IN THE 16th JUDICIAL CIRCUIT AT KANSAS CITY, MISSOURIPROBATE DIVISION

AT KANSAS CITY

MARK T. LALLY

Petitioner,

vs. Estate No. 10P8-PR00243-01

MARTHA M. LALLY andSUSAN L. McGEE MAKE SURE EVERYTHING

GETS ATTACHED AS EXHIBITS!!!Respondents.

PETITIONER, MARK LALLY'S MOTION AND SUGGESTIONS IN SUPPORT FOR REHEARING 1 PURSUANT TO LOCAL RULE 72.4

Petitioner, Mark Lally, by and through undersigned counsel and pursuant to Local

Rule 72.4 hereby requests a rehearing and asks the Court to reverse the "Judgment

Regarding Petition Supported by Affidavits for Appointment of Guardian As Litem and

Conservator Ad Litem and for Other Relief" ("Judgment") entered by Commissioner

Burnett on May 16, 2011. The Judgment purportedly denies / dismisses Mr. Lally's

Petition for "failure to state a claim which seeks relief under and the Missouri Probate

Code." The Judgment must be reversed because:

(1) It was entered sua sponte, without motion by any party and without notice

and an opportunity to be heard by Mark Lally or any attorney for Mark Lally

1 As will be seen, even though Rule 72.4 requires this Motion to be styled as a motion for rehearing, Petitioner never was never afforded a hearing and the Judgment which at issue in this case was entered without warning by the Commissioner, without any motion by any party, and without notice and an opportunity to be heard being afforded to Petitioner.

and, thus, the manner in which the Judgment was entered violates clearly

established Missouri law and Petitioner's due process rights;

(2) The Judgment was entered by Commissioner Burnett even though no attorney

was formally allowed to represent Mr. Lally and no discovery had occurred

and, in fact, even though the Commissioner had stayed the proceeding,

thereby preventing any discovery by Petitioner from occurring which, again,

violates Missouri law and Petitioner's due process rights; and

(3) Notwithstanding the above violations of Petitioner's rights, the Petition

adequately pleads a recognized cause of action under Missouri Law and the

Probate Code.

PROCEDURAL BACKGROUND AND STATEMENT OF FACTS

This case has had a tortured and unique procedural history to say the least. On or

about April 28, 2010, Mr. Lally was adjudged to be partially incapacitated and totally

disabled. On that same date Respondents were appointed as co-conservators and co-

guardians. See Judgment attached as Exhibit A and incorporated herein by reference.

This Judgment specifically allowed Mr. Lally the rights to vote and drive an automobile.

Mr. Lally's appointed attorney during the guardianship proceeding was Frank Murphy.

Less than two months after the appointment of the Respondents, Mark Lally

contacted the Miller Law Firm for assistance in setting aside the guardianship and

conservatorship saying his "sister had tricked him into Court and had taken all his rights

away." See Affidavit of Richard W. Miller at ¶ 5, Exhibit A to Petitioner's Petition

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Supported by Affidavits for Appointment of Guardian Ad Litem and Conservator Ad

Litem and for Other Relief ("the Petition").2

Mr. Miller's Affidavit also discloses that Mr. Lally had the following concerns

over his sister being appointed as his guardian and wanted action taken against her.

Specifically:

On the undersigned’s return to his office, the undersigned tried several times to reach Mark Lally at his condominium (Alameda Towers) but there was no answer.

Several days later, the undersigned received another call from Mark Lally when Mark Lally was at the psychiatric ward at Research Hospital in Kansas City, Missouri. During this call, Mark Lally expressed to the undersigned his concerns and essentially restated what he said in his earlier message to the undersigned’s secretary. In addition, Mark Lally said he had been taken to the psychiatric ward at Research Hospital by Susan McGee and his sister, Martha Lally.

On July 6, 2010 the undersigned received another phone call from Mark Lally. During this phone conversation, Mr. Lally indicated that he had been released from Research Hospital. He further indicated that he had returned to his home at the Alameda Towers. Mr. Lally stated to the undersigned that he wanted to meet as soon as possible in order to contest the recent court action appointing his sister, Martha Lally, and Susan McGee as his guardians and conservators. Miller Affidavit at ¶¶ 6-8.

Mr. Miller arranged for Jim Wyrsch to represent Mr. Lally. Mr. Lally agreed to

having Mr. Wyrch represent him and he wanted to take immediate actions against

Respondents (primarily his sister, Martha) because they had cut off his contact with the

outside world, had taken away his ability to obtain any funds, had "keepers" move in with

him and were planning to put him away somewhere for life. Miller Affidavit at ¶¶ 10-17.

