COA upholds denial of conservatorship of 95-year-old veteran but reverses award of attorney’s fees

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The Indiana Court of Appeals upheld the denial of a petition for guardianship for an elderly Vincennes man who revoked a former friend’s position as his power of attorney. However, the appeals court overturned an award of more than $70,000 in attorney’s fees he had sought.

John J. Yocum Jr., who at age 95 lived alone in the same Vincennes home where he grew up, was able to support himself on a daily basis and kept the residence well maintained.

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

Duncan was eventually named POA and Yocum’s healthcare representative, with Yocum’s friend Donald Fredrick serving as his successor in both roles. They also served as trustees of Yocum’s charitable trust, which held most of his estate.

In her role as a de facto lawyer, Duncan deposited $100,000 from the liquidation of Yocum’s certificates of deposit into a new checking account and registered herself as a co-owner of the account. Yocum also created a $50,000 educational trust for Duncan’s daughter.

In December 2019, Duncan and Yocum argued over who canceled his eye doctor appointment. Duncan, who called Yocum a liar, then alleged he beat her by pushing and kicking her after she refused to stop looking through her papers. However, the Gibson Circuit Court found that Duncan “set up” Yocum by recording the argument and falling.

Duncan, who admitted to repeatedly recording Yocum without his knowledge, was soon after removed from his power of attorney. In September 2020, Yocum appointed David Lancaster as its attorney and health care representative, specifically removing Duncan.

Additionally, Yocum, who had testified that he trusted neither Duncan nor Fredrick, executed a new will leaving his estate to his church rather than Duncan. It also canceled funding for the educational trust.

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

But the trial court found that their request for guardianship was ‘frivolous, unreasonable, without merit’ and that neither Duncan nor Fredrick were qualified persons suitable to serve as Yocum’s guardians due to evidence of their conflicting backgrounds. and Duncan’s past breach of his fiduciary relationship with him. . He also found that Yocum was not an incompetent person under Indiana Code § 29-3-1-7.5 and that a guardianship was not required. Finally, he ordered Duncan and Fredrick to pay $71,689.40 in attorneys’ fees.

The Indiana Court of Appeals upheld the dismissal of the petition for guardianship, finding that the appellants had failed to establish that Yocum was incapable of caring for himself or his property. As such, the appointment of a guardian was not necessary, he concluded.

As to his contractual capacity, the COA concluded that 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 had only a limited understanding of his attorney’s authority to act on his behalf,” Judge Paul Mathias wrote. “And John didn’t specifically remember the execution of 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. The fact that John did not have a full understanding of the power of attorney’s ability to make decisions on his behalf does not mean that he lacked contractual capacity.

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

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

But Judge Elizabeth Tavitas dissented, arguing that the trial court had made additional findings that supported the listing of an award for attorneys’ fees.

“The record clearly reveals that the appellants undermined and took advantage of John and initiated the guardianship for pecuniary gain,” Tavitas said in dissent. “…The trial court did not err in awarding attorneys’ fees with respect to the appellants’ frivolous claim, which they pleaded in bad faith. … Accordingly, I partly agree and partly disagree.

The affair of Lydia A. Duncan and Donald E. Frederick vs. John J. Yocum, Jr., 20A-GU-2299, was dismissed for a procedure in accordance with the opinion.

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