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In re Guardianship of McPhail

Court of Appeals of Mississippi

February 28, 2017


          DATE OF JUDGMENT: 08/18/2015





          BARNES, J.,

         ¶1. On April 29, 2015, Justin McPhail and Anthony Page Portera (Page) filed a petition with the Calhoun County Chancery Court, requesting to be appointed as guardians of their grandmother, Frances McPhail. At the initiation of the proceedings, Frances was eighty-six years old and a patient at a nursing home in Calhoun City, Mississippi. She had recently been diagnosed as suffering from dementia.[1] The petition claimed that Frances had executed a durable power of attorney on January 29, 2015, appointing Justin and/or Page and/or Patricia (Patty) Hibbard, Frances's daughter and Page's mother, as her attorney-in-fact. The petition also argued that it would be in Frances's best interest to reside with her granddaughter, Enga Wooten, in Long Beach, Mississippi.[2]

         ¶2. Before going into the nursing home, Frances had lived in her house with her other daughter, Pamela McPhail (Pam), for approximately twenty years.[3] Pam answered the petition for guardianship, raising several affirmative defenses and claiming that Justin and Page (collectively referred to as Appellants) were unfit to serve as Frances's guardians. She further argued Frances was not capable of managing her own affairs when she signed the durable power of attorney on January 29, 2015, and noted that a prior power of attorney dated January 2, 2007, appointing Pam and/or Wayne McPhail, Frances's son, as attorney-in-fact, was in full force and effect. Pam also objected to the appointment of a guardian, contending that because she was the "duly appointed attorney of her mother[, she] ha[d] been able to completely care for her mother's health needs and her business affairs by utilizing the authority granted unto her[.]" Alternatively, she argued that, if the chancery court determined a guardian was needed, she was the "proper person for the appointment."

         ¶3. On May 20, 2015, the parties entered into an "Agreed Order of Continuance and Resetting, " which included temporary visitation rights for family members to take Frances from the premises of the nursing home for short periods of time, with Pam to receive four hours' notice before the visit when possible. The order also allowed family to take Frances and leave the nursing home for up to forty-eight hours, two times a month. Pam was to receive forty-eight hours' notice before any overnight visits.

         ¶4. Pam filed a motion for contempt and for a temporary restraining order (TRO) on July 10, 2015, alleging Justin had willfully failed to comply with the May 21, 2015 order. The motion claimed that Justin had picked up Frances from the nursing home on July 2, 2015, and failed to return her that evening. Although he informed nursing-home staff the next day that he would return Frances by noon, he appeared later that afternoon without Frances and told the staff that he was keeping her all weekend. Pam received no notice of this visit. On July 6, Justin told the nursing-home supervisor he would not bring Frances back until the court hearing scheduled for August 18, 2015, and he did not reveal her whereabouts.[4] It was later discovered that Justin took Frances to the Mississippi Gulf Coast and left her with family. The motion contended that Justin's conduct was "contrary to [Frances's] best mental and physical needs . . . and could jeopardize Medicaid reimbursements for nursing home charges."

         ¶5. Pam obtained the TRO on July 21, 2015, and was granted legal and physical custody of Frances in order to retrieve her and bring her back to the nursing home. Pam and Wayne drove to Enga's home in Long Beach and retrieved Frances. On August 7, 2015, the chancery court entered an order, dissolving the TRO, finding Justin in contempt, and holding that the May 21, 2015 order should remain in full force and effect. The court imposed no sanctions on Justin, as long he complied with the court's prior order, and it placed no additional restrictions on visitation with Frances at the nursing home.

         ¶6. A hearing on the petition for guardianship was held on August 18, 2015. In a bench opinion, the chancellor denied the Appellants' petition for guardianship, noting that Justin had two outstanding debts ($43, 000 to the Internal Revenue Service and approximately $78, 000 to First Security Bank), neither of which had any payment plan or schedule. He also observed that Justin had custody of his son every other week and a busy work schedule. The chancellor set aside the January 29, 2015 power of attorney, as there was no evidence that the prior January 2, 2007 power of attorney, which was executed when Frances "was lucid, in good shape and health[, ]" had been revoked. Finding that Frances had diminished mental capacity, the chancellor appointed Pam as her guardian and required Pam to submit annual accountings; he also ordered Pam to remove her name as co-owner of a joint checking account with Frances. The chancellor "reserve[d] the right to amend [his] ruling should [he] make some error in law or fact that is called to [his] attention at a later time."

         ¶7. On August 29, 2015, the chancery court entered its final order. The court authorized liberal visitation rights with Frances for family members, subject to the nursing home's rules and regulations, and that visitation "shall be on site at the nursing home and shall not extend beyond 10:30 p.m. of any day, except family members may take Ms. McPhail out of the nursing home for [one] night during a week for dinner or ice cream, etc." (Emphasis added). This italicized language was a handwritten addition subsequently added by the chancellor after counsel met with the court to discuss the order's language concerning visitation. However, no provision was made for any overnight visits.

         ¶8. The Appellants argue on appeal that the chancellor erred in modifying his bench opinion and in prohibiting overnight visitation in the final judgment. They further contend the court abused its discretion in choosing Pam as Frances's guardian. Finding no error, we affirm.


         ¶9. Our appellate courts "employ[] a limited standard of review on appeals from chancery court." Tenn. Props. Inc. v. Gillentine, 66 So.3d 695, 697 (¶9) (Miss. Ct. App. 2011) (citing Corp. Mgmt. v. Greene Cty.,23 So.3d 454, 459 (¶11) (Miss. 2009)). "As such, we will not disturb the factual findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard." Id. Questions of ...

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