2 The Petition is attached hereto as Exhibit B and is incorporated herein by reference.

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Before Mr. Lally could sign Mr. Wyrsch as his lawyers, Mr. Lally was kidnapped

from his home by a group calling itself the Guardian Angels and was transferred against

his will to a mental facility known as Rose Hill. Miller Affidavit at ¶¶ 62, 63. Mr. Lally

was confined at Rose Hill, even though the Court denied the application to confine him at

Rose Hill. See Application and Order, Exhibit C, attached hereto and incorporated herein

by reference. The Application was filed after Mr. Lally had been kidnapped. Further,

Mr. Lally's automobile and home were sole without his knowledge or consent and in

violation of another order from the Court. See Application to Sell Property attached

hereto as Exhibit D and incorporated herein by reference. After removing Mr. Lally from

his home, Martha Lally sold the home for over $700.000.00 and has appropriated the

proceeds from the sale.

Based on the above, Mr. Wyrsch filed the Petition which was supported by several

affidavits. The Petition initiated the removal of guardian and conservator process under

R.S.Mo. § 475.097 and specifically alleges the following:

Since May 18, 2010, in one or more particulars set out below, the

Guardians and Conservators have not effectively or properly performed

their duties fairly, in good faith or in the best interest of Mark Lally and,

further, the welfare of the Respondent, under the care and custody of

Guardian and Conservator, requires immediate action by the Court as set

forth in Section 475.097.1, to wit:

a. The Guardians and Conservators have purposefully sought to isolate Petitioner or have violated his rights in the following ways: (1) causing Petitioner mental and emotional anguish by having two "keepers" supervise

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Petitioner 24 hours a day, seven days a week; (2) by removing from Petitioner's possession, his automobile, in contradiction to the Court's specific order permitting Petitioner to drive; (3) by preventing Respondent from communicating with his family and his friends; (4) by refusing to provide family and friends with Respondent's whereabouts; (5) by removing from Petitioner's possession, his computer; (6) by preventing Petitioner from receiving U.S. mail at Petitioner's residence; (7) by removing Petitioner from his residence in the middle of the night and without notice to Petitioner, the Court and/or Petitioner's friends and family; (8) by having said persons transport Petitioner to a hotel near the Kansas City, Missouri International Airport without notice to Petitioner, the Court and/or Petitioner's friends and family; (9) by having said persons remove the Petitioner's phone in the hotel room to prevent Petitioner from seeking help; (10) by moving Petitioner to a psychiatric institution in Rose Hill Center in Holly, Michigan, without prior notice to Petitioner, the Court and/or Petitioner's friends and family; and, (11) upon removal of Petitioner from his residence, by immediately listing Petitioner's residence for sale without prior notice to Respondent, the Court and/or Petitioner's friends and family; and/or

b. The Guardians and Conservators have willfully and wrongfully sought, through counsel, to prevent Petitioner from consulting with and/or hiring counsel for the express purpose of removing the Guardians and Conservators; and/or

c. Te Guardians and Conservators are unable to account for approximately $100,000 of funds in Petitioner's estate.

3. Pursuant to Section 475.097.2, and based upon the attachments hereto, one or both of the Guardians and Conservators have a possible conflict of interest with Petitioner, to wit: Martha Lally is a trustee for one or more trusts set up for the benefit of Petitioner and, upon information and belief, Martha Lally is also a beneficiary of one or more of such trusts. Petition, Exhibit B at ¶¶ 2, 3.

Immediately after Mark Lally was shipped to Michigan, Martha Lally sold his

condo for over $700,000.00 and placed the proceeds into an account for an LLC she

owns. Mrs. Lally engaged in a series of calculated steps to manipulate Mr. Lally’s

condominium and substantial assets into an entity in which she would be able to sell the

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condominium and appropriate the money from that sale and all of Mark’s assets to

herself.

From publicly filed documents and a Guardian Ad Litem Report (“GAL Report”)

prepared by Frank Murphy, an attorney who initially was appointed to protect Mark

during the Conservatorship proceeding, it can be determined that, in order to initiate her

scheme, Mrs. Lally obtained a power of attorney from Mark in 2008. She then embarked

on the following course of calculated conduct:

A. There are three trusts involving Mark and Martha Lally. She serves as

trustee on two trusts which benefit Mark and it is believed she is a

beneficiary of any remaining proceeds if something should happen to Mark;

B. She is also a trustee of a trust in which she is a joint beneficiary along with

Mark;

C. Mark was a co-trustee on two of these trusts and, thus, was able to make

decisions affecting his own assets;

D. After obtaining a power of attorney from Mark, Martha transferred all of

Mark’s authority as a co-trustee to herself so as to now be able to be in sole

control all trust assets belonging to Mark, including the trust in which she

herself had an interest;

E. While Mark’s mother was on her death bed, Martha Lally got the mother to

change documents shifting huge assets from a charitable organization to

Matha Lally. This conduct is part of separate litigation against Martha

Lally;

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F. After the mother’s death, Martha immediately retained counsel to engage in

estate planning to rearrange numerous conditions that once were beneficial

to Mark and to place herself in control of all of Mark’s interests and

property;

G. Missouri statute; R.S.Mo. § 475.097.2 and case law make it clear that there

is an inherent and automatic conflict of interest between acting as a

conservator and also being a beneficiary of a trust in which the ward also

has an interest. This is especially true when the conservator is also a trustee

of the trust in which she and the ward are beneificiaries. Notwithstanding

this, Frank Murphy, the attorney appointed by the court to protect Mark’s

rights, allowed Martha to become Mark’s conservator and guardian. Mr.

