Summary 2010 WY 155

Summary of Decision December 1, 2010

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Case Name: Boykin v. Parkhurst

Citation: 2010 WY 155

Docket Number: S-09-0251, S-09-0252

URL: http://tinyurl.com/3a2rnsm

Appeal from the District Court of County, Honorable , Judge

Representing Appellant (Petitioner): Jason M. Tangeman and Julie M. Wickett of Nicholas & Tangeman, Laramie, Wyoming

Representing Appellee (Respondent): William L. Hiser of Brown & Hiser, , Laramie, Wyoming.

Representing Guardian ad Litem: M. Gregory Weisz of Pence and Macmillan, Laramie, Wyoming.


Date of Decision: December 1, 2010

Facts: In documents signed by Nina H. Parkhurst, she designated one of her sons (Appellee) as her attorney in fact, for purposes of managing her estate and day-to-day business matters. At that same time she also executed an Advanced Health Care Directive designating him as the individual to make health care decisions for her if she became incapacitated. Appellant, is also a son of Parkhurst. He petitioned the district court seeking the appointment of a guardian and conservator for her person and estate, alleging that she was not being properly cared for and that her estate was vulnerable because of the broad scope of the Durable Power of Attorney Appellee held. The district court appointed a Guardian ad Litem (GAL) for the limited purpose of making an inquiry into the allegations and to then file a report with the district court.

In Case No. S-09-0251, Appellee contends that the summary judgment the district court ultimately granted in favor of Appellant was erroneous because the district court’s decision to appoint a GAL decided the issue of whether a GAL was a “necessity,” and that decision was binding on the district court pursuant to the law of the case doctrine. Appellee also contends that there are genuine issues of material fact with respect to the “necessity” for a guardian/conservator and, therefore, the district court erred in awarding summary judgment in Appellant’s favor.

In Case No. S-09-0252, the GAL, who was appointed by the district court to investigate the necessity for a guardian/conservator, filed a separate appeal. In that appeal, he contended that the district court erred in finding no necessity requiring appointment of a guardian/conservator because his inquiry concluded that more accountability was necessary in order to monitor the well being of Parkhurst’s person, as well as her estate. Appellant, acting for Parkhurst, contends that the appeal must be dismissed because the GAL does not have standing to appeal the district court’s summary judgment order.

Issues: Whether the district court’s decision letter was binding upon the court pursuant to the law of the case doctrine and the court erred by granting summary judgment contrary to its earlier ruling. Whether the district court erred in granting summary judgment in this matter as ample evidence existed in the record that a guardian and conservator for Nina Parkhurst is necessary thus creating a genuine issue of material fact.


Holdings: The appeal in Case No. S-09-0252 is dismissed on the basis that the GAL lacks standing to appeal in these circumstances. In this case, the GAL is not affiliated with any party to this appeal. He was appointed by the district court to produce a report designed to aid the district court in resolving the dispute between the brothers. The GAL functioned more as a witness than anything else. However, he has no interest in the outcome of this case and the mere fact that he prepared a report does not vest him with the status of a party.

Under the law of the case doctrine, a court's decision on an issue of law at one stage of a proceeding is binding in successive stages of the litigation. Ordinarily, the law of the case doctrine requires a trial court to adhere to its own prior rulings, the rulings of an appellate court, or another judge's rulings in the case or a closely related case. The law of the case doctrine is a discretionary rule which does not constitute a limitation on the court's power but merely "expresses the practice of courts generally to refuse to reopen what has been decided.The law of the case doctrine is subject to some exceptions. One of those exceptions applies when the evidence in a subsequent trial is substantially different from that presented in the earlier proceeding. Additionally, the law of the case doctrine applies only to issues actually decided, not to issues left open. Here, it is quite unmistakable that the district court did not decide the issue of whether or not a guardian/conservator was a “necessity,” it only decided that in the interests of caution that further independent inquiry was warranted before a decision about “necessity” was finally made. The GAL’s report exposed most of the content of Appellee’s complaint to be incorrect and/or exaggerated. The district court had not decided the issue of “necessity,” it only decided that inquiry into very serious allegations of personal abuse of Mrs. Parkhurst and waste of her estate was a prudent first step. Because of these circumstances, the law of the case doctrine had no application.

