Opinion
No. 58316-6-I.
August 27, 2007.
Group Health Hospital petitioned the King County Superior Court to establish a guardianship over the person and estate of Gertrudis Healey, an 85-year-old woman suffering from several medical and psychological conditions, including delirium and psychosis. A superior court commissioner appointed a guardian ad litem (GAL) to represent Ms. Healey's interests and subsequently established a full guardianship over Ms. Healey's person and estate.
Ms. Healey's son, Robert Healey, who was incarcerated at the time, employed counsel to seek reconsideration of the commissioner's decision or vacation of the order appointing the guardian. Those motions were denied. Robert then filed a motion seeking revision of the commissioner's rulings. A superior court judge appointed independent counsel for Ms. Healey. Following a hearing, the superior court declined to revise the commissioner's rulings.
Gertrudis Healey and Robert Healey now jointly appeal from the superior court's order on the motion for revision, asserting that (1) the superior court's ruling on the motion for revision must be vacated because it was not accompanied by the entry of findings of fact and conclusions of law, (2) the commissioner erred by conducting the guardianship hearing in the voluntary absence of Gertrudis Healey, (3) the medical report considered by the judge did not demonstrate Ms. Healey's incapacity, (4) the superior court failed to adequately consider previous arrangements made by Ms. Healey as an alternative to imposing a guardianship, (5) Ms. Healey was entitled to a jury determination of her incompetence, (6) applicable requirements were not followed in the appointment of the GAL, and (7) numerous evidentiary and procedural rulings and fee awards made in the superior court were made contrary to law. We affirm.
FACTS
Ms. Healey was initially admitted to Group Health Hospital for complications from a urinary tract infection and cardio-respiratory issues. She was subsequently diagnosed as suffering from psychosis and delirium.
The hospital petitioned the superior court to establish a guardianship over Ms. Healey's person and estate. The petition recited that (1) Ms. Healey was a resident at the Group Health mental health facility, suffering from psychosis; (2) Ms. Healey's son, Robert, "may have" power of attorney, but was incarcerated; and (3) Ms. Healey's next closest relative, a niece, believed that Robert used illegal substances, had threatened his mother, and had previously left her unattended when she was in his care.
The hospital proposed that Timothy Healy (no relation to the Healey family) serve as the GAL representing Ms. Healey's interests in the guardianship proceedings, because he is an experienced GAL and Ms. Healey's case was "a complex matter involving emergent circumstances." The commissioner found that the appointment of Healy was justified and appointed him to serve as Ms. Healey's GAL, even though Healy was not the "next in line" for appointment pursuant to the rotating GAL registry.
"The superior court of each county shall develop and maintain a registry of persons who are willing and qualified to serve as guardians ad litem in guardianship matters. The court shall choose as guardian ad litem a person whose name appears on the registry in a system of consistent rotation, except in extraordinary circumstances such as the need for particular expertise. The court shall develop procedures for periodic review of the persons on the registry and for probation, suspension, or removal of persons on the registry for failure to perform properly their duties as guardian ad litem. In the event the court does not select the person next on the list, it shall include in the order of appointment a written reason for its decision." RCW 11.88.090(4)(a).
GAL Healy subsequently submitted a report to the court. In his report, he stated that (1) he visited Ms. Healey and was "satisfied that Ms. Healey understood and was adequately cogn[izant] of most (but not all) of the implications of what [he] explained to her"; (2) Ms. Healey agreed with the establishment of a guardianship and the appointment of a professional guardian to assist her; and (3) "[t]he presence of the Alleged Incapacitated Person should not be waived. Gertrudis Healey is able to attend the hearing."
The GAL also stated that he reviewed medical records, including the medical report completed by Dr. Gendo, Ms. Healey's primary care physician, and interviewed the hospital personnel knowledgeable about Ms. Healey's case history and responsible for Ms. Healey's placement following her hospitalization.
The GAL also noted that, in 2001, Ms. Healey executed a document naming her son Robert and Harold Montgomery, a "long time friend of the family who resides in Florida," to serve jointly as her "attorneys in fact." This document, which the GAL refers to as a "durable power of attorney," was executed by Ms. Healey in Miami, Florida. During the course of these proceedings, Robert sought neither appointment as his mother's guardian nor to exercise any power under the terms of the "durable power of attorney" document.
During the course of the superior court proceedings, the GAL did not contact Montgomery.
The GAL also stated that Dr. Gendo, the physician treating Ms. Healey for her urinary tract infection, was selected to perform a medical examination of Ms. Healey in the guardianship process and author a report for the court. Dr. Gendo's "Medical/Psychological Report" states that Dr. Gendo examined Ms. Healey on 18 occasions, and made a diagnosis of "psychosis/delirium." Dr. Gendo's report explains that Ms. Healey "needs near 24-hour assisted care, which can be lessened as she grows more accustomed and comfortable in her home environment." The report also states that Ms. Healey was taking a number of medications, including Haldol and long-acting morphine. The report states that, if Ms. Healey "is using Haldol regularly, it could change how she answers questions."
"The examining physician . . . was selected by Group Health Hospital. The reason for selecting this individual to prepare the medical/psychiatric report was that Ms. Healey was a patient at Group Health when the Petition for Appointment of Guardian was filed in this case." September 28, 2005, Guardian ad Litem Report at 1-2.
On September 15, 2005, the guardianship hearing was rescheduled from September 28, 2005, to October 11, 2005. Ms. Healey was served personal notice of the original hearing date, and was also served notice of the date of the re-scheduled hearing. Ms. Healey was not present at the hearing. The commissioner heard argument on the petition for guardianship. There was no witness testimony. The commissioner entered an order establishing a full guardianship over Ms. Healey's person and estate and appointing Malavotte § Associates Services as the guardian.
That order also required Ms. Healey to pay $2,799.00 to the GAL, $3,552.15 to counsel for Group Health, and $1,258.88 to the attorney for the proposed Guardian. The total disbursement authorized was $7,610.
After this hearing, Robert, through counsel, appeared in the action for the first time. He moved for reconsideration of the commissioner's ruling or, alternatively, for vacation of the order appointing the guardian. The court commissioner requested a response to Robert's motions from the GAL, the Guardian, and the hospital.
Robert's counsel alleges that he was not given notice of the commissioner's request for a response, and states that he was recovering from surgery when the responsive materials submitted by the GAL, the Guardian, and the hospital were filed. After the responsive materials were filed, Robert's counsel moved for additional time to reply. His request was denied.
A supplemental GAL report, filed in response to the motion for reconsideration, states:
Ms. Healey expressed no desire to be present at the hearing and indicated to me that she was satisfied with the prospect of the appointment of a professional guardian. My report states my belief that Ms. Healey should be present at the hearing on the issue of appointing a guardian for her because it was my judgment that she had the capacity to understand the scope of the duties, the nature of powers, and the responsibility that would be assigned to her appointed guardian.
The commissioner denied both the motion for reconsideration and the motion to vacate. In ruling on the motions, the commissioner found that (1) the order appointing the guardian complied with RCW 11.88; (2) Ms. Healey "chose not to appear" at the hearing; (3) the medical report, together with the evidence presented by the GAL, supported a finding of mental incapacity; (4) the GAL report accurately described that there were no effective alternative arrangements made by Ms. Healey prior to the petition for guardianship, as Montgomery, the family friend, "has not appeared, he lives in Florida and has to date presented no objection through counsel or pro-se" and "Robert Healey may not serve as a guardian or attorney in fact."
Robert's criminal history renders him ineligible to serve in such capacities. See infra pp. 16-17.
Robert next filed a motion for revision of the order appointing the guardian. The superior court appointed an attorney to represent Ms. Healey as her independent counsel. Ms. Healey's newly-appointed counsel joined in the motion for revision.
The superior court expressly appointed counsel "to represent Gertrudis Healey . . . in this cause." (Emphasis added.)
In ruling on the motion for revision, the superior court struck three declarations proffered by Ms. Healey's independent counsel that were not a part of the original record before the commissioner. The superior court declined to revise the commissioner's rulings, and did not enter independent findings of fact or conclusions of law. In the superior court's order denying the motion for revision, the superior court ordered that Group Health and the guardian be paid their attorneys' fees and costs, totaling $8,300.01, from the guardianship estate. The superior court also entered judgment against Robert Healey and in favor of the guardian for $8,300.01, with instructions that the guardian reimburse the guardianship estate upon recovery of "part or all of" the judgment entered against Robert Healey.
DISCUSSION Scope of Review
An appellate court engages in de novo review of questions of law. Rasmussen v. Bendotti, 107 Wn. App. 947, 954, 29 P.3d 56 (2001). In the context of a contested guardianship proceeding, the superior court's factual findings are reviewed to determine whether they are supported by substantial evidence from which a rational trier of fact could find the necessary facts proved by clear, cogent, and convincing evidence. RCW 11.88.045(3); In re Guardianship of Stamm, 121 Wn. App. 830, 842, 91 P.3d 126 (2004); In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999); In re Guardianship of Atkins, 57 Wn. App. 771, 775, 790 P.2d 210 (1990). We review a trial court's decision regarding the admission of evidence for abuse of discretion. Stamm, 121 Wn. App. at 835.
Authority of Independent Counsel
As a preliminary matter, the guardian and Group Health challenge the authority of Ms. Healey's independent counsel to prosecute this appeal. This challenge is not well taken.
The superior court expressly ordered that Ms. Healey's independent counsel "is appointed to represent Gertrudis Healey, the alleged incapacitated person in this cause." (Emphasis added.) The authority to prosecute an appeal of rulings made during the course of the cause for which counsel was appointed is a necessary component of the authority bestowed by the superior court. Absent expressed limitations in the order of appointment (and none are present here) the authority to fully represent the client includes the authority to prosecute an appeal of trial court decisions arising from that representation.
Superior Court not Required to Enter Findings of Fact and Conclusions of Law When Denying Revision
The Healeys jointly assert that the order denying the motion for revision must be reversed, because the superior court did not enter independent findings of fact or conclusions of law in support of its order. We disagree.
Because Ms. Healey and Robert Healey filed joint briefs, we will refer to the appellants in the plural as "the Healeys."
RCW 2.24.050 provides that acts and proceedings of court commissioners shall be subject to revision by the superior court.
As previously noted,
we see no reason why the superior court on a revision cannot adopt the commissioner's orders and judgment either expressly or by clear implication from the record. After all, a refusal to "revise" leaves the action of the commissioner unchanged. Separate findings and conclusions would be appropriate if the record were viewed by the judge differently from the view of the commissioner. Here, the Judge agreed with the Commissioner.
In re Dependency of B.S.S., 56 Wn. App. 169, 170-171, 782 P.2d 1100 (1989); In re Marriage of Bralley, 70 Wn. App. 646, 658, 855 P.2d 1174 (1993) ("Under RCW 2.24.050, the findings and orders of a court commissioner not successfully revised become the orders and findings of the superior court."). The superior court refused to revise the contested orders, leaving the commissioner's decisions unaltered. Under these circumstances, entry of specific findings of fact or conclusions of law was not required. There was no error.
Voluntary Absence from Guardianship Hearing
The Healeys next contend both that the notice Ms. Healey received of the guardianship hearing was inadequate and that the order establishing the guardianship was wrongfully entered in the absence of her presence at the hearing without the entry of the required finding of good cause for her absence. Based on these alleged deficiencies, the Healeys contend that the order must be vacated. We disagree.
The Healeys first assert that Ms. Healey received deficient notice of the guardianship hearing, arguing that she was not given notice of the trial court order that postponed the hearing from its original date. The record establishes, however, that Ms. Healey received adequate notice of the proceedings. Initially, it is undisputed that Ms. Healey was personally served with notice of the existence of the guardianship proceedings and of the date and time of the initial hearing. In addition, Ms. Healey was personally served with notice of the commissioner's order continuing the hearing date and setting forth the date of the rescheduled hearing. The commissioner, in the Order Appointing Guardian of Person and Estate, entered the following finding of fact:
The order in question, which expressly re-set the hearing for October 11, 2005, did not state the time of the hearing.
2.1 Service of Process. The alleged incapacitated person was properly served with a true copy of the Notice of Hearing and Petition for Appointment of Guardian on September 21, 2005.
Finally, the GAL was appointed to represent Ms. Healey's interests before the date of the continuance, and the GAL had received notice. The GAL, by the nature of his role in the guardianship proceeding, was present at the hearing to represent Ms. Healey's interests.
The appointment of a GAL to represent the best interests of the alleged incapacitated person is required in guardianship cases. RCW 11.88.090(3). Prior to an adjudication of incapacity, a GAL may be appointed for a person not formally declared incapacitated where the court is apprised of the allegedly incapacitated person's mental condition. In re Guardianship of Miller, 26 Wn.2d 202, 173 P.2d 538 (1946). When such an alleged incapacitated person is a party to an action in the superior court, "he or she shall appear by guardian." RCW 4.08.060 (emphasis added). Appointment of the GAL, therefore, put Ms. Healey before the trial court "for all purposes." See Burke v. N. Pac. Ry. Co., 86 Wash. 37, 149 P. 335 (1915).
Having received notice of the proceedings, Ms. Healey was not under a legal duty to physically attend the hearing. Freise v. Walker, 27 Wn. App. 549, 551-52, 619 P.2d 366 (1980) (court has jurisdiction to appoint guardian for individual who received notice of guardianship hearing but did not appear). Accord In re Guardianship of Gage, 12 Wn.2d 443, 122 P.2d 451 (1942) (where an alleged incompetent person receives notice of the hearing, personal appearance is unnecessary for a valid determination of incompetence and appointment of guardian). The facts of this case are similar to those in Freise, a case in which it was held that, notwithstanding the absence of the alleged incapacitated person from the hearing, the superior court properly had jurisdiction because the alleged incapacitated person had received notice of the hearing:
[The alleged incompetent person] did receive notice of the guardianship hearing, as did the hospital where she was then residing. Merely because she did not attend the hearing does not defeat the court's jurisdiction over her. The court's jurisdiction was based on the notice she received.
Ms. Healey was entitled to voluntarily absent herself from the hearing. By so doing, she did not deprive the superior court of the authority to act.
The Healeys next assert that the commissioner's decision to proceed in Ms. Healey's absence constituted an abuse of discretion. This claim is premised upon RCW 11.88.040(4), which provides:
The alleged incapacitated person shall be present in court at the final hearing on the petition: PROVIDED, That this requirement may be waived at the discretion of the court for good cause other than mere inconvenience shown in the report to be provided by the guardian ad litem pursuant to RCW 11.88.090.
To determine whether the trial court appropriately exercised its discretion to proceed in Ms. Healey's absence, we must examine the record before the trial court. The GAL report states:
Ms. Healey expressed her agreement that the prospect of the appointment of a Guardian is a good idea. . . . Ms. Healey expressed that she is satisfied to have a professional Guardian.
. . . .
. . . Ms. Healey is in agreement that she is in need of assistance of a Guardian and therefore declined to exercise her right to have a jury trial.
Thus, the GAL report provided the trial court with sufficient information to support the conclusion that Ms. Healey voluntarily absented herself from the proceedings because she did not object to the establishment of the guardianship.
The GAL report also stated:
I noted that the hospital was so concerned about her state of mind that she was assigned a "sitter" to stay in her room with her and guard against the probability that she would wander away from the room and be too confused to find her way back. . . .
Ms. Healey appeared to be somewhat unsteady on her feet when she walked, giving rise to my concern that she might be at risk to fall down. . . .
The fact that Ms. Healey risked potential injury from falling or the potential risk of becoming disoriented or lost if she were required to attend the court hearing was a legitimate factor for the commissioner to consider in exercising the court's discretion.
Ms. Healey's assent to the prospect of a guardianship, coupled with the potential risks to her well-being should she be required to attend the hearing, provided "good cause other than mere inconvenience" to support the commissioner's decision. See RCW 11.88.040. Accordingly, the commissioner acted within the discretion allowed by statute. There was no error.
Finding of Incapacity
The Healeys next assert both that Dr. Gendo's report did not support a finding that Ms. Healey was incapacitated, as defined in RCW 11.88.010, and that the report itself does not meet the applicable statutory requirements. We disagree.
The guardianship statutes require the fact finder to determine the issue of the alleged incapacity by clear, cogent, and convincing evidence. RCW 11.88.045(3). RCW 11.88.010 defines incapacity and provides, in pertinent part:
(1) The superior court of each county shall have power to appoint guardians for the persons and/or estates of incapacitated persons, and guardians for the estates of nonresidents of the state who have property in the county needing care and attention.
(a) For purposes of this chapter, a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.
(b) For purposes of this chapter, a person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.
(c) A determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.
Requirements concerning the content of a physician's written report submitted on the question of incapacity are also set forth by statute. The report must include:
(a) The name and address of the examining physician, psychologist, or advanced registered nurse practitioner;
(b) The education and experience of the physician, psychologist, or advanced registered nurse practitioner pertinent to the case;
(c) The dates of examinations of the alleged incapacitated person;
(d) A summary of the relevant medical, functional, neurological, or mental health history of the alleged incapacitated person as known to the examining physician, psychologist, or advanced registered nurse practitioner;
(e) The findings of the examining physician, psychologist, or advanced registered nurse practitioner as to the condition of the alleged incapacitated person;
(f) Current medications;
(g) The effect of current medications on the alleged incapacitated person's ability to understand or participate in guardianship proceedings;
(h) Opinions on the specific assistance the alleged incapacitated person needs;
(i) Identification of persons with whom the physician, psychologist, or advanced registered nurse practitioner has met or spoken regarding the alleged incapacitated person.
RCW 11.88.045(4)(a) through (i).
The Healeys first argue that the examining doctor, Dr. Gendo, was not an appropriate person to prepare the medical report submitted to the court because he treated Ms. Healey for her urinary tract infection and heart condition, rather than her psychiatric conditions. The record indicates, however, that Dr. Gendo was fully qualified to author the report. Dr. Gendo was Ms. Healey's primary care physician during her stay at Group Health Hospital. The report states that at the time he authored the report, Dr. Gendo had examined Ms. Healey on 18 occasions. Furthermore, Dr. Gendo was the physician who diagnosed Ms. Healey's psychosis and delirium. Dr. Gendo was fully qualified to author the report and was well-apprised of Gertrudis Healey's physical and mental condition.
The Healeys next argue that Dr. Gendo's report is inadequate to support a finding of incapacity and does not adequately address the effect that Ms. Healey's medications may have had on her ability to understand or to participate in the guardianship proceedings.
Again, the record indicates to the contrary. The report is legally adequate; it specifically tracks the requirements for such a report set forth in RCW 11.88.045. The report advises the court that Dr. Gendo examined Ms. Healey on 18 occasions, that he diagnosed her with "delirium/psychosis exacerbated by past urinary tract infections," and states that Ms. Healey "needs near 24 hour assisted care, but this can be lessened as she grows more accustomed and comfortable in her home environment." Dr. Gendo's diagnosis of Ms. Healey's condition and conclusion that Ms. Healey requires assisted care virtually around the clock amply demonstrate "management insufficiencies over time in the area of person or estate" as required by RCW 11.88.010 (1)(c). The report also addresses the effects of Ms. Healey's medications.
The Healeys' argument that the report failed to address the potential effect of every one of Ms. Healey's medications, or the various possible interactions between the medications, is unavailing. The report contains Dr. Gendo's evaluation of the effects of Ms. Healey's medication. RCW 11.88.045(4)(g) requires nothing more.
Furthermore, the law provides that "[a] determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate." RCW 11.88.010(1)(c). The record before the commissioner, consisting not only of the medical report but also of other evidence, including the GAL report, presented ample evidence of such "management insufficiencies over time in the area of person or estate." For example, the GAL report states:
The degree of Ms. Healey's incapacity is sufficient enough that she requires assistance with providing for her basic activities of daily living. When she was in hospital at the Group Health Co-operative East Side facility the staff was so concerned about her state of mind and her propensity to w[a]nder that they assigned a full time "sitter" to stay in her room with her at all times and assure that she did not leave the floor. . . . Ms. Healey was repeatedly hospitalized for wandering while living with her son, thus raising the question of his ability to provide adequate supervision for her. . . . Ms. Healey is a risk to her health and safety, and she is unable to manage her financial affairs in any capacity.
This evidence, taken in tandem with the medical report, supports a finding by clear, cogent, and convincing evidence on the question of Ms. Healey's incapacity. RCW 11.88.045(3). There was no error.
Prior Alternative Arrangements
The Healeys next contend that the trial court did not give sufficient consideration to prior arrangements that Ms. Healey had made that could have presented an alternative to the establishment of a guardianship over her and her estate. Again, the record indicates to the contrary.
Ms. Healey executed a "durable power of attorney" in 2001. That document designates both her son Robert and family friend Montgomery, who resides in Florida, to serve jointly as "attorneys in fact." The GAL has a duty to provide the court with a written report that includes the following information:
A description of any alternative arrangements previously made by the alleged incapacitated person or which could be made, and whether and to what extent such alternatives should be used in lieu of a guardianship, and if the guardian ad litem is recommending discontinuation of any such arrangements, specific findings as to why such arrangements are contrary to the best interest of the alleged incapacitated person.
The GAL report states:
Ms. Healey executed a durable power of attorney that named her son, Robert Healey as her attorney-in-fact. However, Ms. Healey was repeatedly hospitalized for wandering while living with her son, thus raising the question of his ability to provide adequate supervision for her. . . . Robert Healey, Ms. Healey's named attorney-in-fact, does not otherwise qualify to act as a fiduciary for Ms. Healey because of his criminal history.
Relying upon the GAL's report, the commissioner ruled as follows:
The Guardian al Litem's report does accurately describe that there are no alternative arrangements previously made by Ms. Healey that would be effective as Mr. Montgomery has not appeared, he lives in Florida and has to date presented no objection through counsel or pro-se and Robert Healey may not serve as a guardian or attorney in fact.
Finding of Fact 4. This ruling was implicitly adopted by the superior court judge when the judge denied the motion for revision.
Despite the Healeys' assertion to the contrary, the GAL's report adequately describes the alternative arrangements and provides a basis for the court to decide "whether and to what extent such alternatives should be used in lieu of a guardianship." RCW 11.88.090(5)(f)(iv). The statute requires nothing more unless the GAL is "recommending discontinuation of any such arrangements." Here, the GAL made no such recommendation in its report to the court. Therefore, no specific findings as to why such arrangements were contrary to the best interest of the alleged incapacitated person were required. The trial court's ruling is supported by the record.
In addition, the trial court properly determined that Ms. Healey's prior arrangements were legally ineffective. The document purporting to effectuate the arrangement, entitled a "Durable Power of Attorney," expressly appoints "Robert Gordon Healey . . . and Harold Montgomery . . ., to serve jointly, as my true and lawful attorneys-in-fact." (Emphasis added.) Robert did not seek appointment as guardian of his mother, and he did not seek to exercise any power under the terms of her durable power of attorney. Robert is also a felon and is thus precluded by law from acting either as his mother's guardian, RCW 11.88-.020(1)(c), or as her personal representative, RCW 11.36.010. In re Disciplinary Proceeding Against Walgren, 104 Wn.2d 557, 569, 708 P.2d 380 (1985). Because Robert was legally prohibited from acting as a fiduciary for his mother, it was impossible for Robert and Montgomery to jointly serve as attorneys-in-fact. The "Durable Power of Attorney" was, therefore, of no force or effect and did not set forth a legitimate alternative arrangement to the establishment of a guardianship. There was no error.
July Determination of Incompetence
The Healeys next assert that, in the hearing on Group Health's petition, Ms. Healey was entitled to representation by an independent attorney and to a jury determination of her incompetence, and that she made no effective waiver of these statutory rights.
The Healeys first assert that Ms. Healey was deprived of her statutory right to a jury determination on the issue of her incompetence. The record reflects to the contrary.
The right to a jury trial in a guardianship proceeding is established by statute. RCW 11.88.045(3) provides: "The alleged incapacitated person is . . ., upon request, entitled to a jury trial on the issues of his or her alleged incapacity." (Emphasis added.) The legislature conditioned the right to a jury trial upon a request by the alleged incapacitated person. No such request was made. Therefore, there was no error. See State v. Wilmoth, 22 Wn. App. 419, 589 P.2d 1270 (1979).
In addition, the Healeys did not raise this issue before the superior court. Although Robert Healey quoted RCW 11.88.045(3) in his motion for revision, he did so solely in the context of arguing that the standard of proof was not met. He did not argue that Ms. Healey was wrongfully deprived of a jury trial. Ms. Healey's independent counsel also did not raise the issue in his briefing to the superior court. We decline to review this claim of non-constitutional error, as it was not raised in the trial court. RAP 2.5(a); Hoflin v. City of Ocean Shores, 121 Wn.2d 113, 130-31, 847 P.2d 428 (1993).
Right to Independent Counsel
The Healeys next assert that Ms. Healey was deprived of her statutory right to representation by independent counsel at the proceeding before the commissioner. Again, the record indicates to the contrary.
The relevant statute provides:
(1)(a) Alleged incapacitated individuals shall have the right to be represented by willing counsel of their choosing at any stage in guardianship proceedings. The court shall provide counsel to represent any alleged incapacitated person at public expense when either: (i) The individual is unable to afford counsel, or (ii) the expense of counsel would result in substantial hardship to the individual, or (iii) the individual does not have practical access to funds with which to pay counsel. If the individual can afford counsel but lacks practical access to funds, the court shall provide counsel and may impose a reimbursement requirement as part of a final order. When, in the opinion of the court, the rights and interests of an alleged or adjudicated incapacitated person cannot otherwise be adequately protected and represented, the court on its own motion shall appoint an attorney at any time to represent such person. Counsel shall be provided as soon as practicable after a petition is filed and long enough before any final hearing to allow adequate time for consultation and preparation. Absent a convincing showing in the record to the contrary, a period of less than three weeks shall be presumed by a reviewing court to be inadequate time for consultation and preparation.
. . . .
(2) During the pendency of any guardianship, any attorney purporting to represent a person alleged or adjudicated to be incapacitated shall petition to be appointed to represent the incapacitated or alleged incapacitated person. Fees for representation described in this section shall be subject to approval by the court pursuant to the provisions of RCW 11.92.180.
The Healeys did not contend before the commissioner that Ms. Healey desired the services of independent counsel at the guardianship hearing. Robert Healey did not raise the issue in either his motion for vacation/reconsideration or in his motion for revision. Ms. Healey's independent counsel also did not raise the issue in the briefing submitted in support of the motion for revision. We decline to review this claim of non-constitutional error, as it was not properly raised in the trial court. RAP 2.5(a); Hoflin, 121 Wn.2d at 130-31.
Furthermore, even on appeal the Healeys do not assert that the superior court was required to provide independent counsel to Ms. Healey prior to the guardianship hearing, pursuant to RCW 11.88.045(1)(a), or that any of the conditions outlined in RCW 11.88.045(1)(a)(i) through (iii) were met at that time. Moreover, there is no evidence in the record that, prior to the guardianship hearing, an attorney seeking to represent Ms. Healey petitioned to be appointed as her counsel pursuant to RCW 11.88.045(2).
Finally, following its receipt of a petition seeking such relief, the superior court did appoint independent counsel to represent Ms. Healey on the motion for revision and on appeal pursuant to RCW 11.88.045(2). Thus, to the extent Ms. Healey has sought to exercise her right to independent counsel, she has been accorded that to which the law entitles her.
There was no error.
Appointment of Guardian ad Litem
The Healeys next argue that the superior court's order must be vacated because the commissioner appointed Healy as the GAL in a manner inconsistent with statutory requirements. Again, we disagree.
RCW 11.88.090(4)(a) states:
The court shall choose as guardian ad litem a person whose name appears on the registry in a system of consistent rotation, except in extraordinary circumstances such as the need for particular expertise. . . . In the event the court does not select the person next on the list, it shall include in the order of appointment a written reason for its decision.
Group Health's petition for the appointment of a GAL expressly asserted that "this is a complex matter involving emergent circumstances." The commissioner expressly entered its order appointing Healy as GAL for Ms. Healey on that basis. Thus, the order sets forth a finding of extraordinary circumstances and a written reason for the commissioner's decision. The commissioner's findings that Ms. Healey's situation involved complexity and emerging circumstances are adequately supported by the record. Ms. Healey's situation was, thus, "extraordinary." There was no error.
Additional Issues Regarding Guardian ad Litem
The Healeys also assert that (1) the GAL failed to disclose contact with Group Health prior to his appointment, in derogation of RCW 11.88.090(3)(b); (2) the hospital's petition for appointment of a GAL contained prejudicial hearsay; and (3) the GAL violated his statutory and fiduciary obligations in conjunction with the selection of the reporting physician. These issues are raised for the first time on appeal. We decline to review any claim of error that was not raised in the trial court. RAP 2.5(a); Hoflin, 121 Wn.2d at 130-31.
Additionally, in listing the assignments of error, the Healeys assert:
The superior court commissioner erred in considering the Guardian ad Litem's notice of appearance as it did not disclose the Guardian ad Litem's previous contact with a party to the proceeding prior to his or her appointment as per [RCW] 11.88.090(3)(b).
The Healeys neither specify the order they oppose, nor include a discussion of this issue within their brief, nor support the claim with argument or citation to authority. Thus, we decline to review it. Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wn.2d 21, 28-29, 593 P.2d 156 (1979); N. State Constr. Co. v. Robbins, 76 Wn.2d 357, 367, 457 P.2d 187 (1969).
Motion to Vacate
The Healeys next maintain that the commissioner erred by denying Robert's motion to vacate. We disagree.
The commissioner's denial of the motion to vacate was compelled by Robert's failure to obtain an order to show cause. After a motion to vacate is filed, the court may issue an order to show cause. CR 60(e). As noted by the commissioner, no such order was requested, issued, or personally served on any other party in conjunction with Robert's motion to vacate. The motion was properly denied.
Other Claims of Evidentiary Error
The Healeys next assert that several erroneous evidentiary rulings were made at various stages of the litigation.
The first contention is that the superior court erred by striking the declarations of Donald Kubit, Dr. Richard Adler, and August G. Cifelli, submitted in support of the motion for revision, on the basis that these evidentiary items were not a part of the record before the commissioner. In support of this argument, the Healeys cite only to In re Guardianship of Ivarsson, 60 Wn.2d 733, 737, 375 P.2d 509 (1962), for the proposition that "purely procedural aspects of the Rules of Civil Procedure" should not "be used to thwart the interests of incompetent persons."
Brief of Appellants at 38.
Generally, a superior court judge's review of a court commissioner's ruling, pursuant to a motion for revision, is limited to the evidence and issues presented to the commissioner. In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). This procedure is dictated by statute:
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner. Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.
RCW 2.24.050. Thus, the superior court's ruling striking the proffered evidence was consistent with applicable law.
In their reply brief, the Healeys quote Moody, 137 Wn.2d at 993 ("In an appropriate case, the superior court judge may determine that remand to the commissioner for further proceedings is necessary."), in support of their argument that the trial court should have remanded the case to the commissioner to make "further findings of fact," and that "it is appropriate" for this court to "review the proceeding de novo and evaluate the affidavits submitted during the motion for revision and after [appointment of Ms. Healey's independent counsel]." An issue raised and argued for the first time in a reply brief does not warrant consideration. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
The Healeys also assert that (1) the petition for appointment of a GAL contained prejudicial hearsay statements alleging misconduct by Robert; (2) the GAL did not provide affidavits or declarations in support of assertions made by relatives of Ms. Healey; and (3) the commissioner erroneously struck the declaration of Robert's counsel submitted in support of Robert's motion for reconsideration. These issues are raised for the first time on appeal. We decline to review any claim of error that was not raised in the trial court. RAP 2.5(a); Hoflin, 121 Wn.2d at 130-31.
Scheduling Issues
The Healeys next assert that the commissioner erred by (1) granting three additional weeks for the hospital, the GAL, and the guardian to file responsive pleadings to Robert's motion for reconsideration; (2) providing no notice to Robert's counsel after granting the extension; and (3) refusing to grant Robert's counsel additional time to prepare a reply. Again, these contentions are unavailing.
Robert's counsel states that he was recovering from surgery and unavailable when the responsive pleadings were served on his office. Nevertheless, other attorneys from Robert's attorney's office filed timely reply pleadings on Robert's behalf.
The Healeys' argument regarding these claims provides no citation to relevant authority. Therefore, we decline to review these claims of error, as we will not consider issues on appeal that are not supported by argument and citation to authority. Transamerica, 92 Wn.2d at 28-29; Robbins, 76 Wn.2d at 367. Furthermore, these issues were not presented to the trial court in Robert's motion for revision. We decline to review any claim of error that was not properly raised in the trial court. RAP 2.5(a); Hoflin, 121 Wn.2d at 130-31.
Superior Court's Fee Awards
The Healeys next assert that the superior court erred in authorizing disbursement of $13,111.04 in fees to the GAL, and the attorneys for the hospital and the guardian.
An appellate court reviews a superior court's award of attorney fees and guardian fees for an abuse of discretion. In re Guardianship of Spiecker, 69 Wn.2d 32, 34-35, 416 P.2d 465 (1966) ("The guardian's fees and the fees of the attorney for the guardian are largely within the discretion of the superior court."). A trial court abuses its discretion when its decision is manifestly unreasonable, based on untenable grounds, or when untenable reasons support the decision. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The Healeys contend that the attorney fee applications submitted to the trial court fail to indicate whether there was duplication among the work performed by the GAL, counsel for Group Health, and counsel for the guardian, and complain that the billing statements include multiple reviews of the same documents, work by paralegals, review of the paralegal's work by attorneys, conferences between attorneys and paralegals, and conferences among attorneys.
However, given the extent of the trial court's discretion in rendering fee awards, Spiecker, 69 Wn.2d at 34-35, and given that the attorneys submitted extensive and detailed cost billings, we cannot, on the record before this court, come to the conclusion that the trial court's fee awards were manifestly unreasonable, based on untenable grounds, or supported by untenable reasons. Carroll, 79 Wn.2d at 26.
The Healeys also assert that the commissioner erred in authorizing disbursement of $2,799.00 in fees to the GAL. However, this claim of error is not supported by argument or citation to relevant authority. Therefore, we decline to review it. Transamerica, 92 Wn.2d at 28-29; Robbins, 76 Wn.2d at 367.
On appeal, the Healeys raise the following assignment of error: "The superior court erred in awarding $13,111.04 in Attorneys' Fees to attorneys for Group Health and Malavotte and Associates." This assignment of error is further discussed in the brief as follows:
The superior court entered an order on May 4, 2006 . . . awarding attorney fees in the amount of $8,300.00 to attorneys for Group Health, Malavotte and Associates. Was it reversible error for the superior court to award attorney fees against Robert Healey when the court-appointed attorney for his mother joined in the request for revision and when material issues of fact were presented to the court in the motion for revision? . . .
. . . This court should reverse the fee awards that the superior court imposed on Mrs. Healey and Robert Healey.
In denying Robert's motion for revision, the superior court awarded $4,550.82 to Group Health and $3,749.19 to the guardian for attorney fees and costs incurred in responding to the motion for revision. Both these awards were ordered to be paid from Ms. Healey's guardianship estate. The superior court simultaneously entered judgment against Robert Healey in the amount of $8,300.01 in favor of the guardian, with the order that the guardian reimburse the guardianship estate with any monies recovered from Robert.
However, this claim of error is not supported by argument or citation to relevant authority. Therefore, we decline to review it. Transamerica, 92 Wn.2d at 28-29; Robbins, 76 Wn.2d at 367.
Fees on Remand
On remand, we anticipate that counsel for the various parties will seek authorization to have their fees incurred on appeal paid from Ms. Healey's guardianship estate. In evaluating the reasonableness of such a request, the trial court may consider several factors that became apparent to this court during our review of this appeal.
"During the pendency of any guardianship, any attorney purporting to represent a person alleged or adjudicated to be incapacitated shall petition to be appointed to represent the incapacitated or alleged incapacitated person. Fees for representation described in this section shall be subject to approval by the court pursuant to the provisions of RCW 11.92.180." RCW 11.88.045 (2).
"A guardian or limited guardian shall be allowed such compensation for his or her services as guardian or limited guardian as the court shall deem just and reasonable. Guardians and limited guardians shall not be compensated at county or state expense. . . . In all cases, compensation of the guardian or limited guardian and his or her expenses including attorney's fees shall be fixed by the court and may be allowed at any annual or final accounting; but at any time during the administration of the estate, the guardian or limited guardian or his or her attorney may apply to the court for an allowance upon the compensation or necessary expenses of the guardian or limited guardian and for attorney's fees for services already performed. If the court finds that the guardian or limited guardian has failed to discharge his or her duties as such in any respect, it may deny the guardian any compensation whatsoever or may reduce the compensation which would otherwise be allowed." RCW 11.92.180.
First, the work performed by Ms. Healey's independent counsel was atypical for a case of this type, in that it sought only to challenge the steps taken by the hospital, the guardian ad litem, the guardian, and the court to protect Ms. Healey's person and estate. Nowhere in the record before this court do we ascertain an attempt by counsel for Ms. Healey, or counsel for Robert Healey, to propose to the superior court a less restrictive alternative plan to the guardianship established by the court. Neither counsel for Robert Healey nor independent counsel for Ms. Healey developed anything comparable to a care plan within the meaning of RCW 11.92.043. At oral argument, it became clear that no such endeavor had been undertaken.
"It shall be the duty of the guardian or limited guardian of the person: (1) To file within three months after appointment a personal care plan for the incapacitated person which shall include (a) an assessment of the incapacitated person's physical, mental, and emotional needs and of such person's ability to perform or assist in activities of daily living, and (b) the guardian's specific plan for meeting the identified and emerging personal care needs of the incapacitated person." RCW 11.92.043.
Second, counsel for Ms. Healey and counsel for Robert Healey represent individual clients with conflicting interests. Nevertheless, the two counsel have jointly prosecuted this appeal. We are greatly concerned that Ms. Healey's estate not be diminished as a result of efforts that were actually undertaken solely on Robert's behalf.
In one assignment of error, counsel for the Healeys jointly contest a provision of a trial court order providing that money obtained from Robert by the guardian be placed in Ms. Healey's guardianship estate. The conflicting interests of Ms. Healey and Robert are undeniable.
Accordingly, in evaluating the reasonableness of any fees or costs incurred by independent counsel for Ms. Healey, the trial court should consider the extent, if any, to which the work performed by counsel for Ms. Healey on appeal was directed to the protection of Robert Healey's interests. Indeed, several issues, notably the claim relating to fees and costs assessed against Robert in the superior court proceedings, appear personal to him.
Third, the trial court may consider that the work performed in prosecuting the appeal was purportedly conducted as a "joint venture" between counsel for Robert Healey and counsel for Ms. Healey. Accordingly, one measure of the reasonableness of Ms. Healey's counsel's fee request for the work he performed in prosecuting this appeal will be the amount of money that Robert Healey has actually paid his counsel for jointly prosecuting this appeal. "[E]xpenditures of other parties may be relevant to the issue of the reasonableness of [an applicant's] fees." In re First Peoples Bank Shareholders Litigation, 121 F.R.D. 219, 228 (D. N.J. 1988). Accord Coalition to Save Our Children v. State Bd. of Educ., 143 F.R.D. 61, 65 n. 3 (D. Del. 1992) (billing rates and total fees expended by another party are relevant to the reasonableness of applicant's fee request); Real v. Continental Group, Inc., 116 F.R.D. 211, 213 (N.D. Cal. 1986) (The amount of total billings and costs incurred by one party are relevant to an applicant's fees and costs petition); Stastny v. S. Bell Tel. § Tel. Co., 77 F.R.D. 662, 663 (W.D.N.C. 1978).
Fees on Appeal
The hospital and Guardian request an award of fees on appeal, pursuant to RAP 18.1 and RCW 11.96A.150. We decline the request. Each party shall bear its own fees on appeal.
The Healeys also each seek an award of fees on appeal. As they are not prevailing parties, they are not so entitled.
CONCLUSION
Affirmed.