In re Guardianship & Conservatorship of Crist

1

NOT DESIGNATED FOR PUBLICATION

No. 118,973

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Guardianship and Conservatorship of LOIS CRIST.


MEMORANDUM OPINION

Appeal from Anderson District Court; ERIC W. GODDERZ, judge. Opinion filed February 1, 2019.
Affirmed.

Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, for appellant Lois Crist.

Thomas H. Sachse, of Anderson & Byrd, LLP, of Ottawa, for appellees guardians/conservators.

Before ARNOLD-BURGER, C.J., LEBEN and BRUNS, JJ.

PER CURIAM: Any individual who has been adjudicated as impaired under Kansas
law and has had a guardian or conservator appointed for his or her care can petition the
district court to have his or her capacity restored. If the district court does not find, by
clear and convincing evidence, that the individual is impaired, the court is required to
restore the person to capacity and terminate the guardianship or conservatorship, or both.

Members of Lois Crist's family filed a petition to have them appointed as
guardians and conservators for Crist because of Crist's inability to care for herself or her
estate. Crist stipulated to the need for a guardianship and conservatorship. Crist lived at a
nursing home for a time and eventually moved to an assisted living facility. After Crist's
relationship with her guardians and conservators became strained, she filed a petition to
restore capacity with the district court. After a full hearing, the district court found that
clear and convincing evidence existed to show that Crist remained an impaired person as
2

defined by statute. The district court denied Crist's petition. Crist appeals arguing that the
district court erred in its ruling and erred by failing to sua sponte order a change in who
serves as Crist's guardians and conservators. Because we find the district court's decision
was supported by clear and convincing evidence and Crist failed to properly preserve any
claim to an order changing guardians or conservators, we affirm.

FACTUAL AND PROCEDURAL HISTORY

At the time the events giving rise to this action began, Crist was 82 years old and
had been a widow for about 10 years. She is a college graduate and taught kindergarten
for 17 years before retiring. She lived alone on rural farmland outside of Garnett, Kansas.
Her son Mike and his wife lived about a mile away. Her other children lived over 150
miles away.

In approximately September of 2014, Karen Terrill, Crist's daughter who lived
over 150 miles away in Wichita, was notified by her sister-in-law, who lived close to
Crist, that Crist's house had become uninhabitable and Crist's son and daughter-in-law
were unable to assist her in the manner she needed. Terrill arranged a family gathering in
December 2014. At that meeting, Crist would not allow the family into her home and
insisted they meet somewhere for dinner. Upon arriving, Terrill was shocked by her
mother's appearance. She was dirty and unkept. She was walking with a cane and had a
hard time remaining steady on her feet. In March 2015, Terrill again received a phone
call from her sister-in-law, who lived nearby, that she and her family were going to be out
of the country for an extended period, and Crist was very ill and needed to see a doctor.
Crist was taken to the doctor who told the family that Crist should not be living on her
own.

Terrill began visiting care facilities with her mother and suggesting other
alternatives like Meals on Wheels and hiring people to help and conduct repairs on her
3

home. But Crist would not make any decisions. Terrill then noticed that Crist's health was
continuing to deteriorate. She was not making sense when they spoke on the phone. So
Terrill and other family members decided to intervene by filing a petition for an ex parte
emergency order to appoint a temporary guardian and conservator for Crist with authority
to admit her to a treatment facility.

The original petition, filed in May 2015, alleged that Crist was unable to walk, had
diminished fine motor control, was incontinent, could not manage personal hygiene,
could not feed herself, suffered decreased cognitive functioning, and was generally
unable to provide for her own care and well-being. Because of the allegations in the
petition, the court authorized the coguardians to remove Crist from her home and admit
her into a hospital, nursing home, or assisted living facility. Crist was removed by
ambulance from her home which was found to be in a deplorable condition as evidenced
from photos taken and shown to the district court. The home appeared to be that of what
we commonly refer to as a hoarder. Debris, filth, and mold were everywhere. Crist had
basically been living on her sofa. There was both human and cat excrement on the floor.
Unfilled prescriptions were found hanging on the shelf. There was mold growing on
Crist's dentures. It was later determined by inspection that mold was so prevalent in the
house that it was unsafe for human habitation until after it had been remediated at a cost
of about $65,000. Due to a long period of lack of attention, the house was unsanitary,
unsafe, and unlivable.

