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In re Hodges

July 13, 2000


Before Terry, Ruiz and Washington, Associate Judges.

The opinion of the court was delivered by: Per Curiam

Appeal from the Superior Court of the District of Columbia (Hon. Cheryl M. Long, Trial Judge)

Argued June 1, 2000

This case concerns the attempt of a daughter to have a conservator and guardian appointed for her elderly father. Appellant, Alexis Hodges Brown, appeals from an adverse grant of summary judgment in a proceeding arising under the District of Columbia Guardianship, Protective Proceedings, and Durable Power of Attorney Act of 1986. See D.C. Code §§ 21-2001 to -2098 (1997 Repl.). Ms. Brown, who had had no contact with her father in over three years, initiated the proceeding to have a guardian and conservator appointed for her father, appellee, John T. Hodges, whom she believes to be suffering from mental illness or other mental conditions that may have affected Mr. Hodges' ability to manage his affairs. Mr. Hodges filed a motion for summary judgment with accompanying affidavits, which Ms. Hodges opposed with other affidavits. Ms. Hodges subsequently filed the affidavit of Nathan A. Billig, M.D., requesting that he be recognized as an expert witness, and a request for further limited discovery. The trial court granted Mr. Hodges' motion for summary judgment, dismissed the discovery requests, and denied the request to recognize the additional affidavit of the expert witness. Ms. Hodges timely appealed these determinations.

Summary judgment is proper where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Super. Ct. Civ. R. 56 (c) (2000); Big Builders, Inc. v. Israel, 709 A.2d 74, 76 n.1 (D.C. 1998). D.C. Code § 21-2022 provides that "[u]nless specifically provided to the contrary in this chapter or inconsistent with its provisions, the rules of the court . . . govern proceedings [for appointment of guardians and conservators] under this chapter." See In re Langon, 663 A.2d 1248, 1250 (D.C. 1995) (holding that existing rules of trial and appellate practice apply to intervention proceedings). This is an appropriate case for summary judgment because Ms. Brown has failed to raise a material issue of fact as to Mr. Hodges' ability to provide for his financial and personal needs, as evidenced by his income level and present living arrangement. Moreover, Mr. Hodges has already made further provision for the event of his incapacity by investing his son, Stephen Hodges, with his power of attorney, thus obviating the need for court intervention. Ms. Brown has made no allegation that this appointment was improper, that her brother is incapable of adequately performing his duties in the event of Mr. Hodges' incapacity, or that the power of attorney is insufficient.

We adopt the well-reasoned opinion of the trial court set forth below, with certain factual clarifications, as our own. *fn1 The judgment of the trial court is



This case is before the Court for adjudication of the Motion for Summary Judgment filed on behalf of the Subject, as well as the subsequent Motion for Leave to Have Nathan Billig Recognized as Expert Witness. This latter pleading was filed on March 5, 1999, while the Motion for Summary Judgment has been under advisement. *fn2 Both requests for relief are opposed. This petition is opposed by the Subject's son, Stephen Hodges.

The Court will address both matters herein as follows.


The Subject herein has retained his own lawyer and has filed a Motion for Summary Judgment and to Dismiss Hearing. Essentially, he argues that there is no basis for this Court to proceed on the Petition for Appointment of Guardian and Conservator.

Mindful of the fundamental case law governing the dispositions of summary judgment motions, this Court also endeavors to apply the relevant legal principles that control intervention proceedings in particular.

The facts that are necessary to adjudicate this matter are sufficiently set forth in the record already. In this Court's view, no discovery is appropriate and the Petition should be denied. A variety of factors compel this conclusion, and the Court will set forth its reasoning as follows.

A. Pertinent Facts of record.

The Petition for General Proceedings was filed by the Subject's daughter (Alexis Brown) on June 30, 1998. At that time, the Subject was 85 years of age and was residing (as he does now) at the United States Soldiers' & Airmen's Home (hereinafter "the Home") in the District of Columbia.

The Subject has very substantial assets. According to Robert Rabinowitz, Ph.D., who examined the Subject at the Home, the [Subject's] assets consist of approximately $1,400,000 in certificates of deposit and securities. In addition, the Subject receives retirement income from numerous sources: the military ($2538 per month), Civil Service ($367.00 per month); an annuity ($301.00 per month), and Social Security ($466.00 per month). *fn3

Where conservatorship issues are concerned, there are no reports that the Subject is currently unable to pay any bills, such as his fee for residing in the Home, or that he cannot oversee his investments and otherwise protect his interests.

Where guardianship interests are concerned, there are no reports that the Subject cannot make health care decisions for himself or that he [lacks a] back-up plan for such an eventuality.

B. Issues Presented by the Parties.

The Motion for Summary Judgment and to Dismiss Hearing is predicated on the assertion that the Subject is not in fact incapacitated within the meaning of the Code. Essentially, counsel for the Subject contends on the basis of various affidavits that the Subject simply is not suffering any harm, that he is protected, and has his own plan in place for the contingency of becoming incapacitated.

The gist of the Opposition appears to be a contention that the Subject was exhibiting certain signs of mental illness while he was living in Colorado, prior to his departure to the District of Columbia in 1997. *fn4 There are no allegations about disturbed or dangerous behavior during the intervening time period.

The Petitioner contends that there are material issues of fact existing as to whether the Subject is suffering from a mental illness that affects "other qualities and abilities" aside from property management. In other words, the Subject's daughter contends that even if the Subject is able to manage his finances, hire a lawyer, and otherwise provide for himself, that the Court should still impose a fiduciary upon him if he is found to have ...

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