THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Pauline J. O'Keefe in the matter of Pauline T. Muckenfuss, Appellant,

v.

Wendell L. Muckenfuss, and Thomas D. Muckenfuss III, Respondents.

Appeal From Charleston County
�R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2010-UP-350
Submitted June 1, 2010 � Filed July 7, 2010���

AFFIRMED

Dennis James Christensen, of Mt. Pleasant, for Appellant.

Nat B. Benson, Jr, of Mt. Pleasant, for Respondents.

PER CURIAM: Pauline Jane O'Keefe (Daughter) appeals the circuit court's order affirming the probate court�s orders appointing third parties as Pauline Muckenfuss's (Mother's) guardian and conservator.� Daughter argues the probate court erred in finding good cause existed to bypass her statutorily-designated priority as Mother's attorney-in-fact.� We affirm.[1]�

FACTS/PROCEDURAL HISTORY

Mother is a widow who has four children, Daughter, and three sons: Thomas (Tommy), Wendell, and Paul Muckenfuss (Sons).� Daughter was designated as Mother's attorney-in-fact in October of 2002.� Mother was admitted to the Savannah House, an assisted-living facility in Charleston, in November of 2002, following hospitalization for mental illness.

On January 29, 2004, Wendell and Tommy petitioned the probate court to find Mother incapacitated and to appoint a guardian and conservator.� After a hearing, the probate court ordered third parties Seniors Choice and First Southeast Fiduciary and Trust Services, Incorporated, to serve as Mother's guardian and conservator, respectively.� Daughter appealed to the circuit court, which affirmed.� Daughter then appealed to this court.�

In an unpublished opinion, this court held: �"Based on the language of the applicable statutes, we believe before a probate court bypasses a person with a statutory priority for the appointment of a conservator or guardian, it must make a finding of good cause by articulating its reasons for such a finding." �Muckenfuss v. Muckenfuss, Op. No. 07-UP-361 (Ct. App. filed July 7, 2007).� Because the probate court failed to make the requisite finding of good cause, we remanded the case to the probate court for a finding consistent with the statutes.� Id.�

On remand, the probate court found good cause existed to appoint third parties as Mother's guardian and conservator due to the friction and divisiveness between Daughter and Sons, as well as Daughter's lack of communication with Sons.� The circuit court affirmed.� This appeal followed.

STANDARD OF REVIEW

"[T]he determination of the standard of review by an appellate court of matters originating in the probate court is controlled by whether the cause of action is at law or in equity." �Dean v. Kilgore, 313 S.C. 257, 259, 437 S.E.2d 154, 155 (Ct. App. 1993).� "To make this determination, the appellate court must look to the essential character of the cause of action alleged by the petitioners in the court below."� Id.� "Persons of unsound mind, like infants, are under the special protection of the courts of equity with respect to their persons, property, and legal transactions."� Shepard v. First Am. Mortgage Co., 289 S.C. 516, 518, 347 S.E.2d 118, 119 (Ct. App. 1986); Gaddy v. Douglass, 359 S.C. 329, 333, 597 S.E.2d 12, 14 (Ct. App. 2004) (recognizing an action to set aside a power of attorney and an instrument revoking a power of attorney on the ground of a lack of mental capacity sounds in equity); see Dean, 313 S.C. at 259, 437 S.E.2d at 155 (finding petition to remove personal representative is in equity). �When the circuit court concurs with the probate court in an equity case, the standard of review for this court is whether there is any evidence that reasonably supports the findings of the court below.� Dean, 313 at 260, 437 S.E.2d at 155-56.

The specific choice of who should serve as guardian and conservator is decided under the probate court's discretion.� "The matter of a selection of a guardian is within the discretion of the court, and the appellate court ordinarily will not interfere unless a clear abuse of discretion is shown."� 39 C.J.S. Guardian and Ward � 28 (2003).� "The selection of a guardian is a matter committed largely to the discretion of the appointing court, whose decision will only be interfered with on appeal in the case of an abuse of discretion."� 39 Am. Jur. 2d Guardian and Ward � 38 (2008).�

The relevant statutes in this case, Sections 62-5-311 and 62-5-410 of the South Carolina Code (2009), indicate the appointing court has discretion by using the phrases "may be appointed guardian" and "the court may appoint . . . as conservator," respectively.� The appointing court will not be overturned absent an abuse of discretion. �See Patterson v. Cook, 288 S.C. 220, 221, 341 S.E.2d 782, 782 (1986) (interpreting an appointment statute without priority guidelines).�

LAW/ANALYSIS

Daughter argues the probate court, and in turn the circuit court, erred in finding good cause to appoint third parties as Mother's guardian and conservator because Daughter had statutory priority as Mother's attorney-in-fact.� We disagree.�

