No. 94-252

IN THE SUPREME COURT OF THE STATE OF

1994

In the Matter of the Estate of

DON C. WEST

Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Robert W. Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Terry L. Seiffert, Billings, Montana

For Respondent:

R. Bruce Harper, Harper & Stusek, Billings, Montana

Submitted on Briefs: October 28, 1994

Decided: December 20, 1994

Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from the District Court of the Thirteenth

Judicial District, Yellowstone County, of an order establishing a

limited guardianship and terminating the general guardianship of

Don C. West. The order also continued a conservatorship with

Norwest Capital Management and denied a joint petition from the

protected person, his guardian and the conservator to substitute

the conservatorship with a trust. We affirm.

The questions for review are:

I . Did the District Court err in establishing a limited

guardianship?

II. Did the District Court err in denying the joint petition

to terminate the conservatorship?

Don C. West (Don) is a "protected person" whose personal and

financial interests have been managed by his mother, Mary Lou West,

as guardian, and Norwest Capital Management Co.-Montana, formerly

Northwestern Union Trust Co., as conservator, since 1978. In

October of 1976, Don sustained severe injuries in a motor vehicle

accident in New Mexico, when a vehicle in which he was a passenger

collided with an oil tanker. As a result of this accident, Don

suffered extensive physical injuries, including burns, blindness

and head and leg injuries. He suffers from motor difficulties in

his legs and has some deformity in his legs and ankles which

requires him to wear braces. His head injuries caused some mental

impairment and he has also lost physical sensitivity in his fingers

because of burns.

2
Following the accident, Don remained in a coma for over three

months. In November of 1976, a New Mexico state court declared Don

an incompetent person "until such time he is able, unassisted to

properly manage and take care of himself and his property." The

New Mexico court also appointed his mother, Mary Lou West, as

guardian ad litem. In her capacity as guardian ad litem, Mary Lou

West initiated a personal injury suit in New Mexico on Don's

behalf. The lawsuit resulted in a negotiated settlement in the

spring of 1978.

In May of 1978, following the settlement, the Montana district

court appointed Northwest Union Trust Co., now operating as Norwest

Capital Management & Trust Co.-Montana (Norwest Capital), as

conservator of Don's financial affairs. The conservatorship was

initially funded with $463,319. By the end of 1978, after payment

of medical expenses and other bills on Don's behalf, the value of

the conservatorship was reduced to $374,323. Social Security

Disability Payments have been deposited into the conservator-ship

during the years of Norwest Capital's management of Don's estate.

During the years since 1978, the conservatorship has increased in

value under Norwest Capital's management, with the result that at

the time of the hearing on this matter, the conservatorship held

assets in the amount of $1,084,239. In recent years, the annual

income of the conservatorship has consistently exceeded the amount

necessary to meet Don's needs.

In June of 1978, the Montana district court also appointed

Mary Lou West as general guardian. Mary Lou West has made several

3
personal care arrangements for her son in the years since 1978. III

the last few years, however, she has been increasingly less

involved in making such arrangements.

After being released from the hospital in January 1977, Don

completed a rehabilitation program at St. Vincent's Hospital in

Billings, Montana. His guardian then placed him in a

rehabilitation program for the blind in Topeka, Kansas; followed by

the Lighthouse Program for the Blind in Seattle, Washington; and

then in High Hopes Brain Trauma Learning Center in Costa Mesa,

California. After the High Hopes program, Don had live-in

assistance in two separate living arrangements in Orange County,

California. After being notified by California authorities that

the second of those arrangements was unsatisfactory and had to be

terminated within two days, Mary Lou West arranged for Don to fly

to Billings, where he resided with her for a short time before

being enrolled by her in The Villa in Greeley, Colorado.

Don was unhappy with the arrangements made by his mother in

Greeley and, after a short time, he enrolled himself in the

Colorado Rehabilitation Center, in Denver, Colorado. This program

taught mobility, daily living skills, Braille typing and other

skills to enable him to live on his own. With the assistance of

these rehabilitation programs and physical therapy, Don has

gradually recovered and achieved a great deal of self-reliance in

many aspects of his life. At the time of the hearing in this

matter, he had lived on his own for over a year.

