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In re Conservatorship of J.J.W.

Supreme Court of Montana

December 27, 2016

IN THE MATTER OF THE CONSERVATORSHIP OF J.J.W., An Incapacitated Person.

          Submitted on Briefs: November 16, 2016

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DG 15-0027 Honorable Gregory R. Todd, Presiding Judge

          For Appellant: John R. Christensen, Timothy A. Filz, Joseph L. Breitenbach, Christensen Fulton & Filz, PLLC, Billings, Montana

          For Appellee: John M. Van Atta, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana (Attorney for Carol Daniel)

          Jon Doak, Doak & Associates, P.C., Billings, Montana (Attorney for Roger Daniel)

          Jack E. Sands, Sands Law Office, Billings, Montana (Attorney for J.J.W.)

          OPINION

          James Jeremiah Shea Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Kim Wallinder Moffet appeals an order of the Thirteenth Judicial District Court, Yellowstone County, dismissing her petition for conservatorship of her mother, J.J.W. We address whether the District Court erred by denying Moffet's petition. We affirm.

         ¶3 In March 2015, Moffet filed a petition for conservatorship in the District Court, seeking to appoint a third-party conservator for J.J.W. J.J.W. and her other daughter, Carol Daniel, opposed the petition. In September 2015, Moffet moved for partial summary judgment that J.J.W. met the first prong of the test for appointing a conservator, set forth in § 72-5-409(2), MCA. Section 72-5-409(2), MCA, provides:

Appointment of a conservator . . . may be made in relation to the estate and affairs of a person if the court determines that:
(a) The person is unable to manage the person's property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age . . .; and
(b) the person has property that will be wasted or dissipated unless proper management is provided . . . .

         In December 2015, the District Court granted Moffet's motion, finding that J.J.W. "is afflicted with a mental condition due to her advanced age that requires she be assisted with decisions that are of significant consequence." The District Court then held a hearing on the second prong of § 72-5-409(2), MCA: whether J.J.W. "has property that will be wasted or dissipated unless proper management is provided." At the conclusion of Moffet's case-in-chief, Daniel moved for summary judgment on the basis that Moffet did not produce sufficient evidence to show J.J.W.'s assets will be wasted or dissipated. J.J.W. joined Daniel's motion, which the ...


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