In Re Guardianship Of: William Charles Sutton

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Guardianship of

No. 73538-1-I
WILLIAM CHARLES SUTTON,

DIVISION ONE
An Alleged Incapacitated Person.

UNPUBLISHED OPINION

FILED: May 9, 2016

e268 HY 6- NWSE
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TRICKEY, A.C.J. — Two sisters appeal the superior court’s dismissal of their

petition to appoint a guardian for their brother. While this appeal was pending, the
brother passed away. Because we hold that the issues raised by this appeal are
moot, we dismiss the appeal.
FACTS
In May 2009, William Charles Sutton appointed his son, Benjamin Sutton,
as his attorney-in-fact through a durable power of attorney.’ At the same time,
Charlie executed a health care power of attorney, which designated Ben as his

agent for health care decisions in the event that Charlie became incapacitated.

Charlie lived alone in Sultan, Washington until 2010. With the help of his

sisters and son, Charlie sold his house in Sultan and bought a house in Ferndale,
closer to his son. Charlie was diagnosed with Alzheimer’s in June 2012.

In
February 2014, Ben convinced his father to move into Emeritus, an assisted living

' For the sake of clarity, we have adopted the parties’ convention of referring to the father
as Charlie and the son as Ben. We intend no disrespect.

No. 73538-1-1/2
facility in February 2014.
In March 2014, Ben moved Charlie to The Bellingham at Orchard, a facility
for patients with advanced dementia.
In October 2014, Charlie's sisters, Cynthia (Brown) Murders and Claudia
Harris, suggested to Ben that they move Charlie to a house next to Harris's in rural
Washington. 	Ben did not approve the move.
Harris 	and 	Murders 	contacted 	Adult 	Protective 	Services 	about 	Ben's
alleged financial and medical exploitation of Charlie in November 2014. 	The
investigation did not reveal any wrongdoing.
Harris 	and 	Murders filed a 	petition 	to 	have 	a 	guardian 	appointed for
Charlie's person and estate in December 2014. They alleged that Ben had placed
Charlie at The 	Bellingham against his will and was restraining 	him by use of
medication.
The sisters based most of their claims about the involuntary nature of
Charlie's treatment and living situation on Charlie's reluctance to use medication
earlier in life and Charlie's comments years earlier that he would prefer dying at
home to living in a nursing home. 	Murders' declaration alleged that Charlie had
"begged [her] to help him get out of the nursing home.2 She also alleged that Ben
had denied 	her access to Charlie as retaliation against her contacting Adult
Protective Services and as a way to prevent her from seeing "the damage being
done to Charlie by the administration of drugs."3
The court appointed a guardian ad litem (GAL) to assess Charlie. The GAL
2 Clerk's Papers (CP) at 29.
3 CP at 28.

No. 73538-1-1/3
met with Charlie and received oral or written reports from Charlie's doctors and
nurses, the executive director of the Bellingham, and the Adult Protective Services
investigator. 	The GAL recommended that the court not appoint a guardian for
Charlie at that time, because the power of attorney was functioning well and Ben
was meeting Charlie's needs.
After receiving the GAL report, 	Ben moved to dismiss the guardianship
petition. 	Before the court ruled on that motion, the sisters filed a second petition
for guardianship, pro se, in February 2015. 	They attached declarations from
Charlie's relatives and friends. They also attached Internet printouts from the Food
and 	Drug Administration and the Mayo Clinic about the dangers of using anti
psychotic medications to treat Alzheimer's.
At a 	hearing 	in February 2015, 	the 	court expressed 	its reluctance "to
interfere with a person's selection of someone to be their power of attorney" and
noted that "normally the Court would not intervene ... in the absence of some
pretty clear evidence that the person empowered under the power of attorney . . .
is abusing that power."4 	Itfound that there was not a "sufficient basis to establish
a guardianship" but deferred 	ruling on the motion to dismiss the guardianship
petition until Charlie underwent a neuropsychological examination.5 	The court
stated that, "assuming that the neuropsychological evaluation indicates that Mr.
Sutton's 	care 	is appropriate 	and 	his 	medical 	regimen 	is appropriate 	to 	his
condition," the court would dismiss the petition.6 The court also ordered that the
4 Report of Proceedings (RP) (Feb. 27, 2015) at 17-18.
5RP(Feb. 27, 2015) at 33-34.
6RP(Feb. 27, 2015) at 34-35.

No. 73538-1-1/4
sisters should be allowed to visit Charlie.
After 	reviewing 	the 	neuropsychological 	report, 	the 	GAL 	again
recommended that the court not appoint a guardian. After that evaluation, Murders
and Harris filed a motion for an order to show cause why the superior court should
not find Ben and the executive director of The Bellingham in contempt for perjury
and 	failing to 	comply with the 	court's 	order. 	They also filed a 	motion 	for
reconsideration, 	alleging 	that the 	neuropsychologist was 	neither 	neutral 	nor
independent. 	They sought discovery to investigate Ben's decisions regarding
Charlie's finances.
The superior court dismissed the guardianship petition after a hearing in
May 2015. The court ordered Murders and Harris to pay the attorney fees Charlie's
estate incurred responding to their motions for reconsideration and contempt. The
court reasoned that those two motions "were not well-founded," particularly in light
of its earlier rulings.7
Murders and Harris appeal. 	Charlie passed away while the appeal was
pending.
ANALYSIS
Mootness
"'A case is moot if a court can no longer provide effective relief.'" 	State v.
Ross, 152 Wn.2d 220, 228, 95 P.3d 1225 (2004) (quoting State v. Gentry, 125
Wn.3d 570, 616, 888 P.2d 1105 (1995)). 	We review de novo whether an appeal
is moot. 	Bavand v. OneWest Bank. FSB. 176 Wn. App. 475, 510, 309 P.3d 636
7 RP (May 8, 2015) at 11.

No. 73538-1-1/5
(2013).
The parties informed the court that Charlie has died. 	Nonetheless, Harris
and Murders urge this court to grant relief by ordering disclosure of medical and
financial records.8 	Ben agrees that the guardianship petition filed by Harris and
Murders 	is 	now 	moot 	but 	asserts the 	request for 	attorney fees 	remains 	in
controversy.
The relief sought in the superior court was a guardianship over Charlie.
Because Charlie is deceased, that relief is no longer available. 	Except for the
attorney fees, we dismiss the appeal as moot, because we can no longer provide
effective relief.9
Attorney Fees
Ben 	seeks 	an 	award 	of 	attorney 	fees 	under 	RCW 	11.96A.150. 	In
determining whether to award fees under this statute, "the court may consider any
and all factors that it deems to be relevant and appropriate." RCW 11.96A. 150(1).
Considering the resolution of this appeal, we exercise our discretion and do not
award attorney fees to Charlie's estate.
Harris and 	Murders 	also assign error to the superior court's award 	of
attorney fees against them. 	We do not reach their attorney fee challenge, in part
because they waived this assignment of error by failing to argue it in their brief on
appeal. 	Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d
549(1992).
8 Murders and Harris initially asked this court to stay cremation until an emergency
motion to compel an autopsy can be heard. They have since informed the court that
Charlie has been cremated.
9We reject Ben's request to reach the merits of the appeal.

No. 73538-1-I/6

We dismiss the appeal as moot.

TA AKey ; AcJ

WE CONCUR:

Becker | ( 7
TF