Although Don is now 43 years old, currently lives alone and

4
has learned to be quite self-sufficient, he continues to require

some assistance. At the time of the hearing, he employed a

personal care manager, who assisted him with safety issues,

personal hygiene, social activities and money management. Don

hired his care manager after approval from Mary Lou West. The care

manager communicates regularly with Mary Lou West concerning Don's

personal affairs. Don has also hired other people--and sometimes

fired them when they did not work out satisfactorily--to get his

mail, pay his bills, clean his apartment and cook for him. He can

cook some meals on his own using a microwave oven, but sensory loss

in his fingers causes problems with cooking on an electric range.

Don uses the aid of customer assistance at stores when he

purchases his food, clothing and other personal items. He arranges

for his own transportation using taxis and can complete sales

transactions on his own. However adept he has become, he

recognizes that he must rely on the assistance of helpers and

recognizes his limitations when it comes to managing his money and

making investments. He testified that he knows that he needs

assistance in financial matters and appreciates the manner in which

Norwest Capital has handled his finances.

All the interested parties in this action agree that Don no

longer needs the extensive assistance from others to manage his

affairs that he needed at the time the guardianship and

conservatorship were established in 1978. Indeed, the District

Court emphas,ized and it is clearly evident in the record that Don

has made a phenomenal recovery since that time, culminating in his

5
present ability to live independently and to arrange for necessary

assistance from third persons without his guardian's help.

Evidence was presented at the hearing from several physicians

to establish that Don no longer needs extensive assistance and to

establish that he is capable of managing many of his personal

affairs. However, the evidence also established that he has some

"mental status abnormalities" consistent with the head injury he

suffered in the 1976 accident and that some aspects of his

personality are impaired due to the head injury as well. The

physician preparing the report for purposes of this proceeding

stated that Don suffers extremely gross deficits in information

gathering (primarily due to the blindness), markedly impaired

concentration, slightly impaired memory and markedly impaired

mathematical skills. Despite these deficits, Don has recovered

remarkably well and is able to live a relatively normal life. He

brought this action to terminate the guardianship as he believes he

no longer needs assistance in his daily living arrangements and

feels he can handle such matters on his own.

Mary Lou West testified that she agrees that Don should have

more latitude in decisionmaking, but she thinks he needs guidance

in critical areas such as medical arrangements and education and

training arrangements. Pam Ness, Vice President and Trust Officer

for Personal Trusts for respondent Norwest Capital in Billings,

manages the Don C. West Conservatorship. She testified that

Norwest Capital objects to the complete removal of the guardianship

in this matter and would be opposed to a trust arrangement rather

6
than a conservatorship if a third person is not involved in

decisionmaking for Don. However, Mary Lou West and Norwest Capital

agreed that a trust arrangement would more fully and adequately

meet Don's current needs because it would allow Don to make some

financial decisions with guidance from a third person. To the

extent of his capacity to understand the nature of the proposed

trust, Don agreed with that approach as well.

The primary motivation for this arrangement, as testified to

by the witnesses, was to allow Don more latitude in gift-giving and

to allow him to have some involvement in his personal financial

affairs. According to the testimony, a trust could be tailored to

meet Don's individual needs, such as tax and estate planning.

Under the present conservatorship arrangement, financial

transactions are subject to continuing court supervision and

approval. Don has expressed an interest in giving money to his

nephews and nieces for their college expenses. He also wanted to

give his mother a new car as a surprise Christmas gift, but was

unable to do so because the conservatorship limits gifts to

approximately $12,000 per year, subject to court approval.

Dr. David B. Carlson of Deaconess Medical in Billings prepared

the report for the District Court in this matter at the request of

Don's counsel. He opined that Don does not need a full-time

general guardianship and that a less restrictive method of

providing for Don's needs would be appropriate for Don's best

interests.

The District Court relied on Dr. Carlson's opinion and
continued the guardianship, limiting the guardian's powers as

follows: to care and maintain Don, when and if he should become

incapable of doing so himself; to assert and protect Don's rights,

should he be unable to do so for himself; to provide timely and

informed consent to necessary medical procedures, in the event that

Don is unable to do so for himself; and to assist Don in obtaining

the necessary training and education. The District Court also

continued the conservatorship in its present form.

