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In re Conservatorship of Didier

June 30, 2010

CONSERVATORSHIP OF EVELYN E. DIDIER, A PERSON ALLEGED TO NEED PROTECTION.


APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE JANINE KERN Judge.

The opinion of the court was delivered by: Zinter, Justice.

CONSIDERED ON BRIEFS ON MAY 24, 2010

[¶1.] Great Western Bank (Conservator) moved to declare itself the sole trustee of the Evelyn E. Didier Living Trust (Evelyn Trust) and the successor co-trustee of the Nicholas L. Didier Living Trust (Nicholas Trust) in place of Evelyn E. Didier, a protected person. Barbara Didier-Stager (Barbara), Evelyn's daughter and a beneficiary of the trusts, objected. Barbara argued that the Guardianship and Conservatorship Act (SDCL ch 29A-5) does not authorize a conservator to replace a protected person as trustee when the successor-trustee clause of the trust provides for a different successor trustee upon the protected person's inability to act. The circuit court disagreed, authorizing the Conservator to exercise the power of the trustee "in the place and stead of Evelyn" in both trusts. Barbara appeals. We affirm in part, reverse in part, and remand.

[¶2.] Before this trustee dispute, James Didier petitioned for the appointment of a conservator for Evelyn E. Didier's estate and financial affairs. Evelyn was eighty-three years old at the time. There is no dispute that she suffered from memory deficiencies, intermittent confusion, and impaired judgment. The circuit court noted that all parties, including Evelyn, consented or otherwise agreed that she was impaired and lacked the capacity to properly manage her property and financial affairs without assistance or protection of a conservator. Further, financial disputes affecting the trusts had developed between her beneficiary children James and Barbara. The court found that the appointment of a conservator was also necessary to protect Evelyn from neglect, exploitation, and abuse. The court appointed Great Western Bank as Conservator. This trustee dispute developed when the Conservator subsequently moved to act in the place of Evelyn in the trusts.

[¶3.] The Evelyn Trust is a revocable living trust that was last restated in 2008. Evelyn is the trustor, and before this action, she was the sole trustee. The trust has a successor-trustee clause, which provides:

During the Grantor's life, if EVELYN E. DIDIER, is unwilling or unable to serve as Trustee, then [BARBARA] and [JAMES DIDIER] shall act as successor Co-Trustees. If either [BARBARA] or [JAMES DIDIER] is unwilling or unable to serve as Co-Trustees, then the other may serve alone.

Another clause in the trust authorizes Evelyn to change the trustee at any time.*fn1

The beneficiaries of the trust are Evelyn, Barbara, and James.

[¶4.] The Nicholas Trust was created in 1993. Nicholas, who is now deceased, was Evelyn's husband, and Barbara and James's father. Nicholas was the trustor, and before this action, Barbara and Evelyn were co-trustees. The Nicholas Trust has a successor-trustee clause, which provides:

Nicholas [ ] is appointed to serve as Trustee. If the Trustee ceases or is unable to act, [Evelyn] and daughter [Barbara] shall be successor Co-Trustees. In the event of the death or other inability to act as Co-Trustee of either [Evelyn] or [Barbara], then my daughter-in-law, Kathy M. Didier, shall act with the remaining Co-Trustee. In the event of the death or other inability to act as Co-Trustee of both [Evelyn] and [Barbara], then Norwest Bank... shall act as sole Trustee.

The beneficiaries of the trust are Evelyn, James, and Barbara.

[¶5.] There is no dispute that Evelyn is incompetent and the successor-trustee clauses make specific provision for successor trustees other than Evelyn's Conservator upon her inability to act. Nevertheless, the circuit court concluded that SDCL 29A-5-420(3) authorized Evelyn's Conservator to act as the sole trustee of the Evelyn Trust and co-trustee of the Nicholas Trust in the place and stead of Evelyn.*fn2 Barbara argues that the circuit court erred because SDCL 29A-5-420(3) does not authorize conservators to replace trustees in trusts containing successor-trustee clauses that provide for different successor trustees upon the existing trustee's inability to act.

[¶6.] This issue involves statutory construction. Our standard of review and rules of statutory construction are settled:

Questions of law such as statutory interpretation are reviewed by the Court de novo.... The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the [C]ourt must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and ...


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