Opinion
No. 106,017.
2012-05-18
In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP of John Amos ROYSTON, An Impaired Adult.
Appeal from Sedgwick District Court; Richard T. Ballinger, Judge. Robert W. Kaplan, of Klenda, Mitchell, Austerman & Zuercher, LLC, of Wichita, for appellant, Patricia G. Royston. Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita, for appellee Cathleen A. Gulledge, Doug Mackay, of Kutak Rock, LLP, of Wichita, for appellees Mary R. Royston and Benjamin A. Royston, and Tim J. Larson, of Wichita, appellee guardian ad litem.
Appeal from Sedgwick District Court; Richard T. Ballinger, Judge.
Robert W. Kaplan, of Klenda, Mitchell, Austerman & Zuercher, LLC, of Wichita, for appellant, Patricia G. Royston. Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita, for appellee Cathleen A. Gulledge, Doug Mackay, of Kutak Rock, LLP, of Wichita, for appellees Mary R. Royston and Benjamin A. Royston, and Tim J. Larson, of Wichita, appellee guardian ad litem.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
This appeal involves a daughter, Patricia Royston, who filed a petition to have her father, John Amos Royston, adjudicated as an adult in need of a guardian and a conservator. Initially, Patricia served as the temporary guardian and conservator for her father. Patricia was subsequently removed from serving as temporary guardian and conservator. Unfortunately, John died before an order of final adjudication was signed or filed with the clerk of the district court. Following John's death, the district court considered several claims asserted against the conservatorship. Although the district court granted a petition for fees filed by the attorney who represented John from February 2010 until November 2010, it denied Patricia's request to be reimbursed for expenses she allegedly paid for her father's care at an assisted living facility during the time she was serving as temporary guardian and conservator. For the reasons set forth in this opinion, we affirm in part, reverse in part, and remand to the district court with directions.
Factual and Procedural Background
On August 10, 2009, Patricia filed a petition for appointment of a guardian and conservator for her father in Harvey County. At the time, John was 85 years old and had six adult children. The petition was accompanied by a report from Janice Mullinix, M.D., indicating that John was an impaired adult.
The district court issued preliminary orders appointing an attorney, James A. Gillmore, to represent John's interests. The district court also appointed Patricia to serve as temporary guardian and conservator for her father. Although the matter was set for hearing on August 31, 2009, it does not appear from the record that the hearing was held.
On October 1, 2009, two of Patricia's siblings filed a notice of contest in which they objected to Patricia serving as guardian and conservator for their father. An evidentiary hearing was held on November 23, 2009. But there is no transcript of the proceedings in the record—evidently due to a malfunction of the equipment used to record the proceedings.
There is, however, a journal entry in the record—filed on March 3, 2010—that sets forth the decisions reached by the district court at the November hearing. The journal entry reflects that the district court ordered Patricia not to hinder John's other children from having contact with their father. Further, the journal entry reflects that the district court ordered Patricia to share information with her siblings regarding their father's health and where he was residing.
At the time this action was commenced, John lived with Patricia at her home in Newton. In January 2010, John was admitted to a hospital psychiatric unit in Wichita. Upon John's release from the hospital, Patricia moved him to the Elm Grove Estates—an assisted living facility in Hutchinson. According to Patricia, she personally paid Elm Grove Estates using her own funds because she did not have access to her father's trust account.
Although the journal entry from the hearing held on November 23, 2009, had not yet been entered, Patricia's siblings filed a motion for order to show cause on January 12, 2010. The motion requested that Patricia be required to show cause why she should not be held in contempt of court for violating orders allegedly announced from the bench during the November hearing. It appears that the district court held a hearing on February 3, 2010, to consider this motion. But once again there is no transcript of the hearing in the record.
On March 3, 2010, the district court filed two journal entries. The first journal entry—which was discussed above—reflected the decisions reached by the district court at the hearing held on November 23, 2009. The second journal entry reflected the decisions made by the district court at the hearing held on February 3, 2010. In the second journal entry, the district court ordered Patricia to appear to show cause why she should not be held in contempt of court.
