IN RE THE MATTER OF THE CONSERVATORSHIP OF: P.A.R., An Incapacitated Person.
Submitted on Briefs: January 18, 2019
FROM: District Court of the Twentieth Judicial District, In
and For the County of Lake, Cause No. DC-17-11 Honorable
Deborah Kim Christopher, Presiding Judge
Appellant: Tracey A. Lindgren, self-represented, Everett,
Appellees: Casey Emerson, Clinton J. Fischer Law, Polson,
Montana, Julie R. Sirrs, Boone Karlberg, Missoula, Montana
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
Tracey Lindgren (Tracey) appeals from an Order entered in the
Twentieth Judicial District Court, Lake County, concluding
that P.A.R. lacked capacity to execute documents establishing
a trust (Trust) and transfer by Quitclaim Deed to the Trust
P.A.R.'s primary asset, real property identified as 46236
Meadowlark Lane located in Big Arm, Montana (Montana Real
Property). The order appointed Casey Emerson as Full
Conservator and returned the Montana Real Property to P.A.R.
The District Court conducted a hearing on July 5, 2018, to
determine whether P.A.R. had the requisite capacity in
October 2016 when she created the Trust and executed a
Quitclaim Deed transferring the Montana Real Property to the
Trust. Based on the testimony, depositions, and evidence, the
District Court made numerous findings of fact upon which it
based its conclusions and order.
Crystal Bertellotti (Crystal) and Tracey are P.A.R.'s
daughters. Crystal resides in Montana and Tracey resides in
Washington. On July 15, 2013, Dr. Stephen Irwin (Dr. Irwin)
first saw P.A.R. as a patient. P.A.R. was a nurse and Dr.
Irwin knew and worked with her for ten years prior to seeing
her as a patient. In September 2013, P.A.R. was admitted to
the hospital due to her altered mental state.
In April 2016, P.A.R. signed a Durable Power of Attorney
appointing Crystal as her power of attorney. In May 2016, Dr.
Irwin diagnosed P.A.R. with Alzheimer's disease with
progressive severe dementia. In a letter dated June 14, 2016,
Dr. Irwin further opined that P.A.R. needed to be placed in
an assisted living facility or skilled nursing setting to
ensure she was safe and that her basic needs were met. In
July 2016, Dr. Irwin wrote a second letter indicating that
P.A.R. needed assistance with bathing, dressing, and taking
her medications due to her rapidly progressing severe
dementia, arthritis, and lumbar disc disease. Dr. Irwin
believed that P.A.R. was quite good at hiding her
Alzheimer's symptoms and that a casual observer would
have difficulty noticing anything unusual.
In July 2016, Tracey took P.A.R. to Washington and, around
September 2016, P.A.R. moved into an assisted living
community in Everett, Washington. At that time, Nurse
Practitioner Allison Berglin (Berglin) conducted a
Mini-Mental Status Examination, which is a preliminary
screening tool and not a comprehensive long-term evaluation
of a patient's cognitive status. Berglin believed P.A.R.
was capable of consenting to treatment and giving directions
about her care.
In October 2016, Tracey took P.A.R. to an attorney for the
purpose of preparing the Trust. The Trust granted all of
P.A.R.'s personal property to Tracey, allocated 45% of
P.A.R.'s residuary estate to Tracey's family, and
allowed Tracey to purchase the Montana Real Property from the
Trust for a price and terms determined by Tracey. The Trust
provided it was to be governed by Montana law and named
P.A.R. as the initial trustee and Tracey as successor
trustee. On October 12, 2016, P.A.R. executed a Quitclaim
Deed transferring the Montana Real Property to the Trust. A
few days later, P.A.R. signed an irrevocable power of
attorney, revoking Crystal as her power of attorney and
Also in October 2016, Registered Nurse Rae Wheeler (Wheeler)
visited P.A.R. at the assisted living facility and attended
meals and activities with P.A.R. Wheeler opined that P.A.R.
was social and able to take care of her daily necessities and
make decisions, such as managing her property.
Crystal, although advised by Tracey of the creation of the
Trust, became concerned when P.A.R.'s neighbors of the
Montana Real Property alerted her that foreclosure warnings
were posted on the property. In June 2017, Crystal filed a
petition in Lake County District Court for appointment as
P.A.R.'s conservator. Thereafter, Tracey, in her capacity
as trustee of the Trust, filed an injunction petition in a
separate Lake County proceeding, seeking to prohibit Crystal
from entering the Montana Real Property. Next, Tracey, in her
individual capacity, appeared in the conservatorship matter
and filed a motion to dismiss for lack of jurisdiction. The
District Court denied Tracey's motion to dismiss. Due to
the contentiousness between the sisters, the District Court
appointed attorney Casey Emerson as temporary conservator in
September 2017. Tracey also filed for bankruptcy in ...