In the Matter of a Mail Dispute ) November 30, 1993 Between: ) ) HOWARD W. FROUD ) ) and ) ) JACKY GENTRY ) P. S. Docket No. MD-202 APPEARANCE FOR MR. FROUD: Zachary P. Muncy, Esq. 201 West Market Avenue P. O. Box 1946 Searcy, AR 72143-1946 APPEARANCE FOR MS. GENTRY: None.
This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book ("DMM") § 153.72, which requires the chief field counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Ms. Ruby Yingling, P. O. Box 24, Judsonia, Arkansas 72801-0024. Counsel for Mr. Howard Froud filed a submittal consisting of a statement (sworn to by counsel) and attachments and a supplement to his submittal. Ms. Gentry did not file a submittal pursuant to 39 C.F.R. § 965.5 or comments to Mr. Froud's submittal as permitted by 39 C.F.R. § 965.6. The disputed mail is currently being held by the Postmaster, Judsonia, Arkansas.
The findings that follow are based on Mr. Froud's submittal and information from field counsel and the Judsonia Post Office.
1. By a document executed and recorded in Arkansas on June 14, 1991, Ruby Yingling granted Jacky Gentry a durable power of attorney authorizing Ms. Gentry to act in Ms. Yingling's behalf in all matters. The power of attorney stated that Ms. Gentry's appointment was not affected by Ms. Yingling's subsequent disability or incapacity.
2. On August 16, 1993, the Probate Court of White County, Arkansas, concluded that Ms. Yingling was incapable of managing her affairs and appointed Howard Froud her temporary guardian pursuant to Arkansas Code Annotated 28-65-218. The guardianship was to expire 90 days after the appointment (Ark. Code Ann. 28-65-218(a)).
3. The appointment authorized Mr. Froud to take care and custody of Ms. Yingling and to take possession of and administer Ms. Yingling's property. It contained no limitations on Mr. Froud's authority and did not specify any powers or rights to be retained by Ms. Yingling.
4. On August 22, 1993, Ms. Gentry arranged for Ms. Yingling to be moved to Ms. Gentry's home in Michigan, and, on August 23, 1993, Ms. Gentry was appointed the temporary conservator and guardian of Ms. Yingling by the Probate Court of Van Buren County, Michigan.
5. On August 23, 1993, Ruby Yingling executed a PS Form 3575, "Change of Address Order," that was submitted to the Judsonia, Arkansas, Post Office asking that her mail be forwarded from her former address, P.O. Box 24 in Judsonia, to 34946 64th Avenue in Paw Paw, Michigan. The latter is Ms. Gentry's address. That mail forward request was not honored as Mr. Froud had also claimed mail addressed to Ms. Yingling at P.O. Box 24 in Judsonia. Box 24 has been closed.
6. In early September, Ms. Gentry asked that the postmaster honor Ms. Yingling's August 23 request that her mail be forwarded to Michigan because Ms. Yingling had, according to Ms. Gentry, permanently changed her residence to Michigan. Ms. Gentry did not claim Ms. Yingling's mail for herself independent of Ms. Yingling's forward request.
7. On or about October 18, 1993, Ms. Yingling returned to Judsonia, and on October 25, 1993, upon the request of Ms. Gentry, the Michigan petition for temporary guardianship of Ms. Yingling was dismissed.
8. Mr. Froud is currently making the arrangements for Ms. Yingling's care in Judsonia and paying her bills. He has advised many of Ms. Yingling's correspondents to send mail to her at his address, 4067 Highway 157, Steprock, Arkansas 72081. Mail so addressed is also being held by the post office.
9. During the period he was Ms. Yingling's guardian, according to his counsel's statement, Mr. Froud "expressed his desire to revoke" Ms. Gentry's power of attorney.
10. Notwithstanding the voluntary dismissal of Ms. Gentry's Michigan petition for guardianship, there is nothing in the record before me to indicate that Ms. Gentry has rescinded her earlier request that Ms. Yingling's mail be forwarded to Ms. Gentry's address in Michigan.
1. Ms. Gentry did not file the submittal required by 39 C.F.R. § 965.5 and thus is in default under 39 C.F.R. § 965.7. That default would be sufficient to warrant denying her claim to the disputed mail. 39 C.F.R. § 965.7.
2. Arkansas Law provides that in a proceeding to establish a guardianship over an incapacitated person, if the court "determines the guardians should be limited, the order shall set forth the specific powers, authorities, and duties the guardian shall possess, which may be stated in terms of powers or rights the incapacitated person may exercise without intervention of the guardian." (Ark. Code Ann. 28-65-214(d); see Ark. Code Ann. 28-65-214(a), 28-65-217(b)). As Mr. Froud's appointment as the temporary guardian of Ms. Yingling and her affairs was without limitation, it was sufficiently broad to authorize him to receive her mail and to have it forwarded to his address. Her execution of a Change of Address Order after he was appointed her guardian was inconsistent with his authority and ineffective (see Ark. Code Ann. 28-65-106). However, 90 days after the August 16, 1993 order of the White County Probate Court, Mr. Froud's appointment as guardian expired and, therefore, is no longer a basis for allowing Mr. Froud to control Ms. Yingling's mail (see Ark. Code Ann. 28-65-401(c)(1)). The record does not indicate that the temporary guardianship has been extended or that another guardian has been appointed.
3. That Mr. Froud is making arrangements for Ms. Yingling's care in Judsonia and paying her bills is not sufficient to afford him control of her mail. Since his guardianship has expired, he has not demonstrated a right to direct Ms. Yingling's mail.
4. Arkansas Law (Ark. Code Ann. 28-68-203(a)(2)) provides that a court-appointed guardian may revoke durable powers of attorney previously executed by the principal. However, that Mr. Froud expressed his desire to revoke Ms. Gentry's power of attorney does not prove that he revoked it during the time he was Ms. Yingling's temporary guardian.
5. Ms. Gentry has not claimed for herself the right to Ms. Yingling's mail based on the power of attorney. Rather, her claim was made on behalf of Ms. Yingling and was based on Ms. Yingling's move to Michigan. Now that Ms. Yingling has returned to Judsonia, the justification for Ms. Gentry's request has disappeared.
6. As there is currently no court-appointed guardian to manage Ms. Yingling's affairs and no effective change of address order from Ms. Yingling or someone acting with her authorization (see DMM § 159.21), mail addressed to her at the now-closed Box 24 should be treated as undeliverable (DMM § 159.15). Ms. Yingling, her agent or a court-appointed guardian authorized to conduct Ms. Yingling's affairs may direct her mail, including the mail currently held, to another address by executing a change of address order (DMM § 159.21; see DMM § 153.73).
7. Mail addressed to Ms. Yingling at 4067 Highway 157, Steprock, Arkansas 72081, is not in dispute and should be delivered as addressed.
8. The attached mail delivery order should be issued.
Norman D. Menegat Administrative Judge