2007-786, IN RE GUARDIANSHIP OF DONALD A. DOMEY

The petitioners, Larrie Bratko and George Domey, co-

respondent. Kalil & LaCount, of Rye (Earl L. Kalil, Jr. on the brief and orally), for the

on the brief, and Mr. Marr orally), for petitioner George Domey. Hamblett & Kerrigan, PA, of Nashua (J. Daniel Marr and Andrew J. Piela to press. Errors may be reported by E-mail at the following address: Guardianship Services of New Hampshire. Kissinger, Jr. on the brief and orally), for petitioner Larrie Bratko, Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (John C.

IN RE GUARDIANSHIP OF DONALD A. DOMEY editorial errors in order that corrections may be made before the opinion goes

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any No. 2007-786 Readers are requested to notify the Reporter, Supreme Court of New Hillsborough County Probate Court ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as granted the motion.

p. 2 establish a plan that will provide for both the ward and for his wife.” The court

assure that the guardians have access to financial information so that they can guardians” and that it “is clear that the Court’s intervention is necessary to her parents, either cannot or will not cooperate with the duly appointed

ward.” She concluded that Judith, “together with various of her children and

in his best interest.”

wellbeing of the ward, as well as to prepare an inventory of the assets of the thwarted in their efforts to perform their duty to provide for the physical the inventory filing. involved in this matter “in particular, because the guardians have been per month, including pensions and social security. The probate court approved home. Additionally, Donald’s estate had an income of approximately $5,700

acknowledge his frailty, or who may lean on him to ‘decide’ things that are not Domey would be at the mercy of those who may be unwilling or unable to that Mr. Domey is in need of a guardian. Absent a disinterested guardian, Mr.

report with the court supporting the motion, indicating that she remained assets and approximately $385,500 were real estate, primarily the marital

litem for Donald. professionals intimately involved in Mr. Domey’s care, [she] remains convinced

either in Donald’s name or held jointly by them. The guardian ad litem filed a than $730,000 in total assets. Of these, approximately $353,177 were liquid

guardians. The court also appointed Attorney Jody Wilbert as guardian ad probate court. She concluded that “based on her communications with the

Salem and to produce a complete list of all accounts and holdings that were filed a motion to compel Judith to allow an appraisal of the marital home in Larrie Bratko completed an inventory in December, which showed more and an atmosphere of mistrust between the parties. In May, the co-guardians

appointed George Domey and Larrie Bratko, a professional guardian, as coexecute legal documents despite his incapacity. In March, the probate court In September, the guardian ad litem filed a supplemental report with the in physically and verbally abusive behavior toward him and had forced him to

Donald’s assets, a task made difficult because of Judith’s lack of cooperation

Donald’s wife, Judith, had failed to act in Donald’s best interest, had engaged

Over the ensuing months, the co-guardians attempted to identify

seeking a guardianship over his person and estate. The petition alleged that In February 2004, his brother, George Domey, filed an ex parte petition

term care room. (Greenbrier) in Nashua until November 2004, when he was moved to a longneeds.

p. 3 out of her husband’s income. support the petition for estate planning absent monetary protection for his Florida. In addition the co-guardians were to pay monthly support to Judith Judith all of Donald’s interest in real estate in Pittsburg, New Hampshire and

guardian ad litem to believe that it was not in Donald’s best interest for her to met.” The guardian ad litem concluded that Judith’s past conduct led the the Domeys’ outstanding mortgage on the homestead in Salem; and transfer to become eligible for same, it is foreseeable that his needs will not be adequately

prepay Donald’s funeral expenses; apply the remainder of the assets towards In other words, if the ward is ‘impoverished,’ as Medicaid recipients must be to the assets held in her name to the Medicaid spousal resource limit of $95,100; co-guardians submitted annual accountings to the probate court for the years special needs trust for Donald’s benefit; pay enough assets to Judith to bring

deprived of sufficient assets to cover his needs.” 3

counsel and a Guardian ad Litem, requires that funds be available to the ward. approximately $75,000. In January 2006, Donald qualified for Medicaid. The explained, “[t]he ward’s continuing need for guardians, and potentially for guardians were to pay Greenbrier any outstanding balance; pay $50,000 into a which would be afforded if he were merely a Medicaid recipient.” As she

that the proposed estate plan “creates a foreseeable risk that the ward will be

Donald’s care at Greenbrier had eroded the liquid assets of the estate, leaving estate planning and for spousal support. The stipulation provided that the co- in the estate than the parties realized at the time of the stipulation because reason to believe that the ward . . . needs additional protection beyond that By October, it became apparent that there were significantly fewer assets granted.

cooperate with their efforts to identify Donald’s assets. In addition, they noted requested.” The co-guardians also expressed concern about Judith’s failure to statutory authority or guidelines within NH RSA 464-A:26-a for the relief

In September, the probate court approved the parties’ stipulation for many similar cases in that the Guardian ad Litem has more than adequate liquidate Donald’s assets in order to pay the Greenbrier bills, which the court

The co-guardians objected to both, noting that there “[was] no specific

The guardian ad litem also objected, noting that “this case differs from care, his expenses ceased to be covered. Larrie Bratko then filed a motion to coverage, when he was moved from rehabilitative care to long-term custodial the co-guardians that her husband had long-term disability insurance

In April, Judith filed petitions for spousal support and estate planning.

bill for services to Donald exceeded $63,000. Although Judith had informed In January 2005, Greenbrier notified the co-guardians that the overdue rule.” We agree. p. 4 advance the spouse’s objectives, it was clear error for the probate court to so

intent.” imposing a duty of guardians to disregard the interests of the ward and act to

discern the legislative intent from the statute as written.” statute, we ascribe the plain and ordinary meaning to the words used and RSA 464-A:1 (2004). RSA 464-A:26, I (2004) reads, in pertinent part: being of the proposed ward in involuntarily imposed protective proceedings.” The purpose of RSA chapter 464-A is “to promote and protect the well-

Id.

unambiguous, we do not look beyond it for further indication of legislative petitioners argue that “[i]n the absence of any statutory or case law authority not see fit to include.” Id. “When the language of a statute is plain and for Medicaid so that his assets could be protected for his spouse. The what the legislature might have said, or add language that the legislature did petitioners had a fiduciary duty to impoverish the ward in order to qualify him of Luong, 157 N.H. ___, ___, 951 A.2d 136, 141 (2008). “We will not consider obtained. In re Guardianship to conduct estate planning prior to the time court authorization had been chapter 464-A (2004 & Supp. 2007). “When interpreting the language of a The powers and duties of guardians in this state are specified in RSA

law.”