After arriving at a medical facility, it was determined that Crist had a urinary tract
infection and a vitamin B-12 deficiency that both required treatment. Following the
resolution of Crist's immediate medical needs she was placed in a nursing home. Her
physical condition stabilized while at the nursing home, although she continued to be
treated for multiple urinary tract infections.

4

Crist later waived her right to a trial, admitted the allegations in the petition, and
consented to the entry of a permanent guardianship/conservatorship in August 2015. The
court appointed Terrill; Connie Scott, Crist's stepdaughter; Lela Scheckel, Crist's
daughter; and Lela's husband Gene Scheckel as Crist's coguardians and coconservators.

As to Crist's financial affairs, she was secretive with the conservators regarding
the location of her accounts, as well as income and expenses. It turns out that she had a
significant estate that her husband had managed before his death. Although she signed
monthly expense checks, financial matters were never her strength. It appears that for
some time prior to the conservatorship her daughter-in-law, who lived close by, was
filling out her checks for monthly expenses and simply having Crist sign them. She was
not behind on any of her bills, but she had not filed her taxes. After her husband's death,
she received the help of a financial advisor. The total value of the estate at the time of the
appointment was approximately $1.46 million. She had income from numerous sources
including social security, teacher's pension, veteran's benefits, pasture rental, crops,
government subsidies, long-term care insurance payouts, investments, and annuities.
Throughout these proceedings, she had no complaints concerning how the conservators
had handled her finances.

In January 2017, the guardians and conservators submitted a report to the court
covering the time from May 2015 to December 2016. The report summarized what had
been happening since Crist had been removed from her home.

Although the guardians lived at least 150 miles from Crist, at least one guardian
visited Crist an average of once a month. Each guardian kept in contact with Crist
through letters, cards, and phone calls. The report indicated that Crist was treated for a
urinary tract infection, had her dentures repaired, corrective lenses updated, and was
receiving physical therapy to help her gain strength and improve her motor skills. The
nursing home staff taking care of Crist regularly took Crist to the local library, Wal-Mart,
5

and to visit her homebound son who lived nearby. The report also indicated that Crist was
more alert and social than she had been when the initial petition was filed. But the report
stated that "she continues to demonstrate poor judgment on decision making, financial
matters and interpersonal relationships." Additionally, Crist was upset with the guardians
and conservators because she did not want to be placed in a nursing home. Because of
Crist's behavior during meetings, nursing home staff was present in meetings relating to
financial matters.

In April 2017, Crist filed a petition for restoration to capacity. Crist asserted that
she was no longer impaired because the original source of her impairment was due to an
altered mental state caused by her urinary tract infection which had since been treated.
Crist's petition did not express any issues with her guardians or conservators, nor did it
request that her guardians or conservators be replaced if her petition for restoration to
capacity was denied. An evaluation by Dr. William Blessing was included with the
petition.

Dr. Blessing's evaluation states, in part, that Crist scored 2.1 standard deviations
below the mean in the Trails B test. The Trails B test is described in another evaluation
(discussed more fully later) as testing an individual's ability to switch response sets when
required. The example used to describe what this might impact was driving, a task which
requires constant switching of attention. Dr. Blessing scored Crist's ability to manage
money and health and safety as high. He indicated that Crist had the capacity to meet
essential needs for physical health, safety, or welfare, and had the capacity to manage her
estate. Dr. Blessing summed up his evaluation with:

"Testing sensitive to independent living skills related to money management and health
and safety were performed at the above average level. The results of neuropsychological
evaluation indicates this patient is capable of expressing her wishes and remembering
6

them. The normalcy demonstrated in both intellect and memory processing indicates she
clearly meets legal criteria for competence."

The guardians and conservators filed written defenses to Crist's petition stating
that Crist was still in need of guardians and conservators. They also requested another
evaluation of Crist. The district court ordered another evaluation.

