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In re Guardianship of Sauber

Court of Appeals of Ohio, Third District, Seneca

April 10, 2017

IN THE MATTER OF THE GUARDIANSHIP OF: THOMAS SAUBER [THOMAS SAUBER - APPELLANT] IN THE MATTER OF THE GUARDIANSHIP OF: THOMAS SAUBER [THOMAS SAUBER - APPELLANT]

         Appeals from Seneca County Common Pleas Court Probate Division Trial Court Nos. 20162020, 20162023

          James W. Fruth for Appellant

          Randall C. Schwartz for Appellee

          Lisa A. Miller for Appellee, GAL

          SHAW, J.

         {¶1} Thomas Sauber ("Sauber") brings these appeals from the December 9, 2016, judgments of the Seneca County Common Pleas Court, Probate Division, finding that Thomas was an incompetent person pursuant to R.C. 2111.01(D). On appeal, Sauber argues that the trial court's determination that he was incompetent was against the manifest weight of the evidence.

         Facts and Procedural History

         {¶2} On August 9, 2016, Patricia Sauber, Sauber's wife of over 48 years, filed an "Application for Appointment of Guardian of Alleged Incompetent, " seeking to have Sauber declared incompetent on the basis of "dementia" and "senility."[1] (Doc. No. 1). Patricia sought to be the guardian of Sauber's person and his estate. At the time that Patricia filed her application, Sauber was 86 years old and was living in St. Catherine's nursing home in Fostoria. Patricia, who was 80 years old, still resided in her home in Fostoria.

         {¶3} Along with her application, Patricia filed a "Statement of Expert Evaluation" from Roy Harvey, M.D. According to Harvey's evaluation, Harvey had been Sauber's doctor for 10 years. Harvey indicated that Sauber had dementia, which was progressing, that Sauber usually did not recognize his children, that Sauber could not dress himself, and that Sauber had become more hostile to others over time. Harvey's evaluation indicated that Sauber needed help to walk, but he could feed himself. Harvey indicated that he noticed impairment of Sauber's orientation, his motor behavior, his thought processes, his "affect, " his memory, his concentration and comprehension, and his judgment. (Doc. No. 4).

         {¶4} Harvey stated that Sauber was "terribly senile" and that he would continue to get worse. (Doc. No. 4). Harvey specifically stated that Sauber "has deteriorated more each year with respect to memory, behavior, and judgment. He gave money away to whomever would ask him for it, instead of paying bills. He now does not even recognize a son who used to be his favorite. He has become more oppositional and aggressive." (Id.) Ultimately, Harvey opined that a guardianship should be established.

         {¶5} The trial court ordered an investigation into the matter and also appointed a Guardian ad Litem for Sauber. The trial court's investigator first met with Sauber on August 26, 2016. The investigator indicated that Sauber did not want a guardian and that he did not want his wife to be his guardian because she kept all his money. Sauber further told the investigator that he did not want his daughter to be his guardian. After the interview, the investigator opined that a guardianship was necessary and that there were no less restrictive measures in this matter.

         {¶6} On September 26, 2016, a hearing was held wherein many of Sauber's family members were present. At the hearing, Sauber's counsel stated that he wanted an independent medical evaluation. Before the hearing concluded, the court indicated to the family members present that if anyone else desired to be considered as guardian, they would have to file to do so.

         {¶7} On October 4, 2016, Judith Hartley, one of Sauber's children, filed an application to be appointed as guardian of Sauber, the alleged incompetent.[2]

         {¶8} On November 17, 2016, the court investigator met with Sauber a second time. During the second meeting Sauber again asserted that he did not want a guardian at all and that he did not want his daughter to be his guardian. This time, however, Sauber indicated that if he had to have a guardian he wanted his wife Patricia to be his guardian. Sauber told the investigator that Patricia ...


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