Issue I: Guardianship

Did the District Court err in establishing a limited

guardianship?

Norwest Capital and Mary Lou West agree with the District

Court's termination of the general guardianship and appointment of

Mary Lou West as limited guardian. They oppose the complete

removal of a guardian. Don opposes any sort of guardianship.

Mary Lou West has handled many of Don's personal arrangements

since his accident in 1976. The record establishes that this

arrangement is not presently necessary. Don resides in Colorado

and Mary Lou West resides in Montana. She acknowledges his

remarkable recovery and testified that she now believes that Don is

capable of making most decisions about his property and his life.

She further recognizes that the constant supervision and protection

once required for Don is no longer necessary and that he needs some

independence

Pam Ness testified that Norwest Capital is opposed to dealing

directly with Don if a trust were to be established and that it

preferred to deal with a third person because of Don's physical

8
disabilities, particularly his blindness, and his inability to

comprehend mathematical and investment transactions well.

Don contends that the District Court's decision to retain a

limited guardian is incorrect for two reasons. First, he contends

that he no longer meets, the definition of "incapacitated person"

set forth in 5 72-5-101(l), MCA:

"Incapacitated person" means any person who is impaired

by reason of mental illness, mental deficiency, physical

illness or disability, chronic use of drugs, chronic

intoxication, or other cause (except minority) to the

extent that he lacks sufficient understanding or capacity

to make or communicate responsible decisions concerning

his person or which cause has so impaired the person's

judgment that he is incapable of realizing and making a

rational decision with respect to his need for treatment.

Don relies on In the Matter of the Guardianship and Conservatorship

of Swandal (1984), 210 Mont. 167, 171, 681 P.2d 701, 703, as

support for his argument that a guardianship is improper where a

person has physical disabilities but is not mentally infirm. Don

contends that the only disabilities that have continued are

physical and, as such, they are insufficient to constitute a

guardianship according to Swandal. This was not the finding of the

District Court. Dr. Carlson testified that Don was not likely to

improve beyond his present capabilities and that he has some mental

impairment, as noted below in more detail. The District Court

concluded that both Don's mental and physical impairments supported

a continuance of the guardianship, with limits on the powers of the

guardian.

Second, Don claims the court erred because the Conclusions of

Law and Order do not comply with the requirements of § 72-5-316,

9
MCA, because the statute does not permit the court to establish a

limited guardianship when the protected person can meet the

essential requirements for his physical health and safety. Section

72-5-316, MCA, provides in pertinent part:

(1) If the court is satisfied that the person for

whom a guardianship is sought is incapacitated and that

judicial intervention in his personal freedom of action

and decision is necessary to meet essential requirements

for his physical health or safety, it may appoint a .

. limited guardian having the powers described in the

order. If the court is satisfied that the allegedly

incapacitated person could handle the essential

requirements for physical health or safety if his

financial resources were managed by another, it shall

order that the petition be treated as a petition for a

protective order under part 4 of this chapter and proceed

accordingly. Alternatively, the court may dismiss the

proceeding or enter any other appropriate order that is

not inconsistent with the specific provisions of this

part. . .

Don further argues that the conditional powers given to Mary Lou

West here are for potential future needs, not for current needs,

and that the statute provides no basis for this sort of

guardianship when there is no current need for it.

The respondents, Mary Lou West and Norwest Capital, argue that

the guardianship statute contemplates this sort of arrangement by

requiring a guardianship to be tailored to those areas where it is

foreseeable that the protected person may require assistance in the

future; here, to prevent some person or persons from taking

advantage of Don, for making medical decisions for Don, and to

provide for the need to act on Don's behalf to obtain training and

education programs for him. Finally, the respondents contend that

someone must continue to act in the capacity of a limited guardian

in order that Don's best interests are served.

10
Section 72-5-306, MCA, describes the purpose and basis for

appointing a guardian, whether it be a full or a limited

guardianship:

Guardianship for an incapacitated person may be used only

as is necessary to promote and protect the well-being of

the person. The suardianshiu must be designed to

encourage the develoument of maximum self-reliance and

independence in the person and may be ordered only to the

extent that the oerson's actual mental and ohvsical

limitations rewire it. An incapacitated person for whom

a guardian has been appointed is not presumed to be

incompetent and retains all legal and civil rights except

those that have been expressly limited by court order or

have been specifically granted to the guardian by the

court. (Emphasis supplied.)

