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In re Conservatorship of P.A.R.

Supreme Court of Montana

February 4, 2019

IN RE THE MATTER OF THE CONSERVATORSHIP OF: P.A.R., An Incapacitated Person.

          Submitted on Briefs: January 18, 2019

          APPEAL 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

          For Appellant: Tracey A. Lindgren, self-represented, Everett, Washington

          For Appellees: Casey Emerson, Clinton J. Fischer Law, Polson, Montana, Julie R. Sirrs, Boone Karlberg, Missoula, Montana

          OPINION

          LAURIE MCKINNON 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 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. We affirm.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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 designating Tracey.

         ¶8 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.

         ¶9 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 ...


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