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ATTORNEY FOR APPELLANTS Matthew Jon McGovern Evansville, Indiana

ATTORNEY FOR APPELLEES David P. Allen Salem, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 88S01-0703-CV-121 IN THE MATTER OF THE GUARDIANSHIP OF E.N., ADULT. _________________________________ Appeal from the Washington Circuit Court, No. 88C01-9906-GU-22 The Honorable Frank Newkirk, Jr., Special Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 88A01-0508-CV-338 _________________________________ December 12, 2007 Boehm, Justice. We hold that the guardianship estate planning statute does not authorize dispositions of the protected person's entire estate. Facts and Procedural History E.N. married Donna Nolan in 1955. Two children, Shirley and Marvin, were born of the marriage. During his marriage to Donna, E.N. apparently executed two wills, one in 1983 and another in 1992 that poured over into a revocable trust. Both wills and the trust named Donna, Shirley, Marvin, and their children as the beneficiaries. In 1997, after over forty years of marriage, Donna filed for dissolution and the couple separated. After the separation, E.N. resided with his brothers, William and Arville. In December 1997, while living with his brothers, E.N. executed a will drafted by Harry Paynter, his attor-

ney in the dissolution proceedings, in which he left his entire estate to his brothers and specifically disinherited his children. The dissolution became final on February 4, 1999, and shortly thereafter E.N. executed a second will, also drafted by Paynter, restating his 1997 will. Concurrent with the execution of his wills, E.N. named William and Arville in his 1997 and 1999 powers of attorney and 1999 appointment of healthcare representative. The brothers were also named beneficiaries of E.N.'s life insurance policy, pay-on-death account, and annuities. E.N. suffered from Alzheimer's disease. By early 1999, his mental condition had deteriorated, and his brothers had assumed his care and management of his affairs. The trial court found that during this time, the brothers actively concealed E.N.'s whereabouts and restricted his contacts with family, friends, and acquaintances. Ultimately, the brothers placed E.N. in the Northwood Retirement Home, asserting that E.N.'s family was trying to poison him and instructing the staff not to disclose his presence to others. On June 22, 1999, Shirley, represented by David Allen, who represented Donna against E.N. in the dissolution, petitioned the Washington Circuit Court to impose a temporary guardianship. Shirley was appointed E.N.'s temporary guardian on that date. In August 1999, after a hearing, Shirley was appointed permanent guardian over the objection of E.N.'s brothers. In January 2000, Judge Newkirk of the Washington Superior Court was appointed special judge in the guardianship proceeding. Marvin was later appointed coguardian. After the guardianship was established, E.N. was removed from the Northwood Retirement Home and returned to the family farm where he had requested to live. Two months after her appointment as guardian, Shirley resigned her position as a McDonald's cashier and personally undertook E.N.'s care, charging the guardianship six dollars per hour for paying bills, cleaning, cooking, and otherwise attending to E.N.'s needs. Shirley later unsuccessfully petitioned the guardianship court to increase her hourly rate from six to ten dollars. The trial court found that in August 1999, E.N. testified that "he was not aware of his brothers' names on various accounts and did not intend for them to be the beneficiaries of his estate." In November 1999, E.N. executed a will drafted by Attorney Allen naming Shirley and Marvin as the sole beneficiaries of his estate. In 2001, Shirley placed E.N. in a different nursing home. She continued to charge the guardianship for services, time spent visiting the nursing home, and mileage.

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The record in the guardianship court includes a flurry of preliminary skirmishing from the spring of 2000 until July 2002, when Shirley petitioned the guardianship court to implement an estate plan on E.N.'s behalf under the statutory provision discussed below. The plan proposed that all of E.N.'s property be placed in the "E.N. Revocable Trust" with Marvin as trustee. The trust called for income and principal to be applied to E.N.'s support during his life, and upon his death any remaining property was to be allocated between two trusts for the benefit of Shirley and Marvin and their children. E.N.'s brothers objected to the proposed plan, and after a hearing on the petition, the guardianship court approved the coguardians' plan with an added provision that gave the brothers five percent of E.N.'s net estate at death less any amounts spent by the guardianship defending future litigation with the brothers. In approving the amended plan by order dated October 14, 2003, the guardianship court made several findings of fact. The guardianship court found that E.N. was not competent to make any of the 1997 or 1999 wills and that E.N. lacked the capacity to look beyond the kindness of those providing for his physical and emotional needs. The guardianship court further found that E.N. was under his brothers' influence when he executed his December 1997 and February 1999 wills and that E.N. was under his children's influence when he executed his November 1999 will. The court then found that a "reasonable and prudent person would provide the bulk of his estate to his children upon their demonstration of love, concern, and care for him, while providing a reasonable allowance to his brothers who assisted him and are now in their retirement years as well." The guardianship court also noted that the already extensive litigation between E.N.'s brothers and children on a variety of fronts had "substantially depleted" E.N.'s estate. The brothers appealed the guardianship court's order approving the amended estate plan, but the Court of Appeals dismissed that appeal on the ground that there was no final appealable order. E.N. died on May 7, 2004. On that date, Shirley and Marvin opened a second legal front by petitioning the Washington Circuit Court to probate his November 1999 will. The brothers objected to the probate of the November 1999 will, citing the guardianship court's finding that the will was invalid. In November 2004, while the brothers' objection to the November 1999 will was pending in the probate court, Shirley and Marvin petitioned in the probate court to pro-

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bate E.N.'s 1983 will, "excepting only those provisions therein for the benefit of Donna Nolan."1 This will would have left everything to Donna, Shirley, and Marvin and did not mention E.N's brothers. The brothers objected to the probate of the 1983 will. At some point not reflected in this record, Judge Davis of the Harrison Superior Court was appointed special judge in the probate proceedings. On January 20, 2005, all further probate proceedings were stayed pending the resolution of all guardianship matters, including this appeal. After E.N.'s death, his brothers and children continued to litigate in the guardianship court over the coguardians' final report and accounting. In July 2005, the brothers filed the current appeal challenging the guardianship's approval of the estate plan. The guardianship court then terminated the guardianship "in all respects except as to those matters presently on appeal." The Court of Appeals affirmed the guardianship court's approval of the estate plan. In the Matter of the Guardianship of E.N., 853 N.E.2d 960, 969 (Ind. Ct. App. 2006). It held that the statute authorized the proposed trusts because they applied E.N.'s assets first to his lifetime support. Id. at 967. The Court of Appeals also found the statute contained no explicit ban on placing assets in trust or rewriting a protected person's will. Id. We granted transfer. 869 N.E.2d 453 (Ind. 2007) (table). I. Testamentary Dispositions by Guardians This case turns on the interpretation of Indiana's guardianship estate planning statute, Indiana Code section 29-3-9-4. Statutory interpretation is a question of law reviewed de novo. Porter Dev., LLC v. First Nat'l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind. 2007) (citations omitted).

Shirley and Marvin's Petition to Probate Prior Will of Decedent refers to wills executed March 7, 1993, and March 7, 1983. The petition alleges that the 1997 and 1999 wills are invalid because of the guardianship court's ruling as to competency, and that as a result the parties "are left" with the 1993 will. However, the petition seeks to probate only the 1983 will. It is unclear whether E.N. executed a will in 1993 or whether the petition contained a typographical error and intended to refer to the 1983 or 1992 will. In either case, the petition does not explain why the 1983 will should be probated despite the existence in the record of what appears to be a 1992 will executed by E.N. The record also does not contain a signed copy of the 1983 will. Rather, it contains an unsigned copy attached as an exhibit to the petition. The record does not reveal what, if any action was taken as to the 1993 will, if there was one, or why it did not revoke the 1983 will.

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Indiana law allows for the appointment of a guardian to act in the best interests of a person who is unable to care for himself or for his property. See Ind. Code

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