The limited guardianship in this case does not permit Mary Lou West

to intervene in most of Don's personal affairs. The guardianship

is now very limited and enumerates only certain decisions that Mary

Lou West may make for Don, and she can only make these decisions in

the event Don is unable to do so. Clearly, this complies with the

statutory mandate emphasized above to encourage the development of

maximum self-reliance and independence.

The evidence submitted to the court relative to Don's mental

and physical condition consisted of a series of letters from

physicians who had either provided medical services to or had

examined him for the purpose of the proceeding, persons who had

provided rehabilitative services and training to him and from the

court-appointed visitor. Some were authored in 1991 and did not

express opinions as to Don's condition at the time of the hearing.

The court-appointed visitor, who is also the person employed as his

care manager, opined that Don had the capacity of coordinating the

services he needs in managing his daily life, but felt that the

11
continuation of the guardianship was appropriate, with the

guardian's powers being limited to providing guidance in managing

Don's financial concerns regarding the gifting of money and

overseeing his financial portfolio.

Dr. Carlson also expressed the opinion that Don did not need

a full-time guardian, although he needs help in managing his

financial affairs. Dr. Carlson further stated that because of the

nature of Don's injuries, any clinical improvement beyond his

present condition was unlikely. As previously stated, Dr. Carlson

found that Don has deficits in information gathering,

concentration, memory and in mathematical reasoning and

calculating. Based on the foregoing, the court found that Don's

disabilities continue to exist and that he remains physically and

mentally incapacitated, although to a much lesser extent than when

the full guardianship was established. With that in mind, the

court designed an extremely limited guardianship arrangement. The

limited guardianship allows Don to have broad powers over his daily

living arrangements while he is able to live independently.

Don is presently able to provide for his own care. He

testified that he also would be able to provide for substitute

help, should the need arise, by contacting appropriate Colorado

authorities. However, his disability is of such nature and

character as to prevent him from fully and completely protecting

himself and his property interests from those who might take

advantage of him. The powers of the limited guardianship

contemplate that he may not be able to arrange for adequate care

12
providers, that he may not be able to make timely and informed

medical decisions, that he may need assistance in asserting and

protecting his rights and that he will likely need some form of

assistance in obtaining training and education. The mere fact that

he is currently providing for his personal needs does not support

a conclusion that he can do so in the future.

The District Court in this case narrowly formed the limited

guardianship to provide for Don's unique needs, in accord with the

testimony and other evidence presented at the hearing. Subject to

restrictions under the guardianship statutes, such decisions are

committed largely to the discretion of the court. This Court will

not interfere with the exercise of the appointing court's

discretion unless the court has abused its discretion. In the

Matter of the Guardianship of Nelson (19831, 204 Mont. 90, 94, 663

P.2d 316, 318. Section 72-5-316, MCA, gives the court discretion

in determining whether a guardianship should be a full or a limited

guardianship and, if limited, to determine the responsibilities

which are to be handled by the limited guardian.

The powers conferred on a guardian should be as clearly

defined as circumstances permit. W e conclude the limited

guardianship arrangement formulated by the District Court will

allow Don to have almost total autonomy, except in the area of his

financial affairs, while still providing the guardian with powers

in the event the guardian becomes aware that Don is unable to

handle certain of his personal affairs. We conclude that the

District Court did not abuse its discretion in determining that a

13
limited guardianship was appropriate in light of the facts in this

case and the stated objective in 5 72-5-306, MCA, to encourage

maximum self-reliance and independence and to promote and protect

the well-being of the person.

We hold the District Court properly exercised its discretion

in establishing the limited guardianship in this case.

Issue II: Conservatorshio

Did the District Court err in denying the joint petition to

terminate the conservatorship?

