No. 92-307 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992
IN RE THE MATTER OF THE GUARDIANSHIP OF: MARGIE M. rnLEY, An Incapacitated Person.

APPEAL FROM: District Court of theNineteenth Judicial District, In and for the County of ~incoln, The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD: For Appellant: William A. Douglas, Douglas & Sprinkle, Libby, Montana For Respondent: L. Charles Evans, Libby, Montana

Filed: Submitted on Briefs: November 12, 1992 ~ecided: January 21, 1993 

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## JAN2

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## 1993Justice Fred J. Weber delivered the Opinion of the Court. 

### This is an appeal from an order of the Nineteenth Judicial District Court, Lincoln County, awarding Shirley Taylor Guardianship and Conservatorship of her mother and her mother's estate and finding JerryHanley in contempt of 

### court. Reversed and remanded. The issues on appeal are: 1. Was the service of process adequate with regards to the alleged incapacitated person, Margie M. Hanley? 2. Did the District Court err inholdingMrs. Hanleyvsson,Jerry Hanley, in contempt of court for not producing Mrs. Hanley for a medical examination 

### in Montana? Margie M. Hanley (Mrs. Hanley) is 84 years old and is the mother of seven children. She is a widow who resided in Montana until August 15, 1991, when one of her two sons took her to California to livewith his family. Five of the children initially wished 

### Mrs. Hanley to be put into the Libby Care Center. Two 

### of the daughters, Shirley Taylor and Sandra Jackson, did not wish their mother placed in a nursing home, but would rather have taken care of her themselves. Much discussion followedMrs. Hanleyls deteriorating health condition, with no consensus concerning her care occurring. From March until August of 1991,Mrs. Hanley visited various children. On August 15, 1991, after a petition to the Nineteenth District Court, temporary guardianship and conservatorship were issued to ShirleyTaylor. Also on thisdate,Mrs. Hanleywas taken 2to California by Jerry Hanley and has remained there with his family since that date. All children except for Shirley Taylor and Sandra Jackson, retained an attorney and submitted affidavits in opposition to Shirley Taylor being appointed guardian. A hearing was held on October 7, 1991 in response to five of the children's motion to set aside the appointment. Only William Hanley testified at this hearing which was subsequently continued until October 18, 1991, and again until January 2, 1992. On December 24, 1991,Shirley Taylor filed amotion to require her brother Jerry and her brother William to deliver their mother to the court on January 2, 1992, in order that she be examined by
a doctor and avisitor of the court. Mrs. Hanleywas not delivered to the court inMontana, but theparties again enterednegotiations among themselves concerning their mother's care. Negotiations among the children were again unsuccessful and on February 7, 1992
a hearing was held with appearances by Shirley Taylor, Sandra Jackson, and their attorney. The court set a hearing date of March 2 to hear the petition of Shirley Taylor for appointment of guardian. Jerry and William Hanley were also ordered to appear in court on that day to show
cause why they should not be found in contempt of court for their failure to deliver Mrs. Hanley. Jerry Hanley petitioned the court for a two week continuance which was granted. The court then, on its own, continued the hearing until March 30, 1992. There is no record of personal service upon Mrs. Hanley. Atthe March 30 hearing, the court found Jerry Hanley in contempt of court and orderedhim to spend five days in the county jail and pay the amount of $500 for not producing his mother. The court also ordered that Shirley Taylor be appointed guardian and conservator of hermother and hermother's estate. Counsel for the Hanley sons objected stating that the District Court did not have jurisdiction to award guardianship; the objection was overruled as untimely. This appeal followed.

Was the service of process adequate with regards to the alleged incapacitated person, Margie M. Hanley? Appellants argue that JS 72-5-314, MCA, and 72-5-403, MCA, mandate that Mrs. Hanley must be personally served with notice concerning any hearing involving her guardianship. Appellants contend that failure to comply with such statutory mandate combined with the lack of any waiver by Mrs. Hanley indicates that she has been denied due process of law. Respondents argue that sufficient servicewas made. Our statutes make it clear that theperson forwhom a guardian
or conservator is sought, must be personally served or appear personally at the hearing. Section 72-5-314, MCA, states in pertinent part: Notices inguardianshipproceedings. (1)Inaproceeding for the appointment or removal of a guardian of an incapacitated person other than the appointment of a temporaryguardianor temporary suspensionof aguardian, notice of hearing shall be given to each of the following: 

### (a) the ward or the person alleged to be incapacitated



# ...(2) Notice shall be served ~ersonallv on the allecred incapacitatedperson and 

# . . .Waiver of notice by theperson alleged to be in capacitated is not effective unless he attends thehearing orhiswaiver of notice is confinned in an interview with the visitor. Representation of the alleged incapacitated person by a guardian ad litem is not necessary. [Emphasis added.] Waiver of notice is affected by 

### 5 72-5-403, MCA, which states in pertinent part: (1) On a petition for appointment of a conservator or other protective order, the person to be ~rotected and his spouse or, if none,hisparents must be served ~ersonallv with notice of the ~roceedina at least 14 davs before the date of hearinq if they can be found within the state 

# . . . Waiver by the person to be protected is not effective unless he attends the hearing 

# . . . [Emphasisadded.] The statutesmake it clear thatpersonal serviceon theperson to be protected is required. The record reveals that personal service was not made on Mrs. Hanley, the alleged incapacitated person. Servicewas upon the son inwhose home she now resides and does not constitute personal service on Mrs. Hanley. This Court has no alternative but to reverse the District Court orders appointing 

### a guardian and conservator, and remand for further consideration.

Did the District 11. Court err in holding Mrs. Hanleylsson, Jerry Hanley, in contempt of court for not producing Mrs. Hanley for a medical examination in Montana? In view of our reversal of the orders appointing a guardian and conservator, the contempt order also is reversed and remanded fortheDistrict Court's further determinationof whether the order is warranted.Pursuant to Section I,Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as apublic document with the Clerk of this Court and by a report of its result to the West Publishing Company. Reversed and remanded.

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We Concur:January21, 1993 CERTIFICATEOFSERVICE Iherebycertifythat thefollowingorderwas sentby United Statesmail, prepaid, tothe followingnamed:
William

### A. Douglas Douglas&Sprinkle P.O.Box 795 Libby,MT 59923 L. Charles Evans AttorneyatLaw 120W. Sixth St. Libby,MT 59923
EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA