In re Guardianship of Keane , 2020 Ohio 1105 ( 2020 )

[Cite as In re Guardianship of Keane, 2020-Ohio-1105.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
CARROLL COUNTY
IN THE MATTER OF:
GUARDIANSHIP OF JAMES KEANE
OPINION AND JUDGMENT ENTRY
Case No. 19 CA 0934
Civil Appeal from the
Court of Common Pleas, Probate Division, of Carroll County, Ohio
Case No. 20182013
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Laura Mills, and Atty. Jacquelyn McCloud, Mills, Mills, Filey & Lucas, LLC, 101
Central Plaza South, Suite 1200, Canton, Ohio 44702, for Plaintiffs- Appellants and
Atty. Maureen Stoneman, Stoneman Law Office Co., LPA, 63 Second Street South
West, P.O. Box 326, Carrollton, Ohio 44615, for Defendant-Appellee.
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Dated: March 23, 2020
D’APOLITO, J.
{¶1} Appellants Joyce Keane, Jane (Keane) Filimon, (2), Joan (Keane) Bracken,
Jim Keane and, Vicki Keane (Jim’s wife), all of whom filed applications for guardianship
of their father/father-in law, James P. Keane (D.O.B. 9/18/1940), appeal the decision of
the Probate Division of the Carroll County Court of Common Pleas appointing Mr. Keane’s
second-youngest daughter, Josette Folk (5), as the guardian of his person, and
appointing Josette as co-guardian, with Joyce, of his estate. Appellants allege that the
probate court’s appointments of Josette violate Ohio guardianship law and are not in Mr.
Keane’s best interest.
{¶2} After expressing skepticism regarding all five of the applicants (Jim
conceded at the hearing that Vicki was the better choice between the two of them,
because Jim’s work required considerable travel), the probate court placed several
conditions on the newly-appointed guardians to safeguard Mr. Keane and his assets:
 Mr. Keane must undergo a physical and mental re-evaluation every six
months to determine if his best interests are being met, and his opinion
regarding his best interest should be considered, but should not be
determinative;
 The co-guardians of the estate must be bonded;
 The beneficiary designation in Mr. Keane’s annuity must be amended,
from Joyce and Jane, to all thirteen of his children; and
 Mr. Keane’s children are prohibited from borrowing money from him in the
future.
(7/8/19 J.E., p. 2).
{¶3} Because the probate’s court authority to appoint a guardian in not limited by
the designation of a guardian in a previous power of attorney, and the record supports
Josette’s appointments, with the additional conditions, we affirm the judgment of the
probate court.
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FACTS AND PROCEDURAL HISTORY
{¶4} The following facts are taken from the testimony offered at the hearing on
guardianship conducted on April 30, 2019 and May 10, 2019, as well as the exhibits
admitted at the hearing. The parties stipulated that Mr. Keane, who fathered thirteen
children, is incompetent. He did not attend the hearing.
{¶5} Each of the applicants testified on their own behalf. In addition, Julie
Shockey, Mr. Keane’s youngest child, testified on behalf of Josette. Likewise, the
principal at the middle school where Josette is employed as a physical education teacher,
and Josette’s team teacher both attested to her fitness for the role of guardian. Jim
(Vicki’s husband) and Joshua Keane testified on behalf of Vicki. Amy Newsome, Mr.
Keane’s part-time caregiver also testified at the hearing.
{¶6} Four of Mr. Keane’s children, Jeanette Steiner, Jamie LaRoy, Gerald Keane
(“Jerry”), and Jason Keane supported the guardianship application of Josette, but did not
testify at the hearing. Two of Mr. Keane’s children, Jeff Keane and Jennifer Hankins did
not participate in the guardianship proceedings.
{¶7} According to all accounts, the Keane family lived in harmony until February
22, 2018, when Mr. Keane developed encephalopathy as a result of a gastrointestinal
virus and a respiratory infection which caused hypoxia. Mr. Keane became confused and
disoriented while driving and ultimately lost his way to Julie’s house the day he was
hospitalized. His physical symptoms included chest congestion, dehydration, vomiting,
and diarrhea, and, as a consequence, he required a brief hospitalization then a two-week
stay in a rehabilitation facility, Aultman Woodlawn (“Woodlawn”), to regain his strength.
{¶8} At the time of Mr. Keane’s hospitalization, Jane was his healthcare power
of attorney and Joyce was his financial power of attorney. Joyce, who is an accountant,
had been Mr. Keane’s financial power of attorney since October 28, 2004. She had
balanced her parents’ checkbook and prepared their taxes for thirty years, long before
Mrs. Keane’s death roughly eleven years before Mr. Keane was hospitalized. Jane had
been Mr. Keane’s healthcare power of attorney since 2015.
{¶9} According to Jim’s testimony, Josette did not agree that Mr. Keane required
hospitalization. Josette has a Master’s degree in kinesiology, the study of body
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mechanics. Jim’s testimony was corroborated by a lengthy text message from Josette to
her siblings dated February 22, 2018, the night Mr. Keane was hospitalized.
{¶10} Josette began “[Mr. Keane] does not think today was a big deal and I agree.”
She explained that she spoke with Mr. Keane six times a week, and Julie and Jeanette
and their families visited him once a week. Josette observed that all of the children and
grandchildren should pick one day a month to visit Mr. Keane with a warm plate of food,
because his only problem was loneliness.
{¶11} The text concluded, “If you would like to pencil in a day that works for you
to visit each month let me know and we can set something up so we do not overwhelm
him but instead spread out the love and fellowship.” Appellants conceded that they did
not respond to the text or undertake any effort to participate in Mr. Keane’s care.
{¶12} So began the text communications that serve in large measure as the only
connection between Josette, and, as a result, Mr. Keane and Appellants. When asked at
the hearing if she made any effort to mend the fracture currently existing between Mr.
Keane and his estranged children, Josette plainly stated that she had no intention of
attempting to reconcile their relationships while the guardianship proceedings were
ongoing.
{¶13} Mr. Keane’s mother suffered from dementia. Mr. Keane was diagnosed with
the condition and prescribed Aricept by his neurologist in 2016. According to Josette,
Aricept was discontinued by Mr. Keane’s gastroenterologist due to side effects. When
Mr. Keane was admitted to the hospital, Appellants were distressed to learn that he was
no longer taking Aricept, which was re-prescribed for him at Woodlawn.
{¶14} Notes dated February 27 and 28, 2018 from Woodlawn reflect that Mr.
Keane was forgetful, particularly in the short term, and would likely forget to take his daily
medication. Cognitive testing was recommended, as well as 24-hour care upon
discharge. However, Jane told the representative at Woodlawn that not all of the children
were “on board” with the cognitive concerns.
{¶15} Mr. Keane was adamant about returning to his own residence after he was
discharged from Woodlawn. However, accordingly to both Jim and Jane, Mr. Keane
ultimately agreed to live with Jim and Vicki, even if only for a short time, after he was
discharged from Woodlawn. While Mr. Keane was at Woodlawn, structural changes were
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made to Jim’s residence in order for Mr. Keane to reside with Jim and Vicki when Mr.
Keane was discharged. A room was enclosed to provide Mr. Keane with his own bedroom
and bathroom, and grab bars were installed in the shower stall and near the toilet.
{¶16} Jim and Mr. Keane were very close prior to his hospitalization. Jim had
worked with Mr. Keane, and mowed the lawn and performed odd jobs at Mr. Keane’s
residence through the years. Jim testified that he did not visit Mr. Keane at Woodlawn
after convincing him to reside in Jim and Vicki’s home. Jim explained that he was busy
renovating his home for Mr. Keane’s arrival. Josette testified at the hearing that Jim was
Mr. Keane’s favorite child “until Woodlawn.”
{¶17} Notes dated March 8-9, 2018 from Woodlawn indicate that Mr. Keane’s
encephalopathy was clearing, his dementia was not severe, and he was capable of
making decisions regarding his transition planning. More specifically, Gregg A. Martin,
PhD, examined Mr. Keane on March 2, 2018, and concluded that he suffered from mild
chronic progressive vascular dementia. Dr. Martin recommended cognitive therapy after
Mr. Keane’s encephalopathy had cleared.
{¶18} There is no dispute that Mr. Keane was very angry that his discharge had
been delayed due to the disagreement between two factions of his children regarding
where he would reside following his discharge. One faction insisted that Mr. Keane reside
with Jim and Vicki. The other faction agreed with Mr. Keane that he should return to his
own home with 24-hour supervision.
