zinky v. pollard

Vernnoul Superior Court
Filed 04/08/21
Orleans Unit

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Orleans Unit Docket No. 287-10-19 Oscv

MARIE ZINKY
v.

GUARDIANSHIP OF IRENE POLLARD

DECISION
Motions to Modify Guardianship and Change Residential Placement

This case concerns the guardianship of Irene Pollard. She is presently under an
involuntary guardianship and her guardian is Becky Gale. Irene Pollard’s sisters Marie Zinky,
Louise Schillinger, and Rita Parzych filed motions to terminate Becky Gale as guardian and
replace her with one of the sisters and change her residential placement to Connecticut, where
they live. The motions were denied in the Probate Division (Docket 51-2-16 Ospr) and this
appeal ensued.

An evidentiary de novo hearing was held on March 18 and 30, 2021 by Webex. The three
sisters were present remotely and represented by Attorney Shane K. Clark. Becky Gale was
present by telephone and represented herself. Irene Pollard was unable to attend. She was
represented remotely by Attorney Sara Davies Coe. Bonnie Shattuck, who served as her guardian
ad litem, also participated remotely.

Based on the evidence, the court makes the following Findings of Fact and Conclusions
of Law.

Findings of Fact

Irene Pollard is an older retired woman with dementia who is under guardianship. Her
dementia became significant about 3 years ago, in 2018. She was one of five sisters who grew up
in Connecticut, but she has lived in Vermont for many years. Prior to 2015, she lived with her
husband in a mobile home in Brownington. Every year for many years she went to Connecticut
for a two-week visit with her sisters and she also visited cousins in Rhode Island. Her last such
visit was in July of 2015.

In November of 2015, her husband died. Her sister Marie offered to help her, but she
declined and said, ‘Becky would help.’ Two weeks after his death, she moved in with her friend
Becky Gale and Becky Gale’s husband who also lived in a mobile home in Brownington. Irene
has lived with them since. She has her own bedroom. The Gales have two dogs, a cat, and
outdoor livestock.

In 2016, Irene voluntarily made Becky Gale her guardian through the Probate Court. Her
ability to be independent was declining, and on March 23, 2017, following an involuntary
‘guardianship proceeding, Becky Gale became her guardian on an involuntary basis. There is no
evidence that Irene Pollard herself was dissatisfied with this. She had chosen to live with Becky
and seemed to be content with her. She attended an adult daycare program daily while Becky
worked. Irene had a computer and used Facebook to communicate with her sisters and played
games such as hearts and solitaire on her computer.

She and Becky enjoyed making trips to casinos to play slot machines. They took a bus,
stayed in a hotel, and Irene generally played 50 cent slot machines. This is something they had
done regularly since before Irene’s husband’s death. Irene did not risk very much money, and
rarely won, but seemed to enjoy sharing the gambling trips with Becky as recreational outings.
They shared travel and overnight expenses. Irene’s funds were often used to pay 1/3 of such
expenses. Becky testified that Irene spent approximately $100 per month on gambling. The bank
statements through January of 2018 suggest that there were travel expenses in addition to that
amount, but also that there was sufficient income for this cost.

Irene’s sisters criticize Becky for taking her to casinos and allowing her funds to be used
for gambling. They suspect that significant amounts of Irene’s funds were spent on gambling.
The evidence does not support that conclusion. The bank statements and testimony show that it
was a modest recreational expense that Irene enjoyed and was part of a pattern that had been
established some time prior to her husband’s death. There is no evidence that funds were
squandered on gambling. Rather, the amounts spent were comparable to costs for other forms of
recreation and were within Irene’s means. Irene’s expenses and needs were being met out of her
income.

Irene’s income consisted solely of a little over $1,000 per month in social security
through January of 2018. Becky filed annual accounts with the Probate Court in the spring of
2017 and again in the spring of 2018. She reported use of Irene’s income for gambling trips as
described above. Becky was paid $400 per month for room and board. Becky used Irene’s funds
to buy replacement computers when hers broke.

Becky understood that the mobile home in which Irene and her husband had lived
together was owned by a third party who also owned the underlying land. The third party who
owned the underlying land showed Becky documentation indicating that he was the owner and
she accepted it and did not see a basis to pursue legal action. She also testified that the ownership
of the mobile home was settled before she became Irene’s guardian. She did not question
whether these documents were false. Irene’s sisters believe that Irene was taken advantage of and
should have been the owner of the mobile home, and that Becky should have pursued legal
action to establish Irene as the owner. Although Exhibit 4 shows that the Town of Brownington
issues tax bills for the mobile home in the name of Irene and her husband Marvin, there was no
evidence of actual ownership. She forwards the tax bills to the third party, who pays the taxes.
There was no evidence introduced to show that the third party’s claim of ownership is invalid or
that Irene has a superior claim. Appellants/Plaintiffs have not produced sufficient evidence to
show that Becky had a duty to pursue ownership of the mobile home on behalf of Irene.

