No. 14447 INTHE SUPFEMECCUKI' OF 

### THE STATEOFMONTANA 1978

IN THE GUARDIANSHIP OF JOSEPHAJTIDSJIO EVANS, aminor.

ORIGINAL PIIOCEEDING:

Counsel of Record: For Appellant: John Albrecht argued, Helena, &bntana For Respondent: Richard Llewellyn argued, CountyAttorney, Boulder, bbntana PatrickFlaherty argued, Boulder, montana

Decided: 

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# 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 inthe ~istrict Court of the Fifth Judicial District, Jefferson County, pursuant to Title91A, Chapter 5, Part 2, 1947 Revised Codes of Montana (Guardians of Minors). After a hearing on February 15, 1978, the DistrictCourt appointed Frisch guardian of theminor and issued letters of guardianship toher. The minor inthe action is 

### a severely retarded 17 year oldboy who atallpertinent 

### timesuntil the present has been inthe care and custody of Boulder River School and Hospital. The parents of theboy 

### are now divorced, both liveout of state, and they have had no contact with him in recent years. On August 9, 1978, petitioner requested a hearing before the DistrictCourt tocorrect the lack in the record of any notice tothe Boulder River School of the 

### earlier guardianshipproceedings. Until this 

### time, Frisch had acted

as guardian of theminor and performed acts such as attempting toenrollhim inpublic special education classes, although she had not yet brought theminor intoher home. Atthe timeof 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 intheproceedings and with an order directing that further proceedings inthematterbe held pursuant to ~itle 91A, Chapter 5, Part 3 of the Uniform Probate code relating toguardianships of incapacitated persons. On the same date the trial courtvacated its order appointing petitioner guardian of theminor. Again, the order 

### was issued without notice toFrisch.From these three orders, petitioner seeks relief. Upon proper showing by the petitioner, thisCourt assumed jurisdiction tohear thematter as a 

### writof supervisory control. he petitioner has presented the following issues to this Court for review: 1. Was intervention by the county welfare department and SRS inthe subsequent guardianshipproceedings timely and proper? 2. Is the guardian of a mentally retarded minor tobe appointed according to the statutory procedure for appointing a guardian of a minor or according tothe procedure for appointing a guardian of an incapacitated person? 3. Was the vacating of the order appointing appellant

as guardian procedurally improper? Atoral argument, this Court granted a motion by the County Department of Welfare and SRS permitting these administrative agencies towithdraw from this 

### case. This withdrawal renders moot, for purposes of this opinion only, the determination of the firstissue. We note, however, that the Jefferson County High School Districthas moved the DistrictCourt for leave to intervene inthe guardianshipproceedings. To date, thismotion has not been acted upon. The actions of various governmental agencies inJefferson County intervening and withdrawing in this guardianshipproceeding and effectively forestalling petitioner inher efforts toenroll theminor inpublic special education classpresents some serious questions. Although the question of the propriety of intervention by the high school district isnot before us, 

### we do note that school boards, like administrative agencies, have only those powers specifically granted to them by statute. ~yattv. School ~istrict No. 140 (1966), 148 Mont. 83, 87, 417 P.2d 221, 223. They can actonly when empowered todo so and must keep within the 

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

v. School DistrictNo. 1 (1950), 124Mont. 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 theminor, a resident of Boulder River School and Hospital. Notice was not given to the minor himself or toBoulder River School. Section 91A-5- 207(1), R.C.M. 1947, requires notice in such proceedings to be given to the minor if 14years 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 thatwaiver of notice to
a mentally retarded person isnot tobe 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 allegedtobe incapacitated isnot effectiveunless 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 inthe appointment of Frisch as guardian, failure tosend notice totheminor rendered the judgment of the DistrictCourt appointing her guardian of the minor void. Grauman v. Chambers (1948), 122 Mont. 31, 36, 198 P.2d 629, 632; Inre Guardianship of Bouchat (1974), 11Wash.App. 369, 522 P.2d 1168, 1170. Her statuswas merely that of a guardian - de facto. Grauman v. Chambers, supra.

However, when Frisch attempted inthe August proceedings tocorrect the lack of notice inthe record, the District Court ordered that any futher proceedings on the guardianshippetition be conducted according to the guardianship of incapacitated persons procedure. This 

### is error. The Montana Uniform Probate Code establishes two separate systems toprovide protection forpersons under disability and their property. In sodoing, the legislature has defined two groups of incompetent (for these purposes) people-- minors and incapacitated persons. The definitions are in partmutually exclusive. An incapacitated person isdefined 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) tothe extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning hisperson orwhich cause has so 

### impaired the person's judgment thathe is incapable of realizing and making a rational decision with respect tohis 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, isdefined as "a person who is under eighteen (18) years of age." Section 91A-1-201(25), R.C.M. 1947. Thus, allminors, regardless of mental condition, have been designated aspersons under disability needing the protection of a guardian. The factthat a minor may be mentally retarded adds nothing to the legislative determination thathe is inneed 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 allminors tobe appointed under the minors procedure. A ward whose guardian 