Dr. Martin Zehr performed the additional evaluation on Crist. Dr. Zehr's report
indicated that Crist believed her home was in good condition when she left, a belief
unsupported by the record. Crist told Dr. Zehr that there were no problems at the house
and that she had a "'cleaning lady hired to come in.'" Crist made other statements that Dr.
Zehr believed were unsupported by staff at the facility where Crist was living. Crist
tested in the severely impaired range on the Trails B test. In Dr. Zehr's opinion, Crist did
not have an accurate recollection of her living conditions before the original petition and
her responses to questions regarding the availability of assistance were she to live at
home were unrealistic assessments of her ability to live alone. Ultimately, Dr. Zehr
believed that Crist lacked the "capacity to manage her estate or to meet essential needs
for nutrition, health, safety or welfare without supervision and regularly-available
assistance and that, therefore, she is in need of a guardian and conservator."

In response, Crist had another evaluation completed by Joann Peine, a clinical
social worker. Peine's report indicated that Crist functioned well cognitively and did well
with many tasks of daily living. Peine did note that Crist appeared to have trouble with
laundry, housekeeping, and transportation. Peine believed that Crist had the capacity to
meet essential needs for physical health, safety, or welfare and had the capacity to
manage her estate.

The district court held a hearing on Crist's petition. By the time of the hearing,
Crist had been moved into an assisted living facility which provided her more freedom.
7

She was happy there. All three evaluations prepared for the hearing were admitted
without additional testimony from the authors. Crist testified at the hearing and discussed
her land and the home on it. She testified that she was previously ill but had not been
aware of how serious the illness was. She acknowledged that she was bedridden due to
the illness and the house had fallen into a state of disrepair. Crist also stated that she had
moved from a nursing home to a less restrictive assisted living facility and liked it there.
She acknowledged that if she were to return home she would need help with
transportation, laundry, and other general housework. She also testified that she wanted
to move back home but agreed that moving back to her house at the time of the hearing
was not a good idea.

Crist claimed that she did not know that there was anything unsafe or unclean
about the inside of her home before she was appointed guardians and conservators. When
asked about whether she continued to suffer from urinary tract infections Crist seemed
uncertain. Moreover, Crist said she probably would not have as much trouble handling
her financial affairs as "just caring for myself." She did not have an estimate for how
much her estate was worth without reviewing the documents regarding her finances,
which she had not seen in 2017.

The district court asked Crist why she thought she did not need guardians. Crist
replied that because there were four guardians it took them too long to reach any
decisions and when they did she did not agree with the decision, although she could not
provide an example. She was further asked if she thought she needed just one instead of
four, and she replied that she didn't need any.

Terrill testified and the pictures of Crist's home at the time Crist was removed
were admitted into evidence. She testified regarding everything leading up to the
removal, the costs of getting the home into a livable condition, and the fact that that home
healthcare for Crist would be more expensive than Crist living at an assisted living
8

facility. Terrill also stated that she and the other guardians and conservators did not have
disagreements and that decisions were made in a timely manner. According to Terrill,
financial information was provided to Crist quarterly. The information was distributed
through paper rather than in person because of Crist's behavior at in-person meetings.

Gene Scheckel testified that as a guardian and conservator he mainly handled
Crist's financial matters. He testified that he was able to get her assets under control and
the various steps he had taken to protect and conserve her assets. He also pointed out that
he did not charge the estate for any of his work. Even though she had significant nursing
home and medical expenses, her assets started out at $1.46 million in May 2015 and as of
the date of the hearing in November 2017 her assets were $1.43 million. He did not
believe that Crist had "any clue of what—what's going on and how much of an effort it is
to get all these things done and bills paid on time." He indicated the family was thrilled
that she had gone from near death to the least restrictive setting possible in assisted
living.

The district court ultimately denied Crist's petition for restoration to capacity. The
court found that there was clear and convincing evidence that Crist still was impaired
with regards to taking care of her own health, safety, and finances. The court expressed
concern about Crist's health due to Crist's age and what happened to her in the past when
she was left to her own devices. The court was concerned that Crist was, and would be,
unable to get around by herself. The court reasoned that while Crist was in the assisted
living facility she was receiving the 24-hour assistance that she needed. And while Crist
professed that she was content to remain in assisted living, the court noted that if the
guardianship was removed there was nothing to stop her from making an irrational
decision and moving back to her rural home, even though it was not livable.

As for the financial side, the court believed that managing her estate was beyond
her capacity because she did not "even know the amount of money that [she was]
9

receiving on a monthly basis." Nor did she know the total value of her estate or how to
handle her financial affairs so that the estate was not squandered. The size and
complexity of her estate was well beyond Crist's capabilities.

