In re Conservatorship of Hester v. Hester
| Docket Number: | 2007-CA-00225-COA Linked Case(s): 2007-CA-00225-SCT ; 2007-CA-00225-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-22-2008 Opinion Author: CARLTON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Conservatorship - Section 93-13-251 - Physician’s certificate - Section 93-13-255 - M.R.E. 704 - Temporary restraining order - M.R.C.P. 65 - Interlocutory order - M.R.A.P. 5(a) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 01-04-2007 Appealed from: Franklin County Chancery Court Judge: Debbra K. Halford Disposition: DECREE FOR APPOINTMENT OF CONSERVATOR ENTERED Case Number: 2006-163 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | IN THE MATTER OF THE CONSERVATORSHIP OF EMMA JANE HESTER: EMMA JANE HESTER |
W. BRADY KELLEMS,
JOSEPH PRESTON DURR |
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| Appellee: | DAVID HESTER, ET AL. | LANE B. REED, MATTHEW M. WILLIAMS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Conservatorship - Section 93-13-251 - Physician’s certificate - Section 93-13-255 - M.R.E. 704 - Temporary restraining order - M.R.C.P. 65 - Interlocutory order - M.R.A.P. 5(a) |
| Summary of the Facts: | David Hester was appointed conservator over the estate and person of his mother, Emma Hester. Emma appeals. |
| Summary of Opinion Analysis: | Pursuant to section 93-13-251, the appropriate chancery court may appoint a conservator over the estate and, if deemed appropriate, over the person of one who, by reason of advanced age, physical incapacity or mental weakness is incapable of managing his own estate. In determining the need for a conservatorship, a “management competency test” is applied by considering the ability to manage, or improvident disposition, or dissipation of property, or susceptibility to influence or deception by others, or other similar factors. In this case, there is sufficient evidence to support the chancellor’s appointment of a conservatorship. The facts in the record show that, at the time of trial, Emma was a seventy-six-year-old woman of below average intellect who had never concerned herself with the handling of her own business affairs. Instead, she deferred to others to handle these matters in her stead. She possesses little meaningful knowledge regarding the amount or whereabouts of her finances, and she has exhibited overall indifference to her business affairs and her living conditions alike. Although there was evidence that Emma was capable of performing basic tasks of self-preservation, the evidence supports the conclusion that Emma was incapable of managing her own affairs by reason of advanced age and mental weakness. Therefore, the chancellor did not err in appointing David as conservator over the estate and person of Emma. Prior to trial, Emma was examined by her primary physician as well as a psychologist, and she now argues that neither of their written reports filed with the chancery court is a certificate as contemplated by section 93-13-255, i.e., the reports’ findings were not stated in terms of or did not track the language of section 93-13-251. Regarding the form or content required of a physician’s certificate, section 93-13-255 provides that each of the two physicians shall make a written certificate memorializing the result of their personal examination of the ward, and that certificate must be filed with the clerk of the court. There is no suggestion in our conservatorship statutes that the physicians’ certificates required under section 93-13-255 must be stated in terms of or track the language of section 93-13-251. To accept Emma’s argument that a physician’s certificate must be stated in the language of section 93-13-251, would draw very near to requiring the physician to give an opinion embracing the ultimate issue. While “ultimate issue” testimony appears to be generally admissible under M.R.E. 704, the better practice is not to require or encourage such testimony. Prior to trial, the chancellor entered an order prohibiting the disposal and transfer of Emma’s assets. Emma argues that this order was, in effect, a temporary restraining order issued in violation of M.R.C.P. 65(b) because David failed to provide a written certification regarding any efforts made to give notice or the reasons why notice should not be required. She also argues that the chancellor’s order was issued in violation of M.R.C.P. 65© because no security was posted by David. Assuming the chancellor’s order may be properly characterized as a temporary or preliminary injunction, its terms had expired by the end of the trial and are no longer in effect. Therefore, this issue is moot. Moreover, the injunction was an interlocutory order and Emma failed to seek certification for an interlocutory appeal pursuant to M.R.A.P. 5(a). |
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