In re Guardianship of Poulos , 2011 Ohio 6472 ( 2011 )

[Cite as In re Guardianship of Poulos, 2011-Ohio-6472.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96366
IN RE: GUARDIANSHIP OF
NIKOLITSA POULOS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Probate Court Division
Case Nos. 2009 GDN 0147749 and 2009 GDN 0147749 B
BEFORE: Kilbane, A.J., Sweeney, J., and Cooney, J.
RELEASED AND JOURNALIZED: December 15, 2011
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ATTORNEY FOR APPELLANT
George K. Simakis
Simakis & Kisil, L.L.P.
5900 Ridge Road
Suite 200
Parma, Ohio 44129
ATTORNEYS FOR APPELLEES
Loretta A. Coyne
Richard J. Stahl
18051 Jefferson Park Drive
Suite 102
Middleburg Heights, Ohio 44130
FOR CUYAHOGA COUNTY ADULT PROTECTIVE SERVICES
William D. Mason
Cuyahoga County Prosecutor
Kelli Kay Perk
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
William D. Mason
Cuyahoga County Prosecutor
Francis X. Cook
Assistant County Prosecutor
1641 Payne Avenue
Room 505
Cleveland, Ohio 44114
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MARY EILEEN KILBANE, A.J.:
{¶ 1} Counsel, acting on behalf of ward, Nikolitsa Poulos, appeals from the order
of the probate court that denied his motion to terminate the guardianship. For the
reasons set forth below, we affirm.
{¶ 2} On June 4, 2009, Bess Vrettos, niece of Nikolitsa Poulos, filed an
application for appointment of guardian of Poulos’s person, indicating that Poulos has
dementia and is incompetent pursuant to R.C. 2111.01(D). On July 7, 2009, Brenda K.
Harrison, Poulos’s cousin, filed an application for appointment of guardian for Poulos’s
estate, maintaining that Poulos has dementia and is incompetent pursuant to R.C.
2111.01(D).
{¶ 3} On June 26, 2009, Dr. John Mihalek filed a Statement of Expert Evaluation
in which he stated that he had interviewed Poulos on five occasions and determined that
she exhibits cognitive deficits in multiple areas. He opined that she was suffering from
vascular dementia, most likely had Alzheimer’s disease, and that her condition was
progressive and irreversible. Dr. Mihalek further indicated that Poulos’s deficits in
functioning have compromised her ability to care for herself and ensure her own safety.
He recommended that she live in an assisted living facility. A court investigator also
submitted a report in which he found that Poulos exhibited cognitive impairments and
presented a risk to herself without increased supervision and assistance. Following a
hearing before a magistrate on August 26, 2009, Poulos was found to be incompetent.
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The court appointed Vrettos guardian of Poulos’s person and Harrison guardian of her
estate.
{¶ 4} On May 27, 2010, Poulos, apparently upset about being denied control of
her bank accounts, had an altercation with Vrettos and was admitted to MetroHealth
Hospital for psychiatric care. On May 28, 2010, Poulos filed a motion to terminate the
guardianships, asserting that she is competent to conduct her own affairs and that the
guardians have not acted in her best interests. Poulos was subsequently transferred to
Arden Courts, an assisted living facility in Parma.
{¶ 5} On July 2, 2010, counsel, acting on behalf of Poulos, filed a motion to
replace the guardians, which was supported by an affidavit from Sophia Pantelatou.
Pantelatou averred that she had visited Poulos at MetroHealth Hospital and that Poulos
exhibited depression and anxiety about not being permitted to return to her home. She
further averred that Poulos appeared to be aware of her present state and able to live
independently. On July 7, 2010, counsel, acting on behalf of Poulos, filed a motion to
show cause, objecting to Harrison’s requiring that visitors first obtain her consent to visit
Poulos, and further, that he had been unable to meet with Poulos. Counsel also filed a
motion to authorize MetroHealth Hospital to release Poulos’s medical records directly to
Dr. Abhishek Jain, a physician she retained in connection with the motion to terminate the
guardianships.1
Counsel for Poulos concedes that the records were released to the guardians.
1
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{¶ 6} On October 22, 2010, the magistrate held a hearing on all of the outstanding
motions.2 At the start of this hearing, counsel for Poulos complained that MetroHealth
Hospital had not forwarded Poulos’s medical records to Dr. Jain, and the following
exchange occurred:
“MAGISTRATE MILLS: With regard to Dr. Jane [sic], has your
client ever been seen by Dr. Jane [sic]?
