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In re Guardianship of Maynard

Court of Appeals of Ohio, Fourth District

June 12, 2013




COUNSEL FOR APPELLEE: Stephen K. Bennett, for Appellee Loretta Thomas, Guardian.[1]


Peter B. Abele, Judge

{¶ 1} This is an appeal from a Scioto County Common Pleas Court, Probate Division, judgment that found by clear and convincing evidence that Susan Maynard, appellant herein, is incompetent, that a guardianship is necessary, and that a guardianship is the least restrictive means to protect her.

{¶ 2} Appellant was admitted to Southern Ohio Medical Center (SOMC) on March 23, 2011, after family members revealed that she suffered from severe and debilitating mental and physical issues. On that date, appellant and her husband were living in a van. Appellant's sister, Loretta Thomas (appellee), contacted an emergency medical squad. Appellant initially refused treatment, but after questions from squad members, was transported to SOMC. SOMC records reveal that on admission, appellant was diagnosed with methicillin resistant staphylococcus aureus, renal failure, sepsis, diabetes, and gangrenous toes.

{¶ 3} On April 4, 2011, appellee filed an Application for the Appointment of Emergency Guardian. The court granted the application. On April 5, 2011, appellee filed an Application for Appointment of Guardian of Alleged Incompetent and requested to be appointed guardian of appellant's person.

{¶ 4} On May 3, 2011, appellant was discharged from SOMC and admitted to Concord Healthcare and Rehabilitation Center (Concord). On June 17, 2011, the Scioto County Probate Court Investigator filed a report concerning appellant's proposed continued guardianship. At the June 20, 2011 guardianship hearing, all parties agreed that it would be in appellant's best interest to continue the hearing for two months to allow appellant to leave Concord and to establish herself in an apartment.

{¶ 5} Appellant continued to reside at Concord for continued wound care management of her lower extremities. The established goal was for appellant to continue with therapy and rehabilitation and to return to independent living. Appellant's husband also established himself in an apartment not far from Concord. At Concord, Appellant progressed in therapy as to her ability to walk and to use her hands.

{¶ 6} At the October 6, 2011 guardianship hearing, both appellant and appellee testified. Appellee testified that her son found appellant in such bad condition that he did not think she would live through the night. Appellee then checked on her sister and determined that medical intervention was crucial. Appellee described her sister's physical health condition on the night as follows:

O.K. Her legs were, she had real sores, they were running on her legs. She had maggots and all, all over her legs, um, she was slurred speech. She was, um, sopping wet. She said she was very thirsty and all and she kept taking water and then she'd try to spit it out and spit it all over herself."

{¶ 7} Appellant refused to let anyone call for medical help and, after help did arrive, she refused to cooperate. Due to appellant's mental confusion, the medical squad transported her to SOMC.

{¶ 8} Appellee further testified that appellant's physical health had improved after her hospitalization. Since therapy had ended, however, appellant did not walk and had stopped taking medications (although appellee testified that appellant had taken the medications the week prior to the hearing.)

{¶ 9} Appellee also testified that appellant is argumentative. Every Sunday appellant and her husband brought back multiple bags that she hoarded in her room at Concord. [2] Appellee opined that her sister still needed a guardianship.

{¶ 10} On cross-examination, appellee testified that she had not investigated less restrictive alternatives for her sister's care, and in particular, home health care. After cross-examination, the trial court elicited testimony from appellee that indicated that appellant's legs were still wrapped, due to old and new wounds.

{¶ 11} Appellant then testified that ten or fifteen years prior, her husband lost his job and they began to live in a trailer. When the trailer became uninhabitable, they began to live between a car and a tent. They also lived in several different tents because the tents rotted from sun exposure. Eventually, appellant and her husband started to live in a van.

{¶ 12} Appellant testified that during the weekend that led to the emergency guardianship, her shoes had started to fall off and she used rugs to deal with drainage from her leg. She also had huge blisters on her feet, a hole in her foot, and when she stood to exit the van, she collapsed.

{¶ 13} Appellant testified that the night the medical squad arrived, her legs had turned purplish and she believed that she had cat scratch fever. She did not want to go to the hospital, however, because of fear that they would "cut her legs off" She also could not keep water down, and appellant that admitted that she was "out of it" and that appellee was a "big help to her."

{¶ 14} Appellant further testified that she had several doctors while at the hospital. She also admitted that she refused, and continues to refuse, drugs because the side effects are worse than the treatments. She also acknowledged she is "conscientious" about germs.

{¶ 15} At the time of the hearing, appellant and her husband had a thirty-five year old son who lived with his grandparents. Prior to her March 2011 hospitalization, appellant had not seen a doctor since her son's birth. At the time of the hearing, appellant was 58 years old.

{¶ 16} The parties also stipulated to the admission of the following documents:

1. Statement of Expert Evaluation of Adenike Moore, D.O. dated April 4, 2011;
2.Investigator's Report dated June 16, 2011;
3.Medical Records of SOMC following the March 23, 2011 admission;
4.Progress Notes from Concord Health and Rehabilitation Center dated August 4, 2011 through September 11, 2011;
5.Letter from Dr. Moore dated September 1, 2011;
6.Statement of Expert Evaluation, Dr. David Provaznik, dated September 15, 2011.

SOMC medical records reveal that several physicians initially evaluated appellant for various symptoms. Emmanuel Chukwunyere, M.D. performed a ...

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