Friend of NASGA Member

“COA AFFIRMS DENIAL OF GUARDIANSHIP FOR 95-YEAR-OLD VETERAN BUT REVERSES ATTORNEY FEES AWARD”
by Katie Stancombe

The Indiana Court of Appeals has affirmed the denial of a guardianship petition for an elderly Vincennes man who revoked a former friend’s position as his power of attorney. However, the appellate court reversed an award of more than $70,000 in attorney fees he requested.

John J. Yocum Jr., who at 95 lived alone in the same Vincennes house where he grew up, was able to take care of his own daily needs and kept the residence well maintained.

Prior to his death in August 2021, Yocum was injured when he fell at home in August 2018 and was subsequently hospitalized after being found on the ground roughly three days later. Lydia Duncan, whom Yocum had met at church, agreed to live with and care for the elderly man on the condition that he make her his power of attorney.

Duncan was ultimately made Yocum’s POA and health care representative, with Yocum’s friend Donald Fredrick serving as successor in both roles. They also served as trustees of Yocum’s charitable trust, which held the bulk of his estate.

In her role as attorney-in-fact, Duncan deposited $100,000 from the liquidation of Yocum’s certificates of deposition into a new checking account and listed herself as a co-owner of the account. Yocum also set up a $50,000 educational trust for Duncan’s daughter.

In December 2019, Duncan and Yocum got into an argument over who canceled his eye doctor appointment. Duncan, who called Yocum a liar, then alleged he battered her by pushing her down and kicking her after she refused to stop looking through his paperwork. However, the Gibson Circuit Court concluded Duncan “set up” Yocum by recording the argument and falling down.

Duncan, who confessed to recording Yocum on several occasions without his knowledge, was soon thereafter removed as his POA. In September 2020, Yocum named David Lancaster as his attorney-in-fact and health care representative, specifically revoking Duncan.

Additionally, Yocum, who had testified that he didn’t trust either Duncan or Fredrick, executed a new will leaving his estate to his church rather than to Duncan. He also defunded the educational trust.

Duncan and Fredrick petitioned for appointment of guardianship over Yocum, alleging that he required 24-hour care, that he lacked the requisite capacity to execute the power of attorney change and that the new will was invalid due to fraud, duress or undue influence. They also sought to have him examined.

But the trial court concluded their guardianship petition was “frivolous, unreasonable, groundless” and that neither Duncan nor Fredrick were qualified persons suitable to serve as Yocum’s guardians due to the evidence of their adversarial histories and of Duncan’s past breach of her fiduciary relationship with him. It also concluded Yocum was not an incapacitated person under Indiana Code § 29-3-1-7.5 and that a guardianship wasn’t necessary. Finally, it ordered Duncan and Fredrick to pay $71,689.40 in attorney fees.

The Court of Appeals of Indiana affirmed the denial of the guardianship petition, finding the appellants failed to establish that Yocum was unable to care for himself or his property. As such, an appointment of a guardian was not necessary, it concluded.

As to his contractual capacity, the COA concluded Yocum understood the purpose and necessity of appointing a power of attorney and that he could revoke it at any time.

“We agree that John only had a limited understanding of his attorney-in-fact’s power to act on his behalf,” Judge Paul Mathias wrote. “And John could not specifically remember executing the documents granting David Lancaster his power of attorney, but he was able to identify the document, he understood what the document was, and that he signed it. That John did not have a complete understanding of the power of attorney’s ability to make decisions on his behalf, does not mean that he lacked contractual capacity.

“… Moreover, the fact that John was diagnosed with dementia does not mean that John lacked contractual capacity,” Mathias continued. “Although John could not recall executing the documents at issue, he understood the documents and their purpose, recognized his signature, and wanted David to act as his power of attorney.”

But the COA reversed and split on the issue of attorney fees, with the majority concluding the appellants’ arguments were not devoid of all plausibility. The appellate court also denied Yocum’s request for appellate attorney fees.

But Judge Elizabeth Tavitas dissented, arguing the trial court made additional findings that supported the entry of an attorney fees award.

“The record clearly reveals that the Appellants undermined and took advantage of John and initiated the guardianship for pecuniary gain,” Tavitas opined in dissent. “… The trial court did not err in awarding attorney fees regarding the Appellants’ frivolous claim, which they litigated in bad faith. … Accordingly, I concur in part and dissent in part.”

The case of Lydia A. Duncan and Donald E. Frederick v. John J. Yocum, Jr., 20A-GU-2299, was remanded for proceedings consistent with the opinion.