Murphy never brought any of the above information to the probate court’s

attention when he was appointed to protect Mark and Martha never

disclosed any of this to the probate court;

H. Further, prior to being appointed as the conservator, Martha engaged in

even more estate planning. Immediately after the mother died, she set up a

“family partnership”. She also set up a limited liability company which she

created and owned and transferred Mark’s condominium into that company.

She also set up an umbrella trust in which she now is the sole decision

maker over all assets;

I. There was initially residence language inserted into the trust documents

which protected Mark and give him a larger interest in his condominium as

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long as he resided there. By transferring the condominium to her company

and kidnapping Mark and putting him in an institution, Martha was able to

remove his residency from the condo, sell the condo and reap the benefits

of the sale. Further, according to Frank Murphy’s GAL Report, Martha, by

manipulating Mark’s rights in the condo as set out above, was able to avoid

listing the condo on any inventory or report. Mr. Murphy never

complained or drew the probate court’s attention to any of this when he

represented Mark and then tried to justify such conduct in his GAL Report.

Upon appointing Frank Murphy to investigate this case, the Commissioner

designated this matter as an adversary proceeding thereby invoking the Rules of Civil

Procedure applicable to discovery. See Order of September of September 3, 2010.

However, she also, at the same time stayed the case thereby preventing Mr. Lally from

conducting any discovery. See Order Appointing Guardian Ad Litem at ¶ 3, entered on

September 3, 2010. Additionally, prior to freezing the case, the guardians filed a Motion

to preclude Mr. Lally's counsel from choice from representing Mr. Lally. See Answer

and Motion to Dismiss. This Motion was never ruled on by the Commissioner.

Accordingly, from the date of the appointment of Frank Murphy in September, 2010 until

the date of the dismissal no discovery could be conducted and Mr. Lally essentially was

left with formal counsel to protect him and pursue his claims.

Finally, in deciding to dismiss and/or deny the Petition, the Commissioner

specifically went outside the pleadings and relied on a report by Frank Murphy. In fact it

was the report issued by Mr. Murphy that prompted the dismissal.

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ARGUMENT AND AUTHORITIES

I. THE JUDGMENT WAS ENTERED WITHOUT DUE PROCESS

The Commissioner entered the dismissal without any warning, without notice to

Mr. Lally or any attorney acting on his behalf and without any hearing. The very rule

this Motion is filed under clearly contemplates a hearing will be conducted before a

significant order or judgment is entered. Specifically, Rule 72.4 states that this Motion

shall specifically refer to the transcript of the hearing. This indicates that a hearing

should have been held so that the probate Judge can have an adequate record in order to

make a final determination on the propriety of the order or judgment at issue.

The Missouri statutes also contemplate that a hearing will be held on a Petition

seeking the removal or adjustment of the guardian's status. In this regard, it is important

to note the Petition was filed pursuant to and specifically refers to R.S.Mo. § 475.097.

"Section 475.097(1) provides for removal of the conservator, if the conservator is not

effectively performing his or her duties and for suspension of his authority and

appointment of a conservator ad litem until removal can be accomplished." In re

Swearingen, 42 S.W.3d 741, 752 (Mo. Ct. App. 2001). 3

R.S.Mo. §§ 473.140 and 475.082.5 both deal with removal of guardians and both

specifically reference that a hearing on the issue should be conducted. Thus, the Probate

Code specifically embraces a hearing when the guardian is challenged.

3 "Probate pleadings are not to be judged by the strict rules of pleadings applied to a petition in the circuit court. If the pleadings give reasonable notice of the nature and extent of the claim, strict rules of pleadings...are not required." Estate of McCormack v. McCormack, 676 S.W.2d 928, 930 (Mo. Ct. App. 1984). See also In re Estate of Pitman, 16 S.W.3d 639, 641 (Mo. Ct. App. 2000)(quoting McCormack in construing a petition as seeking removal of the guardian even though no statutory grounds for removal were cited or referred to).

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Equally important, Missouri case law holds that a dismissal of a case should not

occur without affording due process. Such due process includes notice and a right to be

heard. Granted, the Commissioner had every right to initiate and, ultimately, dismiss this

case or deny the Petition on its own volition. See, e.g., Wright v. Department of

Corrections, 48 S.W.3d 662, 666 (Mo. Ct. App. 2001). However, the right to dismiss a

case or petition sua sponte, does not mean a trial court can do so without notice and an

opportunity to be heard.

