No. 14447 

IN THE SUPFEME CCUKI' OF THE STATE OF MONTANA 

1978 

IN THE GUARDIANSHIP OF 

JOSEPH AJTIDSJIO EVANS, 

a minor. 

ORIGINAL PIIOCEEDING: 

Counsel of Record: 

For Appellant: 

John Albrecht argued, Helena, &bntana 

For Respondent: 

Richard Llewellyn argued, County Attorney, Boulder, bbntana 

Patrick Flaherty argued, Boulder, montana 

Decided: N 0\/ 2 4978 

Filed: hl~;.~ fj~? 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

On January 6, 1978, Shirley Frisch, petitioner, filed a 

petition for appointment as guardian of a minor in the 

~istrict Court of the Fifth Judicial District, Jefferson 

County, pursuant to Title 91A, Chapter 5, Part 2, 1947 

Revised Codes of Montana (Guardians of Minors). After a 

hearing on February 15, 1978, the District Court appointed 

Frisch guardian of the minor and issued letters of guardianship to her. The minor in the action is a severely retarded 

17 year old boy who at all pertinent times until the present 

has been in the care and custody of Boulder River School and 

Hospital. The parents of the boy are now divorced, both 

live out of state, and they have had no contact with him in 

recent years. 

On August 9, 1978, petitioner requested a hearing 

before the District Court to correct the lack in the record 

of any notice to the Boulder River School of the earlier 

guardianship proceedings. Until this time, Frisch had acted 

as guardian of the minor and performed acts such as attempting to enroll him in public special education classes, 

although she had not yet brought the minor into her home. 

At the time of the hearing and without prior notice, 

petitioner was served with an order granting the Jefferson 

County Department of Welfare and the State Department of 

Social and Rehabilitation Services (SRS) the right to intervene in the proceedings and with an order directing that 

further proceedings in the matter be held pursuant to ~itle 

91A, Chapter 5, Part 3 of the Uniform Probate code relating 

to guardianships of incapacitated persons. On the same date 

the trial court vacated its order appointing petitioner 

guardian of the minor. Again, the order was issued without 

notice to Frisch. 
From these three orders, petitioner seeks relief. Upon 

proper showing by the petitioner, this Court assumed jurisdiction to hear the matter as a writ of supervisory control. 

 he petitioner has presented the following issues to 

this Court for review: 

1. Was intervention by the county welfare department 

and SRS in the subsequent guardianship proceedings timely 

and proper? 

2. Is the guardian of a mentally retarded minor to be 

appointed according to the statutory procedure for appointing a guardian of a minor or according to the procedure for 

appointing a guardian of an incapacitated person? 

3. Was the vacating of the order appointing appellant 

as guardian procedurally improper? 

At oral argument, this Court granted a motion by the 

County Department of Welfare and SRS permitting these administrative agencies to withdraw from this case. This 

withdrawal renders moot, for purposes of this opinion only, 

the determination of the first issue. 

We note, however, that the Jefferson County High School 

District has moved the District Court for leave to intervene 

in the guardianship proceedings. To date, this motion has 

not been acted upon. The actions of various governmental 

agencies in Jefferson County intervening and withdrawing in 

this guardianship proceeding and effectively forestalling 

petitioner in her efforts to enroll the minor in public 

special education class presents some serious questions. 

Although the question of the propriety of intervention 

by the high school district is not before us, we do note 

that school boards, like administrative agencies, have only 

those powers specifically granted to them by statute. ~yatt 
v. School ~istrict No. 140 (1966), 148 Mont. 83, 87, 417 

P.2d 221, 223. They can act only when empowered to do so 

and must keep within the limits of the powers and authority 

granted them. State ex rel. Anderson v. Board of Equalization (1957), 133 Mont. 8, 17, 319 P.2d 221, 226-27; Abshire 

v. School District No. 1 (1950), 124 Mont. 244, 247, 220 

P.2d 1058, 1060. We expressly reserve judgment on whether 

intervention in guardianship proceedings is properly within 

the powers and authority of school boards as a question 

initially for the District Court. But see University Center 

Inc. v. Ann Arbor Public Schools (1971), 386 Mich. 210, 191 

N.W.2d 303, 306. 

Frisch first filed for appointment as guardian of the 

minor, then age 16, on January 6, 1978. She proceeded under 

sections 91A-5-201 through 212, R.C.M. 1947, relating to 

guardians of minors. Notice of the hearing on this petition 

was given only to the parents of the minor, neither of whom 

had the care or custody of the minor, a resident of Boulder 

River School and Hospital. Notice was not given to the 

minor himself or to Boulder River School. Section 91A-5- 

207(1), R.C.M. 1947, requires notice in such proceedings to 

be given to the minor if 14 years of age or older; to the 

person having his principal care and custody during the 60 

days preceding the date of the application; and to any 

living parent of the minor. 

