial reasons.

Former employees then testified that Skiff and Potts held regular meetings in which they discussed a “hot list” of prospective residents who had medical and other barriers to admission and created action plans on how to get the individuals admitted. Employees testified that they expressed concern to Skiff over Cardenas being on the hot list, but shortly afterwards, he was admitted to the Manse on Marsh anyway.

Skiff, who was permitted to stay out of jail during the appeal process, is facing up to eight years in jail.

In addition, Skiff is battling a civil suit. James McKiernan, the attorney for Mauricio Cardenas’ son Paul Cardenas, filed a wrongful death lawsuit against Skiff, Potts and the Manse on March.

 

Full Article & Source:

San Luis Obispo man loses manslaughter conviction appeal

Court of Appeal: Judge Had No Authority to Force Visits of Adult Conservatee With Father

By a MetNews Staff Writer

 Div. Two of the Fourth District Court of Appeal has declared that a judge went out of bounds in ordering that a mentally impaired 33-year-old woman who accused her father of raping her must participate in joint counseling sessions with him, over the objection of her mother, her conservator.

Justice Marsha G. Slough wrote the opinion, filed Dec. 4 and, as modified, certified for publication on Monday, which reverses an order by Riverside Superior Court Judge Thomas H. Cahraman in a case involving the conservatorship of Anna Navarrete, who suffers from cerebral palsy and has a speech disorder.

 

The allegation of a rape on May 31, 2016, caused the split-up of the conservative’s parents, Maria Navarrete and Rodolfo Navarrete Sr., and, in part, precipitated a successful July 29, 2016 petition by the mother for her appointment as her daughter’s conservator.

 

Factual Uncertainty

 

In granting the father’s request for visitation and for an order that his daughter participate in joint counseling sessions with him. Cahraman said:

 

“So here I am not knowing if he had sex with his daughter, but finding there’s not enough evidence to say that he did. And then if I have the visitation forced, then in case I’m wrong and he did have sex with his daughter, then I’m making her visit with her molester. I don’t like that very much, if that’s what it is. But I don’t think that’s what it is. I think he probably didn’t have sex with his daughter.”

 

In her opinion reversing the order for joint counseling sessions, Slough noted that Probate Code §2351(b) permits a court to override a conservator’s decision to bar visits by specific persons.

 

Statute’s Limitation

 

However, the jurist declared:

 

“The statute does not similarly suggest the court has the power to force an unwanted visitor on the conservatee. We’re not asked to decide whether the court properly could allow the conservator to stop Navarrete from seeing someone who was exercising undue influence on her or engaging in unwanted or unsafe sexual contact. We’re asked to decide whether the trial court’s statutory power to limit Navarrete’s personal rights to receive visitors extends to allowing the court to require a conservatee to receive a visitor she and her conservator insist she does not want to see.

 

“We are aware of no case reading the statute to allow a conservator or a court to require an adult conservatee to spend time with someone against their will, even a parent.”

 

Slough went on to say:

 

“In the context of family law orders, the trial courts have no authority to order adult disabled children to visit with a parent….Navarrete is such a person, notwithstanding her disability, and the trial court’s attempt to intervene in the dispute between a disabled adult and her estranged father based on its own judgment about her best interests overstepped its role.”

 

The case is Conservatorship of Navarrete, 2020 S.O.S. 6104.

 

Full Article & Source:

Court of Appeal:
Judge Had No Authority to Force Visits of Adult Conservatee With Father

Michigan Court of Appeals upholds lower courts' ruling on St. Clair County estate case

by Laura Fitzgerald

The Michigan Court of Appeals Thursday upheld an earlier ruling that declared a now-dead St. Clair County woman did not have the capacity to sign her estate to her guardian, a senior retirement community leasing agent. 

But the guardian, Lisa Tramski, has said herself and the dead woman, Pauline Runyon, had a close friendship and Runyon appointed Tramski the beneficiary of her estate of her own free will.

The Michigan Attorney General filed objections in the St. Clair County probate case after Tramski became a guardian for 85-year-old Runyon and drafted a will making herself the beneficiary of Runyon’s estate. 

Probate Court Judge John Tomlinson ruled in September 2019 that Runyon lacked the capacity to sign the will and that Tramski exerted excessive influence on Runyon, according to the attorney general's office. 

Tramski appealed the case, and on Thursday, the Michigan Court of Appeals affirmed the lower court’s ruling.  

“A fiduciary – for instance a guardian, a power of attorney or a conservator – has a legal duty to act for someone else’s benefit while subordinating their own personal interest,” Michigan Attorney General Dana Nessel said. “Writing a will where the guardian gets everything, and the charities mentioned in previous wills are left with nothing clearly breaches this duty. My team is on high alert for any similar action and we invite the public to file complaints with my office. Let this case serve as a warning to anybody intent on exploiting a vulnerable adult in Michigan: We are watching, and with our local law enforcement partners, we will aggressively pursue those who breach these duties and line their own pockets.” 

Runyon, who had no living heirs, became a resident of the retirement community where Tramski worked as the leasing agent, according to the attorney general's office. 

The office said Tramski obtained large monetary gifts from Runyon for herself and her son within months of meeting her. Tramski became Runyon's guardian following an accident that resulted in a traumatic head injury for Runyon. 

Days before Runyon's death, Tramski's friend – who also worked at the retirement community – provide a will to Runyon that Tramski drafted, making herself the sole beneficiary of Runyon's estate, according to the office. 

The office said Tramski signed a do-not-resuscitate order for Runyon and requested “comfort care or hospice” the following day, nursing and progress notes indicated. 

While the case was on appeal, a 2010 will leaving Runyon's entire estate to various charities was admitted to St. Clair County Probate Court. 

Tramski describes mother-daughter relationship with Runyon

Tramski commented on the case following Tomlinson's decision in 2019. 

At the time, Tramski said in an email to the Times Herald she befriended Runyon after she inquired about leasing. There were no units available at the time Runyon entered Tramski's office, but Runyon continued to contact her, sparking a close friendship akin to a mother-daughter relationship.

In March 2018, Runyon sustained a head injury. Soon after, Tramski said she was advised by a social worker and a McLaren hospital staff member to become Runyon's legal guardian, to which she agreed. 

In May 2018, after Runyon was diagnosed with a Kennedy Ulcer, Tramski said she drafted a will and had a third party deliver it to Runyon. All actions were at the director of Tramski's attorney, she said. 

Runyon made the decision to make Tramski the beneficiary of her will of her own free will prior to her injury, Tramski said. Runyon made a video stating her wishes, and Tramaski made a statement to court to continue to honor Runyon's wishes to donate to charities of her choice, Tramski said. 

Tramski's attorney, Jeffrey Gerish, declined to comment on the case. 

Tramski did not immediately respond to an email requesting comment Friday afternoon. 

Full Article & Source:

Michigan Court of Appeals upholds lower courts' ruling on St. Clair County estate case

In the Matter of Joanne Black

The third Colorado Court of Appeals opinion relating to the conservatorship of Joanne Black was issued recently.  The opinion addresses an issue of first impression in Colorado involving jurisdiction over a foreign trust funded with assets misappropriated from a Colorado conservatorship.

The history of this case centers around assets that Joanne Black’s mother, Renata Black, left to her via payable-on-death (“POD”) designation.  The POD assets were disclaimed by Joanne’s brother, Bernard Black, while he was acting as Joanne’s conservator.  As a result of the disclaimer, the POD assets were diverted through Renata’s estate, two-thirds to a Supplemental Needs Trust (“SNT”) for Joanne’s benefit and one-third to a trust for Bernard and his children.

After discovering that her brother diverted one-third of her inheritance to a trust for himself and his children, Joanne pursued claims against him.  Joanne ultimately obtained a $4.6 million dollar judgment against her brother for breach of fiduciary duty, surcharge, civil theft and attorney fees, which was upheld by the Colorado Court of Appeals (“Court”) in a prior published opinion.  Black v. Black, 422 P.3d 592 (Colo. App. 2018)(cert. denied).  The Court also issued an unpublished opinion in a second appeal in 2018, remanding for the Denver Probate Court (“Probate Court”) to make additional findings regarding the basis for the Probate Court’s jurisdiction over the SNT.

