IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In re the Guardianship of: JAMES P. HALLIGAN, An Incapacitated Person, VICTORIA E. HALLIGAN, Appellant,

v. NORTHERN TRUST COMPANY and DAVID N. DEL SESTO, Respondents. DIVISION ONE No. 73314-1-1

UNPUBLISHED OPINION

FILED: May 23, 2016 CJ".



### Dwyer, J. — Under applicable guardianship law, when a court-appointed 

### guardian petitions the courtfor reliefon behalfof the ward—such as permission to change an acting trustee pursuant to a trust—therequested reliefmust be in the ward's "best interest."1 The final decision of whether such relief is in the 

### ward's best interest rests with the "courtmaking the appointment."2 In this way, the court maintains its role as "'the superior guardian of the ward.'"3 In this case, 

### Victoria Halligan, as the court-appointed guardian of her fatherJames, petitioned the superior court seeking permission to remove the acting co-trustees of the 

### Halligan Trust, Northern TrustCompany (Northern), and David N. Del Sesto, and

1 RCW 11 92.043(4V In re Guardianship of Lamb. 173Wn.2d 173, 191, 265 P.3d 876 (2011). 2 RCW 11.92.010. 3Lamb, 173Wn.2d at 190 (quoting Seattle-FirstNat'l Bankv. Brommers, 89Wn.2d 190, 200, 570P.2d 1035(1977)).No. 73314-1-1/2 replace them with Whittier Trust Company (Whittier), asserting that this change
was in James's best interest. Given that the superior court was presented with a range ofevidence concerning whether such a change was proved to be in James's best interest, and given that the superior court made a choice among the alternatives that was both within this range ofevidence and supported by substantial evidence, there was no abuse ofjudicial discretion. Accordingly, we affirm both the superior court's denial ofVictoria's initial petition and her subsequent motion for reconsideration.
I James P. Halligan and Marcia S. Halligan were husband and wife. 

### Togetherthey had three children: Victoria E. Halligan, Denisia K. Halligan, and Christopher M. Halligan.4 All ofthese children are now adults. On April 29, 1996, James and Marcia created two revocable living trusts— 

### the HalliganTrust and the Marcia S. HalliganTrust (the Trusts)—to hold, 

### administer, and eventually distribute their assets.5 James and Marciatransferred substantially all of their assets to the Trusts, including two residential properties, 

### promissory notes, cash, securities, and fractional interests inlimited partnerships, limited liabilitycompanies, and a corporation. 

### By the end of2008, James was diagnosedwith dementia.6 In September of that year, James and Marcia simultaneous amended and reinstated the
4For clarity, we refer to all of the Halligans by first name. 5 Unless otherwise noted, we refer to the trusts collectively. 6We are informed of this fact from a medical report in the record that was once sealed. Both parties have referenced the contents of the reportin their briefor argument and, each party concedes, we may publicly reference the contents of the report in our resolution of this dispute.No. 73314-1-1/3 

### Trusts.7 The amended HalliganTrust provided that James and Marcia were the primary income and principal beneficiaries ofthe Halligan Trust during each of their lifetimes, with their children named as the primary remainder beneficiaries. Additionally, James and Marcia appointed themselves as co trustees ofthe Halligan Trust and provided that, inthe event that they both became unable to serve as co-trustees, Del Sesto and Northern would be 

### appointed to serve as successor co-trustees. The HalliganTrust included
a provision that set forth the order of succession: APPOINTMENT OF SUCCESSOR TRUSTEE A. JAMES P. HALLIGAN and MARCIA S. HALLIGAN are 

### appointed as Co-Trustees. Inthe event of the death, disability, refusal to serve, or resignation ofeither JAMES P. HALLIGAN or MARCIA S. HALLIGAN, then the remaining person is appointed as sole Trustee. Inthe event ofthe death, disability, refusal to serve, 

### or resignation of both JAMES P. HALLIGAN and MARCIA S. HALLIGAN, then DAVID N. DEL SESTO and NORTHERN TRUST 

### are appointed as Co-Trustees. In the event of the death, disability, refusal to serve, or resignation ofDAVID N. DEL SESTO, then NORTHERN TRUST is appointed as sole Trustee. At any time that 

### a corporate fiduciary is serving as Trustee hereof, DAVID N. DEL SESTO shall have the right to remove the corporate fiduciary as Trustee hereofand appoint inwriting another corporate fiduciary withfunds under management of not less than eighty percent 

### (80.0%) of the funds under management of the current corporate fiduciary as of the date of the change ofcorporate fiduciary. Article VIII, Paragraph A.

7The Marcia S. Halligan Trust was simultaneously amended and reinstated on September 12. The Halligan Trustwassimultaneously amended andreinstated onSeptember 26. -3-No. 73314-1-1/4 Notwithstanding this order of succession, James and Marcia also reserved inthe Halligan Trust—for the surviving trustor—an unfettered powerto remove 

### an acting trustee and to appoint a successor trustee. ArticleVIII, Paragraph B. On August 10, 2014, Marcia died. The Halligan Trust provided that, upon the death of the first trustor—in this case, Marcia—the Trust assets would be 

### divided into three separate trusts: (1) Survivor, (2) Decedent, and (3) Marital. As 

### the surviving trustor, James became the sole income and principal beneficiary of the Trusts.8 On August 28, Del Sesto and Northern assumed their role as successor
co-trustees ofthe Trusts. On December 23, Victoria was appointed guardian ofJames, as to both his person and estate. 

### On January 7, 2015, Victoria, as James's court-appointed guardian,filed a petition seeking the superior court's permission to remove Del Sesto and 

### Northern as acting co-trustees, and to appointWhittier as successortrustee of the Trusts.9 In so petitioning, Victoria asserted her beliefthat removing Del Sesto and Northern as acting co-trustees, and replacing them with Whittier, was in 

### James's best interest given the cost savings to the Trusts thatwould resultfrom such a replacement.
8As a result of Marcia's death, the assets that were held in the Marcia S. Halligan Trust weredistributed into the Halligan Trust to be administered under the terms of the Halligan Trust. 9According to adeclaration provided by Charles Adams III, theseniorvice presidentand managerofWhittier's real estate department in South Pasadena, California, Whittier is a company that"oversee[s] thedaily andlong term management ofproperties in clientaccounts andperform[s] services thatinclude leasing, property management, andoversightofthird party 

### property managers, maintenance, capital improvement, financing, acquisition, and disposition."
-4-No. 73314-1-1/5 Del Sesto and Northern opposed Victoria's petition. Indoing so, Del Sesto and Northern pointed the superior courtto the following evidence in 

### support of their assertion that removing them as acting co-trustees was not in James's best interest. 

### First, testimony from Del Sesto, Mark A. Hardtke, a seniorvice president at Northern, and Victoria's sister Denisia, indicated that James and Marcia did 

### not want their children—particularly Victoria—having any control over the Trusts. Del Sesto testified that, "I was told clearly (and observed) that the Halligan 

### children did not have knowledge orexperience aboutthe holdings and that Mr. and Mrs. Halligan did not have confidence that they could worktogether to 

### manage the assets, eitherduring Mr. and Mrs. Halligan's lifetime, or after either or both of their deaths." Consistentwith Del Sesto's testimony, Hardtke testified 

### that, "I clearly understood that the Halligans did not want any of theirchildren 

### exercising anycontrol over theirassets orchoosing anydifferenttrustee other than Mr. Del Sesto." Concerning Victoria in particular, Denisia testified that, "Victoria has never been involved in any of our parents' business affairs" and that 

### "[c]hanging trustees now, to someone selected byVictoria, will increase her ability to attempt [to have] control over the Trusts, which myparents were vehemently opposed to." 