{¶19} Notes from Woodlawn establish that a representative of the facility
explained to Jim that “the patient should be a part of the planning and decision making
as he is able to make decisions for himself at this time.” When Jim expressed concern
about the cleanliness of Mr. Keane’s home and its general habitability, the representative
assured him that Woodlawn would visit the residence in order to determine that it was
safe, which would allow Mr. Keane’s therapists to work with him in his preferred
surroundings.
{¶20} On March 10, 2018, shortly before Mr. Keane was discharged from
Woodlawn, and with no notice to Jane, Mr. Keane revoked Jane’s healthcare power of
attorney and designated Josette in Jane’s stead. Mr. Keane also demanded that Joyce
relinquish his checkbook when he returned home.
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{¶21} The discharge instruction from Woodlawn recommended physical therapy,
occupational therapy, and speech therapy, as well as visits from a registered nurse. Mr.
Keane was discharged on March 11, 2018, and he returned to his own home. According
to Josette, Jason, who did not testify, resided with him for six weeks. According to Vicki,
Jason stayed with Mr. Keane “maybe for a week or two.”
{¶22} The home care assessment performed by a Woodlawn employee on March
22, 2018 established that there were no home environment or safety concerns, the home
was neat and clean, and that Mr. Keane had a medical alert button. Area rugs were
removed from the home, so as not to interfere with Mr. Keane’s use of his walker, and
grab bars were installed in areas where stability was a concern. A hospital bed was
placed in his bedroom.
{¶23} Mr. Keane received therapy at home and was successfully discharged from
the physical and occupational therapy programs. With the exception of driving an
automobile, all of Mr. Keane’s physical goals were achieved.
{¶24} When Joyce was Mr. Keane’s medical power of attorney, she maintained a
notebook in his home available to all of his children to review, which documented his
doctor visits and contained a diary of his general health. The children were encouraged
to add entries in the notebook reflecting any concerns they had regarding Mr. Keane’s
physical and mental capacity (forgetfulness, irritability) during a visit.
{¶25} Appellants testified that there was no similar practice by Josette, and,
further, that Josette intentionally isolated Mr. Keane from them. Joan testified that
Josette’s poor communication has caused friction between Mr. Keane and his children.
Josette testified that she still maintains a folder containing information about Mr. Keane’s
care.
{¶26} Appellants testified that Josette required that her siblings schedule
appointments well in advance (two weeks in advance according to Joan) when they
planned to visit their father. Josette explained that her intention was to prevent several
family members from visiting Mr. Keane at the same time, because noise and
overstimulation induced stress in Mr. Keane. She explained that a regular schedule was
essential to his well-being, and, as a consequence, groups of visitors and impromptu
plans should be avoided.
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{¶27} Josette hired Amy Newsome in June of 2018 to assist Mr. Keane several
days a week. Appellants questioned Josette’s choice of Newsome to be Mr. Keane’s
caregiver, because she is not a registered nurse or State Tested Nursing Assistant.
Josette explained that Newsome was not hired to provide medical care, but, instead,
demonstrated an immediate rapport with Mr. Keane and was hired as a companion.
{¶28} Newsome visited Mr. Keane roughly four hours in the morning from
Tuesday through Friday, and on Sunday afternoons. She made certain that Mr. Keane
took his medication and she performed light housekeeping duties. She assisted Mr.
Keane with his personal care and chauffeured him into town to shop for groceries and to
have lunch at his favorite restaurant. Jeanette and her husband Scott visit Mr. Keane on
Saturday mornings. Scott takes Mr. Keane to church every Saturday.
{¶29} Newsome testified that she communicates information regarding Mr.
Keane’s daily care to Josette, Julie, Jeanette, and Scott. Newsome further testified that
Mr. Keane has a good relationship with those four children, and that she has never
witnessed Josette isolate her father from the others. Newsome, who Josette
characterized as Mr. Keane’s confidante, stated that Mr. Keane had told her that he does
not want to talk to the other children because of the guardianship proceedings.
