Court of Appeals of Indiana | Opinion 45A05-1303-GU-150 | February 11, 2015 Page 1 of 15

ATTORNEY FOR APPELLANT

Douglas M. Grimes

Douglas M. Grimes, PC

Gary, Indiana

ATTORNEYS FOR APPELLEES

For Eva Willis and Charles Reagins

Mark A. Bates

Schererville, Indiana

For Peoples Bank, SB

Benjamin T. Ballou

Bonnie C. Coleman

Hodges & Davis, P.C.

Merrillville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the 

Guardianship of N.R.,

N.R.,

Appellant-Protected Person,

v.

Eva Willis and Charles Reagins, 

Peoples Bank, SB,

Appellees-Petitioners.

February 11, 2015

Court of Appeals Case No.

45A05-1303-GU-150

Appeal from the Lake Superior Court

The Honorable Calvin Hawkins, 

Judge

Cause No. 45D02-1206-GU-27

Robb, Judge.

Case Summary and Issue

[1] N.R. was the subject of guardianship proceedings in 2012, as part of which the 

trial court approved requests for guardian fees, attorney fees, and costs from 
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former temporary guardians Eva Willis, Charles Reagins (“Charles”), and 

Peoples Bank, SB (the “Bank”). The trial court denied N.R.’s objection to its 

orders that the fees and costs of the former temporary guardians be paid out of 

his estate. N.R. now raises several issues for our review, which we consolidate 

and restate as: whether the trial court abused its discretion in awarding fees and 

costs to the former temporary guardians by excluding evidence N.R. wished to 

offer to show that Willis and Charles engaged in misconduct and that the 

temporary guardianship was improper. 

[2] Concluding the excluded evidence, if credited, would make the award of fees 

and costs unreasonable, we reverse and remand with instructions that the trial 

court hear N.R.’s evidence and reconsider the fee petitions.

Facts and Procedural History

[3] On January 14, 2012, N.R., who was eighty-one years old, executed a general 

power of attorney appointing his daughter, Nelva Berry, as his attorney-in-fact. 

Berry had taken care of N.R., his business, and his bills for several years prior. 

As N.R.’s attorney-in-fact, Berry had “full power and authority to act” on 

N.R.’s behalf. Appendix of Appellant at 36. Berry was authorized “to manage 

and conduct all of [N.R.’s] affairs and to exercise all of [N.R.’s] legal rights and 

powers . . . .” Id. 

[4] On June 25, 2012, Willis (N.R.’s niece) and Charles (N.R.’s nephew) filed an 

emergency petition to be appointed temporary co-guardians over N.R. and his 
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estate, alleging N.R. “is unable to maintain and care for his financial affairs and 

person because he suffers the following incapacities: dementia with slight 

memory loss.” Id. at 16. Attached to the petition was a physician’s report from 

February 2012 in which the doctor reported that N.R. was not incapacitated 

and was in good physical condition, although “he does have dementia with 

slight memory loss but is able to speak and behave in an acceptable way.” Id. at 

20. The doctor declared N.R. “partially” incapable of making personal and 

financial decisions because he is “only slightly forgetful,” and posited that it 

would be appropriate for N.R. to live in his own home “with the relatives 

checking in on him every day. He only needs minimal assistance.” Id. at 21. 

The petition further alleged “[t]hat there is no guardian of the person or estate 

appointed for [N.R.] in this state or any other state . . . .” Id. Finally, the 

petition alleged that the need exists for the appointment of a temporary and 

permanent guardian for N.R. because:

(a) he cannot handle his financial affairs, and his assets need to be 

preserved for his support, maintenance, care, and proper medical 

treatment;

(b) his ex-wife of forty years has removed him from the State of 

Indiana and has taken him to Texas. She is attempting to convince 

him to withdraw cash from his accounts and remove other assets;

(c) there is a need to protect his assets from his daughter who has 

previously removed assets from him;

(d) his real estate taxes have not been paid; and

(e) his income tax returns have not been filed.

Id. at 17-18.
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[5] Without providing N.R. or Berry notice or holding a hearing at which N.R. 

appeared, the trial court issued an order the same day the petition was filed:

[T]he Court . . . now finds that the allegations contained in said 

petition are true, and that a temporary guardian of the person and 

estate of [N.R.] should be appointed.

The Court further finds that [N.R.] is in need of a guardian to protect 

his assets and that it is in the best interests of said [N.R.] that a 

temporary guardian be appointed over his person and estate.

