Posts Tagged ‘Mississippi’

Ohio Probate Judge Describes Court as “Superior Guardian”

DECEMBER 27, 2011 VOLUME 18 NUMBER 44
Carl Smith is a developmentally disabled young man living in Ohio. When he reached age 18, his mother Peggy Smith applied to the local probate court for appointment as his guardian. She was appointed, and Carl continued to live with her for the next several years.

In 2005 James Stewart moved into the Smith home. Mr. Stewart was a recently-released felon; he had spent fourteen years in the Ohio prison system after a rape conviction. Mr. Stewart and Ms. Smith later married.

In 2007 Carl Smith reported that his stepfather had slapped him. Without any further evidence of violence, authorities simply closed their investigation. In 2008 Carl reported that his stepfather had beaten him with a belt; caregivers at his day program observed cuts and bruises, and a report was filed. Mr. Stewart was charged with a felony for the alleged abuse, and he represented himself at trial. He was convicted.

Meanwhile, the probate court learned of the assault charge and scheduled its own hearing into Carl’s care and living arrangements. Concerned about his safety, the probate judge removed Mrs. Stewart (the former Ms. Smith) as guardian and appointed a private fiduciary to make placement and treatment decisions for Carl. Carl moved into a group home with two other developmentally disabled residents and a full-time caregiver.

Mrs. Stewart appealed her removal as guardian. The Ohio Court of Appeals agreed that her removal was premature as the criminal charges against Mr. Stewart had not yet been resolved. At about the same time, the same Court of Appeals also reversed the conviction of Mr. Stewart on the assault charge, finding that he should not have been allowed to represent himself in his criminal trial.

The county prosecutor made a decision not to re-try Mr. Stewart on the assault charge, since he had already served as much jail time as he would get if there was another trial. Mrs. Stewart then sought approval to return Carl’s guardianship to her, and to bring him back into her — and her husband’s — home.

The Ohio probate judge declined to make Mrs. Stewart the guardian for her son once again. After a court-appointed investigator reported that Carl was frightened of Mr. Stewart and happy in his current environment, the judge ruled that Mrs. Stewart had exposed her son to potential and actual harm.

In a guardianship case, ruled the probate judge, the court is the “superior guardian” and ultimately responsible for decisions about placement, care and welfare. The appointed guardian “is simply an officer of the court subject to the court’s control, direction and supervision.” With that responsibility, it is incumbent on the probate court to investigate and act on any concerns about the well-being of wards in guardianship proceedings.

Mrs. Stewart appealed again. She argued that the probate court had disobeyed the earlier Court of Appeals instruction by not returning Carl to her care, and that it had no jurisdiction to initiate its own investigation into Carl’s living arrangements.

In its second view of the guardianship matter (and its third look at the Stewart/Smith family) the Court of Appeals dismissed Mrs. Stewart’s allegations. It agreed with the probate judge that the court is the “superior guardian,” and that a guardian’s actions are always subject to the court’s review. The appellate court quoted a 2010 Ohio Supreme Court decision (In Re: Guardianship of Spangler) in which the state’s high court had ruled that “the plenary power of the probate court as the superior guardian allows it to investigate whether a guardian should be removed upon receipt of sufficient information that the guardian is not acting in the ward’s best interest.” In Re: Guardianship of Smith, December 16, 2011.

In addition to Ohio, courts in Mississippi and Washington have described their local probate courts as the “superior guardian” in recent guardianship disputes. What does that mean? As a practical matter, it means that court-appointed guardians — even when they are also the parents or other close family member — are responsible to the probate judge for their decisions about care and placement. The probate judge may investigate, may enter restrictive orders and may even remove guardians when it appears necessary for the ward’s safety or well-being.

“Full Faith and Credit” Applies In Two-State Probate Actione

APRIL 5, 2004 VOLUME 11, NUMBER 40

A Florida court found Alvarado Kelly incompetent in 1960, and appointed a guardian to manage his property. Fifteen years later Mr. Kelly moved to a facility in Mississippi operated by Sarah Cuevas; he lived in that facility until his death twenty five years later. After his death Mr. Kelly’s brother William and Ms. Cuevas became embroiled in a legal dispute involving the courts of both states.

Mr. Kelly had signed a will while he lived in Mississippi, and he had named Ms. Cuevas as executrix (what we in Arizona would call “personal representative”). Shortly after his death Ms. Cuevas filed the will for probate with the Mississippi courts, gave notice to William Kelly as the next of kin, and secured a court order appointing her as executrix and finding the will to be Mr. Kelly’s valid will.

William Kelly then filed a proceeding in the Florida courts. He acknowledged that there had been a finding in Mississippi, but he argued that it was invalid both because he had not actually participated and because his brother had never been a resident of Mississippi.

William Kelly argued that since his brother had been adjudged incompetent and the Florida courts had never given specific permission for him to relocate to Mississippi, he remained a resident of Florida for the rest of his life. He also insisted that the will was invalid because Ms. Cuevas had exercised undue influence.

Ms. Cuevas filed a motion to dismiss the Florida probate, but the Florida court agreed with William Kelly that her appointment by the Mississippi court was invalid. A Florida bank was appointed as personal representative of Mr. Kelly’s estate and authorized to collect his assets.

The Florida Court of Appeals reversed the probate court’s decision, however. In doing so, it relied partly on the U.S. Constitution, which requires the courts of each state to give “full faith and credit” to the courts of sister states in most situations.

In this case, ruled the appellate court, Ms. Cuevas had given William Kelly notice of the pending Mississippi proceedings, and an opportunity to file pleadings and present his argument that any proceedings should be in Florida. When the Mississippi court admitted Mr. Kelly’s will to probate it made a determination that he was domiciled in Mississippi; if William Kelly disagreed with that conclusion he needed to make his argument in Mississippi, rather than just filing his own proceeding in Florida. Cuevas v. Kelly, March 26, 2004.

Mr. Kelly’s probate proceedings provide an interesting illustration of the “full faith and credit” clause of the Constitution, and of its application to probate proceedings. It also demonstrates that it is unwise to ignore the proceedings in another state, hoping to later file a competing action in a more friendly jurisdiction.

December, 2005, update: In a related case in the Mississippi courts, that state’s Court of Appeals ruled that probate proceedings were proper in Mississippi. William Kelly, the decedent’s brother, had argued in the Mississippi proceedings that there was no jurisdiction for a probate there, since (he insisted) all of Alvarado Kelly’s assets necessarily belonged in Florida where he had resided when he had last been competent to select a residence. The Mississippi chancery court (where probate proceedings are tried) had ruled that it would be “impossible” to imagine that Alvarado Kelly had lived in Mississippi for thirty years without accumulating clothing or other personal items. His death in Mississippi, coupled with the existence of any assets at all, gave Mississippi courts jurisdiction over his estate, and the Court of Appeals agrees that those probate proceedings were properly initiated. In the Matter of Estate of Kelly, December 6, 2005.

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