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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilson v. State, Dept. of Law (9/4/2015) sp-7046

Wilson v. State, Dept. of Law (9/4/2015) sp-7046

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                     

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA 



                                                           )  

HELEN WILSON,                                             )     Supreme Court No. S-15496  

                                                          )  

                           Appellant,                     )     Superior Court No. 3PA-13-00109 PR  

                                                          )  

         v.                                               )    O P I N I O N  

                                                          )  

STATE OF ALASKA, DEPARTMENT    )                               No. 7046 - September 4, 2015  

OF LAW, and STATE OF ALASKA,                               )  

OFFICE OF PUBLIC ADVOCACY,                                ) 

                                                           )  

                           Appellees.                     )  

                                                          )  



                  Appeal    from    the  Superior  Court  of  the  State  of  Alaska,  

                  Third Judicial District, Palmer, Eric Smith, Judge.  



                  Appearances:  Shelley K. Chaffin, Law Office of Shelley K.  

                                                                                   

                  Chaffin,  Anchorage,  for  Appellant.  Laura  Fox,  Assistant  

                  Attorney  General,  Anchorage,  and  Craig  W.  Richards,  

                  Attorney  General,  Juneau,  for  Appellee  State  of  Alaska,  

                  Department  of  Law.    Elizabeth  Russo,  Assistant  Public  

                  Advocate,        and     Richard      K.     Allen,     Public      Advocate,  

                  Anchorage,  for Appellee State of Alaska, Office of Public  

                                    

                  Advocacy.  



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

                                               

                  Bolger, Justices.  



                  BOLGER, Justice.  


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

I.       INTRODUCTION  



                   Helen Wilson is an elderly woman residing at the Palmer Pioneer home.  



                                                                      

Helen previously lived in her own house but was unable to manage her medications and  



                                                                                                    

nutrition  independently.    Her  son  and  grandson  lived  with  her  but  were  unable  or  



                            

unwilling to help.  After Adult Protective Services received several reports of harm, a  



                                                                                  

temporary emergency guardian was appointed for Helen; the guardian placed her in an  



assisted living facility and then in  the  Pioneer Home.  Despite her limited financial  



                                                                                                            

means, Helen continues to support her son and grandson, who remain  in her house.  



Helen appeals the appointment of a partial public guardian and full conservator.  We  



affirm.  



II.      FACTS AND PROCEEDINGS  



         A.        Helen's Living Situation  

                                      1 is an elderly woman who lives at the Palmer Pioneer Home  

                   Helen Wilson                                                                        



with her husband, who is in very poor health and has an appointed public guardian.  

              



Helen and her husband own a house in Wasilla, to which Helen wants to return after her  

                                                                    



husband's death.  Helen's son and grandson reside in Helen's house.  Helen's son's  

                                                    



fiancée also stays at the house periodically but does not live there.  



                   Deborah Rumbo from Adult Protective Services (APS) became involved  



with the Wilsons when Helen, her husband, and her grandson were all living in the  



                                                                                        

Wasilla house.  Helen's husband called APS reporting that he had been left home alone  



       

and needed help, and he was subsequently placed in assisted living.  Helen's husband  



                                                                   

had  been  receiving  in-home  personal  care  assistant  services,  which  incidentally  



                

benefitted  Helen.  These services ceased when Helen's husband moved out of their  



          1        We use a pseudonym to protect the appellant's privacy.  



                                                           -2-                                                        7046  


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

house, but out of concern for Helen, Rumbo arranged for approximately six hours a week   



of personal care assistant services through the Alzheimer's Resource Agency.  



           B.        The Guardianship And Conservatorship Proceedings  



                     In early 2013 APS received at least seven reports of harm regarding Helen.   



On April 1 Rumbo met with Helen, who was in the hospital at the time, to "follow up"         



on these reports.  Later that month Rumbo filed a petition seeking the appointment of a     



public guardian.     In the petition Rumbo stated that Helen was in the hospital "with  



complaints of pain" and that "her grandson who lives in the home with her reportedly  



refused  to  assist  her."    As  Rumbo  further  alleged,  Helen  "was  worried  [that]  her  



                                             

grandson or her son would take her and her husband's money and property while she  



                                                                                                                  

was hospitalized" and no longer wanted her family living in the house, given that they  



did not contribute or assist her.  



                     According to Rumbo, Helen's grandson had prevented her from calling 911  



"in times when she needed treatment" because Helen had "agreed to be a third party  



                                                                        

custodian  for  him  in  a  criminal  matter."                          Rumbo  also  alleged  that  the  grandson  



"attempted to  get  [Helen] to take Benadryl to aid her in sleeping[,] against medical  



                                                                                        

advice" and despite "[contraindications] with her other pain medications."  The petition  



further stated that Helen "indicated that [the] recent decline of her health resulted in  



multiple transports and admits to the hospital."  Rumbo reported that Helen agreed with  



the  guardian  request  and  wanted  help  getting  placed  in  the  Pioneer  Home.    Rumbo  



                                         

requested a full guardian because Helen was unable to manage the application process  



for the Pioneer Home, and she requested a public guardian since she believed that no  



                                                                       2  

other appropriate individuals were available.   



           2         See AS 13.26.113(e)-(f).  If a person "is able to perform some, but not all,  



of the functions necessary to care for" herself, "the court may appoint a partial guardian,  

                                                                                                                    (continued...)  



                                                                  -3-                                                            7046
  


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

                                                                                                         

                     Just over a week after filing its original petition, APS filed a motion for an  



                                                                                                                               

expedited  hearing  and  the  appointment  of  a  temporary  guardian.    According  to  the  



accompanying affidavit, Rumbo received a report on April 24 that Helen "was found  



                                                                                                               

lying in her bed with a black eye."  Helen "indicated that she fell in the bathtub the prior  



                                                                                           3  

                                                                                                          

evening," but her son "did not provide any information."   Helen "was reported to be  



                                                                

moaning and feeling dizzy[,] so she was taken to [the hospital]."  Two days later Rumbo  



                                                                                     

received a report, presumably from the personal care assistant, that the "[personal care  



                                                                                                              

assistant] was unable to enter [Helen's] home as nobody answered the door," despite the  



                                         

presence of two vehicles on the property.  When Rumbo attempted to visit Helen with  



                                                     

a police officer, Helen's son and his fiancée "became verbally combative" and refused  



                                                                                                                 

to let them in.  According to Rumbo, Helen was hospitalized after  a  fall reportedly  



sustained on April 27 and was also admitted for dehydration and poor nutrition.  



                     Serving  as  a  standing  master  for  the  superior  court,  Magistrate  Judge  



Craig S. Condie held an emergency hearing on May 2 and found that the appointment  



                                                                       

of a temporary guardian was warranted.  At the master's recommendation the superior  



court appointed the Office of Public Advocacy (OPA) as Helen's temporary guardian  



                          4  

                                                                                                        

and conservator.   In coordination with OPA, Helen was initially placed in an assisted  



           2         (...continued)  



but may not appoint a full guardian."  AS 13.26.113(e).  If a person "is totally without  

                                                                                                 

capacity to care for" herself "and the appointment of a partial guardian is not feasible or  

                                                                                                 

adequate to meet the needs of the [person], the  court  may  appoint a full guardian."  

                                                                                                 

AS 13.26.113(f).  



          3  

                                                                                           

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



           4  

                                                            

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

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



                                                                  -4-                                                           7046
  


----------------------- Page 5-----------------------

                                                                                                               5 

living facility.  In July Helen underwent a neuropsychological examination  conducted  



by Dr. Russell Cherry, a neuropsychologist with substantial experience evaluating the  



capacity of elderly people.   



                                                                                                                     

                    The  long-term  guardianship  and  conservatorship  hearing  was  held  in  



September, by which time Helen was living in the Pioneer Home.  The State presented  



                                                        

expert testimony from Dr. Cherry as well as testimony from Rumbo and Debra Heiker,  



Helen's temporary public guardian.  Helen also testified.  



                    Dr.  Cherry  testified  that  Helen  "presented  as  far  more  intact  than  [he]  



                                                                                                                             

expected given the records."  He believed Helen had experienced "a several-month . . .  



                                                 

apparent delirium episode" that occurred "most likely due to pain medications."  He  



                                         

explained that "[d]elirium is a state of temporary confusion brought on by a medical  



condition. . . . [T]here's very compelling evidence that [Helen] had prior issues with  



                                                                                                          

delirium that resulted in her being misdiagnosed with dementia. But she wasn't delirious  



                    

during  [the]  evaluation."    Dr.  Cherry  diagnosed  Helen  with  "age-related  cognitive  



decline," "anxiety disorder," and "depressive disorder."  He testified that Helen "had  



reduced  performances  on  some  tests"  but  that  her  performance  was  inconsistent,  



                                                                                                                   

indicating that "something interfered with test performance."  He speculated this could  



have been due to Helen's hearing problems, vision problems, or fatigue.  He opined  



without reservation that Helen had "third grade math abilities."  



                                                                                                              

                    In Dr. Cherry's opinion, Helen needed help managing her finances and  



                                                                                           

would need daily assistance from a personal care assistant or a "family member with no  



prior history of predation or neglect" in order to live safely at home.  His review of  



Helen's  medical  records  showed  that  "several  medical  providers  indicated  financial  



          5         AS 13.26.106(c) provides that upon the filing of a guardianship petition the           



court shall "appoint an expert . . . to investigate the issue of incapacity," examine the  

respondent, and prepare a written report.  



                                                              -5-                                                        7046
  


----------------------- Page 6-----------------------

predation" and that "[s]everal medical providers indicated that her grandson may have  

                                                                                                   



been stealing her pain medications."  His opinion was that Helen could be successful  



                                                                           

living at home if she had assistance with obtaining food and preparing meals, taking her  



                                                                       

medications, managing her finances, and doing paperwork necessary to obtain services  



                                                         

such  as  Medicaid  and  personal care  assistants.    He  believed  that  without  assistance  



                                                                                                      

"[Helen] would probably have the same outcome as she had before," that "medications  



                                                                                            

would [likely] get out of whack," that "predation" or "neglect" could occur, and that she  



would not succeed in "living completely independently."  He testified that a conservator  



and in-home services were the least restrictive options for Helen.  



                                                   

                    Rumbo testified that she received eight reports of harm between February  



                                                                               

and April 2013 alleging "exploitation, self-neglect[,] and abuse."  One report involved  



bruising seen on Helen's face and another alleged that Helen's son had prevented her  



                                                                       

personal care assistant from entering the house. Rumbo testified that during one attempt  



                                                                                          

to visit Helen, she was similarly prevented from entering the house, "verbally abused,"  



and  "told  never  to  return."    And  she  testified  that  when  she  spoke  to  Helen  at  the  



               

hospital, Helen expressed concern about paying her bills and her family taking advantage  



                                                                                       

of her.  Rumbo agreed with Dr. Cherry's assessment that Helen needed a conservator  



and   was   incapable   of   arranging   medical   and   personal   care   assistant   services  



independently.  