The Court finds that a guardian has not previously been appointed for 

[N.R.]; that an emergency exists; that the welfare of [N.R.] requires 

immediate action; that no other person has the authority to act under 

the circumstances; and that immediate and irreparable loss of property 

. . . may result before notice and a hearing can be held . . . .

[The Bank’s] App. at 1.1 Accordingly, the trial court appointed Willis and 

Charles as temporary co-guardians over N.R. and his estate for a period not to 

exceed sixty days; ordered them to take an oath but did not order them to post a 

bond; stated that they would have “powers and responsibilities without 

limitation”; and set a hearing to determine whether Willis and Charles should 

be appointed permanent co-guardians. Id.

[6] On July 17, 2012, Berry and Monique Wilson (N.R.’s step-daughter) filed 

petitions to participate in the guardianship proceedings and objections to the 

petition for appointment of a guardian. The trial court held a hearing on 

August 7, 2012, at which Willis and Charles, Berry and Wilson, and N.R. all 

 

1 The order states that the court heard evidence on the petition, but the Chronological Case Summary reflects 

no hearing, and in any event, the order also states that Willis and Charles appeared only by counsel.
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appeared. The parties entered into the following stipulated agreement: Willis 

and Charles resigned as temporary guardians in open court; the Bank was 

appointed temporary guardian over N.R.’s estate; and Berry and Wilson were 

appointed permanent co-guardians over N.R.’s person. The court approved the 

agreement and set a hearing regarding a permanent guardianship over N.R.’s 

estate. 

[7] Following a November 8, 2012, hearing at which the parties agreed a 

guardianship was in N.R.’s best interest “not because of incapacity but due to 

his age,” id. at 4, the court entered an order continuing Berry and Wilson as 

permanent co-guardians of N.R. and also appointing them permanent coguardians of his estate. Berry and Wilson were ordered to post a $400,000 

bond, and all former temporary guardians were ordered to submit petitions for 

fees and costs within ten days. The court approved Willis’s and Charles’s 

petition for attorney fees of $15,030.00 and costs of $177.55 (totaling 

$15,207.55).

2

 In a separate order, the court also approved the Bank’s petition 

requesting temporary guardian fees for its services in the amount of $4,275.00,

temporary guardian’s attorney fees of $3,454.25, and costs of $55.45 (totaling 

$7,784.70). N.R. then filed an objection to the court’s orders awarding fees 

without first allowing time for objection and a hearing.

 

2 The order approving the award of attorney fees to Willis’s and Charles’s attorneys noted that “the 

temporary co-guardians are not seeking a fee.” App. of the Appellees Eva Willis and Charles Reagins at 1.
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[8] The court held a hearing on N.R.’s objection to its orders allowing fees on 

March 19, 2013. At the hearing, N.R. attempted to present evidence showing 

that Willis’s and Charles’s misconduct before and during the guardianship 

proceedings made the court’s order appointing Willis and Charles as temporary 

co-guardians improper and the award of fees and costs unreasonable. The 

court, however, refused to hear the evidence and denied N.R.’s objection, 

issuing an order that the fees and costs were reasonable and were to be paid out 

of the guardianship estate within ten days. N.R. now appeals the court’s 

awards of fees and costs.

3

Discussion and Decision

I. Standard of Review

[9] In guardianship proceedings, all findings and orders are within the trial court’s 

discretion. Ind. Code § 29-3-2-4(a); In re Guardianship of Hollenga, 852 N.E.2d 

933, 936 (Ind. Ct. App. 2006). We review only for an abuse of discretion, 

which occurs if the decision is against the logic and effect of the facts and 

circumstances before the court or if the court has misinterpreted the law. 

Hollenga, 852 N.E.2d at 937. The right to compensation from the estate “should 

 