Our statutes clearly indicate that waiver of notice to 

a mentally retarded person is not to be regarded as either 

unnecessary or automatically waived. See sections 38- 

1203(3), R.C.M. 1947, (waiver of rights by mentally retarded 

person must be knowingly and intentionally made) and 91~-5- 

309(2), R.c.M. 1947 ("Waiver of notice by the person alleged 
to be incapacitated is not effective unless he attends the 

hearing or his waiver of notice is confirmed in an interview 

with the visitor"). 

Therefore, although Boulder River School has apparently 

acquiesced in the appointment of Frisch as guardian, failure 

to send notice to the minor rendered the judgment of the 

District Court appointing her guardian of the minor void. 

Grauman v. Chambers (1948), 122 Mont. 31, 36, 198 P.2d 629, 

632; In re Guardianship of Bouchat (1974), 11 Wash.App. 369, 

522 P.2d 1168, 1170. Her status was merely that of a guardian - de facto. Grauman v. Chambers, supra. 

However, when Frisch attempted in the August proceedings 

to correct the lack of notice in the record, the District 

Court ordered that any futher proceedings on the guardianship petition be conducted according to the guardianship of 

incapacitated persons procedure. This is error. 

The Montana Uniform Probate Code establishes two separate 

systems to provide protection for persons under disability 

and their property. In so doing, the legislature has defined 

two groups of incompetent (for these purposes) people-- 

minors and incapacitated persons. The definitions are in 

part mutually exclusive. 

An incapacitated person is defined in section 91A-5- 

101(1), R.C.M. 1947, as: 

". . . any person who is impaired by reason of 

mental illness, mental deficiency, physical 

illness or disability, advanced age, 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;" (Emphasis added. ) 
Thus, a person afflicted only with incapacity caused by 

minority is specifically excluded from coverage under the 

guardianship of incapacitated persons statutes. 

A minor, on the other hand, is defined as "a person who 

is under eighteen (18) years of age." Section 91A-1-201(25), 

R.C.M. 1947. Thus, all minors, regardless of mental condition, have been designated as persons under disability 

needing the protection of a guardian. The fact that a minor 

may be mentally retarded adds nothing to the legislative 

determination that he is in need of protection. Even the 

brightest minor would have a guardian appointed for him if 

proper procedures were followed and circumstances warranted. 

Further, the procedures for removal of a guardian on 

petition of the ward indicate that the legislature intended 

guardians for all minors to be appointed under the minors 

procedure. A ward whose guardian is appointed under the 

incapacitated persons procedure may petition at any time for 

removal of the guardian without regard to his (the ward's) 

age. Section 91A-5-307 (I), R.C.M. 1947. A ward whose 

guardian is appointed under the minors procedure may petition for removal of his guardian only if he (the ward) is 14 

years of age or older. Section 91A-5-212 (1) , R.C.M. 1947. 

~hus, if a guardian of a mentally retarded 10 year old were 

to be appointed under the incapacitated persons procedure, 

the ward could immediately petition for his removal while a 

10 year old of normal intelligence whose guardian was appointed under the minors procedure could not so petition. 

Clearly, the legislature could not have intended mentally 

retarded minor wards to have such powers of removal while 

denying them to minor wards of normal intelligence. 
l'he Person over whom guardianship is sought to be 

established in this case is both a minor and mentally incapacitated. The legislature has provided a specific procedure for creating a guardianship of a minor. At the same 

time, it has specifically excluded the incapacity of minority 

from coverage under the general procedure for creating a 

guardianship for an incapacitated person. In this case, the 

specific minors procedure, not the general incapacitated 

persons procedure, should be followed. 

The guardianship of a minor ends when the minor attains 

majority. Section 91A-5-210, R.C.M. 1947. If at that time, 

it appears that the person needs the continued protection of 

a guardian, new proceedings may be instituted under the 

guardians of incapacitated persons provisions. Franklyn v. 

Sprague (1887), 121 U.S. 215, 229, 7 S.Ct. 951, 958, 30 

L.ed. 936, 941-42; 39 Am.Jur.2d Guardian & Ward S18. 

Mental retardation may be a changing condition difficult of diagnosis. While these people may never achieve 

normal intellectual function, they may achieve the ability 

later in life to care for themselves without the aid of a 

guardian. This possibility undoubtedly underlies the legislature's action in establishing community based facilities 

to which Boulder River School patients are currently being 

released. See section 38-1201, R.C.M. 1947. Ideally, a 

person should be re-evaluated periodically to see if continuation of any guardianship is warranted. his is especially true in the case of a guardianship for a young child. 

A bifurcated system where a guardian of a minor is appointed 

according to the minors procedure regardless of the minor's 

mental capacity followed by an evaluation when the minor 

reaches 18 as to whether continuation of the guardianship as 
one of an incapacitated person is warranted seems best to 

guarantee this periodic evaluation of the wisdom or necessity of the guardianship. 

Until that time, the guardian of a minor has sufficient 

authority to look out for the ward's interest. Section 91A5-209, R.C.M. 1947; Franklyn v. Sprague, supra. But to 

appoint a guardian for a mentally retarded youth under the 

incapacitated persons procedure when such a guardianship can 

continue indefinitely without further adjudication, section 

91A-5-306, R.C.M. 1947, is contrary to the right of all 

persons to control their own lives upon reaching adulthood. 

