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Appellant is a mentally retarded adult, and is incapable of making decisions about his own care and treatment.  Appellant also requires twenty-four hour supervision.  Appellant was admitted to a Department of Mental Health (DMH) facility after being found incompetent to proceed to trial on arson charges.  One year later, DMH filed a petition for appointment of guardian, recommending that the Public Administrator be appointed guardian.  At an evidentiary hearing, Appellant testified that he wanted his mother to serve as his guardian.  Appellant’s mother also testified that she would be willing to serve in that capacity.  At trial a DMH social worker and a staff psychiatrist both acknowledged that Appellant and his family shared a strong and healthy relationship.  However, both professionals stated that the mother would have to make some difficult decisions concerning Appellant’s care, and that would likely have a negative impact on Appellant’s relationship with his mother.

Held:

The trial found Appellant incapacitated and appointed the Public Administrator as Appellant’s guardian.  The trial court considered appointing Appellant’s mother as guardian and conservator, but concluded that the appointment was not in Appellant’s best interest because tough decisions would need to be made for Appellant.  The court felt that in order to maintain a good family relationship, it would be better that someone other than Appellant’s mother make those tough decisions.

On Appeal:

Section 475.050(2) states that except for good cause shown, the court shall make its appointment in accordance with the incapacitated or disabled person’s most recent nomination of an eligible person qualified to serve as guardian of the person or conservator of the estate.  Good cause exceptions include dissension in the family, adverse interest of the relative or the incapacitated person, or any other reason why a stranger would best serve the interest of the incapacitated person.

According to Section 475.050, the trial court was obligated to consider Appellant’s desire to have his mother serve as guardian, and appoint the Public Administrator only for good cause.  Here, Appellant had a healthy relationship with his family.  There were no specific adverse interests between Appellant and his mother.  There were also no findings that Appellant’s mother was unfit.  The trial court’s determination that a stranger should serve as Appellant’s guardian appears to be based on the prediction that there may be possible negative results from Appellant’s mother making tough decisions about his care.  On remand, the trial court should more fully develop the record and make specific findings as to why, in light of the statutory preference for family members, the trial court approved the Public Administrator instead of Appellant’s mother.