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Van v. Van

September 10, 1973

VAN ET AL, RESPONDENTS,
v.
VAN, APPELLANT



Appeal from Circuit Court, Clackamas County. P. K. Hammond, Judge.

Fred A. Granata, Portland, for appellant.

Virginia R. Renwick, Helen F. Althaus and Renwick, Althaus & Bishop, Tigard, for respondents.

Schwab, Chief Judge, and Langtry and Foley, Judges.

Schwab

This is an appeal from a finding of incompetency and the appointment of a permanent guardian of the person and estate of the respondent by the Clackamas County Circuit Court at a hearing on November 6, 1972; a temporary guardian had previously been appointed on September 12, 1972. The basis for the finding of incompetency was a factual determination that the respondent, now approximately 60 years old, was a chronic alcoholic and was thus unable, unassisted, to properly manage and take care of herself and her property. See, ORS 126.006 (3).*fn1

An appeal of a matter of this kind is tried anew upon the record by this court. ORS 111.205; ORS

19.125. See, Stangier v. Stangier, 245 Or 236, 237, 421 P2d 693 (1966). The procedure to be followed in reviews de novo was stated in Hannan v. Good Samaritan Hosp., 4 Or App 178, 187, 471 P2d 831, 476 P2d 931 (1970), Sup Ct review denied (1971):

"* * * [I]n Oregon a de novo review is a trial anew in the fullest sense, with the findings of the trial court, subject to one exception, being given no weight. This exception has been enunciated in terms of giving 'great weight' to the tribunal (usually the trial judge) who had the opportunity to see and hear the witnesses and thus be better able to weigh their credibility on disputed issues of fact * * *."

The petitioners herein are two sons of the respondent. Both sons testified that the respondent drank excessively and attributed a series of hospitalizations*fn2 over the years to this excessive drinking. One son also stated that he had paid several small overdue bills of the respondent. A daughter testified that the respondent had been inebriated during one visit and that she had found bottles of vodka both on her mother's person and about her apartment. Other relatives of the respondent also testified that respondent had an alcohol problem and related incidents to support this contention. The petitioners presented no medical testimony.

The respondent presented a friend of long standing who testified as to Mrs. Van's neat and tidy physical appearance during frequent visits to her apartment. A nurse at the hospital at which the respondent was confined at the time of this hearing favorably discussed the respondent's activities in the hospital. The trust officer of the bank managing Mrs.

Van's agency account noted that although she had ultimate control of the assets, she had made no unreasonable withdrawals over the preceding 21 years. The respondent herself testified that she had no alcohol problem and described in some detail her financial situation. She denied most of the ...


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