The court discussed the evaluations admitted as evidence. The court noted that Dr.
Blessing's evaluation seemed "to be more of a competency evaluation" not aimed at
whether Crist could care for herself and manage her own finances. The court looked at
the conflicting conclusions between Dr. Zehr's report and Dr. Blessing and social worker
Peine and found Dr. Zehr's more persuasive. The court also found that Crist's living at the
assisted living facility was not an alternative to a guardian or conservatorship because the
living situation was setup by the guardians and conservators. Neither party raised any
other issues at the conclusion of the hearing. Crist appeals the district court's ruling.

ANALYSIS

The law regarding the appointment of guardians or conservators is entirely
statutory and provides that any person may file "a verified petition requesting the
appointment of a guardian or a conservator, or both, for an adult with an impairment in
need of a guardian or conservator, or both." K.S.A. 2017 Supp. 59-3058(a)(1). If the
court finds by clear and convincing evidence that the person is an adult with an
impairment in need of a guardian or a conservator, the court is required "to appoint a
qualified and suitable individual or corporation as the guardian or conservator, or both."
K.S.A. 2017 Supp. 59-3067(e)(1).

The term "[a]dult with an impairment in need of a guardian or a conservator, or
both" is defined as:

"a person 18 years of age or older . . . whose ability to receive and evaluate relevant
information, or to effectively communicate decisions, or both, even with the use of
10

assistive technologies or other supports, is impaired such that the person lacks the
capacity to manage such person's estate, or to meet essential needs for physical health,
safety or welfare, and who is in need of a guardian or a conservator, or both." K.S.A.
2017 Supp. 59-3051(a).

In other words, if a person is deemed by a court to be impaired, state law allows the court
to take away the person's right to control his or her own destiny. The court then appoints
a surrogate to make decisions and to act in the person's stead. Laws such as this are based
upon the long-standing legal doctrine of parens patriae, which empowers the State "to
enact legislation regarding the welfare of those unable to care for themselves." P.W. v.
Kansas Dept. of SRS, 255 Kan. 827, Syl. ¶ 4, 877 P.2d 430 (1994).

But impairment is often not a permanent condition. People can recover and no
longer need a surrogate. So, in Kansas, after being adjudicated as an adult with an
impairment in need of a guardian or a conservator, the individual may file a petition to
restore capacity. K.S.A. 59-3090. If the court determines that good cause exists to
warrant further proceedings on the petition a hearing is held. K.S.A. 59-3090(c)(1). After
conducting a hearing on the petition "if the court does not find, by clear and convincing
evidence, that the ward or conservatee is impaired, the court shall order that the ward or
conservatee is restored to capacity and shall proceed to terminate the guardianship or
conservatorship, or both." K.S.A. 59-3090(h).

This appears to create a two-tiered system. The petitioner first has the burden of
submitting a prima facie showing "to warrant further proceedings on the petition." K.S.A.
59-3090(c)(1). In other words, the petitioner must put forward some evidence that he or
she is no longer impaired. In this case, that evidence was Dr. Blessing's report which was
attached to the petition. The burden then shifts to the respondent to show by clear and
convincing evidence, just as in the original petition requesting the guardianship or
conservatorship, that the petitioner is still impaired. This two-tiered system recognizes
11

the important safeguards that should be in place whenever deprivation of an individual's
right to control his or her own destiny—a constitutionally protected liberty interest—is at
stake.

Here, once Crist presented evidence that she was no longer impaired, the
guardians and conservators bore the burden to show by clear and convincing evidence
that Crist remained impaired and required their protection. See K.S.A. 59-3090(h). So
Crist first argues that they did not meet their burden of establishing her continued
impairment by clear and convincing evidence.

There was clear and convincing evidence for the district court to find that Crist was
impaired and in need of a guardian or conservator as defined by K.S.A. 2017 Supp. 59-
3051(a).

Clear and convincing evidence is evidence "sufficient to establish that the truth of
the facts asserted is 'highly probable.'" In re B.D.-Y., 286 Kan. 686, 696, 187 P.3d 594
(2008). In reviewing such a finding by the district court, we must review all the evidence
in the light most favorable to the prevailing party, in this case the guardians and
conservators. We are not allowed to weigh conflicting evidence, pass on the credibility of
witnesses, or redetermine questions of fact. 286 Kan. at 705. We will begin with the
evidence supporting a guardianship.