The Wyoming statutes governing a durable power of attorney contemplate that a conservator may be appointed even if such an instrument is in existence. However, in the present circumstances that provision would only apply in the event of Parkhurst’s death, or other substantive facts constituting a “necessity,” as her durable power of attorney was not affected in any way by her disability or incapacity.With respect to the Advanced Health Care Directive (power of attorney), a health care decision of an agent takes precedence over that of a guardian. The determination of “necessity” in this particular case must be analyzed in light of the decisions Parkhurst made while she was not incapacitated. It is not disputed that Parkhurst now lacks the capacity to manage her own personal and financial affairs. However, during a time when her capacity to make decisions about her post-incapacity affairs was not at all in question, she made arrangements to appoint an attorney in fact for just such a contingency as that which has now arisen. She executed a Durable Power of Attorney that, in the case of her estate, appointed Appellee as her attorney in fact immediately, and in the case of her personal and health care decisions came into effect upon her incapacity to make such decisions herself.

The GAL observed that Parkhurst was living quite comfortably, was well cared for and that her estate was well managed. The issue of “necessity” found its genesis in Appellant’s allegations that Appellee was isolating Parkhurst from her friends and family, as well as pastoral attention, and that Parkhurst’s care was largely entrusted to the 16-year-old daughter of Appellee’s woman friend. He claimed a guardian was needed to ensure that those matters were monitored by a guardian and/or conservator, and that if that guardian/conservator was not him, it should be some other qualified person. Appellant also asserted that Appellee was not managing Parkhurst’s ranch in a manner that maximized income to Parkhurst. Furthermore, Appellant contended that the Durable Power of Attorney permitted Appellee to make gifts of Parkhurst’s estate, including to himself. Appellant suggested that such a power was subject to abuse, and a conservator was needed to monitor that power, as well as that Appellee was depleting Parkhurst’s resources for his own personal benefit and enrichment. Despite not uncovering any facts and circumstances that demonstrated that Appellee was not performing his responsibilities as Parkhurst’s attorney in fact, the GAL determined that a guardian/conservator was necessary so as to hold the attorney in fact accountable. The applicable Wyoming statutes impose no such requirement. The GAL also recommended that Appellee be appointed the guardian/conservator. This mechanism would require Appellee to report Parkhurst’s condition and the condition of her estate, at such intervals as the district court might require. The GAL also recommended that a healthcare professional review and evaluate Parkhurst’s current living arrangements and that a comprehensive visitation program be put in place so that Parkhurst could see a broad array of family and friends. Finally, he recommended that visitors be educated and informed about interacting with a person suffering from dementia and that the visitation program be regulated in a manner that worked toward Parkhurst’s best interests. The GAL suggested this visitation program should include Appellant and his immediate family.

The GAL reported that Parkhurst was generally in good condition, although it was also uncontested that she suffered from moderate/middle-stage dementia. The GAL concluded that Appellant exaggerated the severity of Parkhurst’s dementia, although it is to be expected that her condition will worsen in the future. As to her care, the GAL noted that Parkhurst is attended by a female adult during the day, especially on week days. Appellee visits with his mother most mornings and/or evenings and spends a significant portion of the day with her on weekends. The adult female mentioned above is assisted by her 16-year-old daughter in the morning and the evening, and the daughter is there during each night. In sum, Parkhurst has around-the-clock companionship, which the GAL considered vital. If someone is needed to stay with Parkhurst, Appellee makes appropriate arrangements. The GAL assessed Parkhurst’s living arrangements as satisfactory, but that that may change as Parkhurst’s condition progresses. The GAL noted Appellee was well aware of this possibility. The GAL recommended that a healthcare professional be brought in to further assess Parkhurst’s living circumstances. With respect to Parkhurst’s finances, the GAL noted that Appellee was well-informed about her financial picture and that he was managing that aspect of Parkhurst’s affairs well. The GAL’s only concern was that the Durable Power of Attorney permitted Appellee to make gifts to himself and, while Appellee had not done so, he could in the future.

In a decision letter filed of record, the district court credited the factual material contained in the GAL’s report, but did not credit the GAL’s conclusions and recommendations. The district court noted that the issue was the “necessity” of a guardian/conservator, as that term is used in the governing statutes. The district court found that there were no genuine issues of material fact as to the question of “necessity.” The district court concluded that Parkhurst had made arrangements for who should care for her in the event she was unable to do so. The district court then concluded that it was “not at liberty to add an accountability element to Wyoming’s durable power of attorney statutes. And, absent some showing of present necessity, it would respect Parkhurst’s wishes.”

The persuasive authorities convinces the Court that, absent some clear reason for the Court to interfere, the district court’s decision should be affirmed. Appellant has failed to come forward with anything more than speculation, conjecture, suggestions of possibilities, guesses, and perhaps even some probabilities. However, there is no convincing evidence in the record requiring that the district court’s order should be reversed. There are no genuine issues of material fact that need to be tested in the rigors of a trial. The order of the district court is affirmed.


J. Hill delivered the opinion for the court.