### is appointed under the incapacitated persons procedure may petition atany time for removal of the guardian without regard tohis (theward's) age. Section 91A-5-307 (I), R.C.M. 1947. A ward whose guardian is appointed under theminors procedure may petition for removal of his guardian only if he (theward) 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 tobe appointed under the incapacitated persons procedure, the ward could immediately petition for his removal while a 10 year old of normal intelligencewhose guardian 

### was appointed under the minors procedure could not sopetition. Clearly, the legislature could not have intended mentally retarded minor wards tohave such powers of removal while denying them tominor wards of normal intelligence.l'he Person over whom guardianship is sought tobe established inthis case isboth a minor and mentally incapacitated. The legislature has provided a specific procedure for creating a guardianship of a minor. Atthe 

### 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 specificminors procedure, not the general incapacitated persons procedure, should be followed. The guardianship of 

### a minor ends when theminor attains majority. Section 91A-5-210, R.C.M. 1947. If atthat 

### 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), 121U.S. 215, 229, 7 S.Ct. 951, 958, 30 L.ed. 936, 941-42; 39 Am.Jur.2d Guardian & Ward S18. Mental retardationmay be a changing condition difficultof diagnosis. While these people may never achieve normal intellectual function, they may achieve the ability later inlifeto

### care for themselves without the aid of a guardian. This possibility undoubtedly underlies the legislature's action inestablishing community based facilities towhich 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 iswarranted. his is especially true inthe case of a guardianship for a young child. A bifurcated system where a guardian of a minor is appointed according totheminors procedure regardless of theminor's mental capacity followed by an evaluation when theminor reaches 18 as towhether continuation of the guardianship asone of an incapacitated person iswarranted seems best to guarantee thisperiodic evaluation of the wisdom or necessityof the guardianship. Until that time, the guardian of a minor has sufficient authority tolook 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 tothe right of all persons tocontrol their own lives upon reaching adulthood. 1972 Mont. Const. Art. 11, 

### 99 3, 14; Mitchell v. McDonald (1943), 114Mont. 292, 300, 136 P.2d 536, 541. As we have noted, the original appointment of Frisch as guardian of theminor 

### isvoid for lack of notice tothe 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 thisprocedure arenecessary. In our view, the legislaturedid not intend that a guardian of any minor, mentally retarded or not, should be appointed in such a summary proceeding as apparently happened inthe original appointment of Frisch inFebruary. A glance atthe statutory scheme confirms this. Section 91A-5-207(1), R.C.M. 1947, requires the notice tothe interested parties thatwas not given in this case. Subsection (2) of the same statuteprovides for a hearing on thepetition afterwhich the court is tomake specific findings: 

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



## -- been given, the requirements of section91A-5-204 have been met [relatingto termination of parental custody rights], and the - welfare 

### -- and best interests of the minor 

### will 

### -- be served

## 2the requested appointment 

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- (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 factthat the minor

was identified inthe original petition as a resident of Boulder River School, a finding that the welfare and best interests of theminor would be served without examination into his possible medical and mental problems is improper and indicates the procedure was too summary. Allin all, it appears that these statutory safeguards for the protection of theminor were either ignored or overlooked. If guardians of any minors arebeing appointed in such a "summary" fashion, then the state is undoubtedly committing a great injustice to some of these minors, regardless of theirmental capacity. The concept of guardianship

was designed toprovide 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. Allminors, regardless of mental condition,

aredefined aspersons inneed of protection. Section 91A5-201 etseq. To insure they receive the needed protection, the procedure for appointing a guardian for them should be

asrigorously 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 inBoulder 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 "maximizehis 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 residentdischarged to the community is to have a transitional habilitation assistanceprogram. 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 combinationwith 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 Courtwas 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 onwhich she originally failed to serve notice of the guardianship proceedings in February. We also note that the only parties objecting to her servingas thisminor's guardian have been the administrative agencieswhich have sincewithdrawn from the case. In acting as thisminor's guardian petitioner has attempted toenroll him ina public school special education class. That attempt has resulted in administrativeproceedings which 

### are pending atthis 

### timeand atwhich the interests of theminor need tobe represented. There may be pending other similar matters petitioner has undertaken as theminor's guardian which do not appear inthe record. Until a finaldetermination has been made 

### we see no

reason why petitioner may not continue to 

### act as guardian de - facto of theminor under the supervision of the District Court as toallpending matters. Allowing her todo so at this timewould best serve the interests of the minor. In

reGuardianship of French (1975), 167 Mont. 540, 543 P.2d 173. Therefore a 

### writ

### willissue directing the District Court tohold a hearing and conduct further proceedings on Frisch's petition inaccordance with the applicable statutory procedures specifiedherein. The order of the District Court vacating 

### letters of guardianship is stayed with respect toallpending matters inwhich petitioner has served as guardian of the minor until a finaljudgment on her petition for guardianship is rendered.

WeConcur: 

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/ I. Chief Justice