In 2018, two major developments occurred, both of which have continued to this day.
Irene’s dementia took a turn for the worse. Her short-term memory was not good, and she could
not remember the necessary sign-ons and passwords to use her computer. Becky had to help her
with those, and it affected her ability to communicate with her sisters by Facebook and
computer. Her dementia has progressed steadily since then.

In May of 2018, three of Irene’s four sisters filed the pro se Motion to Terminate or
Modify Adult Guardianship in which they challenged Becky’s fitness to serve as guardian and
sought to remove Irene to Connecticut. Since that time, they have pursued this legal challenge to
Becky as guardian, resulting in the hearing and need for decision now before the court.

Irene’s medical provider was the Veteran’s Administration facility in White River
Junction, and in July of 2018, Becky took Irene for a medical appointment. The medical record
documents that Irene’s problems with memory and decision making had recently become worse.
She had become unable to answer questions, and had reached a point such that Becky had to
make sure she was supervised while eating, taking showers, and taking her medication. She
could no longer do those things for herself. Becky provided such care and arranged for a home
caregiver from Aries to care for Irene when Becky was working. Becky was Irene’s social
security payee, and the social security worker suggested to Becky that the monthly room and
board payable to Becky should increase.

The sisters wished to have Irene move to Connecticut. An antagonistic relationship
developed between Becky and the sisters. Becky did not trust the sisters and believed they were
trying to influence Irene to go to Connecticut with them. The sisters did ask Irene if she wanted
to come to Connecticut with them. She said she would have to ask Becky but nothing happened.
The sisters believed that Becky was refusing to let them communicate with Irene. Irene’s ability
to use the computer and communicate by Facebook had deteriorated, and she often pushed
buttons meaninglessly. She broke one computer, and then another, and Becky did not replace the
second one. The result was an end to Facebook interaction between Irene and her sisters. They
still had telephone calls. The sisters believed Becky was monitoring the phone calls. Becky
testified that she did not listen to the calls once she had helped Irene get on the phone.

In the spring of 2019, the motion to terminate Becky as guardian was pending in Probate
Court. Becky did not file an annual account that year and has not done so since. She testified that
she did not realize she was supposed to as the Probate Court did not send her forms asking her to
do so, which it had previously done, and she assumed that the annual accounts she provided to
the social security office went to the Probate Court. By the second day of the hearing, she
testified that she understood that she had to file separate accounts with the Probate Court and had
obtained the forms and said she would do so. The court finds her failure to file accounts once the
case was pending and forms were not sent to her was based on a misunderstanding and not
neglect or mismanagement or intent to conceal.
In April of 2019, Attorney Clark, the sisters’ lawyer, filed a Supplemental Motion on
their behalf to remove Becky as guardian. They sought to have Irene’s sister Louise appointed as
guardian and in conjunction with that, also sought permission to change Irene’s residential
placement. The reasons advanced were that Becky allowed Irene to gamble, failed to pursue
ownership of the mobile home, and did not provide a sufficient level of personal care given
Irene’s dementia and need to be supervised.

A hearing on the sisters’ Motions was held in September of 2019, and the Probate Court
denied the motions in October. The sisters filed an appeal, seeking a new hearing in this court.

In December of 2019, the sisters came to Vermont for a visit with Irene. They wanted to
take her out to lunch on Saturday, and Becky agreed but required a chaperone to accompany
them. All five sisters apparently had a pleasant time together. During the visit, the sisters asked
Irene if she wanted to come to Connecticut to live with them. She was noncommittal. The plan
was for a second outing on Sunday. Becky arranged for a chaperone for Sunday as well, but the
sisters declined to have the visit if a chaperone was required and returned to Connecticut without
seeing Irene on Sunday. Shortly after the visit, one of the sisters suggested to Irene on the phone,
“maybe you'd like assisted living, like Mom.” It is clear that the sisters were offering Irene the
opportunity to express a desire to go to Connecticut with them and leave the care of Becky.

Both Marie and Louise acknowledge that they have asked Irene if she wanted to come to
live with them. They testified that Irene answers that she would have to ask Becky. They
interpret this as Becky’s attempt to control her. The court finds that Irene is stmply unable, due
to her dementia, to engage in responsible decision-making. She loves her sisters but is also
content to be dependent on Becky, and finds being put on the spot on that issue uncomfortable.

