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CHAPTER FIVE. INDIVIDUAL COURT
STRUGGLES FOR FREEDOM: VICTORIES
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"Victory at all costs, victory in spite of all
terror, victory however long
and hard the road may be; for without victory there is no survival."
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--Sir Winston Churchill
House of Commons,
May 13, 1940 |
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 e now continue with the stories of 20 men and women who managed to have
their involuntary conservatorship/guardianship rulings reversed. As
suggested earlier, such victories are rare. Approximately 94 percent of all
initial involuntary conservatorship/guardianship litigation in America is
lost by the vulnerable elderly and almost none of these losing cases are
ever appealed.(1) And sadly, even when appealed, decisions made by lower
courts in contested protective proceedings are rarely overturned by higher
courts. In victory as in defeat, the elderly pay a substantial price for
their involvement in these so-called "protective proceedings" in terms
of
monetary cost, peace of mind, and precious years lost to litigation.
The cases should be viewed as 20 unique victories rather than as a body of
evidence suggesting that state conservatorship/guardianship codes
themselves have changed in significant ways. There is no judicial
consistency in such rulings from court to court, much less from county to
county or from state to state. As Judge James Brock of Georgia warned, "the
same evidence presented to two different judges may produce two different
results because the judges' perception of what constitutes 'clear and
convincing evidence' differs."(2) Vague statutory definitions
contained in
individual state laws that are then interpreted on an ad hoc and subjective
basis by each judge in every county--such is the complex legal context in
which the following court nightmares have unfolded.
CASE 5.01. In re Estate of Wagner, 367 N.W.2d 736 (Neb. 1985)
During the three months following the death of her husband, 79-year-old
Delphine Wagner leased some of her land to Scribner Alfalfa, Inc. The land
had previously been farmed by her son and son-in-law, but the new lease
with Scribner Alfalfa produced 160 percent greater income than had the
leases to her son and son-in-law. Citing this decision as proof that
Delphine Wagner was incapable of properly managing her own affairs, four of
Delphine's six children petitioned the District Court for Dodge County,
Nebraska, for the appointment of a conservatorship over their mother.
Using logic that was described by a later court in its written summary as
"difficult to grasp," one of the petitioners stated that the
transaction
was evidence of mismanagement of his mother's affairs because "by receiving
more income for the land, Mrs. Wagner would be required to pay more income
tax." Transcripts from the County Court in Nebraska reveal that one of
Delphine's petitioning sons testified as follows:
Q. You don't know whether she is mismanaging it or not?
A. Oh, I can see she's mismanaging it. I can see that. I don't have to go over.
Q. How can you see that?
A. Well, she rented it to the alfalfa mill. That's not very good business.
She's only one person, that's money she's going to have to give to Uncle
Sam. If my dad would have wanted more money, he'd have asked for it.
Q. She rented it to the alfalfa mill for 160 percent of what you were
paying and that was a bad business decision?
A. She ain't going to gain nothing.
Q. Because of the taxes?
A. That's right. . . .
Delphine's personal physician, Dr. Roger Dilley, testified that his patient
was in good health, demonstrated good comprehension, showed no problems
with her memory, was well-oriented, and answered questions appropriately.
Tests conducted by court-appointed clinical psychologist Dr. Philip G.
McLeod and two of his associates disclosed no evidence that she was unable
to handle her affairs. Their report concluded that "her judgment has been
good in the past and there was no evidence of poor decisions after her
husband died."
In its ruling against Delphine Wagner, the County Court determined that
Mrs. Wagner was unable to manage her property due to "advanced age, a
continuing grief caused by the death of her husband, Roy Wagner, and the
subtle direct undue influence of her daughter, Clarinda Foote, as well as
the indirect influence of [a second daughter] Clara Mae and [son-in-law]
Charles Lange." The petitioners had offered no proof of the nature of the
undue influence other than the fact that one daughter had helped her mother
with funeral arrangements.
The court appointed a conservator over Delphine, set aside the lease of the
land Delphine had made to Scribner Alfalfa, Inc., and directed that she
receive an allowance of $1,200 per month to "handle her day-to-day affairs
and expenses." Delphine refused to accept the court's humiliating ruling
and filed an immediate appeal. When the appellate court dismissed the
conservatorship and returned control of her land and business affairs to
Delphine, the four adult children then brought their case before the
Supreme Court of Nebraska. The Supreme Court ruled with the district
appellate court in Delphine Wagner's favor. Why?