3 The timeliness of N.R.’s appeal was the subject of a motion to dismiss prior to this case being fully briefed, 

and this court dismissed the appeal. See Order dated July 26, 2013. The Indiana Supreme Court thereafter 

granted N.R.’s petition to transfer, vacated the order dismissing the appeal, and remanded to this court for 

consideration on the merits. See Order dated April 10, 2014. Each of the appellees has raised the timeliness 

issue again in its brief; however, the issue was decided by the Indiana Supreme Court and we will not 

entertain it further.
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not depend upon the result of the litigation but rather upon the reasonable 

necessity for such litigation.” Malachowski v. Bank One, Indianapolis, N.A., 682 

N.E.2d 530, 533 (Ind. 1997) (quotation omitted). Thus, when ruling on an 

attorney fee petition in a guardianship proceeding, the trial court should 

consider not only the outcome of the proceedings but also “(1) whether the 

parties acted reasonably and in good faith in incurring the fees, (2) whether the 

facts were in dispute, (3) whether the legal issues were complex, and (4) 

whether any party’s misconduct caused the proceedings.” In re Guardianship of 

Shaffer, 711 N.E.2d 37, 41 (Ind. Ct. App. 1999), trans. denied. “A trial court may 

not award fees to a party whose misconduct necessitated the proceedings.” Id.

II. Award of Fees and Costs

[10] “A guardian is entitled to reasonable compensation for services as guardian and 

to reimbursement for reasonable expenditures made in good faith on behalf of 

the protected person.” Ind. Code § 29-3-9-3. Further:

If not otherwise compensated for services rendered, any guardian, 

attorney, physician, or other person whose services are provided in 

good faith and are beneficial to the protected person or the protected 

person’s property is entitled to reasonable compensation and 

reimbursement for reasonable expenditures made on behalf of the 

protected person. These amounts may be paid from the property of 

the protected person as ordered by the court.

Ind. Code § 29-3-4-4.

[11] N.R. contends the trial court abused its discretion in awarding fees and costs to 

the former temporary guardians because it refused to hear evidence relevant to 

the determination of whether they were incurred in good faith. The trial court 
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was only willing to entertain evidence regarding whether the amount of the fees 

was unreasonable; whereas N.R. sought to show that the fees were 

unreasonable because they were incurred unnecessarily. We review the trial 

court’s exclusion of evidence for an abuse of discretion. In re Des.B., 2 N.E.3d 

828, 834 (Ind. Ct. App. 2014). 

A. Willis and Charles

[12] The trial court allowed Willis’s and Charles’s petition for attorney fees and 

costs in the total amount of $15,207.55 and denied N.R.’s objection to the 

same. N.R.’s objection to the trial court’s order alleged many facts which the 

trial court refused to allow into evidence at the hearing. For purposes of 

determining whether the trial court abused its discretion in this matter, we 

assume the following facts are true. 

[13] In January 2012, Willis, Charles, and Freo Reagins (“Freo”) (N.R.’s brother), 

without N.R.’s or Berry’s consent or knowledge, acted unilaterally in: changing 

the locks and the burglar alarm code on N.R.’s home; deactivating the garage 

door opener on the home; switching N.R.’s mailing address from Berry’s home 

address to an unknown P.O. Box location without providing Berry or N.R. a 

key; and adding their names as joint owners, beneficiaries, and account 

managers to several of N.R.’s bank accounts, credit cards, and investments. 

Because Willis, Charles, and Freo refused to communicate with N.R. or Berry, 

the changed mailing address resulted in months of unpaid bills, damaging 

N.R.’s credit and causing his insurance coverage to lapse. 
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[14] At some point in early 2012, Willis, Charles, and Freo took N.R. to see David 

Mears, the attorney who represented Willis and Charles during the 

guardianship proceedings and in whose favor the attorney fee award was 

ultimately entered. N.R. gave Mears $5,000 during the meeting, but at the 

hearing on N.R.’s objection, Willis could not recall what the money was for. 

Mears stipulated at the hearing that $5,000 was paid to him, that it was in his 

trust account, and that it was not reflected on the statement of account 

submitted in support of his fee request. Mears also conceded that some of the 

fees reflected on the statement were incurred prior to the filing of the 

guardianship petition. Virtually all of the fees were incurred prior to the agreed 

guardianship in November 2012.4

[15] This issue arises because Willis and Charles filed an emergency petition for 

appointment as temporary co-guardians over N.R.’s person and estate. Indiana 

Code section 29-3-3-4 governs the emergency appointment of a temporary 

guardian:

(a) If:

(1) a guardian has not been appointed for an incapacitated 

person . . .;

(2) an emergency exists;

(3) the welfare of the incapacitated person . . . requires 

immediate action; and

 

4 Mears’s statement shows 66.80 hours billed at $225.00 per hour for work performed beginning on February 

1, 2012 and ending on November 21, 2012. 
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(4) no other person appears to have authority to act in the 

circumstances;

the court, on petition by any person or on its own motion, may 

appoint a temporary guardian for the incapacitated person . . . for a 

specified period not to exceed ninety (90) days. No such appointment 

shall be made except after notice and hearing unless it is alleged and found by 

the court that immediate and irreparable injury to the person or injury, loss, or 

damage to the property of the alleged incapacitated person . . . may result before 

the alleged incapacitated person . . . can be heard in response to the petition. If 

a temporary guardian is appointed without advance notice and the 

alleged incapacitated person . . . files a petition that the guardianship 

be terminated or the court order modified, the court shall hear and 

determine the petition at the earliest possible time.