On February 26, 2010, Tim J. Larson filed an entry of appearance to serve as John's attorney in the case. And on March 8, 2010, the district court entered an order allowing Gillmore to withdraw as John's attorney. On March 22, 2010, the district court entered a journal entry stating that the parties agreed that John was “unable to live independently and that it would be beneficial for an independent third party with appropriate credentials” to make decisions regarding his care. Accordingly, the district court appointed Diane Fredrick to serve as care manager.
On May 20, 2010, the district court removed Patricia as John's temporary guardian and appointed Fredrick to replace her. Although the district court did not make specific findings, it concluded that immediate action was necessary to protect John's interests. On June 14, 2010, Patricia filed a motion to vacate the court's ex parte order, but it does not appear that there was ever a ruling on the motion.
On September 22, 2010, Larson filed a petition for change of venue and 2 days later, the case was transferred to Sedgwick County. Larson then filed a petition seeking the removal of Patricia as temporary conservator. And on October 27, 2010, the district court held a hearing on Larson's motion.
In a journal entry filed on November 8, 2010, the district court appointed Larson to serve as John's guardian ad litem. And on November 12, 2010, Larson filed a petition for authorization to be paid attorney fees and expenses that were incurred during the time he was serving as John's attorney. Thereafter, Patricia filed an objection to Larson's request.
On November 30, 2010, the district court revoked Patricia's powers as temporary conservator and appointed Cathleen A. Gulledge as her replacement. The district court also appointed Gulledge to serve as the successor trustee of the Mary R. and John Amos Royston Living Trusts. Subsequently, Patricia filed a motion to modify the district court's order.
John died on January 3, 2011. Prior to or shortly following his death, several claims were filed seeking payment of expenses. But the conservatorship did not have assets from which to pay the claims. As such, the district court found that approved claims could be paid from trust property.
On February 28, 2011, the district court held a hearing to consider the claims. At the conclusion of the hearing, the district court granted most of the claims, including Larson's request for attorney and guardian ad litem fees. But the district court denied Patricia's request for reimbursement of the money she allegedly paid to Elm Grove Estates.
In an order entered on March 24, 2011, the district court found that Patricia had not acted with court approval when she placed her father in Elm Groves Estates. The district court also found that Patricia had failed to present evidence showing that a health care provider required the placement; that she had failed to present evidence of the placement being the least restrictive environment; and that she had failed to present evidence to establish she had paid Elm Groves Estates out of her own funds. Thereafter, Patricia timely appealed.
Analysis
Larson's Claim
On appeal, Patricia contends that the district court erred in the amount of fees and expenses granted to Larson. She does not contest Larson's claim for fees and expenses arising out of the professional services Larson performed after he was appointed as John's guardian ad litem. Rather, she only contests Larson's claim for fees and expenses incurred while he was serving as John's attorney.
Generally, whether the district court had authority to award fees is a question of law subject to unlimited review. See Unruh v. Purina Mills, 289 Kan. 1185, 1200, 221 P.3d 1130 (2009). District courts do not have authority to award attorney fees under equitable powers absent statutory authority. 289 Kan. at 1200. In the present case, however, Larson's claim was a demand against the estate, which could be properly considered by the district court under K.S.A. 59–3082.
Unfortunately, because of the bareness of the record from Harvey County, it is difficult to know what happened before the case was transferred to Sedgwick County on September 22, 2010. Although Patricia argues that John was adjudicated as an adult with an impairment at the hearing held on November 23, 2009, there is no order or journal entry in the record reflecting such an adjudication. In fact, the journal entry that was ultimately entered following the hearing states that “[t]he matter is taken under advisement.” Accordingly, we find that John was a proposed ward and conservatee during time Larson represented him.
Under K.S.A. 59–3063(a)(3), a “proposed ward or proposed conservatee, if an adult, shall have the right to engage an attorney of the proposed ward's or proposed conservatee's own choice and, in such case, the attorney appointed by the court shall be relieved of all duties.” Based on our review of the record, it appears that this is exactly what happened in this case—John retained Larson to serve as his attorney, and the attorney originally appointed by the district court to represent John withdrew.
Patricia also argues that John lacked the capacity to enter into a contract with Larson. But she fails to support her contention with any authority. Moreover, as discussed above, K.S.A. 59–3063(a)(3) expressly grants a proposed ward or conservatee the right to retain an attorney of his or her choice. Thus, we conclude that the district court did not err in granting Larson's claim for the fees and expenses incurred while he served as John's attorney. Patricia's Claim
Patricia also contends that the district court erred in denying her claim for reimbursement for the funds she allegedly paid to the Elm Grove Estates on her father's behalf. In response, the appellees contend that the district court appropriately denied Patricia's claim because she did not meet her burden of proof.