A status conference was held in January of 2020 in the Civil Division to plan for pretrial
procedures and an evidentiary hearing. Shortly thereafter, Becky blocked the sisters from calling
Irene at Becky’s home. Becky testified that Irene asked her to do so because when she talked
with her sisters on the phone, they upset her because they wanted to take her away. The sisters
believe she did it to prevent communication. Becky acknowledges that she blocked calls to the
home from them, but testified that thereafter she helped Irene make calls to the sisters when
Irene wanted to do so. Other evidence corroborates that she did so.

In early 2020, the COVID-19 pandemic started, and Irene’s activities outside the home
had to stop. She no longer went to the Meeting Place, the adult day care facility she had been
going to regularly. Becky’s work as a substitute teacher stopped, and Becky provided Irene with
care at home to keep her safe from the pandemic. The trips to casinos stopped, and none has
occurred since. At a medical consultation in June of 2020, Becky was advised by Irene’s doctor
at the VA to keep her isolated to protect her from COVID-19, which Becky has done. Prior to the
pandemic, Irene had attended church and church activities regularly with Becky and her
husband. During the pandemic, they still attend church by driving to the church and listening to
the service on the radio from the car.

In July of 2020, Gail Ruggles, an old friend of Irene’s, stopped to visit and bring gifts.
Although Becky was not keen on Ms. Ruggles entering Irene’s private room, she did so, and out

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of Becky’s hearing asked Irene if she missed her sisters, to which Irene answered, “Oh, yes,” and
said she loved them and missed them. Ms. Ruggles thought that Irene’s room was furnished so
simply and sparsely that it was not as pleasant as it should have been, and that there were
insufficient hygiene supplies.

The police have come to the home to check on Irene. According to Becky, they have
“seen it’s fine.” Marie acknowledged that both she and another sister have contacted police to
check on Irene. There is no evidence that as a result of those visits, any authorities have taken
any action.

In the fall of 2020, Becky began working full time as a store cashier. She arranged for an
in-home caregiver for Irene while she is at work. The expense is paid half by Becky and half
from Irene’s funds. Becky transferred $1,000 from Irene’s regular bank account to a special
savings account for burial expenses for Irene.

In January of 2021, Gail Ruggles arrived at the home to visit Irene while Becky was at
work, and was summarily turned away by Becky’s husband, who later took out a Notice Against
Trespass against her. Ms. Ruggles feels that Irene is being kept too isolated, but she did not know
that Irene’s doctor had recommended to Becky that she prevent contact with others because of
COVID-19. Becky arranged for Irene to be vaccinated against COVID-19, and Irene has recently
had the second of two shots.

Although the sisters are blocked from calling, Irene has made phone calls to her sisters
Louise and Rita in the last few months, with Becky’s help in making the calls. In addition, Irene
has had phone calls on her birthday and other holidays from cousins who are not blocked from
calling her.

At this point, Irene has a pleasant affect, but virtually no ability to communicate
meaningfully because of her dementia. She does not answer questions or participate in
conversations, except to say yes. Neither her attorney nor her guardian ad litem was able to
engage her in conversation. Becky says her communication has continued to decrease, and she
talks a little but not a lot, even with her. Recently, fecal incontinence has become an increasing
problem. She walks with a cane, and has had some falls. She needs someone with her at all
times. She has no upper teeth, and no dentures. Becky testified that the reason she has not
pursued dentures for Irene is that Irene hides things and throws them away, and she was
concerned that Irene would do that with dentures so the expense would be wasteful.

Becky acknowledged on the first day of hearing that on some days, caring for her can be
overwhelming, although not so on other days. On the second day of hearing, she acknowledged
that it has come to the point when Irene needs nursing home care. She has investigated
possibilities, and favors Maple Lane Nursing Home in Barton, because Irene is familiar with it,
having worked there herself for several years. Becky plans to pursue this for Irene. The sisters
are hoping to prevail in this case and would like to have Irene’s sister Marie appointed as
guardian. Marie testified that she would move Irene to Connecticut to stay with her sister Louise
temporarily until she could be placed in a nursing home.
Over the 4 years that Becky has been Irene’s guardian, she has provided safe in-home
care for her during a period when Irene’s mental condition has deteriorated seriously due to
dementia and her physical condition has declined as well. Not only did Becky provide her with a
home and progressively greater levels of personal care, but she also saw that Irene went to an
adult day care facility, so that she had activities and connections with others, until the pandemic
required that to stop. She also saw that Irene attended church and church suppers and took bus
trips with her to casinos for recreational outings. Becky had to, and did, assume more personal
care responsibility for Irene after her dementia worsened considerably beginning in 2018, and
Becky also arranged for the full-time in-home supervision and care from others and Aries when
she could not provide it herself.