The most recent opinion primarily relates to orders from the Probate Court approving distributions from the SNT to Joanne Black for payment of attorney fees relating to ongoing litigation involving Bernard Black and related family members.  The opinion also addresses an order suspending Bernard Black and his son as trustees of the SNT and the Probate Court’s order on remand from the unpublished opinion mentioned above.
 
In this recent opinion, the Court considered a matter of first impression in Colorado: “whether a Colorado probate court can exercise jurisdiction over the trustees and assets of a foreign trust when that trust was funded with assets misappropriated from a Colorado conservatorship.”

The Court reasoned that the Probate Court had jurisdiction over the POD assets as part of the Colorado conservatorship, because the assets were in control of the conservator.  The Court then held that the Probate Court properly retained in rem jurisdiction over the POD assets, despite Bernard Black’s transfer of the POD assets into a foreign trust as a result of the disclaimer.

The Court also addressed interesting issues relating to in personam jurisdiction over the trustees of a foreign trust, including the application of waiver and Colorado’s long arm statute.

View the opinion (opinion dated April 9, 2020; Petition for Rehearing denied, and opinion modified June 11, 2020).

Full Article & Source:
In the Matter of Joanne Black

Appeals Court OK's Trial Judges' Order Nixing Nursing Home Arbitration Clause

The panel stopped short of ruling on the Cobb County judge's decision that the arbitration agreement was unconscionable.

By Greg Land

Bethany Schneider, Atlanta. (Photo: John Disney/ ALM)

The Georgia Court of Appeals ruled a nursing home’s mandatory arbitration agreement signed by the guardian of an elderly man raped at the facility is unenforceable because his guardian lacked authority to sign away his right to trial.

But the court on Tuesday did not rule upon the trial court’s determination that the agreement was unconscionably one-sided in favor of the nursing home, determining it needn’t reach that issue because it already declared the agreement void.

“As far as we can tell, this is an issue that’s never been addressed in Georgia: whether a guardian appointed by the probate court has the power of attorney to waive someone’s constitutional rights,” said Bethany Schneider of Schneider Injury Law, who represents the now-deceased man and the aunt who served as his guardian.

Schneider said that, while the court did not rule on the unconscionability of the arbitration agreement, such documents are commonplace in the nursing home industry.

“This decision shows that nursing homes usually think it’s automatic that any dispute is going to arbitration. This gives us more teeth on the trial level to fight those agreements,” said Schneider, whose co-counsel includes Katherine Hughes and Gretchen Holt of Wagner Hughes, and appellate lawyers Michael Terry and Jennifer Peterson of Bondurant, Mixson & Elmore.

The Clinch Healthcare Center in Homerville is represented by Kevin Quirk and Kellie Holt of Quirk & Quirk and Karen Smiley of Huff, Powell & Bailey. They did not reply to request for comment Wednesday.

According to Schneider and court filings, Leroy Wiggins, who died in December at 70, had been mentally incapacitated for many years when his aunt, Minnie Fountain, was appointed his guardian by the Clinch County Probate Court in 2006.

In 2014, Fountain sought to have Wiggins admitted to the nursing home, and she signed an arbitration agreement stipulating, among other things, that “any and all claims or controversies … whether arising out of State or Federal law, whether existing or arising in the future, whether for statutory, compensatory or punitive damages, and whether sounding in breach of contract, tort, or breach of statutory or regulatory duties (including, without limitation, any claim based on an alleged violation of the state bill of rights for residents of long-term care facilities or federal resident’s rights, any claim based on negligence, any claim for damages resulting from death or injury to any person arising out of care or service rendered by the Facility or by any officer, agent, or employee thereof acting within the scope of his or her employment, any claim based on any other departure from accepted standards of health care or safety, or any claim for unpaid nursing home charges), irrespective of the basis for the duty or of the legal theories upon which the claim is asserted, shall be submitted for arbitration.”