{¶30} According to her testimony, Newsome cooks for Mr. Keane on Thursdays
for the entire week and typically prepares and refrigerates spaghetti, sloppy joes, soup,
and vegetables. Mr. Keane’s neurologist recommended a high protein, low fat, low
carbohydrate diet, and thirty minutes of exercise every other day. Mr. Keane owns a
stationary bike, but uses it only a few minutes at a leisurely pace.
{¶31} Julie is Mr. Keane’s youngest child and visits him once a week. She testified
that, among Mr. Keane’s children, his relationship with Josette is the closest. Julie further
testified that Mr. Keane is fully capable of deciding the children with whom he wants to
communicate. She stated that some of her siblings treat their father like a child.
{¶32} Julie declined to label Mr. Keane as suffering from dementia or Alzheimer’s
disease, because no doctor had told her that diagnosis. Later in her testimony, she
conceded that Mr. Keane was prescribed a drug, the name of which she could not recall,
which she described as “a very low dose for early signs of dementia.”
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{¶33} At oral argument, Appellants alleged that Josette prevented them from
visiting their father. The record establishes three instances where Mr. Keane’s children
made plans to visit Mr. Keane but their plans were averted. In the first instance, Joan and
her children scheduled lunch and a matinee with Mr. Keane, not Josette, in the fall of
2018. When they arrived at his home, Newsome was there but left shortly thereafter. As
Mr. Keane was donning his coat, Josette called and spoke with him. When he hung up
the phone, he told Joan that he could not go with them.
{¶34} According to Josette, Mr. Keane had a standing appointment to attend
church at 3:00 p.m. with Scott, and she was reluctant to disturb his routine. Joan offered
to take Mr. Keane to church, but Josette declined. Joan explained that it was the same
church at the same time. Josette responded that Joan’s failure to follow Josette’s protocol
was “bullshit” and typical of “this group of people.” However, Josette concluded the text
message with the suggestion that the siblings must “stay positive” and never say anything
negative to Mr. Keane.
{¶35} In November of 2018, Vicki, a home care nurse with a certificate in
gerontology, called Adult Protective Services (“APS”) because she was concerned that
Mr. Keane was not eating. Vicki conceded that she had not seen Mr. Keane for months,
but explained that she thought it was important that her husband Jim have one-on-one
time with his father.
{¶36} Vicki called APS based on comments allegedly made by Mr. Keane to
neighbors that he would find himself outside and not remember how he got there, or that
he wanted to go home when he was sitting in his living room. She expressed concern
that Mr. Keane was not ambulating well, and, without, physical therapy, he was declining.
Vicki testified that Josette and Mr. Keane are in denial about his diagnosis.
{¶37} As a consequence of her conversation with APS, Vicki filed her application
for guardianship on November 30, 2018. In the guardianship application, Vicki lists the
value of Mr. Keane’s personal property at $165,000.00 and the value of his real property
at $133,000.00.
{¶38} Vicki testified that Mr. Keane was very upset when he learned that a
guardianship application had been filed. Mr. Keane interpreted Vicki’s application as
evidence that Vicki and Joyce were attempting to steal his money and land, and to “put
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him away.” Vicki conceded that Josette attempted to disabuse Mr. Keane of his
misconceptions; Vicki testified that Josette “could have explained it better.”
{¶39} In fact, Joyce had previously opened an annuity with the money from Mr.
Keane’s savings account, and designated herself as the primary beneficiary and Jane as
the contingent beneficiary. At the hearing, Joyce explained that she would have divided
the money evenly among her siblings in the event of Mr. Keane’s death. According to
Josette, whenever Mr. Keane asked Joyce about his money, Joyce would tell him not to
worry and that he had plenty of money.
{¶40} Jane brought groceries for Mr. Keane and cleaned the kitchen and
bathroom every other weekend prior to hospitalization. Joyce, who does not have a
driver’s license, would accompany Jane in order to write checks and balance Mr. Keane’s
checkbook. Jane testified that Mr. Keane needs 24-hour care, but that she had not
offered any assistance after Mr. Keane terminated her as his healthcare power of
attorney. According to Jane’s testimony, Mr. Keane had accused her of taking his money
and will not speak to her.
