IN THE MATTER OF THE GUARDIANSHIP OF FRANCES ANNE MCPHAIL: JUSTIN W. MCPHAIL AND ANTHONY PAGE PORTERA APPELLANTS
PAMELA MCPHAIL APPELLEE
OF JUDGMENT: 08/18/2015
COUNTY CHANCERY COURT T. SWAYZE ALFORD HON. ROBERT Q.
WHITWELL TRIAL JUDGE
ATTORNEYS FOR APPELLANTS: T. SWAYZE ALFORD KAYLA FOWLER WARE
ATTORNEY FOR APPELLEE: HAVEN CLANTON
GRIFFIS, P.J., BARNES AND CARLTON, JJ.
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. 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,
Before going into the nursing home, Frances had lived in her
house with her other daughter, Pamela McPhail (Pam), for
approximately twenty years. 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."
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.
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. 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."
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
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."
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.
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.
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 ...