In Gladden v. Kansas City, 411 S.W.2d 228 (Mo. 1967), the trial court entered a

judgment of dismissal sua sponte without any motion or notice to the plaintiff. The

defendant argued on appeal that a trial court has the power to dismiss a case sua sponte.

The Missouri Supreme Court agreed but expressly rejected the manner in which the case

was dismissed, i.e., without notice and a hearing. 411 S.W.2d at 230. The court stated

that a judgment of dismissal for failing to state a claim operates as a judgment on the

merits. Id. at 239. Under such circumstances notice and an opportunity to be heard are

essential. The Supreme Court stated:

Notice and a hearing, or an opportunity to be heard, have long been considered essential to due process, to a decision on the merits of a cause and to the deprivation of rights and property...In our system of jurisprudence reasonable notice to a litigant (when there exists even the possibility of action adverse to his interests) is deemed to be of the essence of fairness and justice. Reasonable notice to parties whose interests are at stake in a contemplated order is a prerequisite to the lawful exercise of the court's power. Opportunity for a litigant to present his views as to matters instantly before the court which may affect his rights is the very foundation stone of our procedure. The order granting a new trial in the Hoppe case was set aside, and we are of the opinion and hold that the dismissal with prejudice of a petition without notice is subject to the same rule.

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411 S.W.2d at 230. See also Hutcheson v. Electronic Data Access Technologies, Inc., 327 S.W.3d 622, 625 (a dismissal implicates due process concerns, requiring notice and an opportunity to be heard)(citing Willens v. Gray, 757 S.W.2d 656, 658 (Mo. Ct. App. 1988).

Similarly, in In re Estate of Pittman, 16 S.W.3d 639, 642 (Mo. Ct. App. 2000), the

court, citing to Judge Borron, makes it clear that notice and a hearing are required in any

proceeding requesting the termination of a guardianship or removal of a guardian. In In

re Estate of Vester, 4 S.W.3d 575, 577 (Mo. Ct. App. 1999), the court confirms that the

removal of guardian statutes contain and ensure "notice requirements and due process

protection..." Clearly, based on the above authorities, Plaintiff should have been given

notice and an opportunity to contest any dismissal.

II. THE JUDGMENT WAS PREMATURE AND IMPROPER SINCE NO DISCOVERY OCCURRED AND MR. LALLY WAS NEVER FORMALLY ALLOWED TO HAVE COUNSEL A. Right to Counsel

It is clear Mr. Lally is in dire need of an attorney to advocate for his interests. Yet,

the guardians adamantly objected to Mr. Lally having counsel of his choice and no

attorney was ever specifically allowed to represent the ward. The Missouri statutes

clearly contemplate the ward's right to seek removal of the guardian. For instance, in In

re Estate of Pittman, 16 S.W.3d 639, 641 (Mo. Ct. App. 2000), the court confirms the

ward's right to petition the court for removal of the guardian. Further, R.S.Mo. §

475.082.5 requires that the ward have an attorney in any removal proceeding.

A ward is entitled to counsel of his choice. See, e.g., In re Guardianship of

Zaltman, 843 N.E.2d 663 (Mass. Ct. App. 2006), laying out the critical need of allowing

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the ward to choose his own counsel to challenge a guardianship, especially where a

guardian ad litem or appointed counsel is not abiding by the ward's requests or

investigating the ward's concerns. This is precisely what is happening here. Mr. Lally did

not meet or speak with his Frank Murphy, his appointed counsel in the original

guardianship proceeding until the morning of the hearing and he has real and substantial

concerns over how he was represented in the guardianship case. Moreover, in response

to the allegations made in the Petition for Appointment of Guardian Ad Litem, Mr.

Murphy, who was appointed to investigate the allegations, met once with Mark Lally and

made no attempt to undertake discovery specifically requested by Mark Lally.

The co-guardians, by their objections against allowing Mr. Lally to choose his

representation, essentially are attempting to insulate and protect themselves against a

vigorous pursuit and protection of Mr. Lally’s rights. Specifically, the co-guardians

assert that Mr. Lally cannot have counsel of his choice protecting him because he is

incapable (lacks capacity) to engage counsel. Carried to its logical extreme, this

argument by the co-guardians would mean that no ward could ever use or engage an

attorney to protect him from abuse by the guardian unless the guardian consented to the

attorney prosecuting the action against the guardian—a logical absurdity.

Plaintiff is confident that the guardians will argue that Mr. Lally was being

represented by Mr. Murphy, who was appointed as guardian ad litem. The guardians

misread Mr. Murphy’s appointment, his limited role in this matter and the applicable law.

Section 475.097.2 does, indeed, allow this Court to appoint counsel to represent Mr.

Lally to adjudicate Mr.Lally’s rights. However, in order for Mr. Murphy to be able to

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assume the role as Mr. Lally’s advocate and adjudicator, this Court’s Order appointing

him as guardian ad litem must so specify that Mr. Murphy is appointed to adjudicate Mr.