Don filed a petition to terminate the conservatorship and the

guardian and conservator filed cross-petitions to terminate the

conservatorship. Mary Lou West and Norwest Capital desired to

establish a trust rather than a conservatorship in order that there

might be more flexibility in managing Don's finances. To the

extent of his capacity to understand the nature of a trust allowing

him to have more control over his money, Don also wants such an

arrangement. Don's desire for a trust instead of a conservatorship

is motivated by his wish to make gifts and to help others. The

court denied both petitions, stating that "[tlhe agreed facts do

not demonstrate that it is in the best interest of the protected

person to terminate the conservatorship."

Don testified that he desired to end the conservatorship so

that he might be permitted to make gifts to relatives and others,

particularly other victims of closed head injuries. Don wanted to

buy a car for his mother for Christmas and was disappointed in not

being able to do so because of the statutory limitation of 20% of

conservatorship income, which would have prevented a gift in excess

14
of $12,000. Don also wants to help his nieces and nephews with

their college education expenses. He maintains that he is totally

competent to make decisions about his finances, although he agrees

that his money needs some protection.

Mary Lou West and Pam Ness, a Trust Officer for Norwest

Capital, discussed the advantages of a trust arrangement as an

alternative to the conservatorship, particularly for estate tax

purposes, to address Don's needs and desires and to remove the

authority of the District Court to oversee Don's estate by annual

review of financial statements. Respondents contend that it is

unnecessarily time-consuming and costly to burden the district

courts with issues of this type whenever a protected person wants

to make a substantial gift and to limit the amount of gifts each

year to 20 percent of the income of the estate. Respondentsargue

that, as trustee instead of conservator, Norwest Capital would be

better able to handle this sort of transaction, taking into account

the provisions of the trust agreement, which could be structured in

order to protect Don's interests. Norwest Capital would have the

same fiduciary duty under either arrangement. The respondents

further argue that questions of whether gifts are appropriate are

best made in private by the trustee and not in a courtroom setting.

In considering these arguments, we notice the complete absence

of any estimation of Don's future needs and a balancing of those

needs with the desires of the parties.

In their petition to terminate the conservatorship and

establish a trust, the respondents also expressed the desire to be

15
able to consider the interests of and to benefit remainder

beneficiaries of Don's estate by gifting and tax planning. The

respondents claim that conversion of the Don West Conservatorship

to a trust would serve Don's best interests, needs and desires.

Don's "best interests," according to respondents, include the right

to consider and select the potential beneficiaries of his estate

and to formulate a plan to maximize gifts and minimize tax impacts.

Pam Ness testified that a trust would better serve Don's interests

for tax purposes although she testified that she could not explain

or specify any of the alleged tax advantages because she was not a

tax expert. Again, there has been no consideration of the

balancing of the potential benefit of a program of gifting and the

resultant tax impact with Don's future needs.

The conservator has handled Don's assets since 1978, investing

and reinvesting the funds, and has paid out funds to Don and to

others for Don's benefit. By September 17, 1993, the value of the

assets was $1,084,239 and the income from the assets is

approximately $60,000 per year, and consistently exceeds the amount

expended for Don's living expenses. The final pretrial Order

submitted to the District Court stated, as an agreed fact, that the

projected Montana inheritance and federal estate tax burden, in the

event of Don's death, amounted to approximately $230,000; and that

Don desired to make gifts to his mother, his brother, his sister,

and his nieces and nephews, but is not permitted to do so under

Montana conservatorship law. These agreed facts were the basis of

the petition by the guardian and the conservator to terminate the

16
conservatorship and to create a trust.

The District Court determined that these agreed facts do not

demonstrate that it is in the best interest of the protected person

to terminate the conservatorship. In denying the requests to

dissolve the conservatorship, the District Court stated:

It would seem to be in the protected person's best

interest to maintain what assets he has to protect him

against the uncertainties of the future. The only ones

to stand to benefit from a program of gifting would be

those who receive the gifts and possibly, those persons

who are the devisees of his estate upon his death.

Clearly, the District Court considered the uncertainties of the

future and the possibility that Don's monetary needs, although not

great at this time, may escalate in the years to come. We stress

again the absence of any testimony from any of the parties as to

the amount that will be needed to provide for Don's futiire needs.