### Second, testimonyfrom Del Sesto and Susan J. Merritt, a senior vice 

### president atNorthern, indicated both that James andMarcia were aware ofthe fees thatwould be charged at the time that they selected Del Sesto and Northern
as co-trustees and that the fees that were charged in2014—the firstyear of
-5-No. 73314-1-1/6
service—were actually less than the amount that was originally quoted to James and Marcia. Del Sesto testified both that "Northern Trust provided a fee schedule to the Halligans when Northern Trust was interviewed," and that "the cost of services was clearly explained to Mr. and Mrs. Halligan when they selected Northern Trust and me as their successor co-trustees." Regarding the fees that
were actually charged in 2014, Merritttestified that, "the fee that Northern Trust is 

### charging for the firstyear ofservices is significantly lowerthan the fee that would have been charged underthe standard fee schedules," and that "the annual fee fortrustee services and asset management will be reviewed after the first year." Merritt also testified that Del Sesto and Northern will charge a one-time estate 

### settlementfee which is set at a "significantly lower" rate than the rate setforth in the standard fee schedule.10 

### Third, testimony from DelSesto, Hardtke, Merritt, and Denisia detailed both DelSesto's competence inmanaging the assets held in the Trusts and 

### James's and Marcia's expressed desire for him to serve as a co-trustee. Del Sesto testified that, "I have a long-standing relationship with the family and 

### intimate knowledge of the family and itsholdings, havingmanaged the assets of the Trusts for nearly 20 years." Hardtkeattested that, "[i]twas clear that Mr. Del Sesto[ ] knew more about the ins and outs and day to day management of the various entities and properties than anyone and thatthe Halligans had the utmost confidence inMr. DelSesto. They took great comfort in knowingthat Mr. Del
10 Merrittfurther testified that this estate settlementfee will be paid entirely from Marcia's portion oftheTrusts, meaning that itwill notdiminish the assets that are held in James's survivor trust.No. 73314-1-1/7 

### Sesto was handling everything and that he would continue to do so beyond their
own involvement." Consistent with Hardtke's testimony, Merritttestified that, "Mr. 

### Halligan's beneficial interest in the Trusts is best served by the historical knowledge, experience, and skills ofMr. DelSesto as co-trustee." Finally, Denisia attested that, "David Del Sesto has always managed the real estate, 

### quiteprofitably for the family, and myparents trusted him implicitly." Fourth, testimony from DelSesto and Hardtke detailed both Northern's 

### competence in managing the assets held in the Trusts and James's and Marcia's 

### expressed desire for the company to serve as a co-trustee. Del Sesto testified that, "Northern Trust was selected by Mr. and Mrs. Halligan to serve with me as 

### co-trustee after Mr. and Mrs. Halligan had interviewed and considered several 

### corporatefiduciaries in their search for the appropriate co-trustee to serve with 

### me." Regarding the specific reasonswhy Northern was chosen, Hardtke attested that, "I understood that, for a number ofreasons, including our size, stability and 

### geographic footprint, Northern TrustwasMr. andMrs. Halligan's preferred choice for serving as corporate trustee with Mr. Del Sesto." Hardtke also spoke to Northern's competence, stating that, "Northern Trust has spentweeks/months 

### doing its due diligence andworking tofully understand all aspects oftheongoing
trust administration." 

### Fifth, testimony from Del Sesto and Merritt detailed the complex nature of the assets held inthe Trusts. Del Sesto testified that, "[t]he assets owned by 

### these Trusts are complex and include fractional interests in limited partnerships, 

### limited liability companies, a corporation, promissory notes, cash andsecurities.
-7-No. 73314-1-1/8 Several ofthe entities are parties to joint venture agreements with outside, nonfamily members. The entities whose interests are held in the Trusts own commercial real estate, a strip center, an industrial building, two large shopping centers, several ground leases with national tenants, and some unimproved land." Consistent with Del Sesto's testimony, Merritt testified that, "[t]he ownership structure ofthe business entities, along with the assets held inside the entities is very complex." Sixth, testimony from Merrittand Hardtke detailed the difficulty in replacing the current co-trustees given the time-sensitive nature ofcertain obligations under the Trusts. Merritttestified to the need to pay or refinance outstanding 

### debts, prepare and file tax returns, respond to third party interest in acquisition of certain assets held inthe Trusts, and complete a liquidityanalysis ofthe assets held in the Trusts. Merritt further testified that replacement of the co-trustees 

### would "place at riskthe Trusts' ability to obtain sufficient liquidity to address the Trusts['] liabilities in a timely and prudent manner." Consistentwith Merritt's testimony, Hardtke opined that, "[replacing both Northern Trust and Mr. Del Sesto concurrently would be tantamount to starting back at square one for any
successor and the likely result would be additional delays, cost and perhaps detrimental outcomes for the trust beneficiaries." 

### Seventh, the plain language of ArticleVIII, Paragraph A ofthe Halligan Trust, evidences James's and Marcia's intent to have Del Sesto and Northern


### serve as co-trustees. In this provision, James and Marcia setforth that "[i]n the 

### event of the death, disability, refusal to serve, or resignation of both JAMES P.
-8-No. 73314-1-1/9
HALLIGAN and MARCIA S. HALLIGAN, then DAVID N. DEL SESTO and NORTHERN TRUST are appointed as Co-Trustees." Del Sesto and Northern asserted their beliefto the superior court that James's and Marcia's specific selection ofthem as co-trustees within the Halligan Trust itselfevidenced James's and Marcia's intent to have these parties, together, manage the assets held within the Trusts. On January 26, 2015, the superior court heard argument on Victoria's 

### petition. Afterhearing the argument ofcounsel, and considering the documents thatthe parties submitted in support of their positions, the superior court denied the petition. 

### On February 5, Victoria filed a motion for reconsideration. Therein, she reiterated her beliefthat removal of Del Sesto and Northern would be in James's best interest and asserted—for the first time—that James, in 2008, had lacked 

### the mental capacity to choose DelSesto and Northern as successor co-trustees. 

### On February 23, the superior court heard argument on Victoria's motion for reconsideration. After hearing the argument ofcounsel, the superior court denied Victoria's motion. She now appeals.
II 

### Victoria first contends that the superior court erred by denying her initial 

### petition to authorize a change of trustee. Specifically, she asserts that the superior court erred by concluding that removing Del Sesto and Northern as co trustees, and replacing them with Whittier, was not proved to be in James's best interest. We disagree. -9-No. 73314-1-1/10 

### "The management of a guardianship by the superior court is reviewed for abuse ofdiscretion." In re Guardianship of Cornelius, 181 Wn. App. 513, 528, 

### 326 P.3d 718 (2014). A trial court abuses its discretion when its decision is 

### based on untenable grounds or reasons. In re Guardianship ofJohnson, 112 

### Wn. App. 384, 388, 48 P.3d 1029 (2002). But a trial courtdoes notabuse its discretion when its decision is withinthe range ofacceptable choices, given the 

### facts and the applicable legalstandard. In re Marriage ofHorner, 151 Wn.2d 884, 894, 93 P.3d 124(2004). 

### The parties agree that Victoria has standing to petition the superior court for the reliefsought. The question before us is whether the superior court, 

### having identified the applicable legal standard, abused itsdiscretion by concluding thatremoving Del Sesto and Northern as acting co-trustees, and 

### replacing themwith Whittier, was notproved to be in James's best interest. A guardian is chargedwith the dutyto, among otherobligations, "assert 

### the incapacitated person's rights and bestinterests." RCW 11.92.043(4). When exercising thisduty, a "guardian[ ] mustwork for the individualized best interests ofeach ward." Inre Guardianship of Lamb, 173Wn.2d 173, 191, 265 P.3d 876 

### (2011). This means that "aguardian must make decisions 'on a case-by-case basis with particularized consideration ofthe bestinterests andrights ofthe 

### specific individual:" Lamb, 173 Wn.2d at 191 (quoting In reGuardianship of Hamlin, 102 Wn.2d 810, 815, 689 P.2d 1372 (1984)).

10No. 73314-1-1/11 Courts ensure that the best interest ofthe ward is upheld by requiring that
a court-appointed guardian "shall at all times be under the general direction and control ofthe court making the appointment." RCW 11.92.010. In fact, [t]he guardian's opinion as to the ward's best interest is not dispositive—where there is a conflict... the superior court must resolve the conflict. Hamlin, 102 Wn.2d at 820-21; see also In re Guardianship of Ingram. 102 Wn.2d 827, 842, 689 P.2d 1363 (1984) ("[T]he court need not place on any party any particular burden of proofor persuasion, nor give any presumption of validity to the petition ofthe guardian or guardian ad litem."). Thus, while the guardian has the authority to "assert the incapacitated person's rights and best interests," RCW 11.92.043(4), itremains at alltimes the responsibility ofthe court to make the decision as to the ward's best interest. Ingram, 102 Wn.2d at 842. The goal of a guardianship is to do what the ward would do, ifthe ward were competentto make the decision inquestion. Id. at 838. Lamb, 173 Wn.2d at 191 n.13. Inthis regard, "'[t]he court having jurisdiction of a 

### guardianship matter is said to be the superior guardian of the ward, while the 

### person appointed guardian isdeemed to be an officer of the court.'" Lamb, 173 Wn.2d at 190 (quoting Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 200, 570 P.2d 1035 (1977)); see also In re Guardianship of Hallauer, 44 Wn. App. 795, 797, 723 P.2d 1161 (1986) ("Although governed by statute, guardianships 

### are equitable creations of the courts and it is the court that retains ultimate 

### responsibility for protecting the ward's person and estate."); In re Guardianship of Gaddis, 12Wn.2d 114, 123, 120 P.2d 849 (1942) ("The guardian, in so far as 

### matters pertaining to his trust are concerned, is directlyresponsible only to the court of his appointment. The guardian is in effect an agent of the court, and 

### throughhim the courtseeks to protect the ward's interest." (citation omitted)). Here, the superior court considered the range ofevidence that was -11

-No. 73314-1-1/12 presented regarding whether a change oftrustee was proved to be inJames's best interest. Itmade a choice, among the alternatives, that was within that range ofevidence. This choice was supported by substantial evidence. Thus, the superior court did not abuse its discretion by concluding that removing Del Sesto and Northern as acting co-trustees, and replacing them with Whittier, was 

### not proved to be in James's best interest.11
Ill Victoria next contends that the superior court erred by denying her motion for reconsideration. This is so, she asserts, both because she maintains that 

### removing Del Sesto and Northern as acting co-trustees, and replacing them with Whittier, was proved to be inJames's best interest, and because James, in 2008, lacked the mental capacity to choose Del Sesto and Northern as co-trustees. Both of these assertions are unavailing. 

### First, Victoria's argument on reconsideration regarding James's best 

### interest was the same argument that she asserted in her initial petition. Itfails for the reasons previously set forth. 

### Second, Victoria's argument regardingJames's alleged mental incapacity 

### was a new theory that she was notpermitted to raise on reconsideration. See Wilcox v. Lexington Eve Inst.. 130 Wn. App. 234, 241, 122 P.3d 729 (2005) ("CR
11 Victoria also contends that the superior court erred both by "preventing [Victoria] from fulfilling herduty toprotecttheward's estatefrom diminishing unnecessarily as theresultof excessive trusteefees," and by"substituting itsjudgment" for herjudgmentas James's guardian. Opening Br. ofAppellant at 2. Victoria's contention is inconsistent with the superiorcourt's role as "'the superior guardian oftheward.'" Lamb. 173 Wn.2d at 190 (quoting Brommers. 89Wn.2d at200). Victoria's grandioseself-appraisal of herrole isunsupported in the law.
-12-No. 73314-1-1/13
59 does not permit a plaintiffto propose new theories of the case that could have been raised before entry of an adverse decision."). In addition to the fact that Victoria improperly raised this new theory on reconsideration, the medical report to which she cited does not support her assertion that James, in 2008, lacked the mental capacity to choose Del Sesto and Northern as successor co-trustees.12 The 2014 medical report sets forth James's medical condition in 2014. The doctor who authored this report 

### diagnosed James, in 2014, with "severe frontal lobe dementia." At that time, the doctor opined that James's diagnosed condition had been "present since at least 2008," butthat itwas characterized by a "slowly progressive inexorable decline." 

### The report nowhere states that James's condition in 2014 was the same as it was in 2008. Indeed, itsupports the contrary conclusion. Thus, the medical 

### report does not support the assertion thatJames lacked the capacity, in 2008, to choose Del Sesto and Northern as successor co-trustees. The superior court 

### was notobligated to rule in reliance on this evidence and did not err bydeclining

to do so. Affirmed.

We concur: 

# %SLrA\M0^^r

12 In herbriefing in supportof hermotion for reconsideration, Victoria asserted thatthe dementia diagnosis wasmade in 2005 butcites to the2014 medical report as supportforthis contention. The 2014 report does not support this assertion. -13-