Lally’s rights. The order appointing Mr. Murphy is clearly absent any language

authorizing or instructing Mr. Murphy to represent Mark in this claims against the

guardians and Mr. Murphy clearly avoided advocating for Mark or even conducting

discovery on behalf of Mark Lally.

This Court’s appointment of Mr. Murphy was for very limited purposes. Indeed,

Section 475.097 specifically contemplates different purposes for a guardian ad litem.

Section 475.097.1 contemplates a guardian ad litem for investigative purposes and to

make reports to the court. This is what Murphy was asked to do. The appointment in no

way specifically authorizes Mr. Murphy to advocate Mr. Lally’s contentions, desires and

rights in relation to the Petition filed. And the statute makes it clear that Mr. Murphy

“shall have only such authority as is provided in the order of appointment.” R.S.Mo. §

475.097.2. Section 475.097.2 contemplates a different role for a guardian ad litem--to

represent and protect the ward. Mr. Murphy was NOT appointed to represent, advocate

for Mr. Lally or to pursue Lally’s request to suspend the co-guardian’s authority and to

get him released from his confinement in Michigan. Instead, Mr. Murphy’s duties were

specifically limited to investigating the allegations in the Petition and to determine if Mr.

Lally’s current treatment is proper and to then make a report to the Court.

In fact, Mr. Murphy may very well ultimately be advocating against Mr. Lally

inasmuch as he has already visited The Rose Hill facility and has not, as yet, advocated

that Mr. Lally be released. The co-guardians contention that Mr. Lally is already being

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adequately represented by Mr. Murphy is, quite frankly, insincere and not in accordance

with the reality of the situation. The failure to allow Mr. Lally to have and to use

counsel of his choice violates his due process rights.

B. The Right to Conduct Discovery

The Commissioner erred by holding the case in abeyance and never authorizing or

allowing Plaintiff to conduct discovery. The right to discovery is essential to a fair

disposition of a claim. Plaintiff's right to discovery was all the more critical and essential

considering that this case was dismissed based on documents outside the pleadings.

Specifically, the Commissioner dismissed this case for failure to state a claim. A

dismissal for failing to state a claim must be based on the pleadings alone. See Henley v.

Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009). If a judge goes outside the pleadings in

ruling that there is a failure to state a claim, as occurred here when the Commissioner

based on her ruling in large part on a report prepared by Frank Murphy, then the status of

any motion turns into a motion for summary judgment. Put another way, when a judge

decides to make a determination as to whether a valid claim is stated and goes outside the

pleadings and considers other evidence, then the party making the claim is entitled to

conduct discovery and must be given a reasonable time to do so.

In Goe v. City of Mexico, 64 S.W.3d 836, 838 (Mo. Ct. App. 2001), the court

makes it clear that if a trial judge is apt to dismiss a case based on documents outside the

pleadings, the court must give the plaintiff notice of the court's intention and must allow

that party "the reasonable opportunity to present all material pertinent to the motion." A

party must be allowed to present all relevant evidence which necessarily means that

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discovery must be allowed to be conducted. See Sims v. Harmon, 22 S.W.3d 253, 255

(Mo. Ct. App. 2000), in which the court explains the critical importance of discovery and

mandates that a sufficient time for discovery must be allowed before a claim is disposed

of by the trial court. Here, there was no discovery and Mr. Lally was not even allowed

counsel of his choice. Clearly his due process rights have been infringed by the dismissal

given without warning and without the aid of discovery.

III. THE PETITION CLEARLY STATES A VALID CLAIM

A. Applicable Standards

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in almost an academic manner, to determine if the facts alleged meet the elements of recognized cause of action, or of a cause that might be adopted in that case.

Coons v. Berry, 304 S.W.3d 215, 217 (Mo. Ct. App. 2010).

B. Grounds for Removal of Guardian / Conservator

The grounds for removing or challenging a guardian's acts or omissions are

scattered throughout several provisions of the Guardianship Code. A guardian may be

removed on the same grounds as a personal representative. R.S.Mo. § 475.110. Under

R.S.Mo. § 473.140, a guardian can be removed is he is "incapable or unsuitable to

execute the trust reposed in him, or fails to discharge his official duties...[or] wastes or

mismanages the estate..."

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"Under the category of 'failure to discharge official duties,' a guardian may be

removed for any breach of duty specified by V.A.M.S. § 475.120.4 Thus, a guardian may

be removed for failure to apply the least restrictive principle in placing the ward in a

particular living situation." 5C Mo. Prac,. Probate Law & Practice § 1982 (3d ed.).