{¶41} Many of the children testified that Mr. Keane loaned money to them over
the years for emergencies, with the caveat that the money must be repaid. However, on
February 22, 2018, the same day that Mr. Keane was admitted to the hospital, there was
a $5,100.00 withdrawal, which Jeanette used to make a past-due mortgage payment.
{¶42} In March of 2018, the same month that Mr. Keane returned home from
Woodlawn, Mr. Keane visited his bank with Josette and designated Josette and Jerry as
the beneficiaries of his $40,000.00 checking account. Three months later, in June of
2018, Mr. Keane made a loan of $8,000.00 to Josette to purchase Josette’s new home.
At the hearing, Josette conceded that she and her husband had not executed any
paperwork documenting the loan, despite the fact that it was the largest sum Mr. Keane
had ever loaned to one of his children.
{¶43} Physician’s notes dated December 4, 2018, from NeuroCare Center
documented a diagnosis of Alzheimer’s disease with late onset. Namenda was
prescribed for treatment of the disease. Mr. Keane was encouraged to stay socially
active, exercise on a regular basis, and continue to maintain a regular sleep schedule
and a structured environment. The notes read, in pertinent part, “Patient appears to be
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thriving in his environment has [sic] family and friends who are assisting with medications
finances and driving.” A follow-up appointment was to be scheduled with a physician’s
assistant in six months.
{¶44} The next instance of Josette’s alleged efforts to prevent Appellants from
spending time with their father/father-in-law occurred in December of 2018. The Keane
Family Christmas dinner, which had been held at a local restaurant for over a decade
after Mrs. Keane became unable to prepare the holiday meal, was abruptly canceled via
a letter signed by Mr. Keane and text circulated in mid-December. Josette testified that
she was merely following Mr. Keane’s orders, as he had informed her that he did not want
to see his children.
{¶45} On January 17, 2019, Mr. Keane revoked Joyce’s financial power of
attorney and designated Josette in Joyce’s stead. Joyce was notified by correspondence
from Mr. Keane’s attorney.
{¶46} According to a neuropsychological report dated January 30, 2019, which
was prepared for the purpose of the guardianship proceedings, Dr. Martin concluded that
“[Mr. Keane] retains adequate attention and every day reasoning skills to make simple,
everyday like decisions such as where he lives, what he wears, [and] what his day-to-day
schedule might be.” Dr. Martin opines that “[Mr. Keane], his caregiver, and the family have
demonstrated, [sic] ability to live a healthy, enjoyable life without a protective
environment.” However, Dr. Martin recommended that Mr. Keane requires assistance
with memory sensitive tasks and supervision for bills and finances, medications, and
complex legal and medical decisions, due to his inability to retain information.
{¶47} On February 27, 2019, when Mr. Keane was alone in his home, he fell while
attempting to walk to a neighbor’s home. He suffered contusions on his face. When Joan
learned about his injuries, she and Jane went to his home, but Mr. Keane turned them
away. He said they were no longer welcome and told them to “go away.”
{¶48} Josette testified that the fall was a “big awakening moment” for Mr. Keane.
He acknowledged that he “bit off more than he could chew.” Mr. Keane conceded to
Josette that roughly half of the way to his neighbor’s house, he realized he had
miscalculated the distance. Josette sat with Mr. Keane for three hours and concluded
that he did not require medical attention.
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{¶49} Jim, Joan, Joyce, and Jane filed their applications for guardianship on
March 7, 2019. Jim conceded at the hearing that he traveled as a part of his job, so Vicki
was the better choice between the two of them. Josette filed her application for
guardianship on March 12, 2019. In the interim, on March 11, 2019, the probate court
issued a judgment entry, which reads, in its entirety, “[t]he Court hereby suspends any
and all financial powers of attorney pending the hearing on March 28, 2019.”
{¶50} The final example of Josette’s alleged interference occurred in March of
2019. Joan testified that she and the children cooked dinner for Mr. Keane on St. Patrick’s
Day for approximately thirty years. However, in 2019, Mr. Keane informed Joan that
dinner was a bad idea as he did not know “what someone might think.” Joan gave no
credence to Mr. Keane’s admonition, because she presumed that there would be no
objection to the time-honored Keane family tradition.
