In re Vulnerable Adult Petition for Marion Cox

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In the Matter of the Vulnerable Adult Petition for: MARION COX. KATHERINE M. SOWLE, Respondent, and SALLY A. TAPIA and JANE H. COX, Appellants.

Nos. 39134-5-III, 39135-3-III

Court of Appeals of Washington, Division 3

July 9, 2024

UNPUBLISHED OPINION

PENNELL, J.

Sisters Jane Cox and Sally Tapia appeal vulnerable adult protection orders (VAPOs) issued against them on behalf of their mother Marion Cox. We affirm the VAPO as to Jane Cox but reverse without prejudice the VAPO as to Sally Tapia.

FACTS

Marion Cox is in her late 80s and suffers from dementia. She has lived in a care facility since February 2020.

On April 22, 2021, Marion Cox met with a lawyer to execute estate planning documents. Included were a durable power of attorney for health care and a statutory power of attorney. Both named two of her children, Thomas Cox and Katherine Sowle as co-attorneys-in-fact. According to the lawyer, Marion Cox was "coherent and alert" at the time she signed the documents and she "did not appear to be under any undue influence of any person." Clerk's Papers (CP) at 316-317.

Approximately one month later, Ms. Sowle petitioned for a VAPO on behalf of her mother against one of Ms. Sowle's sisters, Jane Cox. The petition alleged Jane Cox had engaged in disruptive behavior at her mother's care facility. Among other things, the petition stated Jane Cox invaded her mother's privacy by filming her on the toilet, feeding her foods she was not supposed to eat, and acting aggressively toward her mother and the facility staff. On a few occasions, the staff summoned police due to Jane Cox's behavior, and during one such occasion, the police had to physically restrain Jane Cox to remove her from the premises when she refused to leave. Katherine Sowle, Thomas Cox, and two other siblings submitted declarations in support of the petition.

The VAPO petition was accompanied by a document entitled "Notice to the Vulnerable Adult." Id. at 29. The notice stated a hearing on the VAPO petition was scheduled for May 25, 2022. It also explained the rights of the vulnerable adult during the petition process and the consequences of a final order. No proof of service was filed on this notice. However, Ms. Sowle later filed a declaration explaining she had reviewed the VAPO documents with her mother. Id. at 134.

A temporary VAPO was issued on May 12, 2022. The temporary order included the following preprinted language: "The respondent and the vulnerable adult, if not the petitioner were notified in writing of the ex parte hearing and their opportunity to be heard, or will be served notice of his or her opportunity to be heard at the scheduled hearing noted above." Id. at 31. The next hearing was set for May 25 at 8:30 a.m.

The May 25 hearing went forward as scheduled. Jane Cox did not appear or file a response. The record does not reflect whether Marion Cox was present at the hearing. The court entered the VAPO against Jane Cox and also awarded Ms. Sowle $1,350 in attorney fees.

Jane Cox filed a motion for reconsideration on June 3, 2022. She claimed she received notice only two days before the hearing and had insufficient time to prepare or respond. Jane Cox disputed the allegations against her, and asserted she was "confident" Ms. Sowle had not "read any of these papers to Mother." CP at 61. Sally Tapia, another of Marion Cox's daughters, filed a declaration in support of Jane Cox's motion. Ms. Tapia claimed the power of attorney executed by her mother was not operative as her mother was not incapacitated. Ms. Tapia also asserted her mother had not been served with the VAPO materials and that her mother was opposed to the VAPO.

A hearing on the motion for reconsideration was held on June 30, 2022. Jane Cox appeared with counsel and requested a continuance, in part, to allow for service on her mother. Jane Cox's attorney noted that the court had entered an order directing the sheriff to serve Marion Cox with the reconsideration documents on June 28. The court noted that service had taken place on June 29 and that proof of service had been filed on the morning of June 30.

The court granted the continuance, stating:

I don't know if Marion Cox will or will not be here. . . . She doesn't need to be personally here. If she wants to be here by Zoom, then that's her choice. So I'm going to leave that at this point open for decision by whoever, I guess. [Jane Cox's attorney] can subpoena [Marion] Cox to appear by Zoom if that's the family-that's his client's decision or not, I don't know, but just saying for today we haven't heard from [Marion] Cox, and we may need to with respect to some of these issues that have arisen regarding the Power of Attorney healthcare directive.

Rep. of Proc. (RP) (Jun. 30, 2022) at 16-17.