Other provisions of the Guardianship Code also provide grounds for removal. If the

guardian is not effectively performing his duties, that circumstance may constitute

grounds for removal under R.S.Mo. §§ 475.082.5 and 475.097.1. Id. A conflict of

interest between the guardian and ward may also cause removal under R.S.Mo. §

475.097.2. Id.

C. Plaintiff's Petition Adequately Pleads Grounds for Removal

Plaintiff's Petition clearly invokes grounds for removing and challenging the

guardians' conduct. The guardians proceeded with placement of Mark in the mental

health facility located in Michigan, known as The Rose Hill facility, even though their

application to admit Mr. Lally into a mental health facility was filed on August 20, 2010

and was denied by this Court on that same day. Mr. Lally’s freedom has been unduly

infringed upon by the co-guardian’s conduct in confining him at a mental health facility

against his will. Certainly, Mr. Lally is not currently in the “least restrictive environment”

as required by Missouri law.

In addition to stealing his property, the co-guardians have violated Mr. Lalley’s

rights in the following particulars:

4 One duty of a guardian under Section 475.120 is that a ward cannot be placed in a mental health facility such as Rose Hill for more than thirty days unless there is a court order authorizing such a stay. As will be discussed, infra, this provision has clearly been violated by the guardians.

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i. The Guardians and Conservators are in direct violation of §§ 475.120.5 R.S.Mo. and 475.121.1 R.S.Mo. in that they have caused Petitioner to be committed to a mental health institution for more than thirty days without obtaining a prior court order.

ii. The commitment of Petitioner into a mental health facility has already substantially exceeded thirty days. Petitioner has been in the Rose Hill facility since the middle of July, 2010. Section 475.120.5 R.S.Mo. clearly prohibits these guardians from admitting their ward to a mental health facility for more than thirty (30) days without a Court Order. Section 475.120.5 R.S.Mo. states:

5. No guardian of the person shall have authority to seek admission of the guardian's ward to a mental health or mental retardation facility for more than thirty days for any purpose without court order except as otherwise provided by law.

iii The Guardians are well aware of the necessity to obtain a court order in order to keep Mr. Lally at Rose Hill because, after they admitted him to Rose Hill against his will, they filed an Application to have him admitted pursuant to § 475.121 R.S.Mo on August 20, 2010. This Court denied the Application that same day. The Guardians, after denial of their Application to have him admitted pursuant to § 475.121 R.S.Mo., in a continued violation of law, continue to fail and refuse to obtain an order from this Court authorizing the Guardians to admit Petitioner to Rose Hill and to maintain him in Rose Hill longer than the thirty (30) days.

iv. Notwithstanding the denial of the Application for prolonged admission to Rose Hill and the failure and refusal of the guardians to obtain such a court order, the Guardians continue to this day, to keep Petitioner confined at Rose Hill against his will, even though the Guardians never obtained a prior court order authorizing a prolonged stay and even though this Court denied the Guardians’ Application to have Petitioner committed for longer than thirty days. It was only after the Petition for Appointment of Guardian Ad Litem was filed m that the Guardians, on September 1, 2010, (well after Petitioner had already been confined for more than thirty days) felt compelled to notify this Court for the first time that Petitioner was in “long-term, residential medical/psychiatric treatment.” See Petition for the Appointment of Attorney for Ward at ¶ 1. The Guardians, by refusing to allow Petitioner to be released despite his stated desire to

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be released, places the Guardians in contempt of this Court’s August 20, 2010 Order denying his admission to a mental health facility for longer than thirty days.

v. The Guardians continue to violate the aforementioned statutes by refusing to allow Petitioner to be released despite his stated desire to be released. The Guardians are now in contempt of this Court's August 20, 2010 Order denying his admission to a mental health facility for longer than thirty days.

vi. The continued detention of Mr. Lally at Rose Hill violates the carefully delineated procedure set up by the Missouri statutes which must be followed if the ward is to remain confined at a mental health facility for more than thirty days. The procedure involves Sections 475.120, 475.121 AND 632.120. This procedure was established to protect the ward’s constitutional right to not have his liberty unduly restrained. The process ensures that a Court must be involved and must give its express approval if the guardian wishes to confine his ward for more than thirty days. This process is set forth as follows:

● Under Section 475.121, an application for admission must first be made.

● Mr. Lally would then need to be evaluated by a facility on an outpatient basis if possible. See Section 632.120.1 RSMo.

● If the Guardians wish to treat the ward on an inpatient basis, then Section 475.121.2 states that there should be a Court Order authorizing the inpatient commitment of the ward “in accordance with section 632.120.”

● Under Section 632.120, after the evaluation by the facility has occurred, Mark Lally could be admitted as a patient only if Rose Hill: (1) diagnosed Mark Lally is having a mental disorder; and (2) found him suitable for inpatient treatment as a result of the evaluation.

● If Rose Hill diagnosed a mental disorder and found Mark Lally suitable for inpatient treatment, it could then treat Mark Lally – but any treatment can last for only thirty days from the time of Mark Lally’s admission for the evaluation, after which he should have been allowed to leave as provided in Section 632.120.2 RSMo.