{¶51} Joan and her children prepared the food on March 17, 2019, then texted
Josette that they were on their way. Josette replied that she was only responding to save
Mr. Keane “the freaking stress” because “the only concern [Mr. Keane] stressed to
[Josette] was that [Joan and the children] might still show up after he told [Joan] not to.”
Josette informed Joan that Mr. Keane had already eaten, was taking a nap, and could not
be disturbed. She further stated that Mr. Keane had plans and would be leaving shortly,
then would go directly to bed when he returned home.
{¶52} Finally, Joan testified that Mr. Keane labored under the misconception that
a judicial order prohibited his children from visiting him at his house. Joyce also testified
that Mr. Keane believed that his children were required to meet him in town at a local
restaurant if they wanted to see him.
{¶53} Joshua testified that Mr. Keane is angry at the children that refused to allow
him to return to his home after being discharged from Woodlawn. Mr. Keane is also very
angry about the annuity and the guardianship applications. Joshua testified that Mr.
Keane had been confrontational at times, and, at other times, had refused to accept
phone calls. Joan confirmed that Mr. Keane stopped accepting phone calls after the
guardianship applications were filed. Joshua believes that Mr. Keane should not live
alone, and that Vicki, with her training in elder care, is the best choice for guardianship.
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{¶54} According to Josette’s testimony, she filed her guardianship application at
her father’s request. She testified that her goal was to allow Mr. Keane to “liv[e] the last
portion of his life as close as possible as he would like it to be.” She conceded that she
must walk the “fine line” when caring for her father between “safety and well-being.” She
further conceded that her contact with her siblings was limited, but explained that their
exchanges were very negative, that they accused her of “being wrong” and not “know[ing]
what [she] was talking about.”
{¶55} Josette testified that she attempts to maintain a stress-free environment,
because stress causes confusion for Mr. Keane. She further testified that Jerry, Julie,
Jackie, Jeanette, and Jason were actively involved in their father’s life, whereas
Appellants do not participate. Josette reiterated that Mr. Keane was very angry about the
guardianship proceedings and he believed that Joyce wanted to steal his money. Josette
testified that Mr. Keane has good days and bad days.
{¶56} When asked to describe her efforts to repair the rift in her family, Josette
replied that she has made some strides, but that Mr. Keane said that it would take some
time. She added that Mr. Keane wants to “write people off right now”,” and intimated that
she dissuaded him from changing his will “a few times.” She testified that he has “nothing
to say” to her estranged siblings. However, as evidence of her willingness to reunite Jim
and his father, she testified that she recently asked Mr. Keane if she could ask Jim to
make accommodations to the exterior of Mr. Keane’s residence.
{¶57} On May 5, 2019, after the hearing, Josette and her husband executed a
promissory note and mortgage in favor of Mr. Keane. She attached copies of the note
and mortgage to her post-hearing brief.
{¶58} In a judgment entry dated July 8, 2019, the probate court appointed Josette
to be guardian of Mr. Keane’s person and co-guardian of his estate. The probate court
gave great weight to Josette’s efforts to fulfill her father’s desire to live in his own home
until circumstances force him to be institutionalized. The probate court further noted that
none of the other applicants had participated in Mr. Keane’s care since he returned home
from Woodlawn.
{¶59} The probate court predicated its “best interest” analysis on Rule of
Superintendence 66.09, captioned “Responsibilities of guardian to ward.” Rule 66.09(C)
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requires a guardian to “make a choice or decision for a ward that best meets the needs
of the ward while imposing the least limitations on the ward’s rights, freedom, or ability to
control the ward’s environment.” The rule further requires the guardian to “determine the
least restrictive alternative.” Rule 66.09(D), captioned “Person-Centered Planning,”
requires that “[a] guardian shall advocate for services focused on a ward’s wishes and
needs to reach the ward’s full potential.” The subsection continues, “[a] guardian shall
strive to balance a ward’s maximum independence and self-reliance with the ward’s best
interest.” This timely appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE PROBATE COURT ERRED IN SUSPENDING ALL POWERS OF
ATTORNEY IN THE COURT’S MARCH 11, 2019 JUDGMENT ENTRY.