The first issue is whether the probate court erred in ruling that the

personally liable for such damages; and (2) by ruling that they breached a duty III

omitted). In re Angel N., 141 N.H. 158, 161 (1996) (quotation and brackets unless it is unsupported by the evidence or plainly erroneous as a matter of A:4 (2007). “Consequently, we will not disturb the probate court’s decree support arrearages of $33,415. plainly erroneous that such findings could not be reasonably made.” RSA 567order removing the co-guardians and awarding Judith damages of $84,838 and “The findings of fact of the judge of probate are final unless they are so

finding that they breached duties owed to Judith and ruling that they were On appeal, the petitioners argue that the probate court erred: (1) by

hearing. Following a three-day bench trial in June 2007, the court issued an 2004-2007. Judith objected to each of the accountings and requested a legal duty to support his spouse pursuant to RSA 546-A:2.

p. 5 perform “all other duties required by law,” the guardian assumes the ward’s

impoverish his or her ward in order to qualify the ward for Medicaid so that the

conjunction with RSA 464-A:26, I, which imposes a duty upon the guardian to

statute does not, however, impose a fiduciary duty upon a guardian to

father or mother when in need.” The respondent suggests that, read in needs of the ward’s spouse. duty to support or contribute to the support of his or her wife, husband, child, his or her reasonable subsistence compatible with decency or health owes a

resources to provide for the reasonable subsistence of her husband. 5

the next of kin of the ward, if notice is possible. approved by order of the court made upon notice to at least one of not “add language that the legislature did not see fit to include.” or child have furnished the ward unless a charge for the service is 1979). The legislature omitted this language in the current statute and we will the interest of ward’s granddaughter in joint account). The guardianship his ward, and his household and family, if any he have.” RSA 462:4 (repealed

“all other duties required by law,” a guardian may be required to consider the

person whose income or other resources are more than sufficient to provide for

when there is a showing of need and when there are “more than sufficient”

room and board which the guardian or his or her spouse, parent, (in managing the assets of her ward, guardian has “secondary duty” to consider income of the ward’s estate “for the comfortable maintenance and support of Cf. In re Wszolek Estate, 112 N.H. 310, 316 (1972)

that in meeting the requirement imposed under RSA 464-A:26, I, to perform Joseph Hosp. of Nashua v. Rizzo, 141 N.H. 9, 11 (1996). We do not disagree guardians owed her a duty of support. RSA 546-A:2 provides that “[e]very See St.

RSA 546-A:2 creates a right in, among others, a wife to sue for support

but, the guardian may not use funds from the ward’s estate for and property for the support, care, and education of the ward, Prior to 1979, the statutory duties of the guardian included applying the entitled thereto. The guardian of the estate shall apply the money

The respondent argues that pursuant to RSA 546-A:2 (2007), the

Guardianship of Luong, 157 N.H. at ___, 951 A.2d at 141.

estate’s assets in order to apply them for the support and care of the ward. the guardianship to deliver the assets of the ward to the persons the well-being of the ward. The primary duty of the guardian is to protect the Under the plain language of the statute, its primary objective is to protect

perform all other duties required by law, and at the termination of protection of the estate’s assets, to account for it faithfully, to or defend actions, claims or proceedings in any jurisdiction for the it, to retain, sell and invest it as hereinafter provided, to prosecute It is the duty of the guardian of the estate to protect and preserve we reverse the court’s assessment of $84,838 in damages. p. 6 [her] comfort and support.” Medicaid planning, which would have preserved sufficient assets to provide for 6

in ruling that the co-guardians breached a duty to conduct estate planning and

duty to preserve the Ward’s estate through timely estate planning and timely estate has the

the guardian to do so. We hold that the probate court erred as a matter of law

set out in RSA 464-A:26-a.” The respondent argues that the petitioners had “a erroneous as it “failed to follow the procedure for estate planning specifically added.) The statute thus establishes a process whereby the guardian of an qualify for Medicaid.” The petitioners argue that the court’s decision is DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

in estate planning, but the statute does not establish any duty on the part of

option to petition the probate court for authorization to engage

charities who would be likely recipients of gifts from the ward.” (Emphasis nursing home for the failure to initiate estate planning so Mr. Domey could taxation or to facilitate distribution of the ward’s estate to family, friends, or for the testamentary distribution of the ward’s estate in order to minimize ascertained, the probate court may authorize the guardian of the estate to plan RSA 464-A:26-a, I, provides that where a “ward’s wishes cannot be

arrearages. contrary and its assessment of $33,415 in damages for spousal support findings pursuant to RSA 546-A:2. We reverse the probate court’s ruling to the

awarded the respondent $84,838 as “damages which had to be paid to the petitioners breached a duty to conduct estate planning. The probate court The second issue is whether the probate court erred in ruling that the

duty upon guardians to provide for the ward’s spouse in the absence of ward’s assets can be protected for the spouse, nor does it impose a fiduciary