HILL, Justice.
[¶ 1] In documents signed by Nina H. Parkhurst (Parkhurst) in September of 2001, she designated one of her sons, Appellee Randall K. Boykin (Randall), as her attorney in fact, for purposes of managing her estate and day-to-day business matters. At that same time she also executed an Advanced Health Care Directive designating Randall as the individual to make health care decisions for her if she became incapacitated. Appellant, Carl Douglas Boykin (Douglas), is Randall's brother and also a son of Parkhurst. Douglas petitioned the district court seeking the appointment of a guardian and conservator for Parkhurst's person and estate, alleging that she was not being properly cared for and that her estate was vulnerable because of the broad scope of the Durable Power of Attorney Randall held. On December 29, 2008, the district court appointed a Guardian ad Litem (GAL) for the limited purpose of making an inquiry into the allegation made by Douglas and to then file a report with the district court.
[¶ 2] In Case No. S-09-0251, Douglas contends that the summary judgment the district court ultimately granted in favor of Randall, on October 15, 2009, was erroneous because the district court's November 5, 2008 decision to appoint a GAL decided the issue of whether a GAL was a "necessity," and that decision was binding on the district court pursuant to the law of the case doctrine. Douglas also contends that there are genuine issues of material fact with respect to the "necessity" for a guardian/conservator and, therefore, the district court erred in awarding summary judgment in Randall's favor.
[¶ 3] In Case No. S-09-0252, the GAL, M. Gregory Weisz, who was appointed by the district court to investigate the necessity for a guardian/conservator, filed a separate appeal. In that appeal, he contended that the district court erred in finding no necessity requiring appointment of a guardian/conservator because his inquiry concluded that more accountability was necessary in order to monitor the well being of Parkhurst's person, as well as her estate. Randall, acting for Parkhurst, contends that the appeal must be dismissed because the GAL does not have standing to appeal the district court's summary judgment order.
[¶ 4] We will dismiss the appeal in Case No. S-09-0252 on the basis that the GAL lacks standing to appeal in these circumstances. However, we have considered his brief which was filed in support of Douglas Boykin in Case No. S-09-0251. We will affirm the district court's summary judgment order in Case No. S-09-0251.
[¶ 5] Douglas states his issues as follows:
Parkhurst, by and through her attorney in fact Randall, states the issues thus:
[¶ 6] On September 24, 2008, Douglas filed his Petition for Guardianship and Conservatorship for Nina H. Parkhurst. He asserted that neither Parkhurst herself, nor her estate, were being properly cared for or managed by Randall. Douglas proposed that he, or some other third party, be appointed as conservator and guardian. On October 15, 2008, Randall filed a motion to dismiss that petition under W.R.C.P. 12(b)(6). That motion was premised on the circumstance that Parkhurst had made complete arrangements for the management of her affairs, during her lifetime, by means of a durable general power of attorney in Randall's favor, as well as a durable power of attorney for health care which was to become effective upon her incapacity. Those documents named Randall as her attorney in fact, as well as her conservator. Parkhurst also named a substitute agent to act in the event of Randall's death or incapacity (and that was someone other than Douglas). Randall recorded the two powers of attorney with the Carbon County Clerk and Recorder on November 30, 2007.
[¶ 7] In a decision letter dated November 5, 2008, and filed of record on November 6, 2008, the district court indicated that it had held a hearing into this matter on October 15, 2008, although there is not a transcript of that hearing in the record. The district court noted that Douglas initiated this litigation because he was concerned that Parkhurst was unable to manage her affairs or take care of herself or her property because she suffers from Alzheimer's disease. The district court also noted that Parkhurst had executed the powers of attorney noted above in favor of Randall on September 10, 2001. Continuing, the district court summarized the allegations made by Douglas to the effect that Randall appeared to be trying to isolate Parkhurst from her friends and family, as well as from Douglas and his family in particular, by moving her to her ranch, the Huston ranch. Douglas also claimed that Parkhurst was not receiving the level of care she needed under Randall's supervision. He asserted that much of her care was entrusted to Randall's woman friend and her 16-year-old daughter.
[¶ 8] The district court then recited the standards that a court is required to apply to such a motion to dismiss. The district court perceived the question posed in these circumstances to be: Where a proposed ward had executed a durable power of attorney as provided for in Wyo. Stat. Ann. § 3-5-101 (LexisNexis 2009), and an advanced healthcare directive as provided for in Wyo. Stat. Ann. § 35-22-403 (LexisNexis 2009), is there any
[¶ 9] The report from the GAL was submitted to the district court, under seal, on April 7, 2009. The report recommended the appointment of a guardian/conservator and that that person be Randall. In response to that report, Douglas filed a motion for the
[¶ 10] With respect to standing, we have held:
In re Adoption of CF, 2005 WY 118, ¶ 39, 120 P.3d 992, 1004-5 (Wyo.2005).
[¶ 11] In this case, the GAL is not affiliated with any party to this appeal. He was appointed by the district court to produce a report designed to aid the district court in resolving the dispute between the Boykin brothers. The GAL functioned more as a witness than anything else. However, he has no interest in the outcome of this case and the mere fact that he prepared a report does not vest him with the status of a party. See e.g., Rowe v. Rowe, 2009 OK 66, ¶ 10, 218 P.3d 887, 891 (Okla.2009).
[¶ 12] For this reason, we dismiss the appeal in Case No. S-09-252. However, we will consider the brief filed by the GAL in support of the issues raised by Douglas in Case No. S-09-0251.
[¶ 13] We evaluate the propriety of a summary judgment by employing the same standards and using the same materials as the district court. Thus, our review is plenary. W.R.C.P. 56 governs summary judgments. A summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. When reviewing a summary judgment, we consider the record in the perspective most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may be fairly drawn from the record. We review questions of law de novo without giving any deference to the district court's determinations.
Throckmartin v. Century 21 Top Realty, 2010 WY 23, ¶ 12, 226 P.3d 793, 798 (Wyo. 2010) (citations omitted).
[¶ 15] Douglas contends that the district court's decision to appoint a GAL to look into Douglas's allegations became the "law of this case" and, thereafter, the district court could not return this litigation to a position where the "necessity" for a GAL was a matter subject to a motion for summary judgment. We apply this reasoning to our review of this issue:
Lieberman v. Mossbrook, 2009 WY 65, ¶¶ 28-29, 208 P.3d 1296, 1305-06 (Wyo.2009).
[¶ 16] Here, it is quite unmistakable that the district court did not decide the issue of whether or not a guardian/conservator was a "necessity," it only decided that in the interests of caution that further independent inquiry was warranted before a decision about "necessity" was finally made. The GAL's report exposed most of the content of Douglas's complaint to be incorrect and/or exaggerated. The district court had not decided the issue of "necessity," it only decided that inquiry into very serious allegations of personal abuse of Mrs. Parkhurst and waste of
[¶ 17] The meaning of "necessity" in the context of this case, and the law applicable to it, is at the heart of this appeal. Wyo. Stat. Ann. § 3-2-104 (LexisNexis 2009) provides:
[¶ 18] Wyo. Stat. Ann. § 3-3-104 (LexisNexis 2009) provides:
[¶ 19] The Wyoming statutes governing a durable power of attorney contemplate that a conservator may be appointed even if such an instrument is in existence. However, in the present circumstances that provision would only apply in the event of Parkhurst's death, or other substantive facts constituting a "necessity," as her durable power of attorney was not affected in any way by her disability or incapacity:
Wyo. Stat. Ann. § 3-5-101 (LexisNexis 2009).
[¶ 20] With respect to the Advanced Health Care Directive (power of attorney), a health care decision of an agent takes precedence over that of a guardian. Wyo. Stat. Ann. §§ 35-22-402(a)(i) and (ii) and 35-22-407(b) (LexisNexis 2009).
[¶ 21] To the extent this issue involves the construction of these statutes, we apply our well-known rules of statutory construction that:
Bloomer v. State, 2009 WY 77, ¶ 8, 209 P.3d 574, 578 (Wyo.2009).