Section 62-5-311 states the order of priority for guardian appointees but provides such priority is "subject to a finding of good cause by the court."� Similarly, section 62-5-410 sets forth the order of priority for conservator appointees but allows: �"The court, for good cause, may pass over a person having priority and appoint a person having less priority or no priority."� Under both statutes, Daughter, as Mother's attorney-in-fact, has priority over the third parties appointed by the probate court.� �� 62-5-311(B)(2) & 62-4-410(a)(3).�

Good cause is defined as "[a] legally sufficient reason.� Good cause is often the burden placed on the litigant . . . to show why a request should be granted or an action excused."� Black's Law Dictionary 251 (9th ed. 2009).� "Bitter dissension between an incapacitated person's family members . . . can justify appointment of a neutral third party as a guardian."� 39 Am. Jur. 2d Guardian & Ward � 41 (2008).�

At trial, Dr. Susan Hardesty of the Medical University of South Carolina testified Mother needed a guardian and conservator.� Dr. Hardesty stated to a reasonable degree of medical certainty Mother's capacity did not allow her to manage her resources.�

Dr. Hardesty testified Mother was paranoid regarding her children's roles in assisting her with her affairs.� In addition, she stated the object of Mother's paranoia seemed to shift from the Sons to Daughter.� Dr. Hardesty testified having one of Mother's children serve as a guardian or conservator

would aggravate [Mother�s] condition in the sense that her condition is going to proceed as it will independent of those kind of external forces.� I think she might be more or less angry, depending on where her paranoid ideation was at the time if someone interacted -- if one of her children made a decision.� But that's going to be dependent on what the paranoia is doing at the time.�

The guardian ad litem recommended having third parties appointed as guardian and conservator for Mother.� The guardian believed a third party serving as guardian and conservator would be in the best interest of everyone given the infighting between Daughter and Sons.� The guardian believed a third party could circumvent current communication problems, but the animosity between Daughter and Sons will likely remain regardless of whether a third party is used.�

The guardian testified:

[Mother] did seem to note and she pointed out very clearly the friction that is between her children, and she felt like it would be in the best interest of everybody if there was a third person appointed to take care of her everyday affairs, throughout the financial matters, because she felt like that may reduce the friction.�

The guardian testified Mother fully understood what the roles of the guardian and conservator would be.�

Dr. Hardesty first testified any suggestions by Mother regarding who should serve as her guardian and conservator should be given limited weight, if any.� However, when questioned by the guardian whether he should put any weight on Mother's recommendation to him that a third party should be appointed, she stated:�

I certainly would put weight on her opinion that she has the desire to have a third party to intervene and give it some weight, yes.� I wouldn't say it would be the overall decision-maker, but, certainly, she's indicated it to you and she's indicated it to me in a different way.�

Mother had, in fact, requested Dr. Hardesty intervene in her affairs. �

Paul, Wendell, and Daughter all testified about the friction between the siblings.� Paul stated he believed having a third party involved in Mother's care would be best for everyone. �Wendell also requested a third party's involvement in order to reduce the infighting in the family and minimize Mother's paranoia towards her children.� Regarding the friction, Wendell testified Daughter would not allow him to visit Mother privately on one occasion.� Wendell further testified Daughter's husband followed him to the airport and behaved suspiciously.� Daughter acknowledged she has difficulty with Wendell, but maintained she gets along well with Tommy and Paul.�

In response to Wendell's statement that Daughter refused to allow him to see Mother, Daughter stated she suggested Wendell not meet with Mother alone because Mother had not seen Wendell in years and it would be too shocking for Mother.� According to Daughter, while Wendell was speaking to Mother that day, a Savannah House employee informed Daughter that Mother's whole body was shaking.�

The guardian, Dr. Hardesty, Paul, and a Savannah House employee all testified Daughter has taken good care of Mother.� However, the statutes do not require a finding of wrong-doing by the person with priority.� They simply require good cause to by-pass the person with priority.� The record also contains evidence Daughter failed to communicate with her brothers concerning Mother's care.� Paul testified he had to call the police to discover the location of Mother when Daughter moved her to Savannah House because Daughter failed to notify him of the move.� Daughter explained she had told Tommy about the move and assumed he would tell their other brothers.� In addition, Daughter acknowledged that because she does not get along with Wendell, she has only called him twice during the years she has held Mother's power of attorney.� Daughter testified she did not tell her brothers she had the power of attorney because Mother requested she not tell them.�

The probate court found Daughter made an unsatisfactory showing that she could fulfill the duties of a guardian and conservator, which include communicating with family members regarding any type of placement and any major medical issues.� We hold the record contains evidence to support this finding and the probate court's ruling that good cause exists to by-pass Daughter's priority in the appointment of Mother's guardian and conservator.� Therefore, under our standard of review, we must affirm the probate court.�

AFFIRMED.

HUFF, SHORT, and WILLIAMS, JJ., concur.�

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.