IN THE MATTER OF: THE GUARDIANSHIP OF JULIA WATERS
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 2011 2031
Gray and Duning, John C. Kaspar, for Respondent-Appellant, Julia Waters.
Carol Garner-Stark, for Petitioners-Appellees, Lisa Frye and Gretchen Gibbons-Black, Co-Guardians.
(¶ 1} Julia Waters appeals from an order of the trial court finding her incompetent, and appointing co-guardians of her person. The order is not against the manifest weight of the evidence. Nor did the trial court err in declining to find that a less restrictive alternative to the guardianship exists. Accordingly, the order of the trial court from which this appeal is taken is affirmed.
I. Facts Established at Guardianship Hearing
(¶ 2} Waters had lived in Trinity Manor, an independent living facility in Middletown, Ohio, for about five years. At some point, she sustained a hip fracture while living there, as a result of which she was treated at the Atrium Medical Center in January 2011. When she was discharged from the hospital, she was taken to The Cedars of Lebanon, an assisted living center in Lebanon, Ohio. She did not like being at The Cedars and wanted to return to her apartment at Trinity Manor. At the time of the guardianship hearing, in August and October 2011, Waters had been paying her rent at Trinity Manor, hoping to return, but was still at The Cedars.
(¶ 3} In its Judgment Entry overruling objections to the magistrate's decision and adopting that decision as the order of the trial court, the trial court found the following facts:
In the case sub judice, the Application for Appointment of Guardian stated that [Waters] is incompetent by reason of dementia. The Statement of Expert Evaluation filed on April 19, 2011 was completed by Dr. [Rakesh M.] Kaneria at Atrium Medical Center. The evaluation stated [Waters] is mentally impaired as a result of a psychosis and dementia diagnoses. Said Evaluation was completed on January 11, 2011 and the parties stipulated to the report being admitted into evidence at trial. * * * Dr. Kaneria noted in the evaluation that [Waters] was disoriented, physically impaired,  paranoid, and incapable of caring for herself on a daily basis. In conclusion, Dr. Kaneria recommended that a guardianship be established. [Waters'] objection questions the reliability of Dr. Kaneria's expert evaluation alleging [Waters] was under the influence of hydrocodone while the evaluation was being administered. Dr. Kaneria's evaluation was completed on January 11, 2011, not April 19, 2011 as proposed by [Waters]. The evaluation specifies that [Waters] was not under the influence of hydrocodone and that none of her medications at the time would have cause[d] mental impairments. There is no evidence that causes the Court to question the validity of the Expert Evaluation.
Though the Expert Evaluation was completed nine months before trial, Dr. Kaneria's findings were later corroborated by the Investigator's Report and trial testimony. In the Court Investigator's Report filed on May 25, 2011, Ms. Lewis stated [Waters] is incapable of handling her own finances, preparing her meals, and driving. Also, [Waters] is on numerous medications which she is unable to administer herself. Ms. Lewis noted [Waters] has impaired memory and judgment skills. Ms. Lewis interviewed [Waters'] brother and sister who both claim [Waters] suffers from a long-term mental illness. During the last couple years, [Waters] has fractured her wristsand hip. She refused elderly services offered by Adult Protective Services and would not submit to psychiatric treatment at Cedars [of Lebanon]. Based upon the foregoing, Ms. Lewis found a guardianship of the person was necessary. [Footnote omitted.]
All of the health professionals at Cedars, who have assisted in [Waters'] care over the past nine months, testified [Waters] is unable to take proper care of herself. While [Waters] presented two witnesses who testified as to her ability to live independently, neither has interacted with [Respondent] over the course of the past year. Nor does their testimony align with the pictures of [Waters'] apartment that were submitted into evidence by Petitioner. The condition of [Waters'] apartment shown in Plaintiff's [sic] Exhibits 1-12 reveals the residence is cluttered, unclean, and full of empty pizza boxes. Given [Waters'] history of paranoia and psychosis, the Court finds [Waters'] accusation that her relatives are responsible for her apartment's disarray to be unfounded.
The most telling evidence of [Waters'] mental health condition and paranoia was her eccentric and somewhat incomprehensible testimony at the October 4, 2011 trial.[Waters] was oriented regarding the date and location of the hearing, but her testimony was often unresponsive to questions. When asked if she wanted the court to deny the guardianship, [Waters] replied, "Oh definitely because those people in that building, we have wristbands on. They had a wristband on here when I hurt it like Martha Stewart wristband." ** * . [Waters] was offered physical therapy and stated she would accept it now if she could return to Trinity Manor, because in the past she "was always willing, I just couldn't present yourself without your social security card and that was stolen when I went with my preacher." * * * . When asked which bank her money was in, she responded, "Fifth Third, but they're saying they're going to take our bank accounts, move them to another state. Leave us with thirty dollars a month and this new company came from overseas so they have Cedars of Lebanon and Cedarview [Health Care and Rehab, which is affiliated with The Cedars of Lebanon] and they say that they take everything from us. We'll live on thirty dollars a month." *** .
[Waters'] objection contends that her physical ailments have healed to the extent she no longer is in need of full-time care and is ready to leave Cedars. The Court does not contest that the hip injury which originally brought [Waters] to Cedars has subsided. However, the Court concludes [Waters] suffers from psychosis, paranoia, dementia, and physical infirmity. As a result of these irreversible diagnoses,  [Waters] is no longer able to properly care for herself. Based upon the testimony presented, the Expert Evaluation, and the Investigator's Report, the Court finds by clear and convincing evidence that [Waters] is an incompetent person.
[Waters'] objection contends that a guardianship is not necessary because she is able to dress and feed herself. She argues she is capable of handling her finances because she has continued to pay her rent to Trinity Manor. Thus, [Waters] believes returning to Trinity Manor without a guardianship in place is a practical less restrictive alternative, because she can apply for assisted living services that would satisfy her need for around the clock ...