The agreement also said the resident “has the right to seek legal counsel concerning this Agreement; [t]he signing of the Agreement is not a precondition to admission … and this Agreement may be revoked by written notice to the Facility from the Resident within thirty (30) days of signature.”

Fountain, whom Schneider said is also about 70, would later sign an affidavit saying she had to “sign this large stack of paperwork to admit Leroy” and that she “must sign all of the documents in order for Leroy to be admitted.”

She also said she was not told she could consult a lawyer and never discussed the agreement with Wiggins or asked his permission to sign it.

Fountain was “not permitted to make any changes to any of the documents or cross anything out” or “negotiate any of the documents or the wording on any of the documents,” according to her appellate brief.

In 2017, another resident who had already been accused of sexually assaulting other residents over a period of two months raped Wiggins.

Schneider said the police were called but that nursing home staff denied the accused assailant had been on site that day, and no charges were ever filed.

Fountain sued Clinch Healthcare’s corporate parent, CL SNF LLC and several related entities for negligence and other claims in Cobb County State Court last year.

Clinch filed a motion to enforce the arbitration agreement and stay the case.

Judge Jane Manning denied the motion to compel, writing that the arbitration agreement was “decidedly one sided” in favor of the nursing home. But Manning also denied Fountain’s motion to declare that she had no authority to sign the agreement waiving his rights including those to a jury trial.

Both sides agreed that the issues should go before the Court of Appeals, and Manning granted a certificate for an interlocutory appeal.

The May 19 opinion authored by Judge Brian Rickman with the concurrence of Judges Stephen Dillard and E. Trenton Brown III agreed with Manning that the arbitration agreement was unenforceable but not necessarily because it was unconscionable.

Instead, Rickman wrote, Fountain’s letters of guardianship issued by the probate court bestowed “the general duty ‘to protect and maintain the person of the ward” and more specifically, ‘to see that [Wiggins] is adequately fed, clothed, sheltered and cared for, and that [Wiggins] receives all necessary medical attention.’

“In addition,” he wrote, “the Letters of Guardianship provide that Fountain’s ‘authority to act pursuant to these Letters is subject to applicable statutes and to any special orders entered in this case.’”

The “plain language” of the statute declaring the duties of a guardian “does not provide Fountain authority to sign the Arbitration Agreement,” Rickman said.

The law “empower[s] a guardian to establish a place of dwelling and provide any necessary consents or approvals for ‘medical or other professional care, counsel, treatment, or service.’”

There is no evidence that Fountain’s signing of the agreement was a decision made in Wiggins’ best interest, “because signing it was not a condition of admission to the facility and the claims that were bound to arbitration had not yet arisen, making it impossible for her to determine at that time whether waiving Wiggins’s right to a jury trial would be in his best interest,” Rickman said.

“Accordingly, the Arbitration Agreement is not enforceable against Wiggins, and the trial court properly denied the motion to compel arbitration,” the opinion said.

Hughes, who specializes in nursing home litigation, said such agreements are routinely presented to family members or guardians trying to admit a residency, and few realize that they may not have to sign them.

“Unfortunately, almost all Georgia nursing homes are presenting families with arbitration agreements to sign along with their admission paperwork and people do not realize or understand what they are signing or the significance of the agreement (that it takes away the right to a jury trial) and that the agreement is usually voluntary and not required for admission,” said Hughes via email.

“We need a public service announcement for families to stop signing these agreements,” she said. “There is no upside to the families to signing these agreements.”

Full Article & Source:
Appeals Court OK's Trial Judges' Order Nixing Nursing Home Arbitration Clause

Reversal: Court wrongly denied evidence alleging guardianship mismanagement

A Boone County trial court wrongly rejected a husband’s effort to show that the guardianship for his wife was being financially mismanaged and should be terminated, the Indiana Court of Appeals ruled Thursday, finding the judge overseeing the case failed to properly notify him of regular accountings.

