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In re Estate of Runyon

Court of Appeals of Colorado, Fourth Division

December 31, 2014

In re the Estate of Sidney L. Runyon, Protected Person. Department of Veterans Affairs, Interested Non-Party Respondent, and Elizabeth Knight and Gladys Runyon, Petitioners-Appellants,
v.
BOKF, N.A., d/b/a Colorado State Bank and Trust, Appellee

Arapahoe County District Court No. 13PR717. Honorable James F. Macrum, Judge.

Elizabeth Knight and Gladys Runyon, Pro se.

Mona S. Goodwin, Denver, Colorado, for Appellee BOKF, N.A.

Opinion by JUDGE NAVARRO. Webb and Kapelke[*] JJ., concur.

OPINION

NAVARRO, JUDGE

Page 1073

[¶1] Gladys Runyon and Elizabeth Knight appeal the trial court's orders appointing a guardian, conservator, and Uniform Veterans' Guardianship Act guardian for their relative, Sidney L. Runyon. We remand with directions.

I. Background

[¶2] Gladys Runyon (Mother) was the authorized payee for Sidney Runyon's Department of Veterans Affairs (VA) benefits until August 2011, when Elizabeth Knight (Sister) became the payee. In February 2012, the VA designated the Colorado State Bank and Trust (Bank) as payee.

[¶3] The Bank petitioned for appointment as Runyon's guardian under the Uniform Veterans' Guardianship Act (UVGA), § § 28-5-201 to -223, C.R.S. 2014, in Denver Probate

Page 1074

Court. The Bank also filed a petition nominating Jeanette Goodwin as Runyon's guardian under the probate code. The Denver Probate Court concluded that the Bank's petitions were not filed in the proper venue. But it appointed Goodwin as emergency guardian. That appointment expired in August 2012.

[¶4] Ten months after the expiration of the emergency guardianship, Mother and Sister sought appointment as co-guardians and conservators in Arapahoe County. The trial court appointed a visitor to interview Runyon, Mother, and Sister. Runyon advised the visitor that he did not want Mother and Sister appointed as his conservators and guardians. Based on the visitor's report, the court appointed counsel for Runyon.

[¶5] The Bank then entered an appearance, sought appointment as conservator and UVGA guardian, and nominated Goodwin as guardian.

[¶6] At the appointment hearing in December 2013, it was uncontested that Runyon was an incapacitated person who needed both a guardian and a conservator. Runyon's attorney explained that he had met with Runyon and had learned Runyon's preferences as to who should be appointed guardian and conservator. The attorney told the trial court that Runyon preferred the Bank and Goodwin, rather than Mother and Sister. Although present, Runyon did not address the court. Still, relying on Runyon's preferences, the court appointed the Bank as conservator/UVGA guardian and Goodwin as guardian under the probate code.

II. Appointment of Goodwin and the Bank

[¶7] Mother and Sister contend that the trial court erred in appointing Goodwin and the Bank, rather than them, to manage Runyon's affairs. Specifically, Mother and Sister assert that (1) their purported status as designated payees for Runyon's VA and Social Security Administration (SSA) benefits entitled them to be appointed as co-conservators and co-guardians and (2) the court should not have given effect to Runyon's preferences. We disagree with the first point but remand for further proceedings on the second point.

A. Standard of Review

[¶8] " The grounds for appeal from an order appointing a guardian [or conservator] are limited." A. Kimberley Dayton et al., Advising the Elderly Client § 34:40 (2014). Trial courts are in a " better position to judge the character, and appropriateness of those who would be guardian or conservator" because they preside over the appointment hearing. Id. Thus, " 'much must be left to the sound discretion of the trial judge.'" In re Mitchell, 914 S.W.2d 844, 848 (Mo.Ct.App. 1996) (quoting In re Gollaher, 724 S.W.2d 597, 600 (Mo.Ct.App. 1986)); see also id. at 848-49 (" [T]he decision of whom to appoint lies within the sound discretion of the trial court." ); In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn. Ct. App. 1991) (" The appointment of a guardian is a matter peculiarly within the discretion of the probate court." ).

[¶9] As a result, an appellate court reviews the trial court's appointment of a guardian or conservator for an abuse of discretion. See Koshenina v. Buvens, 130 So.3d 276, 280 (Fla. Dist. Ct. App. 2014); In re Moses, 615 S.E.2d 573, 575, 273 Ga.App. 501 (Ga. Ct. App. 2005); In re Estate of Johnson, 303 Ill.App.3d 696, 708 N.E.2d 466, 472, 236 Ill.Dec. 880 (Ill.App.Ct. 1999); Kowalski, 478 N.W.2d at 792; In re Conservatorship of Lundgaard, 453 N.W.2d 58, 63 (Minn. Ct. App. 1990); Keyser v. Keyser, 81 S.W.3d 164, 168 (Mo.Ct.App. 2002); In re Estate of Haertsch, 437 Pa.Super. 187, 649 A.2d 719, 720-21 (Pa. S.Ct. 1994); In re Conservatorship of Gaaskjolen, 2014 SD 10, 844 N.W.2d 99, 101 (S.D. 2014); In re Guardianship of Blare, 1999 SD 3, 589 N.W.2d 211, 213 (S.D. 1999); In re Tyler, 408 S.W.3d 491, 495 (Tex.App. 2013). A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair. Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff's Dep't, 196 P.3d 892, 899 (Colo. 2008); see also Mitchell, 914 S.W.2d at 848 (In reviewing a decision on whom to appoint as guardian or conservator, " 'appellate courts should defer to [the trial judge's] discretion unless the ruling is against the circumstances, underlying policies, [statutory] preferences of appointment,. .. or against the weight of the evidence to support the judgment.'" (quoting

Page 1075

Gollaher, 724 S.W.2d at 600)). An abuse of discretion also occurs if a court misapplies the law. Freedom ...


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