[¶ 22] Webster's Third New International Dictionary 1510-11 (1986) provides us with these pertinent definitions:
[¶ 23] This recitation of the generally applicable law with respect to the "necessity" for the appointment of a guardian or conservator provides us with additional guidance:
39 Am.Jur.2d Guardian and Ward § 24 (2008).
[¶ 24] Wyoming is one of only a few states which has not adopted the Uniform Durable Power of Attorney Act, 8A Uniform Laws Annotated, 233 (2003 and Supp.2010). Of significance to this case, we take note that Section 3 of that Act provides:
Id., 252; also see Betsy Abramson, Guardianships and Advanced Planning Alternatives, 19-23 (Center for Public Representation 1992).
[¶ 25] The determination of "necessity" in this particular case must be analyzed in light of the decisions Parkhurst made while she was not incapacitated. It is not disputed that Parkhurst now lacks the capacity to manage her own personal and financial affairs. However, during a time when her capacity to make decisions about her post-incapacity affairs was not at all in question, she made arrangements to appoint an attorney in fact for just such a contingency as that which has now arisen. In September 2001, she executed a Durable Power of Attorney that, in the case of her estate, appointed Randall as her attorney in fact immediately, and in the case of her personal and health care decisions came into effect upon her incapacity to make such decisions herself.
[¶ 26] The GAL observed that Parkhurst was living quite comfortably at the Huston Ranch. Prior to moving to the ranch, Parkhurst had lived in Encampment closer to friends and family. The GAL's report found that Parkhurst was well cared for and that her estate was well managed. The issue of "necessity" found its genesis in Douglas's allegations that Randall was isolating Parkhurst from her friends and family, as well as pastoral attention, and that Parkhurst's care was largely entrusted to the 16-year-old daughter of Randall's woman friend. He claimed a guardian was needed to ensure that those matters were monitored by a guardian and/or conservator, and that if that guardian/conservator was not him, it should be some other qualified person. The GAL noted, as we do here, that there was considerable tension between Randall and Douglas, as well as between Douglas and Parkhurst, because of a lawsuit dating back to August of 2001, just one month before Parkhurst designated Randall as her attorney in fact. Parkhurst v. Boykin, 2004 WY 90, ¶ 5, 94 P.3d 450, 453-54 (Wyo.2004) (In that suit, Parkhurst sued Douglas in order to obtain possession of the Huston Ranch where she was living at the time of these proceedings.). Douglas also asserted that Randall was not managing Parkhurst's ranch in a manner that maximized income to Parkhurst. Furthermore, Douglas contended that the Durable Power of Attorney permitted Randall to make gifts of Parkhurst's estate, including to himself. Douglas suggested that such a power was subject to abuse, and a conservator was needed to monitor that power, as well as that Randall was depleting Parkhurst's resources for his own personal benefit and enrichment. In the process of inquiring into the allegations made by Douglas, the GAL spoke to Randall, to Randall's woman friend and her daughter, to Parkhurst, the hired man at the ranch where Parkhurst resided (Douglas averred in his pleadings that Randall was trying to manage both his own ranch and Parkhurst's ranch, without the aid of a hired hand). He also talked with Douglas and his wife, as well as a number of other family members and friends of Parkhurst.
[¶ 27] Despite not uncovering any facts and circumstances that demonstrated that Randall was not performing his responsibilities as Parkhurst's attorney in fact, the GAL determined that a guardian/conservator was necessary so as to hold the attorney in fact accountable. The applicable Wyoming statutes impose no such requirement. The GAL also recommended that Randall be appointed the guardian/conservator. This mechanism would require Randall to report Parkhurst's condition and the condition of her estate, at such intervals as the district court might require. The GAL also recommended that a healthcare professional review and evaluate Parkhurst's current living arrangements at the Huston Ranch, and that a comprehensive visitation program be put in place so that Parkhurst could see a broad array of family and friends. Finally, he recommended that visitors be educated and informed about interacting with a person suffering from dementia and that the visitation program be regulated in a manner that worked toward Parkhurst's best interests. The GAL suggested this visitation program should include Douglas and his immediate family.
[¶ 29] In sum, Parkhurst has around-the-clock companionship, which the GAL considered vital. If someone is needed to stay with Parkhurst, Randall makes appropriate arrangements. The GAL assessed Parkhurst's living arrangements as satisfactory, but that that may change as Parkhurst's condition progresses. The GAL noted Randall was well aware of this possibility. The GAL recommended that a healthcare professional be brought in to further assess Parkhurst's living circumstances.
