IN THE MATTER OF THE ESTATE OF CATHLEEN BASS SKINNER
in the Supreme Court on 29 August 2017.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, __ N.C.App. __, 787
S.E.2d 440 (2016), reversing an order entered on 22 October
2014 by Judge Donald W. Stephens in Superior Court, Wake
and Smith, P.A., by Jenna Fruechtenicht Butler and Alexander
C. Dale, for petitioner-appellants Nancy Bass-Clark and
Douglas Ray Bass.
Braswell Law, PLLC, by Ira Braswell IV, for
respondent-appellee Mark Skinner.
resolution of this case hinges upon the identification and
proper application of the appropriate standard of review for
use in reviewing an order removing a guardian of the estate
and trustee under a special needs trust for breach of
fiduciary duty. After careful consideration of the record
evidence in light of the relevant legal principles, we
conclude that the Court of Appeals erred by reversing the
January 2010, a representative from the Adult Protective
Services Division of the Wake County Human Services
Department filed a petition seeking to have Cathleen Bass
Skinner, who was, at that time, known as Cathy Bass,
adjudicated as an incompetent and to have a guardian
appointed for Ms. Skinner. In support of these requests,
Adult Protective Services alleged that Ms. Skinner "is a
disabled adult who has short term memory loss, "
"carries a diagnoses [sic] of seizure disorder and early
stages of dementia, " "[l]acks sufficient
understanding and the capacity to make or communicate
responsible decisions concerning her person, " and
"requires 24 hour supervision, something her siblings
and extended family can not [sic] commit to her." On 13
April 2010, Assistant Clerk of Superior Court Bill Burlington
found Ms. Skinner incompetent and appointed Wake County Human
Services to serve as Ms. Skinner's guardian.
2010, Ms. Skinner's long-time friend, Mark L. Skinner,
Jr., retained Gilbert W. File, III, of the Brownlee Law Firm,
for the purpose of determining whether he and Ms. Skinner
could legally marry and whether he could legally serve as Ms.
Skinner's guardian. On 3 August 2010, Mr. and Ms. Skinner
married. On the following day, Mr. Skinner filed a motion
seeking to have himself appointed as Ms. Skinner's
guardian. On 10 October 2010, Mr. Skinner retained Christine
S. Eatmon to assist him in litigating his motion to modify
the existing guardianship arrangement. On 20 January 2011,
following an evidentiary hearing held on 13 January 2011 and
with the consent of Mr. Skinner, Ms. Eatmon, the attorneys
for Wake County Human Services, Ms. Skinner's former
guardian of the person, and Ms. Skinner's guardian ad
litem, the Assistant Clerk entered an order concluding that
Mr. Skinner should, on a trial basis, be appointed as the
guardian of Ms. Skinner's person. On 2 August 2011, the
Assistant Clerk made Mr. Skinner's appointment as the
guardian of Ms. Skinner's person permanent.
Skinner's mother, Kathleen Holton Bass, died on 27 August
2012. Along with a number of her siblings and a niece and
nephew, Ms. Skinner was named as a beneficiary in Ms.
Bass's will. On 23 August 2013, one of Ms. Skinner's
brothers, Douglass Bass, and one of Ms. Skinner's
sisters, Nancy Bass Clark, filed a motion seeking to have Ms.
Clark appointed as the guardian of Ms. Skinner's estate
on the grounds that, since Ms. Skinner had been declared
incompetent, any distributions payable to Ms. Skinner from
Ms. Bass's estate "will need to be distributed to an
authorized recipient in order to comply with Estate
requirements/laws." On 29 August 2013, Mr. Skinner
requested that he be appointed to serve as guardian of Ms.
Skinner's estate instead of Ms. Clark. As Kimberly
Richards, who had been appointed to serve as Ms.
Skinner's guardian ad litem, noted in her report, Ms.
Skinner's family questioned the appropriateness of
appointing Mr. Skinner as the guardian of Ms. Skinner's
estate given that he had "sold [Ms. Skinner's] car
during the pendency of the original incompetency hearing and
reportedly used the funds for his own personal gain, "
took Ms. Skinner "to the bank so that she could withdraw
fund[s] to give to him for his use, " unsuccessfully
sued Ms. Skinner's nephew "for reimbursement of [Mr.