{¶60} Appellants contend that the March 11, 2019 judgment entry terminating any
and all financial powers of attorney violates R.C. 2111.121(B). R.C. 2111.121, captioned
“Nomination as guardian of person or estate; Procedure,” reads, in pertinent part:
(A) A person may nominate in a writing, as described in this division,
another person to be the guardian of the nominator’s person, estate, or both
* * * subject to notice and a hearing pursuant to section 2111.02 of the
Revised Code. The nomination is for consideration by a court if proceedings
for the appointment of a guardian of the person, the estate, or both, for the
person making the nomination or if proceedings for the appointment of a
guardian as the guardian of the person, the estate, or both * * * are
commenced at a later time.
***
(B) A person’s nomination, in a writing as described in division (A) of this
section, of a guardian of the nominator’s person, estate, or both * * * is
revoked by the person’s subsequent nomination, in a writing as described
in division (A) of this section, of a guardian of the nominator’s person,
estate, or both * * * and, except for good cause shown or disqualification,
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the court shall make its appointment in accordance with the person’s most
recent nomination.
{¶61} Appellants assert that the probate court should have appointed Joyce as
guardian of Mr. Keane’s estate based upon her previous nomination by Mr. Keane in the
financial power of attorney executed on October 28, 2004. They advance the same
argument with respect to the healthcare power of attorney nominating Jane as guardian
in 2015. However, R.C. 2111.121(B) plainly states that a nomination is revoked by a
subsequent nomination.
{¶62} Furthermore, in In re Guardianship of Martin, 7th Dist. Mahoning No. 09 MA
117, 2010-Ohio-3155, we recognized that the probate court is not bound by the
nomination of guardianship provision in a power of attorney. Id. at ¶ 23. It is within the
probate court’s discretion to reject an applicant for guardianship even if she had been
properly nominated in a power of attorney. Id., citing In re Guardianship of Hafner (Nov.
24, 1993), 9th Dist. Summit No. 16073.
{¶63} Accordingly, we find that Appellants’ first assignment of error, which alleges
a violation of Ohio guardianship law, has no merit. As a consequence, we review the
record in order to determine whether Josette’s appointments constitute an abuse of
discretion by the probate court.
ASSIGNMENT OF ERROR NO. 2
THE PROBATE COURT ERRED BY APPOINTING JOSETTE FOLK AS
GUARDIAN OF THE PERSON OF THE ESTATE OF THE WARD, JAMES
P. KEANE, IN THE COURT’S JULY 8, 2019 JUDGMENT ENTRY.
ASSIGNMENT OF ERROR NO. 3
THE PROBATE COURT ERRED BY APPOINTING JOSETTE FOLK AS
GUARDIAN OF THE ESTATE OF THE WARD, JAMES P. KEANE, IN THE
COURT’S JULY 8, 2019 JUDGMENT ENTRY.
{¶64} A guardian is deemed to be an officer of the probate court. In re C.W., 7th
Dist. Columbiana No. 13 CO 44, 2014-Ohio-2934, ¶ 19, citing In re Clendenning, 145
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Ohio St. 82, 93, 60 N.E.2d 676 (1945). Ergo, the power of the probate court is superior
to that of guardians appointed by the court. Id.; R.C. 2111.50(A)(1). With the exception of
the disposition of gifts from a ward’s estate, the power of the court relative to one declared
a ward is to be exercised in his or her best interests. R.C. 2111.50(C)(1).
{¶65} A probate court’s decision regarding matters involving guardianships will
not be reversed on appeal unless the probate court’s decision amounts to an abuse of
discretion. In re Estate of Bednarczuk, 80 Ohio App.3d 548, 551, 609 N.E.2d 1310 (1992).
It is well-settled that probate courts have broad discretion when appointing and removing
guardians, and their decisions will not be reversed absent a showing of an abuse of that
discretion. Id., In re Guardianship of Skrobut, 7th Dist. Mahoning No. 97CA18 (Apr. 30,
1998).
{¶66} An abuse of discretion is more than an error of judgment, it implies that the
trial court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When the record supports the probate
court’s appointment of a guardian, then no abuse of discretion can be shown. In re
Guardianship of Martin, supra, ¶ 24.
{¶67} Appellants contend that the probate court engaged in a wholly inadequate
analysis of Mr. Keane’s best interest. To the contrary, the testimony offered at trial was
polarized, and the resolution of guardianship turned completely on the believability of the
testimony at the hearing. We have previously recognized that “[t]he credibility of the
parties and other witnesses [is] a matter for the trier of fact as there may [be] ‘much
evidence in the parties’ demeanor and attitude that does not translate to the record well.’”