Although the district court stated in its order that it was denying Patricia's claim because she did not act “with Court approval as required by statute” when she placed her father in Elm Grove Estates, no statute was identified. Likewise, although the district court found that Patricia “did not present any evidence of having obtained a doctor's letter or prescription” that required John to be placed in Elm Grove Estates, no explanation was offered as to why this was necessary. Moreover, although the district court found that Patricia “did not produce any evidence that Elm Grove Estates was the least restrictive environment as required by statute,” no statute is specified.
The general duties, responsibilities, powers, and authorities of a guardian are set forth in K.S.A. 59–3075. One of those duties is “to assure that the ward resides in the least restrictive setting appropriate to the needs of the ward and which is reasonably available.” K.S.A. 59–3075(b)(4). Recently, this court held that “[a] ward has the burden of proof when challenging the guardian's decision that the ward has been placed in the least restrictive setting appropriate to the needs of the ward which is reasonably available.” In re Guardianship of Benham, 47 Kan.App.2d 83, Syl. ¶ 5, 271 P.3d 1257 (2012).
On the other hand, K.S.A. 59–3075(e)(9) states that a guardian shall not have the power “to place the ward in a treatment facility as defined in K.S.A. 59–3077, and amendments thereto, except if authorized by the court as provided for therein.” As such, if Elm Grove Estates is a “treatment facility” as defined by K.S.A. 59–3077(h), Patricia would have been required to obtain a court order prior to placement under K.S.A. 59–3077(a). But if Elm Grove Estates was not a treatment facility, those challenging the placement would have the burden to prove that the assisted living facility was not the least restrictive setting appropriate for John's needs at the time he was released from the hospital in January 2010.
Although the district judge did not state this reason on the record at the hearing on the outstanding claims, the order entered following the hearing states that Patricia “produced no evidence that she paid [Elm Grove Estates] with her own funds.” (Emphasis added.) But a review of the hearing transcript shows that Patricia testified that she had advanced the funds for the payment of her father's care. She also testified regarding an itemization for her father's care at Elm Grove Estates, on which she had delineated the amounts paid “by Pat” versus the amounts paid out of the conservatorship account. Albeit self-serving, there was some evidence presented that Patricia had paid approximately $16,000 to Elm Grove Estates on behalf of her father and there was no evidence presented to the contrary. See Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 508 (2008) (trial court may not disregard undisputed evidence).
Understandably, the district judge stated after Patricia had testified that he would “feel a lot more comfortable ordering reimbursement if I knew [the funds] came from an account that [Patricia] was the sole owner of.” In response, Patricia's attorney stated that he would provide canceled checks or other records to show that Elm Grove Estates was paid out of his client's personal funds. The district judge went on to say, “We can continue it for submission of any other documentation,” and Patricia's attorney stated, “We'll provide ... documentation as required from the bank.” Evidently, the district judge changed his mind about receiving additional evidence later in the hearing and denied Patricia's claim on legal grounds, stating:
“There is no authority; there weren't even any letters issued. There was no court. Judge Hilger's made a very emphatic, no placement; no movement. I don't even have a letter from a doctor saying that this is the least restrictive environment required. So there's no evidence whatsoever that this was the least restrictive; that it was medically necessary, and reimbursement is denied.”
Under the circumstances, we find that it is appropriate to remand Patricia's claim to the district court for further consideration. The district court should first determine whether Elm Grove Estates—or the unit in which John was placed—is a treatment facility as defined by K.S.A. 59–3077(h). If the district court finds that it is a treatment facility, Patricia's claim should be denied unless she can come forward with a court order authorizing the placement as required by K.S.A. 59–3075(e)(9) and K.S.A. 59–3077(a). If the district court finds that it is not a treatment facility as defined by K.S.A. 59–3077(h), then the appellees would have the burden to prove that Elm Grove Estates was not the least restrictive setting reasonably available while it would be Patricia's burden to prove that she paid the expenses out of her personal funds.
Affirmed in part, reversed in part, and remanded with directions.