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 the Nineteenth 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 

,q 

JAN 2 1 1993 
Justice 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 Jerry Hanley 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 in holding Mrs. Hanleyvs son, 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 live with 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 followed Mrs. 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 Shirley Taylor. Also on this date, Mrs. Hanley was taken 

2 
to 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 a motion 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 a visitor of the court. Mrs. Hanley was not delivered 

to the court in Montana, but the parties again entered negotiations 

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. At 
the March 30 hearing, the court found Jerry Hanley in contempt of 

court and ordered him 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 her mother and her mother'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 

service was made. 

Our statutes make it clear that the person for whom 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 in guardianship proceedings. (1) In a proceeding 

for the appointment or removal of a guardian of an 

incapacitated person other than the appointment of a 

temporary guardian or temporary suspension of a guardian, 

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 

incapacitated person and . . . Waiver of notice by the person 

alleged to be in capacitated is not effective unless he 

attends the hearing or his waiver of notice is conf inned 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, his parents 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 . . . [Emphasis added.] 

The statutes make it clear that personal service on the person 

to be protected is required. The record reveals that personal 

service was not made on Mrs. Hanley, the alleged incapacitated 

person. Service was upon the son in whose 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. Hanleyls son, 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 

forthe District Court's further determination of 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 a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

Reversed and remanded. 

1 

We Concur: 
January 21, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

William A. Douglas 

Douglas & Sprinkle 

P.O. Box 795 

Libby, MT 59923 

L. Charles Evans 

Attorney at Law 

120 W. Sixth St. 

Libby, MT 59923 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA