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In re Protective Proceedings of Vernon H.

Supreme Court of Alaska

August 22, 2014

In the Matter of the Protective Proceedings of Vernon H., VERNON H. and JUDITH H., Appellants,
PETER H., Appellee

Page 566

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-12-00209 PR.

Anne R. Helzer, Anchorage, for Appellant Vernon H., and Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellant Judith H.

Jonathon A. Katcher, Pope & Katcher, Anchorage, for Appellee Peter H.

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, Justices. Maassen, Justice, not participating.


Page 567

FABE, Chief Justice.


An elderly father was hospitalized for medical testing and treatment. The father had previously granted a durable power of attorney to his eldest adult daughter and had been residing with his youngest adult daughter and her family. One of the father's adult sons initiated guardianship and conservatorship proceedings over the father. The son's petition alleged that the father was incapacitated and unable to manage his affairs or his property, citing the hospital's psychiatric evaluation and the son's own observations. The petition also alleged that the eldest and youngest daughters were not looking after the father's best interests and wishes. The son later terminated the protective proceedings following a neuropsychological evaluation by the father's expert that concluded that the father did not need a guardian.

The father and his eldest daughter filed motions for attorney's fees and costs incurred in defending against the son's petition. The superior court denied both motions, concluding that Alaska Civil Rule 82 was entirely displaced by AS 13.26.131(d) and that the son's actions did not meet the standard for fee shifting required by that statute: that the petitioner initiated a proceeding that was " malicious, frivolous, or without just cause." We agree with the superior court's analysis and affirm.


A. Vernon's Family And His Recent Medical Problems

Vernon H.[1] was born in 1928 and has 15 living adult children. Vernon granted a durable general power of attorney over " [a]ll . . . matters" to his eldest daughter, Judith, in 2002. Since 2002, Vernon has chosen to live with his youngest daughter, Jeannette, and her family. Vernon reaffirmed those decisions in December 2011.

Peter, one of Vernon's sons, grew increasingly worried about his father's decision-making during Vernon's battle with cancer in late 2011 and early 2012. In late 2011, Vernon exhibited confusion, and tests revealed elevated calcium levels; consequently, Vernon was hospitalized. He underwent diagnostic testing and some treatment for suspected cancer, and he was later discharged and referred for further outpatient oncology testing and treatment. During Vernon's first stay in the hospital, Peter allegedly observed that Vernon " was out of it," that he " could not remember what was going on from hour to hour," and that he mistakenly " complained his children were not coming to see him."

Page 568

Vernon's condition appears to have fluctuated following his first discharge from the hospital in late 2011. On one hand, in a pair of emails from Peter to the other siblings, Peter stated: " Dad seems . . . more alert than I've seen him in weeks, maybe a month. . . . He spoke clearly, decisively and was able to comprehend everything being said." [2] On the other hand, Vernon's primary physician observed that Vernon " was not very alert or himself at all." Vernon's doctor also recalled that he told Judith that Vernon had to undergo several more tests, but Judith was reluctant to have any more tests performed, claiming that " her dad was a 'very spiritual person, and felt like his problem had actually gotten better or gone away.' " Peter alleges that he was present at a meeting with Vernon and Vernon's doctors during which a course of treatment was agreed to, but Vernon subsequently canceled the follow-up doctor's appointments because Vernon mistakenly believed " the doctors had given him a clean bill of health." The doctor recalled that Judith did not seek follow-up testing and treatment until the doctor informed Judith that Vernon " would likely DIE within a few days if she did not take him to the hospital ASAP."

On December 19, 2011, Alaska's Adult Protective Services agency received a report alleging that Vernon was " mentally incapacitated," that Jeannette and Judith had " refused contact with family and have disregarded physician care and advice," and that there was " possible [f]inancial [e]xploitation." Judith recalls that around the same time, several siblings " paid an unannounced visit at [Vernon's] home" with Peter as " spokesperson," trying to " convince [Vernon] to move out of his home and into another residence." Vernon declined.

Vernon was readmitted to the hospital on January 20, 2012, with the medical record noting that he was " pleasantly confused." Vernon underwent chemotherapy treatment. At one point during this second hospitalization, Judith refused morphine for her father, and even physically pushed a nurse away when she was trying to administer it, before Vernon countermanded her order.[3] Judith also tried to exclude the other siblings from the hospital room until Vernon told her he didn't want a " standoff." Peter's affidavit states that Peter visited Vernon during this second hospitalization and observed that Vernon " was out of it" and " did not know why he was in the hospital" and " did not remember from one day to the next."

On January 26, 2012, Peter drafted an email to the other siblings summarizing his recent discussions with Vernon's doctors. In the email, Peter stated that Vernon said he " 'pretty much' understands what the doctor is explaining" and that " Judy will remain 'point person' for the family." Judith alleges that Peter was " playing both sides of the fence" and that three days earlier, Peter and many other siblings had " tried to force" Vernon to sign a new durable general power of attorney they had drafted. Peter also alleges that on January 26, Vernon asked him to confer with Vernon's attorney and help manage and distribute some financial assets.

On January 28, 2012, Vernon executed a will while still in the hospital. Peter's affidavit states that he was in the room and observed that Vernon " was sluggish," took " several minutes to write his name" and " more than a minute to initial each of the pages," had to be coached on how to spell his name, did not have his hearing aids in, and did not have reading glasses on for execution of two of the three copies of the will. The superior court later reviewed a video of the will execution and described Peter's " characterization of the events in the video as accurate." Peter requested a copy of the will,[4]

Page 569

and Vernon allegedly refused to provide it.[5]

In order to " assess [Vernon's] capacity to accept/refuse pain medication and other minor issues such as dietary care," the hospital had a nurse practitioner perform a psychiatric evaluation of Vernon on January 30, 2012.[6] The evaluation noted that Vernon was " notably confused and delirious prior to his last admission in December," that he had been " pleasantly confused" at the time of his readmission in January, and that " [h]is mental status has varied somewhat since admission, with some definite clearing . . . from [January] 25th through the 28th." The report stated that Judith claimed that Vernon " is more confused [today] than he usually is and that this is not his baseline mental status." Judith explained that Vernon's cognitive abilities had " worsened significantly" since the day before.[7] The hospital's psychiatric evaluation recorded that on January 30, 2012, Vernon was " displaying a significantly fluctuating span of attention, an inability to encode or recall information, and general cognitive disorganization" and that " [h]is insight is poor" and " [h]is judgment is impaired."

The hospital's psychiatric evaluation concluded that Vernon's symptoms that day were " very consistent with delirium" and that " [a]t this time, the patient is not able to demonstrate that he can retain and weigh the risks and benefits of any information, and actually does not demonstrate capacity regarding the potential consequences of pain management on an acute basis." The report described this delirious condition as " acute" and subject to short-term fluctuation. [8] The evaluation's ...

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