(b) If:

(1) a petition is filed under this section for the appointment of a 

temporary guardian; and

(2) each person required to receive notice under IC 29-3-6-1(a) 

has not:

(A) received a complete copy of the petition and notice 

required by IC 29-3-6-2 before the court considers and 

acts on the petition; or

(B) received actual notice of the filing of the petition and 

specifically waived in writing the necessity for service of 

the notice required under IC 29-3-6-2 before the court 

considers and acts on the petition;

the petitioner shall, on the earlier of the date the court enters an order 

scheduling a hearing on the petition or the date the court enters an 

order appointing a temporary guardian, serve complete copies of the 

petition, the court’s order, and the notice required by IC 29-3-6-2 on 

every person entitled to receive notice . . . . The requirements of this 

subsection are in addition to the petitioner’s obligations under Rule 65 

of the Indiana Rules of Trial Procedure to make a specific showing of 

the petitioner’s efforts to provide advance notice to all interested 

persons or the reasons why advance notice cannot or should not be 

given.

* * *
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(d) A temporary guardian appointed under this section has only the 

responsibilities and powers that are ordered by the court. The court 

shall order only the powers that are necessary to prevent immediate and 

substantial injury or loss to the person or property of the alleged incapacitated 

person . . . in an appointment made under this section.

(Emphasis added.)

[16] As N.R.’s power of attorney, Berry had the authority to act on N.R.’s behalf, 

especially with regard to his finances, which seems to be the main focus of the 

guardianship petition. However, Willis’s and Charles’s petition failed to inform 

the trial court of the existence of the power of attorney. If they were aware of it, 

then the omission of that information from their petition was misleading. And 

whether or not they were aware of it, proper notice and a hearing would have 

brought it to the court’s attention. Moreover, although the petition alleged an 

emergency existed, it did not allege that immediate and irreparable injury might 

occur if N.R. were allowed an opportunity to respond, and it is clear from the 

language of the statute that those are two separate conditions. Although the 

trial court found that immediate and irreparable injury might occur, the statute 

requires that such be “alleged and found” before dispensing with notice and a 

hearing. Ind. Code § 29-3-3-4(a) (emphasis added). 

[17] The petition also fails to specifically allege that efforts had been made to 

provide notice of the filing of the petition to the appropriate people—despite 

listing therein the names and addresses of those people—or to state reasons why 

advance notice could not or should not be given. Ind. Code § 29-3-3-4(b). Had 

such notice been given and a hearing held before the appointment of Willis and 

Charles as temporary co-guardians, N.R. would have had the opportunity to 
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present evidence about the power of attorney, which would have impacted who 

should be appointed as temporary guardian. See Ind. Code § 30-5-3-4(a) (“A 

principal may nominate a guardian for consideration by the court if protective 

proceedings for the principal’s person or estate are commenced. The court shall 

make an appointment in accordance with the principal’s most recent 

nomination in a power of attorney except for good cause or disqualification.”). 

Further, N.R. would have been able to present evidence about Willis’s and 

Charles’s actions which, in fact, may have caused the emergency they alleged 

existed and which the trial court later refused to hear. Finally, we note that the 

trial court did not limit the temporary co-guardians powers as required by the 

statute to only those powers necessary to prevent immediate loss. See Ind. Code 

§ 29-3-3-4(d). 

[18] In short, the order appointing Willis and Charles temporary co-guardians over 

N.R.’s person and estate should not have been entered without notice and a 

hearing. Proceeding as it did on Willis’s and Charles’s emergency petition, 

there is a legitimate concern that the trial court did not scrutinize whether a 

temporary guardianship was needed at all, nor did it scrutinize whether Willis 

and Charles were the appropriate people to be appointed as co-guardians. That 

the ultimate outcome of the proceedings was a guardianship to which N.R. 

agreed does not mean that the original order appointing Willis and Charles was 

necessarily appropriate in retrospect. 