A few years after Gwendolyn M. Reagan was diagnosed with Alzheimer’s disease, her daughter, Mary Elizabeth Spaw, was appointed as her sole guardian in September 2014. Reagan moved from Lebanon to live with Spaw in her home in Kendallville from November 2014-March 2015, at which time she returned to Lebanon to live with her husband, Thomas Meranda, who had retired and could care for her at home, according to the record.

“At that time, Reagan’s monthly allowance was increased to allow for eating out and hairdresser appointments, while Meranda was reimbursed for medical expenses he paid on behalf of Reagan after providing the receipts to Spaw. On September 16, 2016, Spaw filed her verified guardian’s second amended inventory, with notice to Reagan. Three days later, the trial court approved the filing without a notice or hearing,” Judge Patricia Riley wrote.

“On June 8, 2017, Spaw filed a petition for authority to clean-up and sell Reagan’s real estate … . In her petition, Spaw noted that the property had been empty for years and had deteriorated as a result.  The trial court granted the petition without notice, hearing, or service of the order.

“On June 21, 2018, Meranda filed a pro se letter with the trial court advising the court that because Spaw had not been paying Reagan’s medical bills, he had been forced to pay them and was falling in debt,” Riley continued. “Meranda requested that Spaw find Reagan another place to live due to the possibility of Meranda’s mortgage being foreclosed. A month later, on July 18, 2018, Spaw submitted a status report to the trial court, advising the court ‘that the medical bills are being paid by the Guardian herein.'”

Again, Boone Superior Judge Matthew Kincaid approved Spaw’s report and accounting without notice or hearing.

“On February 11, 2019, Meranda, represented by counsel, filed an emergency petition for termination of the guardianship and for succession of guardianship. In his petition, Meranda asserted that Spaw had mismanaged Reagan’s estate and failed to provide for Reagan’s physical and mental needs. In addition, he claimed to have incurred more than $40,000 of unreimbursed medical and personal expenses in his care for Reagan. On February 13, 2019, Spaw filed her response to Meranda’s emergency petition contending that the accountings ‘were approved [by the court] and none of which were appealed by Meranda’ and ‘no objections were raised at any time until the recent filing.’”

The trial court held a hearing on Meranda’s petition about a month later, finding it was “substantially a rehashing of issues previously decided.” The trial court denied Meranda’s petition and awarded Spaw attorney fees, finding his petition frivolous.

The COA reversed and remanded in Thomas Meranda v. Mary Elizabeth Spaw, 19A-GU-1218.

“Meranda’s main argument focuses on the trial court’s refusal to admit evidence of Spaw’s financial mismanagement of Reagan’s estate and the unreimbursed medical expenses incurred in his care for Reagan. The trial court denied their admission because the issues had been ‘previously decided’ and the trial court was ‘not going to revisit any of those.’ … (Meranda) now contends that because the trial court’s orders, accepting Spaw’s accountings and inventory, were decided ex parte, the issues are not definitely concluded and can still be challenged in the current proceedings,” Riley wrote.

“… Here, Spaw’s accounts of administration and inventories were not filed as part of a final settlement and discharge, but amounted to intermittent financial reports of the guardianship. The record is silent as to any evidence that the trial court notified Reagan, or in case of waiver, Meranda, of the filing and the subsequent court hearing.  As no notice was given — and according to the record, no hearings were held — the trial court’s orders were issued ex parte. While an ex parte order is permitted, it is not binding on Meranda and can still be challenged and reviewed ‘at any subsequent time.’ See I.C. § 29-3-9-6(f).

“… Accordingly, because the trial court issued ex parte orders on Spaw’s interim accountings, Meranda may still challenge these findings,” the panel concluded. “While we acknowledge the discretionary power of the trial court of its subsequent review of the ex parte orders, here, the trial court erred by declaring the ex parte orders to have been conclusively decided and by denying admission of evidence purporting to establish financial mismanagement of Reagan’s estate and unreimbursed medical invoices.  We reverse the trial court’s Order denying Meranda’s petition and remand for a new hearing.”

In a footnote, the panel also reversed the grant of attorney fees to Spaw.

Full Article & Source:
Reversal: Court wrongly denied evidence alleging guardianship mismanagement