[¶ 30] With respect to Parkhurst's finances, the GAL noted that Randall was well-informed about her financial picture and that he was managing that aspect of Parkhurst's affairs well. The GAL's only concern was that the Durable Power of Attorney permitted Randall to make gifts to himself and, while Randall had not done so, he could in the future.
[¶ 31] In a decision letter filed of record on September 11, 2009, the district court credited the factual material contained in the GAL's report, but did not credit the GAL's conclusions and recommendations. The district court noted that the issue was the "necessity" of a guardian/conservator, as that term is used in the governing statutes. The district court found that there were no genuine issues of material fact as to the question of "necessity." The district court concluded that Parkhurst had made arrangements for who should care for her in the event she was unable to do so. The district court then concluded that it was "not at liberty to add an accountability element to Wyoming's durable power of attorney statutes. And, absent some showing of present necessity, the Court will respect Parkhurst's wishes."
[¶ 32] The district court's conclusions are consistent with what we view as the pertinent authorities, including the citation to Am. Jur.2d, set out above. In their treatise, Joan M. Krauskopf, Robert N. Brown, Karen L. Tokarz, and Allan D. Bogutz, Elderlaw: Advocacy for the Aging §§ 9.1 and 9.2 (West 1993), the authors discuss the subject at hand. They note the need for court intervention in those circumstances where an individual has not made plans for the occurrence of lack of competence, and they also note that there can be advantages to court intervention. Id., § 9.3. They go on to point out that in most cases advance planning is preferable to court action, because court action is costly, does not ensure that the authority is vested in a person of the individual's choice, does not delineate limits on that person's powers, and does not provide specific direction to the agent. One of the advance planning options is the durable power of attorney (for both estate and health care). The authors point out that there still may be a need for court intervention even with durable powers of attorney in place, but only in very limited circumstances. Powers of attorney are discussed in detail at §§ 8:11—8:22. In § 8:11 the authors state, "[t]he existence of a durable power [of attorney] ordinarily will obviate the need to seek appointment of a guardian or conservator." Id., § 8:11 (Supp.2008-2009); also see § 8:14 (Supp. 2008-2009).
[¶ 33] The position taken by Douglas and the GAL relies in significant part on cases from jurisdictions that have adopted some form of the Uniform Act cited more fully above. In the case, Estate of Ellis, 23 So.3d 589,
[¶ 34] In the case Russell v. Chase Inv. Servs. Corp., 2009 OK 22, 212 P.3d 1178, the Supreme Court of Oklahoma answered a question certified to it by the United States District Court for the Northern District of Oklahoma. Once again the facts are considerably different, as is the applicable law. Id., ¶¶ 1-8, 212 P.3d at 1180-82. After thoroughly discussing the applicable law, in light of the facts, the appellate court answered the question submitted like this:
Id., ¶ 25, 212 P.3d at 1186.
[¶ 35] In the case, In re Guardianship of Sim, 225 Neb. 181, 403 N.W.2d 721 (1987), the proposition that the appointment of a guardian/conservator may be a "necessity" even where there is present an attorney in fact and a trustee is discussed. The facts of that case are far different than those at hand. In Sim, the elder person at issue was severely incapacitated by organic brain syndrome and/or Alzheimer's disease at the time when relatives caring for her obtained authority to mange her affairs. Id., 403 N.W.2d at 725-32.
[¶ 36] In a case where husband held a durable power of attorney and a step-daughter had been appointed as guardian, the appellate court held that husband had not carried his burden of proof that the probate court exceeded its authority in appointing step-daughter as guardian. Estate of Murray, 14 Misc.3d 591, 824 N.Y.S.2d 864 (N.Y. 2006). The appellate court reached an almost identical decision in Yates v. Rathbun, 984 So.2d 1189, 1196 (Ala.Civ.App.2007).
[¶ 37] The persuasive authorities convince us that, absent some clear reason for this Court to interfere, the district court's decision should be affirmed. Douglas has failed to come forward with anything more than speculation, conjecture, suggestions of possibilities, guesses, and perhaps even some probabilities. However, there is no evidence in this record which convinces us that the district court's order should be reversed. There are no genuine issues of material fact that need to be tested in the rigors of a trial. The order of the district court is affirmed.