Guardianship

In order for the district court to find an individual is an adult with an impairment
in need of a guardian the court must find that the individual lacks capacity to "meet
essential needs for physical health, safety or welfare, and who is in need of a guardian."
K.S.A. 2017 Supp. 59-3051(a). "'In need of a guardian'" is defined as "a person who
because of both an impairment and the lack of appropriate alternatives for meeting
12

essential needs, requires the appointment of a guardian." K.S.A. 2017 Supp. 59-3051(f).
In order to "'[m]eet essential needs for physical health, safety or welfare'" the individual
must be capable of "making those determinations and taking those actions which are
reasonably necessary in order for a person to obtain or be provided with shelter,
sustenance, personal hygiene or health care, and without which serious illness or injury is
likely to occur." K.S.A. 2017 Supp. 59-3051(i).

In this case, there was clear and convincing evidence to support the district court's
decision that Crist remained an adult with an impairment in need of a guardian. Crist's
needs were being met at the assisted living facility by 24-hour care, but as the court noted
that is not an alternative to the guardianship, it resulted from the guardianship. Crist
insisted that she did not know there was anything unsafe or unclean about her home
before she left. The record is clear that the home was uninhabitable when the
guardianship was created. She told Dr. Zehr that she did not think she would need any
help living in her rural home. Crist blamed the initial situation at the home on her urinary
tract infection. According to Dr. Blessing's evaluation, Crist continued to suffer from
urinary tract infections while at the nursing home. Crist admitted that she remained under
the care of an urologist. Moreover, the condition of the home appeared to result from
long-term neglect, not a singular event. Her health had deteriorated to the point that she
had to be removed from her home by ambulance. She admitted she did not realize how
sick she was. She apparently lacked the capacity to recognize her situation in terms of
illness or hygiene or have the cognitive ability to seek help. Her house had a serious mold
problem that she failed to recognize which made it unsafe to even enter for a home study.
She was unable to fill her prescriptions. She remains wheelchair bound. She does not
have the mental capacity to complete tasks like driving. She must rely on others for
transportation.

While Crist told the district court judge that she had no complaints about how her
conservators dealt with her financial situation, she told Dr. Zehr that her children were
13

"trying to steal her blind" and she told Dr. Blessing that she was concerned that her
children were spending her money excessively. She seemed to have problems
remembering her daily activities, as she told Dr. Zehr that she was inactive, but staff at
the nursing home reported she kept very active. While there were competing evaluations
in this case, the district court found Dr. Zehr's evaluation more credible regarding her
current lack of capacity and we do not reweigh that determination.

Crist counters that the language in K.S.A. 2017 Supp. 59-3051(i) refers to a
present ability to "obtain or be provided with shelter, sustenance, personal hygiene or
health care, and without which serious illness or injury is likely to occur." She asserts that
the district court incorrectly speculated about her future impairment rather than focusing
on her current capacity and that there was insufficient evidence to support a finding that
she was currently impaired. Crist argues that her needs are being met while she resides at
the assisted living facility which is essentially an appropriate alternative for meeting her
needs and, therefore, she no longer requires a guardian.

The language of the statute allows the district court to consider whether a person is
capable of "meeting essential needs." K.S.A. 2017 Supp. 59-3051(f). The individual must
not only be able to meet those needs on the day of the hearing, he or she must be capable
of "meeting" the needs in the future. Allowing the court to consider only the individual's
capability on the day of the hearing is an unrealistic and unworkable standard. Conditions
that may result in guardianships being created, such as Alzheimer's disease, have various
levels of impact on an individual on a day-to-day basis. A district court must consider the
whole picture when deciding whether someone needs a guardian. Limiting the court to a
snapshot of what may be an atypical day for an individual is unreasonable.

Without the guardianship there is nothing to stop Crist from moving. And contrary
to Crist's assertion that "[t]here was no testimony presented that she wished to return
home to her rural farm," Crist testified that she had told Dr. Zehr, while living at the
14

nursing home, that she would like to move home. At the hearing she said, "I just would
like to move back home. It is my home." As Dr. Zehr stated, Crist did not have an
accurate recollection of her living conditions before the original petition and her
responses to questions regarding the availability of assistance were she to live at home
were unrealistic assessments of her ability to live alone, particularly in a rural area.
Ultimately, the district judge found Dr. Zehr to be credible when he opined that Crist
lacked the "capacity to manage her estate or to meet essential needs for nutrition, health,
safety or welfare without supervision and regularly-available assistance and that,
therefore, she is in need of a guardian and conservator."