                                                              

                    Heiker testified that Helen's cognitive abilities appeared to have improved  



from "what Dr. Cherry described as a [period of] delirium," and that she was operating  



                                                                        

with "minimal assistance" at the Pioneer Home.  Heiker thought Helen could live at the  



house with personal care assistant services but had concerns about Helen living with her  



son and grandson.  



                    Heiker  also  offered  extensive  testimony  regarding  Helen's  financial  



situation.  Heiker explained that so long as Helen remained at the Pioneer Home, her  



                                                             -6-                                                        7046
  


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

                                                                                                        6  

only income would be her monthly Social Security benefit of $497.   If Helen moved  



                                                                           

home she would receive an additional $1,427 per month from her husband's pension and  



veteran's  benefits,  though  Heiker  testified  that  $631  of  that  would  come  from  the  



                                                                               

Veteran's Administration (VA) and could involve a "long process" to obtain.  Assuming  



                                                                   

Helen could obtain the VA money, her total income would be approximately $1,924 per  



month.   



                                                                                   

                    According to Heiker, Helen's expenses, including a mortgage payment of  



$965, utilities, homeowner's association fees, and car insurance, were $1,619.  But this  



excluded food, personal items, and personal care assistant services, and personal care  



                                                                                                                   

assistant services were expected to cost $130 to $150 per week unless Helen could obtain  



                                                                                        

a grant.  Heiker's testimony made clear that there was no scenario under which Helen's  



                                                7  

income exceeded her expenses.   



                                                                                             

                    Helen testified that she did not want to sell her house and that her son and  



                                                                                  

his fiancée had "promised to pay the house payment and the utility bills."  She said, "I  



           

didn't feel that it was right to charge my son to stay in the house. . . . But since [the  



                                                                                  

State] . . . want[s] the house so bad and want[s] to sell it so bad, I gave in to [my son] and  



                                 

told him yes. . . ."            Helen said she did not know why the State was telling her she  



"need[ed] to sell the house."   



          6         A  portion  of  that   was  supposed  to  pay  for  the  Pioneer  Home,  but  the  



Pioneer Home was temporarily charging Helen a substantially reduced rate during the  

pendency of the court proceedings.   



          7  

                                                                                                      

                    The court visitor cited slightly different figures for Helen's income and  

                                                                                                 

expenses but ultimately concluded that Helen would be unable to pay her mortgage and  

                                                                                      

living expenses without her husband's income. A court visitor is appointed by the court  

under AS 13.26.106(c) and "arrange[s] for evaluations to be performed and prepare[s]  

a written report to be filed with the court."  "The visitor shall conduct the interviews and  

                                                                                                               

investigations necessary to prepare the report . . . ."  AS 13.26.106(c).  



                                                                -7-                                                         7046
  


----------------------- Page 8-----------------------

                    When questioned by her attorney she indicated that her grandson  provided  



some assistance around the house.  She testified that her grandson "still works in the  



                                                                                                          

house" by "pick[ing] up behind his daddy" and "keep[ing] the bathtubs clean."  But she  



                                                                                                     

later testified that she scrubbed the bathtubs, "clean[ed] [her] house from top to bottom  



                                                     

three days a week," and "[did] the washing."  When asked if her grandson helps with  



errands and shopping, she said yes.  Helen denied that her grandson "scare[d] [her]  



                                                                               

physically," "threatened" her, or "[took] money from [her] . . . without [her] permission,"  



adding that he had never taken her medication either.  She testified that she gave her  



                                                                                                             

grandson money to buy books for college and "would do it again if [she] had to get out  



                                    

and stand on the corner and beg for food."  Helen initially testified that she did not know  



                                                                                             

whether her son was living at her house, but later said that "he may come and spend the  



weekend or something like that" but never lived in the house.  



                                                           

                    The court visitor, Bonnie Burgan-Kelly,  did not testify but submitted two  



written reports completed in June and September 2013.  Burgan-Kelly reported that  



Helen "has a long history of undiagnosed emotional/mental health problems" and "a long  



                                                                                                      

history of paranoid ideation."  She also reported that Helen "was not able to identify her  



current or past medications" and that "[t]here is concern by both family and hospital  



employees that she abuses her pain medication."  The report indicated that between  



                                       

May 31, 2012, and April 27, 2013, Emergency Medical Services responded to Helen's  



                                                                         

house 26 times.  Between February 26 and April 27 of 2013, Helen was admitted to the  



                                         

hospital six or seven times, most of which involved multiple overnights.  During Burgan- 



                     

Kelly's visit with Helen at her assisted living facility, the conversation turned to "Jeff  



                                                                                                                  

and possible financial exploitation or abuse," and Helen "became very upset and began  



yelling" and "then stated she was going to kill herself and began to choke herself."   



                    In  her  June  report  Burgan-Kelly  recommended  a  full  guardian  and  



                                                                                            

conservator.    But  Burgan-Kelly's  September  report  added  that  Helen  had  resumed  



                                                              -8-                                                        7046
  


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

driving and  was going home to do chores and stated that Helen "d[id] not meet the  

                    



criteria  for  incapacity  and  a  guardian."    However,  the  report  concluded  that  Helen  



                                                                                   

"clearly  need[ed]  a  conservator"  because  she  was  "very  vulnerable  to  financial  



                                                                                                                     

exploitation" and "d[id] not have a clear picture of her financial needs and the results of  



the decisions she makes."  



                    The master found there was clear and convincing evidence that Helen was  



                                                                

incapacitated and required a conservator and "partial guardian because she is able to  



                                                                                                           

perform some, but not all, of the functions necessary to provide for her own care."  The  



master   found   that   "[t]he   most   compelling   evidence   of   incapacity   came   from  



[Dr. Cherry]" and that Helen "continues to exhibit some signs of decline and mental  



distress."    He  found  that  "[w]hen  [Helen]  is  not  suffering  from  delirium,  she  keeps  



                                                         

herself sufficiently fed and groomed, and keeps the house clean and cared for.  As such,  



                           

there is clear and convincing evidence only with regards to those parts of a guardianship  



essential to helping [Helen] maintain a degree of independence."  



                    The  master  observed  that  Helen  needed  help  managing  personal  care  



                    

because she "was previously unable to maintain the level of necessary care prior to the  



petition  being  filed"  and  her  family  had  previously  "interfered  with  [personal  care  



                                                                                   

assistants]."  And the master found that Helen needed assistance applying for benefits  



and  managing  her  assets  due  to  her  "limited  math  abilities,"  "age-related  cognitive  



                                          

decline," "tendency to give away more money than she can afford," and "extremely tight  



                                                                                                             

budget," which made "[h]er ability to receive benefits . . . a major factor in maintaining  



                                                                                                        

her current level of independence."  Accordingly the master gave the guardian authority  



                                                               -9-                                                         7046
  


----------------------- Page 10-----------------------

                                                      8                                                                    9 

to provide for Helen's personal care,  apply for insurance and government benefits,  and 



                                                                                                                 

"control [Helen's] estate and income . . . to pay for the cost of services that the guardian  



                                                                   10  

                                                                       He recognized that Helen should be free  

is authorized to obtain on behalf of [Helen]."                                                      



to give away her discretionary income, but that she needed "a partial guardian [to] ensure  

                                                                                                      



that she only gives money away after her own necessities, including adequate nutrition,  



medication, and housing costs, have been met."    



                                                                                                                  

                    The master concluded a conservator was necessary because Helen was  



                                                                                                                  

unable to manage her finances, because "her family members are willing to take her  



                                                                        

money without much regard as to whether her needs are being met," and because "she  



                                    

is  in  a  situation  with  extremely  high  potential  for  fraud."    However  the  master  



                                  

determined there was "not clear and convincing evidence that [Helen] lacks capacity to  



                                                                                  

decide on whether to sell her house."  He noted it was unclear how Helen could "afford  



                      

to live in her house" and that there was "cause for concern [regarding] her ability to  



                                                                                                  

make this decision" but concluded "at this point it should remain her decision to make."  



                    Helen filed  objections to the report, arguing that there was insufficient  



                                                                     

evidence she required a conservator or partial guardian and objecting to the appointment  



of a public guardian.  



                

          C.        Rehearing Concerning The Sale Of Helen's House  



                    In    November,           before       the    superior       court      ruled      on     the    master's  



                                                                                                                             

recommendations, the public guardian filed a motion for sale of Helen's residence.  The  



                                                                                                        

master "treat[ed] this . . . like a motion for reconsideration" on the real property issue and  



                                                                                                         

allowed the parties to present evidence regarding what had happened with the property  



          8         See AS 13.26.116(b)(4).  



          9         See AS 13.26.116(b)(5).  



          10        See AS 13.26.116(b)(7).  



                                                              -10-                                                         7046
  


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

                                                       

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



                                                                                                                               11  

at the Pioneer Home, her house needed to be sold to pay for the cost of her care.                                                  



                                                                         

Heiker's testimony indicated that Helen was in a very precarious financial situation:  her  



bank account balance was only $2,276.  Heiker had sent a lease for Helen's house to  



Helen's family, but they did not reply or pay any rent.  And according to Heiker, Helen  



was continuing to make excessive, unnecessary expenditures on behalf of her family  



despite Heiker's efforts to reduce her expenses.  



                                                                                                  

                    Helen's attorney called Helen's son and his fiancée to testify.  Helen's son  



                                                                                                                   

testified he had been living in Helen's house for approximately three years.  He said he  



                                

had paid the gas and electric bills sometime around the prior October and had attempted  



                                                    

to pay them again in November or December but could not because of the pending action  

to evict him from the house.12  Helen's son and his fiancée both testified that they refused  



to  sign  the  State's  proposed  lease  because  they  objected  to  a  provision  prohibiting  



                                                                          

"interfere[nce] in any way with the provision of care services to [Helen]" but that they  



          11        To qualify for payment assistance for the Pioneer Home, "[a] resident's or  



a recipient's income and resources, up to the full amount of the income and resources if  

necessary, must [first] be applied to the appropriate monthly or daily rate . . . and to  

                                                                                                                       

ancillary        charges."        7     Alaska        Administrative           Code        (AAC)         74.045(c)(1)(D);  

                                      

AS 47.55.020(d) ("[A] resident of [the Pioneer Home] whose income, assets, and other  

                                    

resources are insufficient to pay the monthly rate . . . and who does not have private  

insurance to cover the cost of care, qualifies for payment assistance . . . .").  "[R]eal  

property being used as the primary residence of the resident's . . . dependent" is exempt  

                                                                                                                     

from  this  requirement.  AS  47.55.020(d)(8);  7  AAC  74.045(c)(1)(D).    It  is  unclear  

         

whether  Helen's  adult  son  and  grandson  are  her  dependents  for  purposes  of  this  

                                                                         

requirement.  See AS 47.55.900 (defining terms for purposes of Pioneer Home statute  

                                                                                                               

but not defining "dependent"). But because Helen did not raise this argument before the  

                                                                   

superior court or on appeal, we do not need to decide whether this exemption applies.  