Without such evidence, the District Court had no basis for changing

the present conservatorship. The money initially deposited into

the conservatorship account, which under the management of Norwest

Capital has nearly tripled since the end of 1978, was the result of

a personal injury settlement intended to provide for Don's needs

for the remainder of his life. The Social Security Disability

payments are also intended for his benefit. At age 43 and in good

health, his present needs are likely less than his needs will be

toward the end of his life. Medical and other care expenses can

quickly exhaust the resources of critically ill persons and there

is no way to accurately forecast the amount that may be required in

the modern day world where the reality is that medical costs have

escalated at a much more rapid rate than most other costs. We

17
therefore strongly agree with the conclusions reached by the

District Court with regard to the uncertainties of the future.

Further, if the purposes of the estate included making

provisions for the best interests of heirs or devisees, then

certainly tax planning--including a program of gifting--would be

appropriate. However, we are not concerned with maximizing the

estate for such future heirs and devisees and that would not be a

stated purpose in establishing a trust for Don. These aspects

demonstrate the absence of apparent concern for Don's future needs.

With the present limited guardianship, whereby Don has very broad

powers to maximize his autonomy, creation of a trust as suggested

here is not appropriate. The guardian has no powers over financial

transactions; these would be vested with the trustee, who is not in

a position to know what will be needed for Don's care in the

future. Norwest Capital did not want to deal directly with Don in

the event that a trust was established. Therefore, in order to

maximize Don's independence, it is necessary to continue the

conservatorship.

Moreover, the sort of arrangement in place here--limited

guardianship and conservatorship--does not prevent Don from making

a will to dispose of his property upon his death. Under a

conservatorship, the court has certain enumerated powers which may

be exercised directly or through a conservator. These powers

include "all the powers over his estate and affairs which he could

exercise if present and not under disability, except the power to

make a will." Section 72-5-421(3), MCA. One of these powers is

18
the power to make gifts. However, there are limits on the power to

make gifts, because of the importance of that power. See § 72-5

428(2), MCA.

Establishment or, as in the present case, continuance, of the

conservatorship has no effect on the capacity of the protected

person. Section 75-2-421(5), MCA; and Montana Conference of the

Seventh-Day Adventist Church v. Estate of Miller (1981), 192 Mont.

468, 476, 628 P.2d 1100, 1105. As noted above, a limited

guardianship may be established because of limited mental or

physical incapacity in one particular area of functioning, but the

person may be entirely competent in other respects. Miller, 628

P.2d at 1105. Thus, the mere fact that a conservator has been

appointed does not mean that the protected person lacks the

capacity to make a will. The power to make a will for directing

the disposition of one's property upon death is expressly not given

to the court along with other statutorily granted powers in § 72-S421, MCA. The District Court addressed this point, stating:

The mere fact that a Conservator has been appointed does

not mean that the protected person lacks the capacity to

make a will. If the protected person, in this case,

should want to leave his property, in the event of his

death, to certain of his relatives, and it can be

determined that he possesses the necessary testamentary

capacity, such a will would be valid, notwithstanding the

fact that he has a Conservator.

We agree with this analysis of Don's capacity and rights concerning

the testamentary disposition of his property.

The District Court also concluded that the purpose of a

conservatorship is to conserve the assets for the benefit of the

protected person and that the mere fact that at this time, Don's

19
living expenses are less than the income from his estate, does not

mean it would be in his best interests to give away his estate.

During the hearing, the following exchange occurred:

THE COURT: Tell me, all I hear is magical words, tax

planning, what tax planning is appropriate for someone

who's 42 years old?

[Ms. Ness]: (No oral response.)

THE COURT: Do you have a crystal ball to tell anyone how

much it's going to take him to live out the rest of his

life?

THE WITNESS: No, we don't.

THE COURT: All right. Well, now, is there any tax

planning that you're aware? Are you an expert in the

field?

THE WITNESS: I do not profess to be an expert at all.

This was the extent of the testimony concerning tax planning and no

evidence was presented to estimate future needs. At 43 years of

age and in good health, there is no way to determine what Don's

needs may be in the future.

The purpose of the Don C. West Conservatorship estate is to

provide for Don's best interests and his present and future care.

Don is unable to manage his property and financial affairs not only

because of his physical disability (blindness), but also because he

is impaired in his ability to comprehend mathematics and, thus, his

ability to understand his financial affairs. He admits that he

needs this sort of help and also that his money needs protection.