Matter of T.M.M., 7th Dist. No. 17 CO 0025, 2017-Ohio-9219, 102 N.E.3d 558, ¶ 42, citing
Davis v. Flickinger, 77 Ohio St.3d 415, 418–419, 674 N.E.2d 1159 (1997) (fact-finder had
opportunity to view the witnesses and observe their demeanor, gestures and voice
inflections and to use these observations in weighing credibility).
{¶68} Further, the probate court’s rationale regarding the guardianship of Mr.
Keane’s person is supported by the record. Josette was the individual that made it
possible for Mr. Keane to return to his own home after he was discharged from Woodlawn.
Sup.R. 66.09(H) reads that “[a] guardian shall monitor and coordinate all services and
benefits provided to a ward * * *.” Josette, by organizing the efforts of his children, their
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spouses, and Mr. Keane’s grandchildren, and by employing Newsome, has been the
architect of Mr. Keane’s daily schedule since he returned home. She communicates with
Mr. Keane several times per week.
{¶69} Sup.R. 66.09(E) states, in pertinent part, that “[a] guardian shall strive to
foster and preserve positive relationships in the ward’s life unless such relationships are
substantially harmful to the ward.” While Josette admitted that she made only the slightest
effort to reconnect Mr. Keane with Appellants, they have likewise admitted that they made
no effort to participate in his home care after he was discharged from Woodlawn.
{¶70} Although Appellants accuse Josette of intentionally isolating Mr. Keane,
Josette’s requirement that family members schedule their visits in advance is reasonable,
based on Mr. Keane’s need for routine, and the onset of stress when he feels upset or
overwhelmed. To the extent that Mr. Keane is isolated, Appellants are equally responsible
because they have made no effort to conform to the structure created by Josette in order
to care for their father. Further, Appellants’ alienation from their father/father-in-law
appears to be the product of ignoring his wishes and, with respect to Joyce and Jane,
engaging in self-serving financial gamesmanship.
{¶71} The fear for Mr. Keane’s safety expressed by Appellants at the hearing was
predicated upon comments from neighbors due to Appellants’ lack of consistent contact
with Mr. Keane. Appellants’ fear for Mr. Keane’s safely could be either substantiated or
overcome if Appellants were actively involved in his care. Further, the probate court
required that Mr. Keane be reevaluated every six months in order to determine that his
environment is safe and comports with his best interest.
{¶72} Turning to Mr. Keane’s estate, the probate court appointed co-guardian
Joyce, in addition to Josette, to oversee Mr. Keane’s finances. Although both daughters
demonstrated self-dealing with respect to Mr. Keane’s finances in the past, the probate
court appointed co-guardians and placed financial conditions on the co-guardians
designed to prevent any of his children from taking his money under the guise of a loan
or otherwise in the future.
{¶73} In summary, we find that there is evidence in the record that supports the
appointment of Josette as guardian of Mr. Keane’s person and co-guardian of his estate.
Josette was the applicant that fulfilled the requirements of Sup.R. 66.09, as reflected in
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her efforts to balance Mr. Keane’s desire to live at home with the necessity of keeping
him safe and in good health. Further, the probate court appointed a co-guardian of the
estate to prohibit any self-dealing. Therefore, we find that Appellants’ second and third
assignment of error have no merit.
CONCLUSION
{¶74} Having reviewed the relevant law and the evidence in the record, we find
that the probate court’s appointments of Josette as guardian of Mr. Keane’s person and
co-guardian of his estate are neither contrary to law, nor do they demonstrate an abuse
of discretion. Therefore, based on our limited review, we affirm the judgment entry of the
probate court. However, our affirmance should not be interpreted as an endorsement of
Josette’s conduct in this case. Accordingly, the judgment entry of the probate court is
affirmed.
Donofrio, J., concurs.
Robb, J., concurs.
Case No. 19 CA 0934
[Cite as In re Guardianship of Keane, 2020-Ohio-1105.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas, Probate Division, of Carroll County, Ohio, is affirmed.
Costs to be taxed against the Appellants.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.