          12  

                                                                                                     

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

members from the house.  



                                                              -11-                                                         7046
  


----------------------- Page 12-----------------------

would be willing to negotiate a different lease agreement or consider purchasing the  



house.  Helen did not testify, but her attorney reiterated Helen's desire to stay at the  



Pioneer Home until her husband's death and then return home.  



                   The master submitted a supplemental report that recommended granting the  



petition to sell the house because Helen "[was] unable to evaluate information related to  



ownership and sale of her house sufficiently to prevent loss of the home due to her  



                                                                                                         

mental deficiency and advanced age.  The value of the home will clearly be wasted or  



dissipated  unless  proper  management  is  provided."    The  master  explained  that  his  



                                                                                         

previous  decision  not to  recommend  the  sale  was  "based  in  large  part  on  [Helen's]  



statements in court that she was going to work with her son . . . and grandson . . . on a  



plan for them to assist with her finances."  But the master reported that they had not  



                                                                 

contributed and Helen had "made no progress on addressing the financial viability of the  



                                         

home."    The  master  stated  that  Helen's  family  "cannot  cooperate  with  any  outside  



                                                                                      

assistance for [Helen]"; thus, even if they started paying rent it would be unworkable for  



                                                                                           

them to live with her.  And if Helen stayed at the Pioneer Home she was required to sell  



her house.  Accordingly the master concluded that it was impossible for Helen to keep  



her house and that Helen lacked the understanding necessary to resolve these issues.   



                                                                                                       

                   Helen filed objections to the master's supplemental report, reiterating her  



                                                                         

living preferences.  In February 2014 the superior court adopted the master's report in  



full and ordered the sale of the house.  



                   Helen appeals the appointment of a partial guardian and full conservator  



and the order authorizing the sale of her house.  



                                                          -12-                                                     7046
  


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

III.	     STANDARD OF REVIEW  

                                                                                            13 "[F]actual findings  

                   A finding of incapacity is reviewed for clear error. 

used to determine whether to appoint a conservator" are also reviewed for clear error.14  

                                                      



"Clear error is found when we are left with a definite and firm conviction based on the  

                                                                             

                                                                   15   The  appointment  of  a  guardian  or  

entire  record  that  a  mistake  has  been  made."  

                                                                                                          



                                                                     16  

conservator is reviewed for abuse of discretion.                         "A court abuses its discretion if it  



considers improper factors, fails to consider statutorily mandated factors, or assigns too  

                                                                                                            

much weight to some factors."17  

                                                



IV.	     DISCUSSION  



         A.	       The Superior Court Did Not Clearly Err By Finding That Helen Was  

                                                                                 

                   Incapacitated  And  Did  Not  Abuse  Its  Discretion  By  Appointing  A  

                   Partial Guardian.  



                   The superior court may grant a petition for guardianship upon a finding of  

                                                                                



incapacity  when  the  persons's  "ability  to  receive  and  evaluate  information  or  to  



communicate decisions is impaired for reasons other than minority to the extent that the  



          13       Farmer v. Farmer , 230 P.3d 689, 693 (Alaska 2010) (citing In re W.A. ,  



193 6P.3d 743, 748 (Alaska 2008)).  



          14	      Id. (citing Gunter v. Kathy-O-Estates, 87 P.3d 65, 68 (Alaska 2004)).  



          15       Id. (quoting Casey v. Semco Energy, Inc.                 , 92 P.3d 379, 382 (Alaska 2004))  



(internal quotation marks omitted).  



          16       Id. (citing Gunter, 87 P.3d at 68).  



          17  

                                                           

                   Id.  (quoting H.C.S. v. Cmty. Advocacy Project of Alaska, Inc. ex rel. H.L.S. ,  

42 P.3d 1093, 1096 (Alaska 2002)) (internal quotation marks omitted).  



                                                          -13-	                                                    7046
  


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

                                                                          

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



                                                                             18  

 health or safety without court-ordered assistance."                             Under AS 13.26.090,  



                                                                           

                     [g]uardianship for an incapacitated person shall be used only  

                                                                                 

                     as is necessary to promote and protect the well-being of the  

                                  

                     person, shall be designed to encourage the development of  

                                                                                      

                     maximum self-reliance and independence of the person, and  

                     shall  be  ordered  only  to  the  extent  necessitated  by  the  

                                                

                     person's        actual      mental       and      physical       limitations.        An  

                     incapacitated person for whom a guardian has been appointed  

                                                                                                  

                     is not presumed to be incompetent and retains all legal and  

                                                           

                     civil rights except those that have been expressly limited by  

                     court order or have been specifically granted to the guardian  

                     by the court.  

The petitioner must prove incapacity by clear and convincing evidence.19  

                                                                                                              The court may  



                                                                                                    20  

appoint a full or partial guardian depending on the person's needs.                                      



           18        AS 13.26.005(5); AS 13.26.105(a).  "[E]ssential requirements for physical  



 health or safety means the health care, food, shelter, clothing, personal hygiene, and  

                                                                                                  

 protection without which serious physical injury or illness is more likely than not to  

                               

 occur."  AS 13.26.005(2) (internal quotation marks omitted).  



           19  

                                                                                                       

                     AS 13.26.113(b); see also In re O.S.D., 672 P.2d 1304, 1305 (Alaska 1983)  

                                               

 ("[A]  clear  and  convincing   evidence  standard  of  proof  applies  to  the  capacity  

                                         

 determination."  (internal  quotation  marks  omitted)).    If  the  person  is  found  to  be  

                                                                                                       

 incapacitated, the court must consider alternatives to guardianship, and if it determines  

 that "alternatives to guardianship are feasible and adequate to meet the needs of the  

 respondent, the court may dismiss the action and order an alternative form of protection."  

 AS 13.26.113(c)-(d).  If alternatives to guardianship are not feasible, the court may  

 appoint a partial or full guardian.  AS 13.26.113(e)-(f).   The court did not explicitly  

                                                                                         

 consider alternatives to guardianship, but Helen does not raise this issue on appeal, and  

                                                                                                               

 the implicit conclusion that there were no feasible alternatives is not clearly erroneous.  

                                                                 



           20  

                                                       

                     AS 13.26.113(e)-(f).  "If it is necessary to appoint a guardian, the court  

                              

 shall consider the ward's preference."  AS 13.26.113(g).  Although Helen previously  

 requested  a  different  guardian,  she  does  not  appeal  the  superior  court's  choice  of  

                                                                                                               (continued...)  



                                                              -14-                                                          7046
  


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

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



                 21  

                                                                                                                     

erroneous.             As  a  preliminary  matter,  we  address  Helen's  claim  that  Dr.  Cherry's  



                                                                                                     

recommendation relied on unproven hearsay regarding Helen's grandson and her ability  



                                                                             

to  manage  her  nutrition  and  medications.                         To  the  extent  Helen  raises  an  evidentiary  



                                                                                        

argument, she failed to raise such an objection at trial,  and "[a]bsent a proper objection,  

hearsay is normally admissible."22 Even if Helen had objected, the rules of evidence  



permit an expert witness to consider inadmissible information when formulating an expert  



             23  

                                                                                                         

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



           20        (...continued)  



 guardian.  



            21        Helen cites Farmer v. Farmer ,  230 P.3d 689, for the proposition that the  



  superior court's "factual findings are not entitled to the deference usually enjoyed by the   

 trial court because [the trial court judge] did not conduct any of the hearings in this case             

 in order to assess the witnesses' credibility."  However, Farmer merely noted that a  

  superior court's decision was particularly persuasive because the court "conducted a  

                

 hearing  de  novo  and  heard  testimony  from  both  parties";  it  does  not  support  the  

                                      

 proposition that a master's findings, where adopted by a superior court, will be subject  

                            

 to less deferential appellate review.  Id. at 694.  As the State points out, "[t]he findings  

                                                                                                                    

 of a master, to the extent that the court adopts them, shall be considered as the findings  

                                                                                                  

 of the court."  Alaska R. Civ. P. 52(a); see also Alaska R. Prob. P. 2(b)(2)(B) (providing  

                                                                                       

 for the appointment of masters to conduct guardianship and conservatorship hearings);  

                                  

 In re O.S.D. , 672 P.2d at 1306 & n.4 (rejecting "conten[tion] that incorporation of the  

                                                                                                                                  

 Master's Report in the superior court's order is inadequate").  



            22        Rusenstrom v. Rusenstrom , 981 P.2d 558, 560 (Alaska 1999).  



            23  

                                                         

                      Alaska R. Evid. 703. Such information "must be of a type reasonably relied  

 upon  by  experts  in  the  particular  field  in  forming  opinions  or  inferences  upon  the  

  subject."  Id.  



                                                                  -15-                                                            7046
  


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

                                                      

reports and opinions from nurses, technicians and other doctors, [and] hospital records"  

despite the fact that "[s]ome of these sources would be inadmissible in evidence."24  



                     Helen  next  argues  that  "[t]here  is  no  evidence  that  Helen  required  any  



special services."  She claims that "[e]veryone, including many perfectly healthy young  



                                                                                                          

and  middle-aged  adults[,]  could  benefit  from  in-home  services  to  aid  them  in  the  



preparation   of   healthy   meal[s]   and   with   their   finances."      And   she   asserts   that  



                                                                                        

"Dr. Cherry's opinion that Helen could benefit from . . . some minor in-home [personal  



                                                                              

care assistant] services and some minor financial oversight 'like anybody who's eighty- 



                                                                             

seven  years  old'  does  not  constitute  clear  and  convincing  evidence  that  Helen  is  an  



                                       25  

'incapacitated person.' "                  



                                            

                     We disagree.  There was substantial evidence that Helen was incapacitated  



                                           

and  required  assistance.                Dr.  Cherry  testified  that  Helen  had  "age-related  cognitive  



                                                                                                                    

decline,"  previously experienced a several-month delirium episode,  and had "multiple  



                                                                                                 

issues that could result in [another] delirium episode."  He did recognize that most people  



                                                  

Helen's age could benefit from "at least [a] minimal level of assistance."  But contrary to  



                                                                                         

Helen's  characterization,  Dr.  Cherry  unambiguously  stated  that  she  needed  such  



assistance.    Specifically  he  testified  that  Helen  should  have  personal  care  assistance  



            24        Alaska R. Evid. 703, cmt.   The Commentary to Alaska Evidence Rule 703  



  specifically acknowledges that "[t]he rule may be most beneficial in the examination of     

 psychiatrists, who may often rely on data that is technically hearsay."  Id .  



            25  

                                                                                                                     

                      In this same vein, Helen denies that her husband's personal care assistant  

 "performed any function on behalf of Helen other than those functions performed for  

  [her husband] which equally benefitted Helen."  But any past reliance on personal care  

                                                                                                   

 assistance did not appear to significantly inform the master's findings; rather, the master  

                               

 looked to Dr. Cherry's expert testimony, the necessity of personal care assistance, and  

                                                                         

 the possibility that Helen's family might interfere with the provision of this care.  



                                                                 -16-                                                            7046
  


----------------------- Page 17-----------------------

                                                       

services on a daily basis and that he could not envision Helen living independently absent  



assistance with meals, medication, and financial management.   



                    Finally  Helen  contends  she  is  capable  of  managing  her  medications,  



attributing  her  medication  problems  to  her  doctors'  errors.    But  this  argument  is  



                                                                                                      

unpersuasive.  Helen contends that "her licensed medical providers prescribed dangerous  



                                                                                                                    

medications based on their misdiagnosis of Helen's medical condition" but provides no  



                                                                                                   

evidentiary  support  for  this  claim.    According  to  Dr.  Cherry,  Helen  was  incorrectly  



                                                                                                                     

diagnosed with dementia when she was actually suffering from delirium. But Helen does  



                                                                                                                       

not point to  any  evidence  that she was prescribed  dementia  medication  or that  such  



medication  was  dangerous.    And  Dr.  Cherry's  testimony  was  that  Helen's  pain  



medications  caused  the  delirium  that  was  initially  misdiagnosed,  not  that  she  was  



                                                                              

prescribed dangerous pain medications because of the misdiagnosis.  It is possible Helen  



                                       

is referring to a different diagnosis prior to the delirium, as she references "unnecessary  



                                                                                                       

sedative  medications,"  but  there  is  not  enough  information  in  her  brief  to  permit  



                                                 26  

                                                                                             

consideration of this argument.                      Dr. Cherry testified that Helen's medication intake  



                                                                                             

would   likely   "get   out   of   whack"   if   she   were   left   to   manage   her   medications  



                                                                                      

independently,  and this opinion is supported by both his and Burgan-Kelly's observation  



                                                                             27  

that Helen could not name any of her medications.                                



           26           See, e.g., Barnett v. Barnett , 238 P.3d 594, 598 & n.11 (Alaska 2010)  



 (deeming arguments inadequately briefed on appeal waived).  



           27         Courts have considered an individual's awareness of his or her medications  

                                                                                                               

 and ability to manage them when determining whether an individual is incapacitated.  

 See, e.g., E.J.F. ex rel. J.V., No. 2081, 2013 WL 6122275, at *1-3 (N.Y. Sup. Nov. 18,  

                                                                                            

 2013) (affirming guardianship for man with acute short term memory loss in part because  

                                                                                                          

 man was "likely to suffer harm because he is unable to provide for his personal needs  

                                                                                                               

 such as his medications . . . ."); In re Guardianship of Robinson, No. 40966-6-II, 2012  

                                                                                                            

 WL 830483, at *1 (Wash. App. Mar. 13, 2012) (affirming guardianship of man who  

                                                                                              

                                                                                                                 (continued...)  



                                                               -17-                                                          7046
  


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

                                                                                             

                   Therefore there is substantial evidence that Helen was incapacitated and  



            

needed a partial guardian. The superior court conducted a careful analysis and reached  



                                                                                         

a well-reasoned conclusion that Helen required only a partial guardian because she was  



                                                                               

able to manage some, but not all, of her essential needs.  Although the Pioneer Home may  



be able to manage some aspects of Helen's care, a guardian remains necessary because  



                                                                                         

Helen is incapable of managing paperwork or her residency at the Pioneer Home,  as  



                                                                     

evidenced by her inability to appreciate the fact that she could not afford her care at the  



                                                          28  

Pioneer Home without selling her house.                       We affirm the superior court's appointment  



of a partial public guardian.  



          B.	      The Superior Court Did Not Clearly Err By Finding That Helen Was  

                   Unable To Manage Her Property And Affairs, And The Court Did Not  

                   Abuse Its Discretion By Appointing A Public Conservator.  



                   Alaska Statute 13.26.165(2) permits a court to appoint a conservator if the  

                                                                           



court determines that  



                   (A)	     the person is unable to manage the person's property  

                            and  affairs  effectively  for  reasons  such  as  mental  

                                               



          27       (...continued)  



 among other problems had frequent "hospitaliz[ations] because he [was] unable to handle  

 his complex medication regimen and personal care, as well as his hydration needs" and  

                                                                                

 "was  aware  of  needing  only  one  medication,  although  he  had  been  prescribed  

 seventeen"); In re Guardianship of Healy , No. 58316-6-I, 2007 WL 2411688, at *7 &  

 n.12  (Wash. App. Aug. 27, 2007) (affirming guardianship for elderly woman despite  

                                                                                                       

 objection that trial court failed to adequately consider that her medications may have  

 impacted her ability to understand the guardianship proceedings).  



           28       See 7 AAC 74.045(c)(1)(D) ("A resident's or a recipient's income and  



 resources,  up  to  the  full  amount  of  the  income  and  resources  if  necessary,  must  be  

 applied  to  the  appropriate  monthly  or  daily  rate  .  .  .  and  to  ancillary  charges.");  

 AS 47.55.020(d) ("[A] resident of [the Pioneer Home] whose income, assets, and other  

                                    

 resources are insufficient to pay the monthly rate . . . and who does not have private  

 insurance to cover the cost of care, qualifies for payment assistance . . . .").  