Becky has maintained Irene’s medical care and prescriptions through the VA, worked
with Medicaid to obtain Medicaid services, and worked with the social security administration
concerning Irene’s income, which has now increased to $1,200 per month. She has managed
Irene’s funds and expenses and set aside burial expenses for her. Although no recent accounts
have been filed with the Probate Court, the ones that were, together with other evidence, show
that Becky has managed Irene’s money responsibly and that all Irene’s needs are being met out
of her modest income. The court finds no evidence that money was squandered on gambling to
Irene’s detriment.

Becky took full responsibility for protecting Irene from COVID-19 during the last year,
including keeping her safe in her home, even as Irene’s needs for personal care grew much more
demanding. COVID-19 hit nursing homes hard during the past year, so it is reasonable that
Becky did not take steps sooner to place Irene in a nursing home. Becky had Irene get vaccinated
against COVID-19 when that became available, and with Vermont’s older population now
having been largely vaccinated, and Irene having been recently vaccinated, placement in a
nursing home facility has become a safer option than it was before.

The evidence shows that there are a few things Becky needs to do on Irene’s behalf in the
coming months: pursue dentures; find a suitable nursing home placement; and file accounts with
the Probate Court for annual periods through the month of March in 2019, 2020, and 2021.
Becky acknowledges these needs, and has testified that she plans to follow up. If she were not to
do so, then there might be a basis for a finding that there was a change in the guardian’s ability to
serve in the role.

Becky also needs to improve lines of communication between Irene and her sisters and
others so that Irene can, despite her dementia, maintain a sense of connection with people who
have been important and close to her during her life. This might be hard for Becky, who has had
to defend the challenge to her role pursued by the sisters over the last few years. Nonetheless,
this court decision may help establish certainty about reality for everyone such that greater
communication can take place in a manner in Irene’s best interest. Hopefully, the outcome will
remove the anxiety and uncertainty for Irene caused by not knowing what will happen to her and
being in the middle between her sisters, whom she loves, and Becky, to whom she has been
attached and on whom she has relied as a primary caregiver for several years. In addition,
placement of Irene in a nursing home will provide the opportunity for the sisters and others,

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including old friends in the community such as Gail Ruggles, to have contact with Irene at or
through the home rather than at or through Becky’s house or phone.

As of now, the court does not find a change in Becky’s ability to serve as guardian. She
has done a responsible job of providing a wide range of services and support for Irene over 5
years, personally and financially, despite unusual challenges including Irene’s serious decline
due to dementia, criticism from Irene’s sisters and their pressure to remove her as guardian, and
the pandemic and its effects on circumstances of care for Irene. If Becky follows through with
the things that need to be done in the coming months, as she has said she will do and there is no
reason to doubt her word, the evidence shows that she will remain capable of continuing to serve
as Irene’s guardian.

It is completely understandable that the sisters would like to take Irene to Connecticut to
be near them and more family members. Irene is lucky that she has so many people who care for
her and want to look after her. If something were to make Becky no longer able to be guardian,
or if she were to decide to give up the role, the sisters have shown that they would be available
and willing to assume responsibility for Irene. However, the question is whether Becky has
become unsuitable, and the court finds that the evidence does not support the claim that Becky is
no longer capable of serving as guardian. She has been meeting Irene’s needs responsibly as
guardian under very difficult circumstances for five years in the community in Vermont where
Irene chose to stay after the death of her husband and is familiar to her.

Conclusions of Law

Motion for Modification of Guardianship (Motion #8 in Probate Division)

14 V.S.A. §3077 provides in part as follows:

(a) A person. . .interested in the welfare of the person under guardianship may file a motion
for termination or modification of the guardianship. Grounds for the termination or
modification of the guardianship shall include:

(2) the failure of the guardian to file an annual report, or the failure to file such
report in a timely manner;

(5) a change in the capacity or suitability of the guardian for carrying out his or
her powers and duties, including any current or past expressed preferences of the
person under guardianship to have an alternative person appointed as guardian.
These are the grounds on which the sisters seek removal of Becky Gale as guardian, and
appointment of Marie Zinky.!

The record shows that Becky Gale did file annual reports for the first two years. While
she did not do so after this litigation started, it is understandable for a few reasons: this litigation
was pending, and the Probate Court did not send her the forms as it had done in the past. Also,
she incorrectly believed that reports she filed with the social security administration went to the
Probate Court. She has ordered the forms and intends to file the accounts. This combination of
facts does not support removal, given that she filed timely accounts for the first two years before
the litigation began and was under a misunderstanding and intends to file the missing accounts
now. Moreover, there is ample evidence to support that her management of Irene’s funds during
the period of the missing accounts has been responsible. She will have the opportunity to file the
missing accounts now.

