In re Estate of M.D.

          Submitted on Briefs: November 16, 2016 Decided: February 7, 2017

         APPEAL FROM: District Court of the Fifteenth Judicial District, In and For the County of Sheridan, Cause No. DG-2015-3 Honorable David Cybulski, Presiding Judge

         COUNSEL OF RECORD:

          For Appellant: Garth H. Sjue, Lisa Marie Six, Crowley Fleck, PLLP, Williston, North Dakota

          For Appellee: Loren J. O'Toole, II, O'Toole Law Firm, Plentywood, Montana

          Michael E Wheat, Justice

         ¶1 Robert Domonoske (Robert) appeals from the order of the Montana Fifteenth Judicial District Court, Sheridan County, appointing his brother, Lloyd Domonoske (Lloyd), as guardian for their mother, M.D., an incapacitated person. We affirm.

         ¶2 We restate the issue on appeal as follows:

Did the District Court err in appointing Lloyd, rather than Robert, as full guardian for M.D.?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 M.D. is a seventy-six-year-old woman who suffers from Alzheimer's disease and dementia. She was married to Kenneth Domonoske (Kenneth) until his death in 2015 and they have four adult sons: Lloyd, Robert, Brad, and Doug. Kenneth and M.D. have owned a family farm outside of Plentywood, Montana, since 1958. Prior to his father's death, Lloyd, who also lives in Plentywood, cared for both of his parents, taking them to doctor's appointments, cooking their meals, picking up their prescriptions, and helping with all aspects of their personal care.

         ¶4 Lloyd has also taken an active role in maintaining the family farm. Kenneth and M.D. previously struggled to keep the farm afloat, filing for bankruptcy twice. Both Lloyd and his brother Brad expended personal funds to keep the farm operating and, since 2000, Lloyd has helped to work the farm. Lloyd also co-signed a loan with his parents to refinance the debt his parents had incurred on the property. In 2009, Kenneth and M.D. set up a $21, 544.10 annual cash lease with Lloyd for 742.8 tillable acres on the farm. The lease payment Lloyd makes to M.D. is used to pay the farm loan. Additionally, Lloyd, Kenneth, and M.D. have always each owned a few head of cattle and Lloyd has cared for all the cattle on the farm.

         ¶5 On October 21, 2015, just before Kenneth's death, Lloyd filed a Petition for Appointment of Full Guardian, requesting that he be appointed guardian of M.D. due to her inability to write checks and manage her own affairs. Shortly after his father's death, Lloyd moved to the family farm to take care of M.D.'s personal needs. Lloyd also manages the benefits she is entitled to receive from the Social Security Administration and the Department of Defense. Initially, Robert, Brad, and Doug signed consents for Lloyd to serve as M.D's guardian. After the death of their father, Robert and Doug revoked their consents and opposed Lloyd's petition.

         ¶6 In April 2016, Lloyd placed M.D. in the Sheridan Memorial Nursing Home so he could dedicate more time to the calving and farming operations. The nursing home is one block away from Lloyd's house and both he and his wife Patti Domonoske visit M.D. on a daily basis. On April 12, 2016, the District Court held a hearing, taking testimony and receiving exhibits on the petition. Brad testified in support of Lloyd's petition, in part based upon a recent trip he made to visit M.D. in the nursing home. He ...