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● Under Section 632.120.3 RSMo., if the Guardians or Rose Hill wanted to keep Mark Lally at the facility after the thirty days of treatment, they could do so only if: (1) Rose Hill recommended further confinement and (2) this Court specifically ordered the continued confinement at Rose Hill.

● Section 632.120.3 RSMo. states that “[i]f further inpatient services are recommended [by the facility], the person may remain in the facility only if his guardian is authorized by the Court to continue the inpatient hospitalization. The Court may authorize the guardian to consent to evaluation, care, treatment, including medication, and rehabilitation on an inpatient basis.”

None of the above mandatory statutory provisions have been complied with by the

Guardians and, thus, Mr. Lally’s constitutional right to be a free person and to have his

liberty is and continues to be violated. Plaintiff understands that this Court might believe

that the above procedures for admitting a ward into a mental health facility might not

apply to Mark Lally since Rose Hill is a private facility. This appears to be based on

something said or written by Judge Borron. However, Judge Borron, in his Missouri

Practice Manual states that Section 475.120 embraces the "least restrictive environment"

principle. Clearly, the least restrictive environment principle is not to be dispensed with

based on whether the ward is in a public versus a private facility. See, e.g., Oliva v.

Oliva, 113 S.W.3d 269 (Mo. Ct. App. 2003)(least restrictive environment principle

applies to private nursing home).

Further, in discussing R.S.Mo. § 475.121, Judge Borron (without citation to any

authority) does not exclude private facilities from the reach of the statute. Instead, he

states the statute does not apply to "nursing homes, boarding homes, or group care

homes." 3 Mo. Prac., Probate Forms Manual Form 4.54 (2d ed.). Rose Hill is a mental

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health facility. Section 475.120.5 specifically prohibits admission of the ward into a

"mental health facility" for more than thirty days where there is no court authorizing such

an admission. As noted above, Section 475.121 govern the process of obtaining a court

order for admission to a "mental health facility" and under Section 475.121.2, the court is

to use follow the civil commitment process contained in Chapter 632. This is critical

because this Chapter specifically defines the term "mental health facility". A "mental

health facility is: "any residential facility, public or private, or any public or private

hospital, which can provide evaluation, treatment and, inpatient care to persons suffering

from a mental disorder or mental illness..." Clearly Rose Hill fits within this definition.

Indeed, in a pleading recently filed with this Court styled as Suggestions in Support of

Motion for Preliminary Injunction (Exhibit____), the guardians describe Rose Hill as

offering "comprehensive psychiatric treatment and rehabilitation services." Its mission is

to provide an effective therapeutic program for adults with mental illness..." Id. at pg. 2

n.1. According Frank Murphy's GAL report already on file with this Court, Rose is

licensed by the state of Michigan and is accredited by the Joint Commission. Those

treating Mark Lally at Rose Hill are also licensed by Michigan. GAL report at p. 2.

Clearly, the guardians were required to follow the above statutory process. In fact, the

strongest evidence on this point is that they tried to utilize Sections 575.120 and 121 in

that they specifically applied for Mark's admission to Rose Hill citing these statutes and

the Court denied the application!!! Thus, it defies common sense, the law and the

guardians' own actions for this Court to say that the statutes do not apply to Mr. Lally.

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Martha Lally, being not only the trustee but also a beneficiary of several trusts in

which Mark Lally also has a clear conflict of interest. In In re Waldron, 910 S.W.2d 837,

841 ((Mo. Ct. App. 1995), the court makes it clear that a trustee for a trust set up for the

benefit of a protectee should not be allowed to assume the dual role of also being the

conservator. The court stated that such a situation could lead to a conflict of interest and,

also, could create the appearance of impropriety because that person has to decide

whether money spent for the protectee should come out of the trust or out of the

protectee’s other personal assets.

Frank Murphy goes out of his way in his GAL report to prove there is not an

actual conflict of interest but that is not the standard. The standard is whether there

could be an appearance of impropriety or a potential conflict of interest. In this case

there definitely is an actual conflict of interest because Martha is not only a trustee but

also a beneficiary. On this basis alone, the ward is justified in asking for Martha’s

removal as guardian / conservator.5 In Oliva v. Oliva, 113 S.W.3d 269, 274 (Mo. Ct.

App. 2003), the court states that good cause for not appointing a family member as

conservator exists “where a financial conflict of interest might exist, or where there is

substantial dissension and disharmony in the ward’s family.” Here, both elements are

present. Mr. Lally fears his sister and feels she is stealing his money and freedom and, by

all indications, Martha is using her role as guardian to personally profit off of her brother.

5 In his report, Mr. Murphy tries to gloss over this conflict of interest by noting that Susan McGee is also a conservator. However, this does not alleviate the conflict of interest when one realizes that Ms. McGee, as noted in the most recent annual report of the guardians, is not actively in contact with Mr. Lally and Martha Lally is the one in complete control of setting up trusts, moving assets around and making all expenditures.