On the Court's Ruling. The Supreme Court agreed that the evidence failed to
support the need for a conservator. "One may not have his or her property
taken away and placed in [the] hands of [a] conservator," the court warned,
"merely because potential heirs believe that there will be more left for
them if [the] owner of the property is not free to deal with the property
as he or she chooses." They found the county court to be in error in
determining that Mrs. Wagner was unable to manage her property yet could
handle her day-to-day affairs:
"Notwithstanding the fact that the county court determined that Mrs. Wagner
was unable to manage her affairs, the court, nevertheless, found and
directed that she be paid the sum of $1,200 per month in order that she
many 'handle her day to day affairs and expenses.' The reason for
concluding that she was unable to manage her property due to those matters
set out in the order but, nevertheless, was able to handle her day-to-day
affairs and still to subject her to the appointment of a conservator under
the language of [statue section] §30-2630 is difficult to understand.
Perhaps the county court was concerned with the manner in which Mrs. Wagner
would choose to deal with her assets rather than whether she would be able
to effectively manage them. If that was the case, the county court was in
error."
The Chief Justice continued:
"The evidence in this case establishes beyond any question that Mrs. Wagner
possessed sufficient mentality to understand in a reasonable manner the
business she was transacting and to know the nature and effect of her acts
with reference to business affairs. As a matter of fact, it was her
knowledge which apparently disturbed four of the children and caused them
to seek the appointment of a conservator."
Addressing the petition's claim that Mrs. Wagner was unable to withstand
the "direct and indirect undue influence" of two daughters in dealing
with
her business affairs, the Supreme Court reviewed earlier testimony.
Attention was focused on relevant material provided by the clinical
psychologist who had interviewed the proposed ward at the court's request:
Q. Were you able to tell from the test and from the interview you did of
Delphine Wagner, anything regarding her personality, whether she had a mind
of her own, whether she would be influenced by others?
A. Yes. She looked like quite a strong-willed gal; has her own opinion. I
don't know her past situation. May be somewhat opinionated; feisty. Those
kind of descriptive terms come to mind.
Even the children, who had stated in their petition that their mother was
subject to undue influence, testified to the contrary:
Q. Your mother is too bullheaded. She makes up her own mind?
A. She's stubborn. You can't talk to her.
Q. And she sticks to it when she's made it up?
A. Whether it's right or wrong.
In language rarely found in conservatorship/guardianship filings, the court
also responded to a claim that Delphine Wagner appeared to be depressed.
"One might conclude," they began, "that such reaction was quite
normal in
view of the fact that four of her six children were attempting to have a
conservator appointed for her and she was being examined by strangers in
order to try and retain control over her own property. Any normal, healthy
individual would undoubtedly have some sense of depression about that
event."
The Supreme Court supported the district appellate court's conclusions in
all regards. Unlike the rulings of many of the courts in cases we have
already reviewed, this judgment swept aside the legal verbiage that had
threatened Delphine Wagner's freedom after her husband had died. "It is
apparent that what we are confronted with in the instant case," the Court
stated,
"is a situation in which Mrs. Wagner's husband, for many years, for
whatever reasons, permitted several of his children to use land belonging
to the Wagners at less than market rental and that upon his death Mrs.
Wagner determined to become a better business person. This caused a change
in the arrangements which several of her children had previously enjoyed
and, for that reason, caused dissension in the family. An effort, however,
to relieve dissension is not grounds for the appointment of a conservator."
(Emphasis added.)
It is important to remember that Delphine had to overcome having been taken
to court by four of her six adult children, adjudicated incapable of
managing her affairs, and then move through two more court battles to
secure her victory. She is one of the few who have succeeded in wresting
victory from an initial legal defeat.
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Reference for Case 5.01: In re Estate of Wagner, 367 N.W.2d 736 (Neb. 1985)
(1) Rein, J. E. (1992). Preserving Dignity and Self-Determination of
the
Elderly in the Face of Competing Interests and Grim Alternatives: A
Proposal for Statutory Refocus and Reform. George Washington Law Review
(60), p. 1880.
(2) Brock, J, JD. (1998). Judicial Decisions in Guardianship Cases.
In
G. H. Zimny, PhD, & G. T. Grossberg, MD (Eds.), Guardianship of the
Elderly: Psychiatric and Judicial Aspects, p. 87. New York: Springer
Publishing Company.
 
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