Skinner's] travel expenses to visit [Ms. Skinner] after
she was placed in a facility by . . . Wake County Human
Services, " "does not appreciate the full nature of
[Ms. Skinner's] mental incapacity, " and
"removed [Ms. Skinner] from the adult day care center
that she formerly attended, perhaps to redirect her social
October 2013, after an evidentiary hearing, the Assistant
Clerk entered an order appointing Mr. Skinner as the guardian
of Ms. Skinner's estate. The Assistant Clerk found, in
pertinent part, that:
1. That [Ms. Skinner] resides with [Mr.] Skinner, in an
apartment located . . . in Wake Forest, North Carolina. Mr.
Skinner married [Ms. Skinner] after this court declared her
incompetent. To date, no legal action has been filed to
challenge the validity of this marriage.
2. That [Ms. Skinner] receives SSI [Supplemental Security
Income] benefits of approximately $700.00 per month and is a
. . . .
7. [Ms. Skinner's] mother, [Ms. Bass], died on August 27,
2012. [Ms. Skinner] will inherit from her mother. [Ms.
Skinner's] inheritance is expected to be between $200,
000.00 and $250, 000.00.
. . . .
11. [Ms. Skinner] would be at risk of losing her SSI benefits
and Medicaid assistance if her inheritance is not placed in a
Special Needs Trust. [Ms. Skinner] was born October 20, 1951
and at the time of the hearing was 62 years old. [Ms.
Skinner] will have medical needs for the remainder of her
12. [Mr. and Ms.] Skinner appear to love each other. The
Guardian ad Litem . . . . represented to the Court that [Ms.
Skinner] had expressed a desire that [Mr.] Skinner be the
Guardian of her Estate.
13. [Ms.] Richards is of the opinion that [Ms.] Clark should
be the guardian of [Ms. Skinner] estate. She expressed
concern with regard to [Mr.] Skinner's use of a document
he believes is a valid Power of Attorney. Ms. Richards does
not believe the Power of Attorney is valid. She further
indicated that [Mr.] Skinner does not appreciate the
seriousness of Cathy's mental illness, might be resistant
to placing the inheritance in a Special Needs Trust, and was
further concerned by testimony of [Mr.] Skinner that he had
experienced significant losses in an IRA account during the
upon these and other findings of fact, the Assistant Clerk
concluded as a matter of law, in pertinent part:
2. That an inheritance by [Ms. Skinner] of the size testified
to in this case would best be managed by a Special Needs
Trust. If [Ms. Skinner] were to directly receive the
inheritance, it would compromise her ability to receive
essential government benefits.
. . . .
4. That it is in the best interest of [Ms.] Skinner, that
[Mr.] Skinner, be appointed Guardian of the Estate if he can
satisfy the following conditions:
a. That he can secure a bond in the amount of $250, 000.00.
b. That he set up a Special Needs Trust for [Ms.] Skinner and
that no inheritance received by [Ms.] Skinner be spent except
pursuant to the provisions of the Special Needs Trust. . . .
c. That the Special Needs Trust shall contain an accounting
provision whereby [Mr.] Skinner shall annually report all
receipts and expenditures in the Special Needs Trust to [Ms.]
5. That [Ms.] Clark is capable of, and shall serve as
Guardian of the Estate of [Ms.] Skinner should [Mr.] Skinner
not be able to meet the above conditions . . . set out
herein. The same conditions set out herein shall apply if
[Ms.] Clark serves as Guardian of the Estate.
upon these findings and conclusions, the Assistant Clerk
ordered that Mr. Skinner be appointed as guardian of Ms.
Skinner's estate subject to the posting of a $250, 000.00
bond and the establishment of a Special Needs Trust for the
use and benefit of Ms. Skinner, with the Special Needs Trust
to contain a provision "requiring an annual accounting
to [Ms.] Clark of any and all receipts and expenditures from
the Special Needs Trust, " and that, in the event that
Mr. Skinner failed to comply with these conditions, Ms. Clark
be appointed to serve as the guardian of Ms. Skinner's
December 2013, Mr. Skinner posted the required $250, 000.00
bond. On 18 March 2014, Mr. Skinner executed the Cathleen
Bass Skinner Special Needs Trust, which was approved by the
Assistant Clerk by means of an order entered on 25 March
2014, in which Mr. Skinner's appointment as guardian of
Ms. Skinner's estate was reaffirmed. On 30 April 2014,
letters appointing Mr. Skinner as the guardian of Ms.
Skinner's estate were issued. On 21 May 2014, the