Ultimately, since this court does not reweigh the evidence presented to the district
court, there was clear and convincing evidence that Crist remained impaired and needed a
guardian. See In re Adoption of B.B.M., 290 Kan. 236, 244, 224 P.3d 1168 (2010).

Conservatorship

In order to find that an individual is an adult with an impairment in need of a
conservator, the court must find that the person "lacks the capacity to manage such
person's estate." K.S.A. 2017 Supp. 59-3051(a).

"'Manage such person's estate' means making those determinations and taking
those actions which are reasonably necessary in order for a person to receive and account
for personal or business income, benefits and property, whether real, personal or
intangible, and except for reasons of indigency, to purchase or otherwise obtain necessary
goods or services, to pay debts and expenses, to sell, exchange or otherwise dispose of
property, and to plan for future accumulation, conservation, utilization, investment, and
other disposition of financial resources." K.S.A. 2017 Supp. 59-3051(h).

Crist makes the same arguments regarding the conservatorship as she did for the
guardianship. The same general analysis applies here as well. That said, the statutory
15

language regarding the management of a person's estate is more explicit that the future
should be considered than meeting essential physical health, safety, or welfare needs. See
K.S.A. 2017 Supp. 59-3051(h), (i). The conservatee must be able to "plan for future
accumulation, conservation, utilization, investment, and other disposition of financial
resources." K.S.A. 2017 Supp. 59-3051(h). This necessarily requires the court to consider
the future ability of the conservatee to make those plans.

Competing evidence was admitted at the hearing. Dr. Blessing's report indicated
that Crist's "independent living skills related to money management . . . were performed
at the above average level." Dr. Zehr's opinion stated that Crist was not capable of
managing her estate. Crist was unable to estimate what her estate was worth. Although
evidence was presented that Crist's finances were in good shape at the time of the initial
proceeding, there was testimony that she was simply signing checks that her daughter-in-
law wrote and had no appreciation for the size of her estate or the action necessary to
preserve it.

Again, this court does not reweigh the evidence. In this case, the conservators
presented sufficient evidence to support the district court's decision that clear and
convincing evidence existed that Crist remained an adult with an impairment in need of a
conservator. See In re Adoption of B.B.M., 290 Kan. at 244.

Crist failed to preserve any claim of error for failure to appoint an alternative guardian
and conservator.

If the court does not restore a ward or conservatee to capacity the "court shall
make such further orders in the guardianship or conservatorship, or both, as may be
appropriate under this act." K.S.A. 2017 Supp. 59-3090(h). Crist argues, for the first time
on appeal, that the court erred when it did not, sua sponte, order a change to her guardians
16

or conservators. The guardians and conservators respond that Crist did not raise the issue
below and cannot raise the issue now. We agree.

Issues not raised before the trial court cannot be raised on appeal. Wolfe Electric,
Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). There are several exceptions
to the general rule that a new legal theory may not be asserted for the first time on appeal,
including the following: (1) the newly asserted theory involves only a question of law
arising on proved or admitted facts and is finally determinative of the case;
(2) consideration of the theory is necessary to serve the ends of justice or to prevent
denial of fundamental rights; and (3) the judgment of the trial court may be upheld on
appeal despite its reliance on the wrong ground or having assigned a wrong reason for its
decision. In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008).

Crist does not acknowledge, in either her appellant brief or her reply brief, her
failure to raise this issue before the district court or otherwise argue that any of the
exceptions apply to justify our consideration of the issue. Supreme Court Rule 6.02(a)(5)
(2019 Kan. S. Ct. R. 34) requires an appellant to explain why an issue not raised below
should be considered for the first time on appeal. Litigants who fail to comply with this
rule risk a ruling that the issue is improperly briefed, and the issue will be considered
waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014); see
State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015) (holding that Rule
6.02[a][5] is to be strictly enforced). Moreover, issues not adequately briefed are deemed
waived or abandoned. In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033
(2018). Because Crist provides no justification for this court to consider, for the first time
on appeal, the district court's failure to appoint a new guardian or conservator, we decline
to consider the issue.