[19] Further compounding the problem, even if the emergency order was 

appropriate, the guardianship petition alleged that a guardianship was 
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necessary, in part, because N.R. was unable to handle his financial affairs, his 

real estate taxes had not been paid, and his income tax returns had not been 

filed. If N.R. had been allowed to introduce evidence to develop the facts 

alleged in his objection, the facts supporting the petition would have been in 

dispute, raising questions as to whether Willis and Charles acted reasonably 

and in good faith in incurring fees to petition for guardianship and whether 

their misconduct—especially in changing N.R.’s mailing address and interfering 

with his financial accounts—contributed in whole or in part to the deficiencies 

they alleged necessitated these proceedings. 

[20] As noted above, in ruling on an attorney fee petition, the trial court is to 

consider whether the parties acted reasonably and in good faith, whether there 

are disputed facts, and whether any party’s misconduct caused the proceedings. 

In re Shaffer, 711 N.E.2d at 41. It is clear from those factors that in ruling on a 

fee petition, a trial court is to look not just to whether the amount of the fees is 

reasonable, but also to whether incurring the fees was necessary. N.R.’s counsel 

stated several times at the hearing on N.R.’s objection to the fees that the fees 

were being challenged as unnecessary because of misconduct. See, e.g.,

Transcript at 76, 78-79. The trial court repeatedly refused to hear evidence of 

misconduct, relying on an earlier determination that the fees were incurred in 

good faith – a finding also made without the benefit of hearing relevant 

evidence. 

[21] The trial court’s order denying N.R.’s objection to the fees indicates that N.R. 

failed to present any admissible evidence to support his objection. On the 
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contrary, N.R.’s evidence was admissible as relevant to the determination of 

whether the temporary guardianship was proper and ultimately, whether the 

fees incurred in seeking the guardianship were necessary. The trial court 

abused its discretion in excluding that evidence and therefore abused its 

discretion in ordering Willis’s and Charles’s fees to be paid without giving 

proper consideration to the factors. N.R. has a right to show that the original 

guardianship was improper, and if it was, Willis and Charles are not entitled to 

an award of fees from the guardianship estate. We therefore reverse the trial 

court’s order denying N.R.’s objection to Willis’s and Charles’s petition for fees 

and remand to the trial court to hear N.R.’s evidence regarding whether those 

fees were necessary and, if so, whether the amount is reasonable.5

B. The Bank

[22] The trial court also allowed the Bank’s petition for guardian and attorney fees 

in the sum of $7,784.70. The Bank acted as substitute temporary guardian of 

N.R.’s estate from August 7, 2012, until Berry and Wilson were appointed 

permanent guardians of N.R.’s estate on November 8, 2012. 

[23] Those who provide services in good faith and for the benefit of the protected 

person are entitled to reasonable compensation and reimbursement for their 

 

5 Despite evidence being introduced at the objection hearing that Mears had already been paid $5,000 by 

N.R. which was not reflected on Mears’s statement of fees, the trial court found that the amount of fees 

requested by Mears was reasonable and ordered that they be paid in total. Although it is unclear what that 

fee was for, the trial court made no effort to find out and made no provision for it to be deducted from the 

fees if appropriate. This payment should also be considered on remand.
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reasonable expenses. See Ind. Code § 29-3-9-3 (guardian fee); Ind. Code § 29-3-

4-4 (attorney fee). It is unclear how the Bank came to be involved in this matter, 

but before undertaking the position, it was incumbent upon the Bank to 

investigate and determine whether its guardianship services were necessary and 

appropriate. There is no evidence that the Bank did so and therefore no 

evidence that it provided its services to N.R. in good faith. The Bank is entitled 

to payment for its services, but it may not be entitled to payment from N.R.’s 

estate. If it is determined on remand that Willis and Charles did not act in good 

faith and that the temporary guardianship was improper, the burden of 

compensating the Bank should be theirs. We therefore reverse the trial court’s 

award of fees to the Bank from the guardianship estate and remand for 

reconsideration of the Banks’ fee petition consistent with this opinion.

Conclusion

[24] The trial court abused its discretion in excluding evidence relevant to the 

determination of whether the fees and costs sought to be paid from the 

guardianship estate were reasonable. The trial court’s orders are reversed, and 

this case is remanded for further proceedings.

[25] Reversed and remanded.

Baker, J., and Kirsch, J., concur.