1972 Mont. Const. Art. 11, 99 3, 14; Mitchell v. McDonald 

(1943), 114 Mont. 292, 300, 136 P.2d 536, 541. 

As we have noted, the original appointment of Frisch as 

guardian of the minor is void for lack of notice to the 

minor involved. This case therefore must be remanded for 

further proceedings under the guardian of minors procedures. 

On remand, we feel some directions on the proper implementation of this procedure are necessary. 

In our view, the legislature did not intend that a 

guardian of any minor, mentally retarded or not, should be 

appointed in such a summary proceeding as apparently happened in the original appointment of Frisch in February. A 

glance at the statutory scheme confirms this. 

Section 91A-5-207(1), R.C.M. 1947, requires the notice 

to the interested parties that was not given in this case. 

Subsection (2) of the same statute provides for a hearing on 

the petition after which the court is to make specific 

findings: 

". . . that a qualified person seeks appointment, venue is -proper, t& required notices 

-- have been given, the requirements of section 
91A-5-204 have been met [relating to termination of parental custody rights], and - 

the 

welfare -- and best interests -- of the minor will 

- be served 2 the requested appointment . . ." 

(Emphasis and bracketed material added.) 

The record here discloses no notice to, or written 

waiver of notice by, either Boulder River School or the 

minor, making finding that the required notices have been 

given impossible. Likewise, given the fact that the minor 

was identified in the original petition as a resident of 

Boulder River School, a finding that the welfare and best 

interests of the minor would be served without examination 

into his possible medical and mental problems is improper 

and indicates the procedure was too summary. 

All in all, it appears that these statutory safeguards 

for the protection of the minor were either ignored or overlooked. If guardians of any minors are being appointed in 

such a "summary" fashion, then the state is undoubtedly 

committing a great injustice to some of these minors, regardless of their mental capacity. The concept of guardianship 

was designed to provide protection for those incapable of 

protecting themselves. If the appointing court ignores the 

available statutory protections of the minor's interest, 

then the statutory scheme and entire guardianship concept 

become farces. All minors, regardless of mental condition, 

are defined as persons in need of protection. Section 91A5-201 et seq. To insure they receive the needed protection, 

the procedure for appointing a guardian for them should be 

as rigorously followed as the procedure for appointing a 

guardian of a mentally retarded adult. 

We agree the situation here involving an apparently severely retarded boy residing in Boulder may call for special 

consideration. In such cases, the statutory provision for 
appointment of an attorney to represent the minor, as was 

belatedly done here, comes into play. Section 91~-5-207(4), 

R.C.M. 1947. 

Special consideration for persons in this minor's 

position is afforded by the statutes governing release of a 

resident from Boulder River School. Section 38-1222(1), 

R.C.M. 1947, requires a specific habilitation plan, designed 

to "maximize his human talents and enhance his ability to 

cope with his environment". Each individualized habilitation plan, which is to be supervised by a medical doctor or 

a specialist in developmental disabilities, is to include 

plans for discharge from the institution. Section 38- 

1222 (4) (f) . Each resident discharged to the community is to 

have a transitional habilitation assistance program. Section 38-1222(8). Notice and the possibility of a hearing on 

the patient's release are provided in section 38-1209(3), 

R.C.M. 1947. These release provisions in combination with a 

proper minors guardian proceeding would doubly insure that 

the best interests and welfare of a minor such as the minor 

here involved were served. 

Because of the procedural defects specified above, the 

District Court was without authority to make the original 

appointment of Frisch as the minor's guardian. Grauman v. 

Chambers, supra. Therefore, she had for the period between 

the original defective appointment and these proceedings, 

only the status of a guardian de - facto of the minor. In 

that capacity, she has acted on behalf of the minor with the 

apparent acquiescence of the administrator of Boulder ~iver 

School, one of the parties on which she originally failed to 

serve notice of the guardianship proceedings in February. 

We also note that the only parties objecting to her serving 
as this minor's guardian have been the administrative agencies which have since withdrawn from the case. 

In acting as this minor's guardian petitioner has 

attempted to enroll him in a public school special education 

class. That attempt has resulted in administrative proceedings which are pending at this time and at which the 

interests of the minor need to be represented. There may be 

pending other similar matters petitioner has undertaken as 

the minor's guardian which do not appear in the record. 

Until a final determination has been made we see no 

reason why petitioner may not continue to act as guardian - de 

facto of the minor under the supervision of the District 

Court as to all pending matters. Allowing her to do so at 

this time would best serve the interests of the minor. In 

re Guardianship of French (1975), 167 Mont. 540, 543 P.2d 

173. 

Therefore a writ will issue directing the District 

Court to hold a hearing and conduct further proceedings on 

Frisch's petition in accordance with the applicable statutory procedures specified herein. The order of the District 

Court vacating letters of guardianship is stayed with respect 

to all pending matters in which petitioner has served as 

guardian of the minor until a final judgment on her petition 

for guardianship is rendered. 

We Concur: 

'7 c An- 3/.& 5iL-F- / I. 

Chief Justice