                                                           -18-	                                                     7046
  


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

                                                            

                                  illness, mental deficiency, physical illness or disability,  

                                  advanced            age,       chronic          use      of      drugs,        chronic  

                                                                                           

                                  intoxication, fraud, confinement, detention by a foreign  

                                  power, or disappearance; and  



                       (B)	       the   person   has   property   that   will   be   wasted   or  

                                  dissipated unless proper management is provided, or  

                                  that funds are needed for the support, care, and welfare  

                                                                                                           

                                  of the person or those entitled to be supported by the  

                                                                                            

                                  person  and  protection  is  necessary  or  desirable  to  

                                  obtain or provide funds.  



A conservatorship "does not require that a person be altogether incompetent in all aspects  

                                                                                                                                     



of life. . . . [T]he need for a conservator must be assessed in context of the person's  

                                                                                                             



incapacity  and  the  specific  matters  for  which  management  or  protection  may  be  

required."29  



                                                                                        

                       Helen argues that the conservatorship and the order to sell her house should  



                                                                                                                               

be reversed because the superior court's determination that she "is unable to effectively  



                                                                                                                                

manage her property and affairs is clearly erroneous."  She argues that she "pa[id] all of  



                                                                                                              

her       bills       prior       to      the       temporary             delirium           ca[u]sed           by       her       prescribed  



                                                                                         

medication, . . . amassed $100,000 in equity in the home, owed nothing on her remote  



                                                                                                                            

property or her vehicle, and had no unusual credit card debt."  She asserts that the finding  



that she had not made progress on the financial situation with her house was erroneous  



                                              

because it was "based on the trial court's ridiculous finding that Helen knew that her  



                                                                       

family would not be allowed to live with her in her home."  Helen claims that "[t]he sole  



             29         In re S.H. , 987 P.2d 735, 740 (Alaska 1999).                                  At first glance the master's     



  initial determination that Helen was incapable of managing her finances but capable of                                            

  deciding whether to sell the house may seem contradictory. But the master appropriately   

  considered the specific matters Helen faced; he determined she may have been "able to             

 understand big picture issues" even if she was unable to handle the minutia of public  

  assistance programs or restrain herself from giving away more money than she could  

                                                                                                               

  afford.  



                                                                       -19-	                                                                7046
  


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

                                                                              

basis" for the master's revised findings regarding the house "appears to be that Helen did  



not force her family to sign the guardian's unilateral lease."  She also argues that "there  



         

is no evidence Helen's family was aware of the requirement that the family home be sold  



while Helen remained at the Pioneer Home."  Finally she contends that she could not "be  



expected to [make] financial arrangements" because Heiker refused to give her financial  



documents and did not "t[ell] Helen her home was on the brink of foreclosure."  



                                                                                        

                   The State counters that there was no choice but to sell the house because the  



                                                                                                                        

"house constituted an asset that had to be used to pay for the cost of [her] care" at the  



                      30  

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



                                                  31  

                                                      Although Helen eventually wanted to return home,  

provide funds' for [Helen's] care." 



                                                                                                       

the superior court found that she could only afford to return home if her family was living  



with her and paying rent, but she could not live with her family because they would not  



                                                                32  

                                                                                 

cooperate with the personal care assistants.                         And if Helen did not return home, she  



                                             

would "be required to sell the home as a condition of remaining [in] the Pioneer Home."  



                                                               

The superior court concluded that Helen's "proposal on how to proceed from here does  



           30        See note 28, supra.  



           31        See AS 13.26.165(2)(B). See also, e.g., Farmer v. Farmer , 230 P.3d 689,   



 691-92, 696 (Alaska 2010) (affirming partial limited conservator to manage sale of home  

 facing  foreclosure  where  person  was  unable  to  prioritize  financial  obligations,  for  

 example by making unnecessary expenditures instead of paying his utilities).  



           32        Helen argues the finding that her family would not cooperate with personal  

                                                                                              

 care  assistants  was  erroneous  because   it  was  based  on  "unproven,  speculative  

 allegations" and "[t]here is no evidence anyone in the family ever interfered with the  

 obligations of [Helen's husband's personal care assistants] to provide any service to the  

                                                                 

  [Wilsons.]"  This finding was not erroneous because Helen's family testified that they  

 objected to allowing personal care assistants in the home.  



                                                             -20-                                                       7046
  


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

not reflect any meaningful understanding of these issues" and that she was "not capable   



of making a decision regarding [the] sale of the home."  



                   Helen's other  arguments also fail to demonstrate that the superior court  



                                                                                             

clearly erred in its findings.  Her ability to pay her bills and amass equity in her house in  



the past is not relevant to her present financial situation.  And Helen's assertion that  



Heiker would not provide  her with financial information is contradicted by Heiker's  



                                                                                                          

testimony that she met with Helen "[a] couple" times and that Helen refused to meet with  



                                                                         

her on another occasion.  Although it is true "[t]here is no evidence Heiker told Helen her  



home  was  on  the  brink  of  foreclosure,"  the  "master  informed  her  [at  the  September  



hearing] that she needed to develop a plan towards financial stability with regards to the  



                                                                             

house or she would not be able to afford it."  Despite this warning, she was unable "to  



                                                                                                    

develop any workable ideas [in] four months."  The superior court did not clearly err in  



finding clear and convincing evidence that Helen was unable to manage her financial  



affairs and did not abuse its discretion by appointing a public conservator.  



V.       CONCLUSION  



                   We AFFIRM the decision of the superior court.  



                                                          -21-                                                     7046
  

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