We do note, however, that Crist's claim also fails for two additional procedural
reasons.
17

First, "litigants and their counsel bear the responsibility for objecting to inadequate
findings of fact and conclusions of law in order to give the trial court the opportunity to
correct such inadequacies, and, when there is no objection, omissions in findings are not
considered on appeal." State v. Jones, 306 Kan. 948, 958-59, 398 P.3d 856 (2017). When
there is no objection to a trial court's findings, this court presumes that the trial court
found all facts necessary to support its judgment. 306 Kan. at 959-60. The district court
read the statute above at the conclusion of the hearing. The court did not enter other
orders, presumably because it did not believe that other orders were "appropriate under
[the] act." Crist did not object to inadequate findings of fact and conclusions of law, so
this also prevents us from considering them on appeal.

Second, K.S.A. 59-3087 provides a mechanism for someone, including the ward
or conservatee, to seek a change in guardians or conservators. If Crist is unsatisfied with
her guardians and conservators she was free to add that to her petition or file a separate
action seeking such change. She did neither. Crist offers no support for her argument that
the district court has an obligation to make a sua sponte order that would fundamentally
change the guardianship or conservatorship. Nor does Crist explain how the district court
was supposed to decide without hearing evidence that specifically addresses that issue.
Crist testified that she had no complaints concerning how the conservators had handled
her finances. When asked by the court if she wanted fewer than four guardians and
conservators—due to her complaint that it took too long for four of them to agree to
anything—she responded that she didn't need any. Neither Crist nor her counsel ever
requested a change of the guardians or conservators other than restoring her capacity so
that she would no longer need any. Instead, Crist added several documents to the record
on appeal in an attempt to show that the guardians and conservators should be, if not
removed, replaced. None of these documents were considered by the district court prior
to the decision in this matter. They were all filed in the district court long after the notice
of appeal had been docketed. Accordingly, they are not properly before us and we caution
18

counsel against future abuse of the rules by placing information before us that was not
presented to the district court.

The estate is responsible for reasonable attorney fees associated with this appeal.

Finally, Crist requests that the court order the estate to pay Crist's attorney fees on
appeal under the authority of K.S.A. 59-3063(a)(3) (appointment of attorney required for
potential ward or conservatee when initial petition filed), K.S.A. 59-3090(f)(1)
(appointment of attorney required in case of request to restore capacity), Supreme Court
Rule 7.07(a)(4) (2019 Kan. S. Ct. R. 50) (court may apportion fees and expenses among
the parties), and Supreme Court Rule 7.07(b)(1) (court may award attorney fees in any
case in which the district court could do so). An examination of those provisions is in
order.

The award of attorney fees against an estate is not discussed in either statute cited
by counsel although they both require appointment of counsel for the ward or
conservatee, ergo somehow the attorney must be paid. Moreover, the case cited by Crist,
In re Estate of Holder, 168 Kan. 657, 215 P.2d 166 (1950), concludes that an attorney
who brings an action in good faith on behalf of a ward or conservatee to restore capacity
may be entitled to payment from the estate even though the guardian did not authorize the
litigation on the ward's behalf.

The guardian in Holder argued that because the ward has no authority to contract
on his or her own behalf, the ward cannot contract for legal services. Accordingly, no
action to restore capacity could be brought without the consent of the guardian. But the
court found that the statute at the time, G.S. 1947 Supp. 59-2268, provided that "'[a]ny
person who has been adjudged insane or incompetent as herein provided, or his guardian,
or any other person interested in him or his estate may petition the court in which he was
so adjudicated or to which the venue has been transferred to be restored to capacity.'" 168
19

Kan. at 660. The Supreme Court interpreted this provision to mean that because the
action could be brought by any interested person, and the attorneys were interested
persons, the attorneys should be paid from the estate to give the statute any meaning.