The chief basis of the Motion for Modification from the beginning has been a claim that
Becky is no longer suitable to serve as guardian because she took Irene gambling, failed to
pursue ownership of the mobile home, and failed to provide sufficient care. The court has found
above as a matter of fact that a change has not been proved and that Becky Gale has provided
responsible and suitable personal and financial management and care throughout her time as
guardian and continues to do so. The burden of proof has not been met. While there are
challenges ahead that Becky must meet, she has stated a commitment to doing so, and there is
nothing in the history of her service that suggests a reason for her not to have the opportunity to
do so.

There are two things about the statutory requirements to note. First, it is clearly based on
a policy of stability of the guardianship appointment. As long as the appointed guardian can
serve responsibly, proposed alternatives cannot be considered. A petitioner seeking modification
must meet a burden to show one of the specific changes identified in the statute, not simply offer
an available opportunity. As with any matter in civil court, the burden must be met by a
preponderance of the evidence. This structure assures the stability for the person under
guardianship of not having to deal with periodic disruptions and instability.

Second, the statute does not specify that guardianship will automatically change when the
person under guardianship expresses a preference for an alternative. If a person under
guardianship expresses a preference, it may be part of proof of a change in the suitability of the
guardian to continue, but a ward’s expressed preference is not controlling. The statute describing
the general rights of a person under guardianship, 14 V.S.A. §3068a, provides that the person has
a “right to participate in decisions made by the guardian and to have personal preferences
followed unless. . .the person under guardianship does not have a basic understanding of the
benefits and consequences of his or her chosen preferences.” 14 V.S.A. §3068a (1)(B). The
evidence is clear that because of Irene’s dementia, she cannot have sufficient understanding of

1 Failure to file annual accounts was first raised as grounds for modification in closing argument at the hearing. At
the time the original Motion was filed, all accounts due had been filed. Because the grounds did exist at the time of
the hearing in the Civil Division, and it is pertinent to the issue of whether at the current time there has been a
change in the suitability of the guardian, the court has considered it.

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the benefits and consequences of a choice sufficient for any expressed preference to be well-
considered and meaningful.

Moreover, the evidence does not show that Irene has ever expressed a preference for
anyone other than Becky, whom she chose as a voluntary guardian. Since the guardianship
became involuntary, the evidence does not show that she has expressed any preference and there
is no evidence that she is not content to continue to rely on Becky. She clearly loves her sisters
and misses them, but that does not rise to the level of expressing a preference for the role of
guardian.

In sum, Irene has not expressed a preference, and it could not be controlling if she had.
The sisters have not otherwise met the burden to prove by a preponderance of the evidence that
there has been a change such that Becky Gale is no longer suitable to serve as Irene’s guardian.
Without such proof, and given the policy of stability of guardianship appointments, the sisters’
Motion for Modification of guardianship must be denied.

Motion for Change of Residential Placement (Motion #14 in Probate Division)

14 V.S.A. §3073 provides that a guardian who wishes to change the residential placement
of a person under guardianship from a private home to a facility must file a motion for
permission to do so. This motion was filed in the Probate Division in April of 2019, and would
have been pertinent if the companion motion to remove Becky Gale and appoint Louise
Schillinger (modified at the hearing to Marie Zinky) had been granted. Since modification of the
guardianship appointment is not granted, this motion is moot. Becky Gale stated she was aware
that if and when she seeks to move Irene to a nursing home, it is her responsibility to file a
motion for permission to do so.
Order

For the foregoing reasons,

—_

The Motion for Modification of Guardianship by removing Becky Gale is denied;

2. The Motion for Change of Residential Placement is moot;

The deadline for Becky Gale to file accounts and reports through March of 2019, 2020,

and 2021 in the Probate Division is April 23, 2021;

4. The Clerk shall provide a copy of this Decision to the Probate Division to be included in
the case file for the Guardianship of Irene Pollard, Docket 51-2-16 Ospr; and

5. The case will be returned to the Probate Division for further administration of the

guardianship.

»

Electronically signed pur.

"Mary

suant to V.R.E.F. 9(d) on April 8, 2021 at 12:05 PM.

Mary ifes Teachout
‘Court Judge

Superi

Benjamin Batchelder
Assistant Judge, Orleans County

CANS
Curtis A. Hardy oS

Assistant Judge, Orleans County

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