In re Johnson

IN THE MATTER OF FRED GIBBS JOHNSON

No. 2070

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

December 28, 2017

Circuit Court for St. Mary's County

Case No. 18-C-14-000469

UNREPORTED

Wright, Arthur, Albright, Anne K. (Specially Assigned), JJ.

Opinion by Albright, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

On November 17, 2016, the Circuit Court for St. Mary's County appointed Joshua Brewster, Esquire, as guardian of the property of Fred Gibbs Johnson, and Sandra Smith-Johnson (Fred's¹ wife) and Mr. Brewster as co-guardians of Fred's person, with Mr. Brewster to serve as primary guardian having final decision-making authority. Fred did not appeal this decision.² Fred's daughter, Linda Sue Johnson, appealed. She does not question Fred's need for a guardian of person and property, instead claiming that the trial court abused its discretion in failing to appoint her.³ Sandra cross appealed. She questions Fred's need for a guardian of person and property, claiming that less restrictive alternatives were available. Like Linda, Sandra also claims that the trial court abused its discretion by failing to select her as Fred's only guardian of person and property.⁴

Finding no error, we affirm the decision of the circuit court.

BACKGROUND

On February 10, 2014, Fred suffered a massive stroke. The resulting brain damage caused several neurological symptoms ranging from aphasia, the inability to understand and formulate language, to dyscalculia, the inability to comprehend mathematics. Fred spent over three months in various hospitals before he was ultimately placed at the Charlotte Hall Veterans Home ("CHVH"), where he was provided 24-hour care.

On March 31, 2014, Linda filed a petition for guardianship, asking that she be appointed guardian of Fred's person and property. Linda claimed that Fred was permanently disabled by the stroke and unable to effectively make decisions about his person and property. At the time, Fred and Sandra were not married but in a long-term romantic relationship. Accordingly, Sandra filed an answer and a petition to intervene, which was granted. Sandra claimed that she should be appointed Fred's guardian because they had purchased a house together, she was made a beneficiary of a number of his accounts, "and her future financial well-being would be significantly impacted by the appointment of Ms. Linda Johnson as guardian." On May 8, 2014, the trial court appointed Mr. Brewster to represent Fred.

On January 7, 2015, Linda filed an amended petition, again seeking to be appointed Fred's guardian and adding several interested parties. With the amendedpetition, Linda presented a 2003 healthcare power-of-attorney.⁵ In it, Fred designated Linda as his guardian in the event that guardianship became necessary. Linda attached physician's certificates from two doctors, Stephanie R. Bruce and Stephen W. Peterson, each stating that Fred's disability is life-long and that he lacks the capacity to understand the nature of guardianship. Sandra filed an answer to the amended petition on June 20, 2016, this time claiming that Fred was not so disabled that he needs a guardian or, alternatively, that she should be his guardian.

On July 22, 2016, Fred executed a "Revocation of Any Power of Attorney," in which he purportedly revoked Linda's 2003 powers of attorney. On July 27, 2016, Fred and Sandra were married at CHVH.

At trial, Linda called Dr. James E. Lewis ("Dr. Lewis"), an expert in "general clinical neuropsychology" and "evaluation of neuropsychologically impaired patients[.]" He twice examined Fred and submitted reports dated September 11, 2015 and August 15, 2016. He testified that he found five distinct neurological disorders, each resulting from the stroke and each irreversible: aphasia, vascular dementia, seizure convulsive disorder, frontal lobe disorder and right hemineglect. Dr. Lewis testified that, though Fred's performance improved on some tests after nine months, he will never return to pre-stroke functionality. He testified that he needs to be in a hospital-based home care unit with a low-level "life care plan[.]"

In regard to Fred's ability to comprehend and communicate, Dr. Lewis testified that Fred reads at a kindergarten to first-grade level and cannot read many letters or words. In regard to Fred's ability to manage money, Dr. Lewis testified that Fred's dyscalculia affects his ability to count or make change. He also testified that Fred is easily influenced and that he "does not have the frontal lobe capacity to" disagree with Sandra about important decisions.

