Court of Appeals of Ohio, Eleventh District, Lake
IN THE MATTER OF: THE GUARDIANSHIP OF NORMA ROSENBERGER, AN INCOMPETENT ADULT
Appeal from the Lake County Court of Common Pleas, Probate
Division, Case No. 2016 GU 0212.
Patrick Malone, Jr. and Andrew Roger Malone, Malone Law, LLC,
(For Appellant-Intervenor, Northwest Trustee & Management
Patricia J. Schraff and John P. Thomas, Schraff & King
Co., L.P.A., (For Appellee, Norma Rosenberger).
E. Forbes, Forbes Law LLC, (For Appellee, Susan Doudican).
V. GRENDELL, J.
Appellant, Northwest Trustee & Management Services, LLC,
appeals the denial of its Motion to Intervene in the
guardianship proceedings of Norma Rosenberger. The issues
before this court are whether a party nominated as the
guardian for a prospective ward is entitled to intervene in
the guardianship proceedings when the nomination has been
imperfectly executed under Ohio law and whether a power of
attorney is entitled to intervene when it did not receive
notice of the hearing on an application to appoint a guardian
for the principal. For the following reasons, we affirm the
decision of the court below.
On November 16, 2016, appellee, Susan Doudican, filed an
Application for Appointment of Guardian of Alleged
Incompetent [R.C. 2111.03] on behalf of her half-sister,
Norma Rosenberger, in the Lake County Probate Court.
On December 16, 2016, a hearing was held on the Application
before a probate court magistrate at which Rosenberger and
Doudican gave testimony.
On January 5, 2017, a Magistrate's Decision was issued
finding, "by clear and convincing evidence that Norma
Rosenberger is mentally impaired as a result of various
mental and physical disabilities, and incapable of
independently caring for her person and safeguarding her
income and assets." The magistrate recommended Doudican
"be appointed the guardian of the person and the estate
of Norma Rosenberger for an indefinite period of time."
The magistrate based her findings on the following testimony:
Ms. Rosenberger is an 84-year old woman diagnosed with mixed
dementia according to the Statement of Expert Evaluation
completed on October 14, 2016 by Dr. Ami Hall and filed with
the Application on November 16, 2016. Dr. Hall noted
impairments in Ms. Rosenberger's orientation, thought
process, memory, concentration and comprehension, and
judgment. She found Ms. Rosenberger mentally impaired and
recommended the guardianship be established. * * *
Ms. Rosenberger moved to Mentor, Ohio from Spokane,
Washington in August 2016. Ms. Rosenberger was living alone
in Spokane prior to her move to Ohio, but Mrs. Doudican
stated during the hearing that she and Ms. Rosenberger
visited with each other annually in person and maintained
regular telephone contact. In approximately November 2015,
Mrs. Doudican noticed Ms. Rosenberger was repeating herself
during telephone conversation[s] and learned Ms. Rosenberger
was getting lost while driving. On or about March 2016, Mrs.
Doudican offered and Ms. Rosenberger agreed to move to Ohio
to be closer to Mrs. Doudican and her family which consists
of adult children and younger grandchildren. Mrs. Doudican
began to make arrangements for Ms. Rosenberger's move to
Ohio, finding her an apartment at Parker Place in Mentor,
However, during the process of arranging further Ms.
Rosenberger's move to Ohio, Mrs. Doudican learned that
Ms. Rosenberger engaged Northwest Trustee and Management
Service, a trust and financial arrangement company located in
Spokane, sometime in April 2016. According to a letter
written to Mrs. Doudican by Cam McGillivray who is a Trust
Officer and In-house Counsel for Northwest, Ms. Rosenberger
named Northwest as agent under a durable general power of
attorney agreement she executed on May 16, 2016 replacing
Mrs. Doudican as agent in a previously executed agreement.
Northwest has charged Ms. Rosenberger nearly $40, 000 in
account maintenance fees since April 5, 2016, for
approximately $1, 100, 000 under its management. Mrs.
Doudican explained that Ms. Rosenberger's funds are
actually invested with Ameriprise, and suspects Ameriprise is
also taking investment fees/commissions for its services.
On January 9, 2017, the probate court adopted the
Magistrate's Decision and appointed Doudican guardian of
Rosenberger's person and estate.
On February 9, 2017, Northwest Trustee filed a Motion to
Intervene on the following grounds: "the Ward herein,
Norma Rosenberger, in her Financial Durable Power of Attorney
executed on May 12, 2016, named Northwest Trustee as an
Agent, and instructed that any court that received or acted
upon a guardianship application was to deny such application
so long as the Agent (Northwest Trustee) was acting under the
Power of Attorney"; "Northwest Trustee is * * * an
interested party, necessary for the adjudication of the
rights of all persons with an interest in the property before
the Court in the instant Guardianship"; and
"Northwest Trustee did not ...