Posts Tagged ‘Texas Court of Appeals’

Guardians Control Care Decisions, But Authority Is Not Absolute

A Texas probate judge appointed Frederick and Lorraine Cooper (see note below) as guardian of their adult developmentally disabled daughter Cathy in 2003. Three years later, Cathy moved into a group home in Grapevine, Texas. After Cathy had lived there for about two years, the group home operator became concerned about what it saw as her deteriorating mental health.

Why was the group home operator concerned? There were several reasons. Cathy had developed a set of imaginary friends, and the group home staff thought she was spending more and more of her time in conversation with them. She had become occasionally violent — once striking another resident who she thought was sitting in her seat on the group home’s bus. She had started to set traps for the staff, like lining marbles up under the edge of the door to her bedroom. She also was found to have as many as four screwdrivers hidden around her room — wedged into a closet, stashed behind her dresser and in her jewelry box.

The group home took the issue up with Cathy’s guardians — her parents. The parents did not feel that Cathy’s behavior was troubling, and they refused to permit the group home to set up a psychiatric evaluation. After the group home arranged a prescription for Zoloft for Cathy, the parents ordered that the medication be discontinued. They also continued to bring in over-the-counter medications for Cathy, insisting that her only medical problem was persistent headaches which could be treated without a doctor’s involvement.

In a meeting with Cathy’s parents, the group home insisted that they should not discontinue medication, that they could not bring non-prescription medications to Cathy without notifying the nurse on duty (and getting her approval), and that they needed to stop supplying their daughter with screwdrivers. Cathy’s parents pointed out that they were their daughter’s guardian, and that they were in charge of medical and personal decisions for her. They refused consent for a psychiatric evaluation, declined to cooperate with the group home over the over-the-counter treatments, and indicated that they saw no problem with Cathy’s attachment to screwdrivers and booby traps. They insisted that she just felt like she needed to have the screwdrivers to protect herself, and that if the staff would stop bothering her she wouldn’t feel like she needed to booby-trap the doorway to her room.

The group home arranged to get information about Cathy’s parents’ decisions before the probate judge who had appointed them as guardians. Without notice to them or a hearing on the information, the judge removed them as guardians and appointed a professional guardian in their stead. The Coopers did not appeal or seek review of that decision, but they did file a motion for reinstatement as guardians. After a hearing, the probate judge declined to reappoint them, and they appealed to the Texas Court of Appeals.

The appellate court agreed with the probate judge that the Coopers had failed to show that they should be reappointed as guardian for their daughter. The Court of Appeals noted that the Coopers not only did not express concern over their daughter’s behaviors, they assisted her by letting her take screwdrivers back to the group home after visits to their home. Although the Coopers had sought out evaluations by an allergist, an acupuncturist, a neurologist and a chiropractor, they had refused to have her tested or treated by a psychiatrist — because, they said, they were sure that the result would be that she was put on medication, and they wanted her headaches treated first. For all those reasons, the appellate court let stand the probate judge’s refusal to reinstate the Coopers as guardian. In re Covington, February 9, 2012.

The Coopers apparently felt that, as their daughter’s guardian, they were completely in control of medical and personal decisions for her. They were right, as far as that goes. But that control was not absolute. The ultimate authority in such a circumstance rests not with the family or guardian, but with the probate court overseeing the guardianship proceeding. The result of the court proceedings would likely have been the same under Arizona law in similar facts.

A word about names: For 19 years now, we have reported on cases with full and accurate names included. We have felt that having names humanizes the stories we relate, and those names are readily available in the reported cases in any event. But we are rethinking our position as the internet makes it easier and easier to look up personal information about anyone. A simple internet search for the name of an adult incapacitated person, or a family member of such a person, can expose their personal affairs to heightened scrutiny. Since we agree that the names are not really important to the story, we are trying an experiment with this week’s newsletter. We have changed the names of the principals, primarily to keep the actual names from appearing after an internet search for someone who, like “Cathy” here, is to some extent a victim of the public reporting system inherent in court cases.

If it is important for any of our readers to know “Cathy’s” real name, it is not that difficult to find it — in the same place we originally found it. From time to time, though, we will expect to modify the names of the subjects of legal proceedings and their families.

In the past we have also used full and formal names for the subjects of our reporting; we would have called Cathy Cooper “Ms. Cooper.” Since we are not actually using her real name here, we have decided to make her story more readable by referring to her as simply “Cathy.” We hope you understand; feel free to tell us whether you agree or disagree with either part of our decision.

