New Indiana Guardianship Case Evokes Memories of Kowalski Battle

In a case that evoked memories of the epic battle by Karen Thompson back in the 1980s to be reunited with her partner, Sharon Kowalski, after Kowalski was rendered severely disabled in an auto accident, an Indiana Court of Appeals panel ruled unanimously on June 27 in In re the Guardianship of Patrick Atkins, 868 N.E.2d 878, that the trial court did not abuse its discretion by appointing Patrick Atkins' homophobic parents to be his legal guardian rather than his 25-year same-sex partner, Brett Conrad, because under Indiana law same-sex couples are not related AND the two men had never done the paperwork necessary to designate Conrad as a standby guardian or medical proxy for Atkins.  However, by a 2-1 vote, the panel reversed the trial court's decision to deny any right of visitation or contact to Conrad.

The two men met as undergraduates at Wabash College in 1978, became life partners, lived together in various apartments for twelve years before purchasing a house together in small-town Indiana.  Atkins rose to become president of the family's business, earning an annual salary in the $130,000 range.   Conrad, a waiter at a local restaurant, pulls down about a quarter of that.  The checking and brokerage accounts were in Patrick's name; both men put their earnings in the checking account, and money net of expenses went from there into the brokerage account.  While on a business trip in Atlanta in 2005, Patrick collapsed and was hospitalized, having suffered a ruptured aneurysm and acute subarachnoid hemorrhage, later complicated by a stroke.  He was in intensive care and basically incapacitated.  Both Conrad and Atkins' parents rushed down to Atlanta.  The parents, so-called Christians who never accepted their son's relationship with Conrad, quickly moved to exclude him, and only because of the gay-friendly Atlanta hospital staff was Conrad able to sneak in after regular visiting hours to see his partner. 

Atkins was released to rehabilitation care; again, the Atkins family excluded Conrad during normal visiting hours, so he came off-hours to visit.  Once Atkins had progressed to home care, however, Conrad was cut off entirely, as the Atkins parents took Patrick into their home and excluded Conrad.  They would not even allow Conrad to speak to his partner on the phone.  So Conrad sued to be appointed guardian.

Indiana's guardianship statute is specific as to who can be appointed a guardian for an incompetent adult, and same-sex partners are not on the list.  (Indiana bars marriage for same-sex partners, and there is no legal recognition of a same-sex relationship under state law.)  Under the state's guardianship law, first priority for appointment would be a person designated in a durable power of attorney.  In other words, a little "gay family planning" on the part of Atkins and Conrad would have put Conrad first in line here.  In the absence of that, the order of priority is legal spouse, adult child, parent, or other legally-related person with whom the incapacitated adult was living more than six months prior to the filing of the petition, or a person "nominated" by the incapacitated person who is caring for or paying for the care of the incapacitated person.   (Once again, some "gay family planning" could have put Conrad in this category.  At this point, due to his mental incapacitation, Patrick would not be competent to "nominate" somebody to be his guardian.  The court makes the point in the opinion that it was wrong for the trial court to exclude Patrick from the hearing on the guardianship position, but that Patrick was not competent to testify in any event, and the exclusion was not a basis to overturn the guardianship decision.)

In other words, Conrad did not fit anywhere under the guardianship statute.  So the trial judge, Steven R. Nation of Hamilton Superior Court, awarded the guardianship to Atkins' parents.  Normally, guardianship carries with it pretty total control, including control over who has access.  Despite significant expert medical testimony that it would be in the best interest of Atkins and his recovery to allow contact with Conrad, Judge Nation was unwilling to order visitation or contact.  It's possible that he concluded that there was antagonism between the Atkins family and Conrad and concluded that it would not be helpful to force contact with Conrad on the Atkins parents, which would be necessary so long as Patrick was living in their home.  On the level of law, it would be unusual to appoint a guardian and then limit the guardian's discretion on a matter such as contact or visitation by third parties.

Judge Nation also ruled on financial issues, awarding Conrad 1/3 of the balance in the checking account but nothing from the brokerage account, which was assigned to the Atkins family to administer for Patrick.  The house, being jointly owned and titled, will be subject to partition, with Conrad entitled to half its value, so he stands to lose his home over this as well as his share of their joint savings from the brokerage account.  Nation also denied Conrad's motion to have his attorneys fees and costs covered from those assets.

The standard for overturning a guardianship ruling is abuse of discretion.  In light of the clear statutory language, the appeals court found no abuse of discretion as to the guardianship or the financial arrangements, but ruled that medical testimony showed it was in Patrick's best interest for contact with Conrad to be restored, so it ordered Judge Nation to consider a visitation award and, since contact with Conrad would be in Patrick's interest, authorized Nation to award some of Conrads litigation expenses as well.  On the issue of the money, the appeals court pointed out the 4-1 ratio of their income, noted that Nation had awarded Conrad 1/3 of the checking account and that he was getting half the equity in the house even though his financial contribution to purchasing it was clearly much less than half, and thus found no abuse of discretion in assigning the entire brokerage account to the incapacitated person's estate.

The family reportedly will appeal the visitation decision.  Judge Darden dissented on the visitation point, saying that the abuse of discretion standard applied to that decision as well, and since one psychologist testified on the record that contact with Conrad might be harmful, there was no abuse of discretion in denying visitation.  The majority opinion by Chief Judge Baker devoted considerable attention to refuting this point, observing that the psychiatrist had changed his testimony from his deposition to his testimony at trial, had never interviewed Conrad, and (implicitly) seemed to have been influenced by the family to change his mind.  On the other hand, Conrad's medical experts who had examined both men and observed them together had more credibly testified that Atkins' recovery would be enhanced by contact.  A particular point of contention is Conrad's claim that in the hospital down in Atlanta, Atkins' mother had said it was better that Patrick not recover than that he go back to living with Conrad....  A report in the Indianapolis newspaper indicates that the Atkins family contests Conrad's testimony about this statement.

Comments

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I am surprised that the media never got hold of it.

[diana lawless]

just an update..mrs atkins appealed the decision - the supreme court denied her review and appeal - as of thurs mr diable has contacted mr conrad and the original request for visitation has been granted - this is big news..want more mail above..or go to www.justiceforpat.com should be updates soon..i think this is going to be very newsworthy wants the media finds out.