{
  "id": 1888365,
  "name": "IN THE MATTER OF L.C. BAILEY, An Incompetent",
  "name_abbreviation": "In re Bailey",
  "decision_date": "1989-07-03",
  "docket_number": "89-129",
  "first_page": "352",
  "last_page": "356",
  "citations": [
    {
      "type": "official",
      "cite": "299 Ark. 352"
    },
    {
      "type": "parallel",
      "cite": "771 S.W.2d 779"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "288 Ark. 474",
      "category": "reporters:state",
      "reporter": "Ark.",
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        8722360
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      "weight": 2,
      "year": 1986,
      "opinion_index": 0,
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    {
      "cite": "Ark. Code Ann. \u00a7 28-65-211",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1987,
      "pin_cites": [
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          "page": "(b)(1)"
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      "opinion_index": 0
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    {
      "cite": "Ark. Code Ann. \u00a7 28-65-101",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "weight": 2,
      "year": 1987,
      "pin_cites": [
        {
          "page": "(6)"
        },
        {
          "page": "(5)"
        }
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      "opinion_index": 0
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    {
      "cite": "Ark. Code Ann. \u00a7 28-65-212",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "weight": 5,
      "year": 1987,
      "pin_cites": [
        {
          "page": "(a)"
        },
        {
          "page": "(a)"
        },
        {
          "page": "(b)"
        },
        {
          "page": "(b)"
        }
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      "opinion_index": 0
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    {
      "cite": "Ark. Code Ann. \u00a7 28-65-212",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "weight": 2,
      "year": 1987,
      "pin_cites": [
        {
          "page": "(a)"
        },
        {
          "page": "(b)(2) and (3)"
        }
      ],
      "opinion_index": 1
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  "analysis": {
    "cardinality": 416,
    "char_count": 7693,
    "ocr_confidence": 0.897,
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  "last_updated": "2023-07-14T21:11:40.326030+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Holt, C.J., Hays, and Glaze, JJ., dissent.",
      "Hays and Glaze, JJ., join in this dissent."
    ],
    "parties": [
      "IN THE MATTER OF L.C. BAILEY, An Incompetent"
    ],
    "opinions": [
      {
        "text": "Robert H. Dudley, Justice.\nThe trial court ordered the appointment of co-guardians for appellant\u2019s estate. We reverse and dismiss.\nAppellees, Debbie Mayville and Clarice Roberts, daughters of appellant, filed a petition in probate court praying that they be appointed co-guardians of the person and estate of appellant because of his alcoholism. The probate court found that appellant was not competent to handle his business affairs and appointed appellees co-guardians of his estate.\nAppellant raises two interrelated points of appeal: first, that appellees did not satisfy the requirements of Ark. Code Ann. \u00a7 28-65-212 (Supp. 1987), and second, that the lower court\u2019s finding that appellant was incapacitated is clearly erroneous. The arguments have merit.\nArk. Code Ann. \u00a7 28-65-212(a) provides:\nA professional evaluation shall be performed prior to the court hearing on any petition for guardianship except when appointment is being made because of minority, disappearance, detention, or confinement by a foreign power, or pursuant to \u00a7 28-65-218. The evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent\u2019s alleged incapacity.\n\u201cProfessional\u201d means a physician, licensed psychologist, or licensed certified social worker with training, experience, and knowledge of the particular alleged disability of the respondent. Ark. Code Ann. \u00a7 28-65-101(6) (1987). \u201cEvaluation\u201d means a professional assessment of the abilities of the respondent and the impact of any impairments on the individual\u2019s capability to meet the essential requirements for his health or safety or to manage his estate. Ark. Code Ann. \u00a7 28-65-101(5) (1987). There is no statutory requirement that the evaluation be in writing, but in determining a person\u2019s incapacity the court must require that the evidence of incapacity include the oral testimony or sworn written statement of one (1) or more qualified professionals. Ark. Code Ann. \u00a7 28-65-211(b)(1) (1987).\nDr. McCarty and Dr. Bell are licensed medical doctors. Dr. McCarty saw appellant on three (3) different occasions between May 31, 1988 and June 29, 1988. He testified that appellant suffered from organic brain syndrome caused by alcoholism; that his diagnosis was based on what he had learned from Dr. Bell about appellant, what appellant\u2019s records showed, and his own observations of appellant. He stated that he had treated that sort of condition many times and he did not think appellant should be handling any important matters or making any important decisions concerning money matters. It was stipulated that if Dr. Bell were called as a witness, he would testify in accordance with Dr. McCarty, and that, in addition, Dr. Bell had been appellant\u2019s doctor for more than ten (10) years.\nClearly, Dr. McCarty and Dr. Bell satisfy the definition of \u201cprofessional.\u201d Further, their \u201cevaluation\u201d was performed prior to the hearing on this petition, thus satisfying another condition of Ark. Code Ann. \u00a7 28-65-212(a). The issue is whether the doctors\u2019 \u201cevaluations\u201d satisfy the requirements of Ark. Code Ann. \u00a7 28-65-212(b) which provides:\n(b) The evaluation shall include the following:\n(1) The respondent\u2019s medical and physical condition;\n(2) His adaptive behavior;\n(3) His intellectual functioning;\n(4) Recommendation as to the specific areas for which assistance is needed and the least restrictive alternatives' available.\nThe statute sets forth four (4) very specific findings which \u201cshall\u201d be included in the evaluation. The word \u201cshall\u201d when used in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to absurd results. Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). We cannot say that mandatory compliance with this statute would lead to absurd results. Therefore, the professional evaluations should have included the four specific findings.\nThe first required finding was satisfied. Dr. McCarty testified about his assessment of appellant\u2019s medical and physical condition, and it was stipulated that Dr. Bell\u2019s testimony would have been in agreement.\nThe fourth required finding was also satisfied. Dr. McCarty testified that he did not think appellant should be handling important matters or making important decisions concerning financial matters, but that he was not in a position to know whether appellant needed personal care in his day to day life.\nThe doctors\u2019 testimony, however, did not establish that the remaining two requirements, findings with respect to adaptive behavior and intellectual functioning, had been included in the evaluation. Consequently, we agree with appellant that the statutory requirements in this regard were not satisfied.\nAppellant\u2019s second point of appeal is that the lower court\u2019s finding of incapacity is clearly erroneous. A probate court\u2019s determination of incapacityfinvolves a finding of fact. We will not reverse such a finding unless it is clearly against the preponderance of the evidence, or clearly erroneous. ARCP Rule 52.\nIn light of our conclusion under appellant\u2019s first point of appeal, we must also conclude that the finding of incapacity was clearly erroneous because it was based in part upon mandatory professional evaluations which did not satisfy the statutory requirements of Ark. Code Ann. \u00a7 28-65-212(b). Accordingly, we must reverse and dismiss since a clearly erroneous finding of incapacity is tantamount to concluding that the trial court erred in denying appellant\u2019s motion for a direct verdict.\nReversed and dismissed.\nHolt, C.J., Hays, and Glaze, JJ., dissent.",
        "type": "majority",
        "author": "Robert H. Dudley, Justice."
      },
      {
        "text": "Jack Holt, Jr., Chief Justice,\ndissenting. The majority\u2019s strict interpretation of the requirements of Ark. Code Ann. \u00a7 28-65-212(a) (Supp. 1987) eliminates the testimony of qualified professionals concerning evidence of incapacity unless they allude to and use certain magic words in their evaluations.\nThe majority concedes that both Dr. McCarty and Dr. Bell are professionals and that their evaluations well describe Bailey\u2019s medical and physical condition and contain appropriate recommendations as to areas for which assistance is needed. However, the majority finds the testimony deficient with respect to the requirement of an evaluation as to \u201cadaptive behavior\u201d and \u201cintellectual functioning.\u201d Ark. Code Ann. \u00a7 28-65-212(b)(2) and (3).\nDr. McCarty testified that he saw Bailey on three different occasions between May 31,1988, and June 29,1988, and that in his opinion Bailey suffers from organic brain syndrome caused by alcoholism. His diagnosis was based in part on information furnished by Dr. Bell (who had treated Bailey for over a ten-year period), on Bailey\u2019s records, and on his own observations of Bailey. Dr. McCarty further testified that he had treated individuals with this sort of condition many times.\nWhen asked how organic brain syndrome caused by alcoholism would manifest itself, Dr. McCarty testified that he (Bailey) would be incapable of \u201chandling any important matters\u201d or \u201cmaking important decisions . . . [a]t any time concerning any money matters or things of importance.\u201d (Emphasis mine.) Giving Dr. McCarty\u2019s words their plain meaning, it is obvious that this evaluation well describes Mr. Bailey\u2019s intellectual functioning and his adaptive behavior, even though the doctor did not utilize the specific wording of our code.\nI would affirm the findings of the probate court.\nHays and Glaze, JJ., join in this dissent.",
        "type": "dissent",
        "author": "Jack Holt, Jr., Chief Justice,"
      }
    ],
    "attorneys": [
      "The Etoch Law Firm, for appellant.",
      "David Solomon, for appellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF L.C. BAILEY, An Incompetent\n89-129\n771 S.W.2d 779\nSupreme Court of Arkansas\nOpinion delivered July 3, 1989\n[Rehearing denied September 11, 1989.]\nThe Etoch Law Firm, for appellant.\nDavid Solomon, for appellee."
  },
  "file_name": "0352-01",
  "first_page_order": 378,
  "last_page_order": 382
}