He also needs proper management to preserve his estate to provide

for his support, care and welfare in the present and in the future.

It is unfortunate that Don does not have the ability to make

20
detailed mathematical judgments to determine his future needs. His

major expenses in the past have been totally handled by either his

guardian or conservator. Under the present limited guardianship,

the District Court has structured an arrangement that will give Don

broad control over his personal care needs in order to maximize his

self-determination and independence while maintaining control of

his finances to assure his future needs are provided for as fully

as possible. In today's world, anyone and particularly a severely

handicapped person can use up a million dollars in a relatively

short period of time if physical and mental health decline. Again,

there was no evidence presented addressing this possibility,

although one of the physicians noted that a person who has

previously sustained the sort of head trauma experienced by Don may

be a victim of premature senility, with an onset as early as age 55

years. The sort of trust desired by the parties does not consider

such possibilities and there was a noted absence of consideration

by the parties on this topic.

In fact, the nature of the evidence presented in this case

emphasizes the desires of the parties without the appointment of a

guardian ad litem to specifically address these future needs in

relation to Don's best interests. Don's counsel represented Don

and addressed Don's wishes. However, the limited evidence

presented indicates that Don does not have the capacity to compare

his own needs to those of others. In other cases of this nature,

where the guardian has interests possibly adverse to the best

interests of the ward, it may be appropriate for the court to

2 1
appoint a guardian ad litem to specifically address the protected

person's future needs for purposes of the proceeding.

We also conclude that tax planning for purposes of the estate

tax burden upon the incident of Don's death is simply not a

consideration which is in the best interests of providing for his

care while he is alive. Gifting for the purpose of reducing the

amount of estate tax is, in and of itself, insufficient to justify

the gifting of the estate and does not preserve the estate for the

purpose of providing for Don's needs.

Under the present guardianship, the guardian has very limited

powers. If the conservatorship were to be converted to a trust, it

would be necessary to appoint a guardian with very broad powers and

the capacity to make well-reasoned financial decisions as Don does

not have an adequate capacity to compare his own needs to those of

others. It is apparent that the District Court carefully

considered Don's best interests, both present and future, by

structuring a limited guardianship with few powers and continuing

the conservatorship to ensure that Don's future needs are met.

Don's desire to establish a trust to replace the conservatorship is

motivated by his wish to make gifts and to help others. Don also

testified that he was interested in counseling other victims of

head injuries. During the hearing, he testified extensively and it

is apparent to this Court that he has substantial mental capacity

despite his particular impairments, that he is an empathetic

individual who cares deeply about other persons, and that he was

able to respond appropriately to lengthy questioning directed

22
toward his ability to care for his personal needs. He has made a

remarkable recovery from his situation in 1978, referred to by the

court-appointed visitor from the Montana Department of Social and

Rehabilitative Services as "unable to manage for himself in

society."

The District Court determined that the only persons to be

benefited by a program of gifting and other estate tax planning,

according to the evidence presented at the hearing, are the persons

to receive the gifts and the devisees of his estate upon his death.

This Court will uphold the decision of the District Court unless

the District Court has abused its discretion. In exercising its

discretion, the District Court must be guided by the best interests

of the protected person. Clearly, the court considered Don's best

interests in deciding to continue the conservatorship. We conclude

that the record supports the finding that Don's future needs are

best served by a continuance of the present conservatorship and

that the reasons proposed by the parties do not constitute

sufficient justification for dissolving the conservatorship and

establishing a trust.

We hold the District Court properly exercised its discretion

in continuing the conservatorship in this case.

Affirmed.

We Concur:

vvA

Y.-

/,--

23
j

I Justices

24
Justice James C. Nelson specially concurs:

I concur in the result of our opinion and, for the most part,

with our legal analysis. Aside from that, I do not concur in

certain statements that are made in the opinion.

25
December 20, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,

to the following named:

Terry L. Seiffert

Attorney At Law

Box 31181

Billings MT 59107-1181

R. Bruce Harper, Esq.

Harper & Stusek

Box 7067

Billings MT 59103-7067

ED SMITH

CLERK OF THE SUPREME COURT