Ms. Sowle subsequently filed an additional declaration stating her mother made it clear to her that she, Marion Cox, did not want an attorney to represent her in this matter, that she did not want to be in court, and that she felt confident her children Katherine Sowle and Thomas Cox would act in her best interests. Ms. Sowle also submitted statements from Marion Cox's doctors, stating Marion Cox had a moderative cognitive impairment and opining that Marion Cox was "not capable of making her own medical and financial decisions." CP at 590.

Ms. Sowle additionally petitioned for a second VAPO on behalf of her mother, this time against Sally Tapia. The petition claimed Marion Cox was incapacitated and unable to protect her own interests. It alleged that on July 11, 2022, Ms. Tapia had taken her mother away from her care facility in violation of the facility's policy as well as Ms. Sowle's instructions as the power of attorney. The petition alleged Marion Cox missed three rounds of medications during her absence and that, during the trip away from the facility, Ms. Tapia coerced her mother into signing a contract with an attorney who had been recruited by Ms. Tapia. The attorney in question subsequently filed a notice of appearance in the VAPO case against Jane Cox.

Like the first petition, the second VAPO petition was accompanied by a document entitled "Notice to the Vulnerable Adult." Id. at 403. The notice stated a hearing on the VAPO petition was scheduled for July 21, 2022. It explained the same rights and consequences as the previous notice. Once again, no proof of service was filed for this notice. Unlike the matter involving Jane Cox, Ms. Sowle did not submit a declaration indicating whether she had reviewed the VAPO materials with her mother.

A temporary VAPO was issued against Ms. Tapia on July 13, 2022. The temporary order included the following preprinted language: "The respondent and the vulnerable adult, if not the petitioner, were notified in writing of the ex parte hearing and their opportunity to be heard, or will be served notice of his or her opportunity to be heard at the scheduled hearing noted above." Id. at 405. The next hearing was set for July 21 at 10:00 a.m. The record fails to indicate whether Marion Cox received a copy of the temporary VAPO.

A joint hearing on both VAPO matters was held on July 21, 2022. Katherine Sowle, Jane Cox, and Sally Tapia were all present at the hearing and represented by counsel. Marion Cox did not appear for the hearing, but the attorney retained through Sally Tapia was present.

At the hearing, the court determined Marion Cox lacked the capacity to contract for legal representation. Thus, the court dismissed the attorney that had been retained through Ms. Tapia. The court went on to the merits of the cases, despite arguments from Jane Cox and Sally Tapia that Marion Cox had not received sufficient notice of the proceedings. The court determined the information supplied by Ms. Sowle was more persuasive than that submitted by Jane Cox and Sally Tapia. The court found Jane Cox and Sally Tapia had abused and personally exploited their mother by forcing, compelling, and exerting undue influence over her. The court also found the powers of attorney executed by Marion Cox were valid and enforceable. The court issued VAPOs against both Jane Cox and Sally Tapia and entered final judgments against both, requiring them to pay Ms. Sowle's costs and attorney fees.

Marion Cox was served via certified mail with the VAPOs on July 21, 2022.

Jane Cox and Sally Tapia separately filed notices of appeal. They are represented by the same attorney and their appeals have been consolidated for review.

VULNERABLE ADULT PROTECTION ORDERS

The abuse of vulnerable adults act (AVAA), chapter 74.34 RCW, was enacted to protect vulnerable adults who "may be subjected to abuse, neglect, financial exploitation, or abandonment, by a family member." RCW 74.34.005(1). The statutory definition of a "vulnerable adult" is inclusive of a person who is "[s]ixty years of age or older who has the functional, mental, or physical inability to care for [themselves]." RCW 74.34.020(21)(a); RCW 7.105.010(37)(a). One method of protection is a VAPO, which may be filed by the vulnerable adult or an "interested person on [their] behalf," which would include the vulnerable adult's guardian or legal fiduciary. RCW 7.34.110; former RCW 74.34.210 (2007), repealed by Laws of 2021, ch. 215, § 170.

At the time the original petition against Jane Cox was filed in May 2022, the AVAA, under former RCW 74.34.115 (2007) and former 74.34.120 (2007), outlined the notice and hearing requirements for a VAPO proceeding. However, during the course of these proceedings the law changed. Effective July 1, 2022, the Washington Legislature repealed some sections of the AVAA and consolidated the law overseeing various types of protection orders, including VAPOs, under chapter 7.105 RCW. See Laws of 2021, ch. 215, § 170. Under the...