MR. SIMAKIS: No.
MAGISTRATE MILLS: With regard to the medical records from
Metro, have you ever sought any kind of release or consent from Ms.
Coyne [counsel for the guardians]?
***
MS. COYNE: The answer is no your honor.
MAGISTRATE MILLS: I’m just going to take judicial notice that a
medical statement was filed with the court as part of the original
guardianship and was, you know, part of that record, was June 26th,
2009 dated by a Dr. John Mihalek. That particular medical report
indicated a diagnosis of vascular dementia and most likely Alzheimer’s
[which has a] progressive, deteriorating course.
Mr. Simakis, do you have any medical statement from a doctor or other
medical professional that is contrary to this particular statement?
MR. SIMAKIS: As the court knows, we have attempted to get that.
We have court orders that have ordered that and those court orders
have been contemptuously denied.
2
Counsel also filed an addendum to the motion to show cause demanding an accounting for
certain cash withdrawals and expenditures, but the magistrate noted that an accounting was not yet
required.
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MAGISTRATE MILLS: And the answer, I will translate, to that
question I just asked is no, there is no medical statement.
[Y]ou’re selective on how you go about seeking information. That’s
my observation. This information is available a variety of different
ways. I recall at pretrial, Ms. Coyne indicated that her clients would
sign consents and would release the information to you. You chose
not to seek that course.” (Tr. 22-28.)
{¶ 7} The magistrate then dismissed the motion to terminate the guardianships
and stated:
“The ward is certainly entitled to have an evaluation done and that
doctor is entitled to see her medical records. The concept of it is not
the problem. It’s just there are things done over the last five months
that haven’t been done, so we can’t leave this particular motion
pending for that reason, but again, the key is getting a medical
evaluation, and when that occurs we could revisit that whole issue
sometime in the future.”
{¶ 8} Proceeding with the other pending motions, counsel for Poulos had
numerous lay witnesses appear at the hearing. The court did not permit them to testify
due to the absence of medical testimony to support Poulos’s competency. According to
counsel for Poulos, these witnesses would have testified regarding Poulos’s competency
and ability to live independently. The court permitted Monica Roberts (“Roberts”), a
social worker with the Cuyahoga County Adult Protective Services, to testify. Roberts
testified that she met Poulos after obtaining a referral to investigate issues surrounding
Poulos becoming combative with Vrettos. Roberts interviewed Poulos at her home.
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Poulos was confused and forgetful, had difficulty understanding the nature of the
interview, and indicated that she believed Vrettos was taking her money and was trying to
put her into a nursing home. She stated that her friend, Don Ksiezyk, had gotten her an
attorney, and she called Ksiezyk twice during the interview.
{¶ 9} Roberts stated that Poulos has competency issues and could not continue to
live alone in her home because she needed more services that the in-home caregivers
could provide. She recommended that Poulos remain in assisted living at Arden Courts.
Caseworker notes also indicated that Vrettos had acted appropriately in caring for
Poulos, and there was no evidence that either guardian had failed to act in Poulos’s best
interests.
{¶ 10} The court then conducted a voir dire examination of Poulos. Poulos
informed the court that she does not want to remain at Arden Court and that there was no
reason for her to be at Arden Court because she did not receive treatment. She could not
recognize her attorney and did not know that she was involved in court proceedings
concerning the guardianship. In addition, she indicated that her guardians had not
treated her poorly.
{¶ 11} At the close of the hearing, counsel for the guardians asked the court to
dismiss all outstanding motions since Poulos did not understand the proceedings and
lacked the capacity to retain counsel. Counsel for the guardians also orally moved for an
award of attorney’s fees if Poulos’s counsel did not dismiss his pending motions.
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{¶ 12} On November 4, 2010, the magistrate determined that Poulos’s motion to
terminate the guardianships should be denied, and further determined that the fees
incurred by her attorney did not meet the three-part test enunciated in In re Guardianship
of Allen (1990), 50 Ohio St. 3d 142, 552 N.E.2d 934, for determining whether payment
should come from the guardianship estate. In relevant part, the magistrate concluded:
“[C]ounsel for the ward acknowledged that he did not have a
Statement of Expert Evaluation to support his Motion to Terminate
Guardianship, despite the pendency for a period of five months. The
Magistrate finds as a matter of law that he cannot prevail on [the]
Motion to Terminate Guardianship without medical evidence to
support the motion. * * *
[A] prudent attorney would have taken into account the medical
evidence already existing in the court file before embarking on a
scorched earth program of litigation. The ward’s cognitive
disabilities, her lack of short term memory, the progressive nature of
the disease, and the ward’s lack of judgment and insight were well
documented more than a year ago.
Mrs. Poulos is not happy that she has been placed in assisted living, she
wants to go home. But it is obvious, from review of the court record,
that issue is the very reason that the guardianship was established and
by all appearances the guardians have acted appropriately.
***
In any event, on the day the trial was commenced, Mrs. Poulos had no
interest in pursuing an adversary action against her nieces, had no
understanding of guardianship, and she has no recollection of engaging
legal counsel, nor does she recognize Mr. Simakis as her legal counsel.”
{¶ 13} Counsel for Poulos filed various objections, essentially contending that she
should not have been removed from her home, that the assisted living facility did not
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provide treatment, that the actions of her healthcare providers had prevented her from
obtaining an expert evaluation to support her motion to terminate the guardianships, and
that the guardians had not acted appropriately in this matter.
{¶ 14} On December 30, 2010, the trial court overruled the objections and
concluded that the magistrate correctly based his decision on the applicable facts and law.
In relevant part, the trial court noted:
“The Court finds that the Ward had no medical evidence to indicate
that she had been restored to competency requiring a dismissal of the
Motion to Terminate Guardianship.”
{¶ 15} Herein, counsel for Poulos maintains that the trial court abused its
discretion in (1) failing to terminate the guardianship; (2) failing to order an independent
medical evaluation; (3) failing to remove the guardians; (4) failing to require the
guardians to file an accounting of Poulos’s funds; (5) failing to permit the payment of his
attorney’s fees from the guardianship estate.
1. Failure to Terminate the Guardianship
{¶ 16} The probate court is required to act in the best interest of the incompetent
individual, but it is well settled that a probate court has broad discretion in appointing
guardians. In re Estate of Bednarczuk (1992), 80 Ohio App. 3d 548, 551, 609 N.E.2d
1310. Decisions regarding the appointment of guardians will not be reversed absent an
abuse of discretion. Id. The term “abuse of discretion” means more than a mere error
of law or judgment; it implies an attitude on the part of the trial court that is unreasonable,
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arbitrary, or unconscionable. Id., citing Blakemore v. Blakemore (1983), 5 Ohio St. 3d
217, 450 N.E.2d 1140.
{¶ 17} With regard to the appointment of a guardian, we note that R.C. 2111.02
grants the probate court authority to appoint a guardian for the person, the estate, or both,
where the applicant has shown by clear and convincing evidence that the prospective
ward is so mentally impaired as a result of a mental illness or disability that she is
incapable of taking proper care of herself or her property. R.C. 2111.02(C)(3); R.C.
2111.01(D).
{¶ 18} With regard to the termination of a guardianship, we note that there is a
presumption that once a person is found to be incompetent that he or she remains
incompetent but the presumption is rebuttable. In re Guardianship of Michael, Franklin
App. No. 07AP-264, 2007-Ohio-5967, citing In re Breece (1962), 173 Ohio St. 542, 184
N.E.2d 386.
{¶ 19} Pursuant to R.C. 2111.47, a guardianship may be terminated upon
“satisfactory proof” that the necessity for the guardianship no longer exists. “Satisfactory
proof” to rebut the presumption of continued incompetence has been offered as that
which “causes the presumption to disappear,” or “counterbalances the presumption,” or
“leaves the case in equipoise.” Id., quoting Breece.
{¶ 20} In this case, the Statement of Expert Evaluation prepared by Dr. John
Mihalek indicated that Poulos was suffering from vascular dementia, most likely had
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Alzheimer’s disease, and that her condition was progressive and irreversible. Dr.
Mihalek further reported that Poulos’s condition has compromised her ability to care for
herself and ensure her own safety. A court investigator also concluded that Poulos
exhibited cognitive impairments and presented a risk to herself without increased
supervision and assistance, and following a 2009 hearing, the court concluded that Poulos
was incompetent and in need of guardians of her estate and person.
{¶ 21} At the subsequent evidentiary hearing, Roberts testified that Poulos has
competency issues and could not continue to live alone in her home because she needed
more services than the in-home caregivers could provide. This evidence constitutes
clear and convincing evidence supporting the court’s appointment of guardians for
Poulos.
{¶ 22} In opposition to this evidence of record, counsel for Poulos was prepared to
offer testimony from lay witnesses who had visited with Poulos, but he presented no
expert evidence to indicate that Poulos is now competent or to otherwise rebut the
presumption that she continues to be incompetent in accordance with the prior evidence.
Further, although Poulos informed the court that she does not want to remain at Arden
Court and stated that there was no reason for her to be there because she did not receive
treatment, she could not recognize her attorney and did not know that she was involved in
court proceedings concerning the guardianship. In addition, she indicated that her
guardians had not treated her poorly. In short, counsel for Poulos failed to present
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“satisfactory proof” that the necessity for the guardianship no longer exists. See R.C.
2111.47.
{¶ 23} Therefore, in light of the evidence of record, the probate court acted in
Poulos’s best interests and did not abuse its discretion in appointing a guardian for Poulos
and, on the basis of the record presented, did not abuse its discretion in refusing to
terminate the guardianships.
2. Failure to Order an Independent Medical Evaluation
{¶ 24} Pursuant to R.C. 2111.02(C)(7), prior to the appointment of a guardian or
limited guardian, the court shall conduct a hearing during which the alleged incompetent
person has the right to have evidence of an independent expert evaluation introduced.
Thereafter, the granting of a medical examination is within the sound discretion of the
trial court. Florence v. Florence, Mercer App. No. 10-01-09, 2004-Ohio-6493.
{¶ 25} In this matter, we find no abuse of discretion. Throughout the proceedings
below, Poulos asked for her records to be given directly to Dr. Jain, and asked that Dr.
Jain be deemed her primary physician. She did not raise the issue of an independent
medical examination until she filed her objections to the magistrate’s decision. This
claim is without merit.
3. Failure to Remove the Guardians
{¶ 26} R.C. 2109.24 authorizes the court to remove a fiduciary for “neglect of
duty, incompetency, or fraudulent conduct, because the interest of the property, * * * or
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estate that the fiduciary is responsible for administering demands it, or for any other cause
authorized by law.”
{¶ 27} The removal of a guardian is within the sound discretion of the trial court,
and a reviewing court will not reverse the order of the trial court unless it appears that the
lower court abused its discretion. In re Estate of Bednarczuk. “‘To warrant removal,
the probate court need only find that the best interests of the ward will be served by the
guardian’s removal.’” In re Burrows, Portage App. No. 2006-P-0118, ¶43, quoting In re
Connell (Aug. 24, 1995), 8th Dist. No. 68261.
{¶ 28} In this matter, we find no abuse of discretion. There was no evidence that
the guardians neglected their duties, were incompetent, engaged in fraudulent conduct, or
that the best interests of the ward or the demands of justice demanded removal.
{¶ 29} This claim lacks merit.
4. Failure to Require the Guardians to File an Account
{¶ 30} Pursuant to R.C. 2109.302, the guardians had two years from the date of
appointment within which to file accounts. The trial court did not err in failing to
require the guardians to file accounts in this matter since the accounts were not yet due.
This claim lacks merit.
5. Failure to Award Attorney’s Fees from the Guardianship Estate
{¶ 31} As an initial matter, we note that a ward may not bind his or her
guardianship estate to obligations based upon contract, unless ratified by the guardian.
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In re Guardianship of Allen; Sovak v. Spivey, 155 Ohio App. 3d 479, 2003-Ohio-6717,
801 N.E.2d 896.
{¶ 32} In determining whether attorney fees are in the nature of necessities, and
therefore payable from the guardianship estate, the probate court must apply the test
announced in In re Guardianship of Allen. Pursuant to this test, the court must
“determine whether the attorney acted in good faith, whether the services performed were
in the nature of necessities, and whether the attorney’s actions benefitted the
guardianship.” Id. The probate court’s decision is reviewed for an abuse of a discretion.
Estate of Poole v. Conwell, Cuyahoga App. No. 88414, 2007-Ohio-2510.
{¶ 33} In this matter, the services were not in the nature of necessities and the
attorney’s actions did not benefit the guardianship. The trial court therefore acted within
its discretion in refusing to award payment of the fees from Poulos’s guardianship estate.
{¶ 34} The assignment of error is without merit.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
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MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
JAMES J. SWEENEY, J., and
COLLEEN CONWAY COONEY, J., CONCUR