"The statute thus confers authority on the incompetent person to petition the court to be
restored. It also bestows that power on any person interested in him. We cannot say from
this record that the two attorneys who made the claim for fees in this case were not
interested in Anna C. Holder. There is no doubt about the meaning of the above
provision. If the legislature had intended the proceedings to restore an incompetent could
only be brought by the guardian or with the consent of the guardian, then it would not
have made the provision that the petition might be brought by any person interested in the
incompetent. This provision carries with it by implication that a lawyer who files such a
petition and presents it to the probate court may be paid from the estate of the
incompetent. That is undoubtedly what the legislature intended when it enacted such
broad authority to file such a petition. Should we hold in conformity with the argument of
the guardian here, no lawyer could undertake such a proceeding except on a contingent
basis unless he were paid by some person interested in the incompetent. We cannot read
such an intention from the provisions of this statute." 168 Kan. at 661.

The court went to on to caution:

"This is not to say that in every case brought to restore a ward to competency,
counsel may be reimbursed out of the assets of the estate. Every case will depend upon its
own surrounding facts and circumstances. Here the probate court of Sedgwick county
heard the proceedings in the first place, the same court heard the application for
allowance of attorney fees and other expenses incident to the restoration hearing and
would have been the court to pass upon whether or not the action should have been
brought in the first place had the proceeding contended for by the guardian have been
followed. The value of the services as well as the good faith of the lawyers is conceded."
168 Kan. at 662.

There have been no other cases dealing with the assessment of attorney fees
against an estate for motions to restore capacity. We note that in 2002 the statute was
20

changed to provide that "[t]he ward or conservatee may at any time file a verified petition
with the court requesting that the court find that the ward or conservatee is no longer
impaired, and request that the court restore the ward or conservatee to capacity." K.S.A.
59-3090(a). The language relied on in Holder that any interested person could pursue an
action to restore capacity no longer appears in the statute. We note that the any person
language does appear in K.S.A. 59-3091(a) ("At any time following the appointment of a
guardian or a conservator, any person, including the ward or conservatee, may file a
verified petition with the court requesting that the court find that the ward or conservatee
is no longer in need of a guardian or a conservator, or both, and requesting that the court
terminate the guardianship or conservatorship, or both." [Emphasis added.]).

Nevertheless, we agree with the analysis of the Supreme Court in Holder that if
the Legislature had intended the proceedings to restore competency could only be
brought by the guardian or with the consent of the guardian, then it would not have made
the provision that the petition might be brought by the ward. In addition, the award of
attorney fees against the estate is not a foregone conclusion in every case. But in this
case, as in Holder, the district court ordered the costs associated with the appeal be paid
out of the estate and the estate did so. The Appellees (guardians and conservators) do not
object to such a course of action, they simply argue that this court should examine
whether the fees requested are reasonable. Like the district courts, appellate courts are
experts on the reasonableness of attorney fees. Link, Inc. v. City of Hays, 268 Kan. 372,
382-83, 997 P.2d 697 (2000).

Counsel for Crist requests that in addition to the $2,500 already awarded by the
district court for counsel's retainer on appeal, she has generated an additional $5,720 in
attorney fees preparing the appeal. Appellees objected to the lack of detail in the first
invoice submitted by counsel for Crist. A supplemental affidavit and invoice was
submitted that appears to address those concerns. The only remaining specific objection
that the Appellees have to the invoice is a telephone call in July 2018 to the
21

"ombudsman" who was not a party to this appeal. Indeed, it would appear that this
expense may be related to subsequent filings that counsel improperly attached to her brief
that did involve the long-term care ombudsman.

Crist filed a notice of appeal on December 7, 2017. Crist's brief was filed July 17,
2018. Appellees' brief was filed in this matter on September 13, 2018. On September 19,
2018, counsel for Crist filed a request for additions to the record on appeal to include
information that was not part of the case at the time of the appeal, but involves disputes
that occurred in August 2018 concerning the involvement of the long-term ombudsman.
Counsel included these documents in her reply brief in a clear attempt to bolster her
position that the guardians and conservators should have been removed and substitutes
appointed. Moreover, although she filed a reply brief, counsel failed to state any authority
in her reply brief for her position that the court was required to consider replacement of
the guardians or conservators sua sponte. As a result, after a complete review of the
invoices provided to the court, we order that the estate be responsible for an additional.
$4,570. This excludes any fees generated for preparation of the reply brief and it also
excludes discussions with the long-term care ombudsman on July 5, 2018.

The decision of the district court denying Crist's petition for restoration of capacity
is affirmed and Crist's motion that attorney fees on appeal be paid by the estate is granted
in the sum of $4,570.