Court Distinguishes Between Undue Influence, Incapacity

DECEMBER 28 , 2009  VOLUME 16, NUMBER 66

Contrary to public perceptions, will contests are actually rare. In fact, few wills are written in such a way that anyone would benefit from a contest — most wills leave property to the same people who would inherit if there was no will. When there is a will contest, however, the two most common grounds are allegations of (1) lack of testamentary capacity, or (2) undue influence exerted by someone. A recent Texas case highlights the differences between those two allegations.

Evelyn Marie Reno died at age 81. She had been married twice, and left three children from her first marriage and one daughter from the second. The youngest child, Jan LeGrand, did not get along well with her half-siblings. Relationships between Ms. Reno and the three children from her first marriage were also strained — at least partially because two of them had initiated a guardianship proceeding (which was later dismissed) against their mother.

Ms. Reno spent the last year of her life in a nursing home. Ms. LeGrand visited her regularly, paid all her bills, and kept her location a secret from her half-siblings. At some point in the year before she died, Ms. Reno asked her daughter to help her prepare a new will disinheriting her other three children and leaving her entire estate to Ms. LeGrand.

The will was prepared (by Ms. LeGrand), and signed in Ms. Reno’s nursing home room. The witnesses were a hospice worker and chaplain, and the notary public was a nursing home employee. Ms. LeGrand was asked to leave the room while the three non-family members discussed the will and watched her sign it.

After Ms. Reno’s death the will was filed with the probate court by Ms. LeGrand. The three half-siblings proposed an earlier will, which left most of the estate to the four children equally.

The Probate Court ruled that Ms. Reno lacked testamentary capacity at the time the last will was signed, and that she was subjected to undue influence by her daughter. The earlier will (and a codicil) were instead admitted to probate.

The Texas Court of Appeals analyzed the findings of the Probate Court, and modified the basis for its findings — while not changing the result. The evidence, according to the appellate court, showed that Ms. Reno DID have testamentary capacity. Though she was often confused, the two witnesses and the notary agreed that the will was signed on a good day. Evidence of confusion and occasional disorientation on days before and after the will signing was not enough to overcome the testimony that she knew what she was signing, who her children were and what she intended to do at the time she signed the will.

The appeals judges agreed with the Probate Court, however, on the subject of undue influence. A key part of the evidence considered by the Court of Appeals: the fact that the will was actually prepared by Ms. LeGrand. As the Court wrote: “the fact that LeGrand personally prepared teh will without the intervention of an atotrney or other third party is significant.”

Also important to the court’s analysis: Ms. LeGrand had sole access to Ms. Reno for more than a year (during which time their mother’s whereabouts were not shared with the other three children). During that time, noted the Court of Appeals, Ms. Reno was completely dependent on Ms. LeGrand for bill-paying, care management and personal contact.

A more subtle distinction is drawn by the appellate judges with regard to Ms. Reno’s declining mental status. Though her condition at the moment of signing the will did not support the allegations of lack of testamentary capacity, her growing confusion and periodic mental weakness made her susceptible to undue influence.

Finally, the Court of Appeals notes that the will prepared by Ms. LeGrand for her mother was a complete shift from her prior wills. In each of those she made specific bequests to her four children and thirteen grandchildren, plus hospitals, her church and her pastor. The last will, however, left everything to one daughter — and this significant change in her dispositive plan was yet another indication of undue influence.

Though family members often confuse the concepts of testamentary capacity and undue influence, the legal analysis of the two different approaches to will contests is well-developed. It is also important to note that not every attempt to talk someone into making a new will is automatically subject to challenge. As the Reno court opined, in somewhat dry legalistic language: “One may request, importune, or entreat another to create a favorable dispositive instrument, but unless th eimportunities or entreaties are shown to be so excessive as to subver the will of the maker, they will not taint the validity of the instrument.”

The difference between “lack of testamentary capacity” and “undue influence” is legalistic, to be sure, but it is more than just academic. Interestingly, the Texas Court of Appeals noted that there is a difference in the burden of proof borne by the parties in the two different kinds of cases. In a case alleging lack of testamentary capacity the proponent of the will has the burden of proving that the testator understood what she was doing. In an allegation of undue influence, the challenger carries the burden of proof.

That means that each side in Ms. Reno’s case met their burden of proof. That is, Ms. LeGrand showed that her mother understood what she was doing, but the other three children demonstrated that Ms. LeGrand unduly influenced their mother. Estate of Reno, December 18, 2009.

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