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Additionally, the guardians' act of taking Mr. Lally across state lines and confining

him in Michigan against his will constitutes a federal felony offense of kidnapping. The

United States Court of Appeals for the Seventh Circuit has held that a guardian's

transportation of a ward across state lines to confine a ward in a private institution

violates the federal kidnapping statutes if the confinement is against the ward's consent

and wishes. This is precisely what has happened in this case with Mr. Lally The statute

at issue was federal kidnapping statute, 18 U.S.C. § 1201(a) which “has four elements:

(1) transportation in interstate or foreign commerce; (2) of an unconsenting person who is

(3) held for ransom, reward, or otherwise, accompanied by (4) a mental state of

knowledge or willingness.” See Silva v. DiLeonardi, 125 F.3d 1110, 1114 (7th Cir.

1997). The Court of Appeals determined that the only issue to decide was whether the

ward was “an unconsenting person” under Section 1201(a). The Court of Appeals

rejected the guardian's argument that a guardian could consent to the confinement on

behalf of the ward and the argument that the ward was incompetent to make a decision on

consent. Id. at 1114. The Court of Appeals held:

[T]he federal court must decide whether the alleged victim was competent to exercise a rational will. A guardianship order may show that a state judge believed the ward lacks the mental capacity to give or refuse consent, but what a state judge believes is not conclusive in the federal prosecution.

125 F.3d at 1114.

The Court specifically held the guardian could not override the ward's wishes.

More importantly, the Court of Appeals stated that a guardian can move the ward where

the guardian wants to and against the wishes of the ward but only within the state where

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the guardianship is established. However, the Court of Appeals ruled that under federal

laws: “A guardian who moves an adult ward across state or national boundaries,

against her will, ... may be convicted of kidnapping”. (Emphasis added.) Id. at 1115

Moreover, the guardians have just filed their annual settlement which is very

disturbing. See Exhibit_______. The settlement is utterly void of any compliance with

the requirements of R.SMo. §§ 475.270 and 473.543. Nowhere in the settlement is there

any description of the purpose of any disbursement or expenditure. Expenditures

exceeding $75.00 are not supported with invoices, vouchers, copies of checks or, for that

matter, by any other document. See R.S.Mo. § 473.543.1. While the settlement denotes

“no further process,” apparently in an attempt to invoke Section 475.270.3, there still is

the blatant absence of any explanation of the purpose of any expenditure which is

required by Section 475.270.3(2). The expenditures themselves are shocking, For

instance:

-$41,000.00 to the Guardian Angels to assist in Mark’s kidnapping;

-Over $18,000.00 to Scott Wasserman without any detail or explanation; and

- Nearly $60,000.00 to an accounting firm to set up estate planning tools for

Martha Lally and to shift Mark’s condo into her own corporation.

The totality of Martha Lally's conduct, ratified by Susan McGee, justifies their

removal as guardians and conservators. In In re Estate of Schooler, 204 S.W.3d 338

(Mo. Ct. App. 2006), the court found it was proper to remove a guardian who had taken a

ward out of one residential facility and placed the ward in a residential facility in another

facility in another city without first obtaining court permission. The guardian had tricked

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the ward by representing that he was going to take the ward out to lunch. The court held

that removal of the guardian was proper because:

● "The provisions for an abode for the ward are subject to the supervision of the

court;

● The guardian was "incapable or unsuitable to execute the trust reposed in him"

under Section 473.140 because he took the ward under the pretext that he was taking her

out to lunch without giving any prior notice to her physician or the probate court and the

guardian only notified the court after the move when he filed a motion to move the ward;

● The move of the ward could not be justified on the theory that the ward

needed medical evaluations because the evidence supported the theory that the guardian's

intent was to permanently move the ward away from his home;

● The guardian incurred unnecessary expenses and wasted assets of the estate

by moving the ward to a facility costing over $8,000.00 per month;

● The move was not in the best interests of the ward because, even though

there was no evidence that the ward actually experienced adverse effects from the move,

there was a risk that the sudden change in environment could adversely affect her; and

finally, but perhaps most importantly,

● The manner by which the ward was moved, i.e., through deceit and against

her will, broke down the trust between the ward and the guardian and harmed the ward

because the ward wanted to be near family and friends. 204 S.W.3d at 344-47.

The facts of this case fit precisely within the framework of the Schooler case. Mr.

Lally had substantial assets and was comfortable living his nice home near family friends.

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He was not consulted about moving. Instead, he was kidnapped by strangers, held

against his will and transported hundred of miles away from his familiar settings. To

make matters worse, he was "disposed of" by Martha Lally so she could steal his home

and his money. Surely, this Court cannot condone such behavior.

CONCLUSION

For the foregoing reasons this Court should reverse the Commissioners ruling and

allow a hearing on this matter.

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