Sandra called Dr. Scott Smith, who was qualified as an expert in psychology. He testified that he examined Fred on August 22, 2016, and determined that Fred can balance a checkbook and do computations but is not able to verbally communicate. He testified that Fred could only read, write and express written words at an early elementary school level, but that Fred's non-verbal test scores had improved 20 points from earlier testing, to a 9.8 grade level.

The trial court looked favorably on both doctors' testimony. It found Dr. Lewis to be capable, "blunt and candid," and, commenting on his testimony, stated that Fred's level of incapacity is "almost a definition of a need for a guardian." While it noted that Dr. Smith's testimony was marked by some incorrect details, including Fred's date of birth, it found the two doctors' reports were "not that far apart."

Sandra and Linda each testified about the other's handling of Fred's assets, among other things. Sandra testified that, as Fred's power of attorney, Linda had spent over $30,000 of Fred's money on legal fees for the guardianship case, and that this had made him miserable. Sandra introduced checks, endorsed by Linda, from Fred's Navy FederalCredit Union account. On cross-examination, Sandra acknowledged that she had continued to use Fred's car, and a credit card account paid by Fred, after his stroke. In regard to Fred and Sandra's home, Linda testified that Sandra contributed nothing to the mortgage.

At the culmination of the trial, the court found "with no question in [its] mind" that Fred needs a guardian of his person and property. Thus, the court said

This man needs a guardian of his person and his assets, there's no question in my mind about that. I did a small diagram and, and I first addressed the person. My inclination was, because I know Linda is honest and knows how to handle money, but I came to the conclusion that this money has been spent in her view for her dad's best interests to protect her assets, but the product is that it's made him really unhappy and Linda needs to go back to being his daughter, not his guardian, not the power of attorney, but his daughter.

And I am going to demand that Sandra not get in the way of that, that she not disparage Linda so that father and daughter can have the love they had before and if Sandra will remember that they drove up there together for Fred's best interests when they had to go to Washington Hospital, then that, then that may help.

The daughter cannot be the guardian of the person. The wife has to be involved in that. There's no other way. She has to be involved in Fred's well-being because she has to be able to get medical records, she has to be able to do thing in Fred's best interests. She can't be in charge of it because we aren't - I'm not confident that the evidence shows that she should be the lone star, if you will, of that. So she is going to be a guardian of the person but she's not going to be the primary guardian of the person.

And on property, it is my view that the daughter cannot be guardian of the property.

I'll - as tempted as I was to give her the power of the purse, it has not worked out. Yes, it protected his assets, but it needs to be done in a neutral way that provides for his happiness.

And the wife is not going to be the guardian of the property. Mr. Capristo has pointed out with some ring of truth, the wife has benefitted dramatically from Fred's hard work and investments and purchases and she will continue to benefit from those. I am not going to give her the power of the purse. She has her own money, as she pointed out when she said Fred wanted to put the Subaru in her name, she said no, that's your car. It is his. Those things purchased before the marriage are not marital property.

So there's not going to be any disparagement and that's going to appear in an Order. Neither Linda nor Sandra are going to disparage each other around or near Fred or let him hear such a thing.

They must do what's in his best interest and avoid things that are not in his best interest.

It occurs to me that the, the appropriate person for the guardian of the person and the assets is Mr. Brewster. I'll tell you why. Not only has he done what's in Fred's best interests and represented him capably, but his wife's the medical doctor. She is the County Health Officer. And I don't expect him to be the guardian of the person and the property and for that the wife to be a co-guardian of the person.

And Mr. Brewster is going to prevail when there's a problem or an issue. Everything of major impact on Fred Johnson is going to go through Josh Brewster. He can bill it as normal hourly rate. I am not going to require a bond because I don't believe it's necessary.

And the car needs to be addressed, whether it's put on the road for Fred's benefit, even if wife drives it, or sold. We need medical procedures and life care plans in place and, Mr. Brewster, Thanksgiving is your client's favorite holiday. If I could let this occur today, I would do so. I can't. I cannot have him there tonight until there's an assessment.

You know, it's, it's almost like having your grandchildren come over where you take care of the plugs and you take care of

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