An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-728

NORTH CAROLINA COURT OF APPEALS

Filed: 7 February 2006

IN THE MATTER OF:

THE REMOVAL OF THE                    Randolph County
GUARDIAN OF THE PERSON OF            No. 04 E 39
GURNEY EDWARD NANCE

    Appeal by Respondent from order entered 23 December 2004 by Judge Russell G. Walker, Jr. in Superior Court, Randolph County. Heard in the Court of Appeals 10 January 2006.

    Benjamin Spence Albright for petitioner-appellee.

    Robert T. Newman, Sr. for respondent-appellant.

    WYNN, Judge.

    Section 35A-1290(b)(7) of the North Carolina General Statutes “authorizes the removal of a guardian where there is a showing of any potential for conflict between the interests of the ward and those of the guardian.” In re Estate of Armfield, 113 N.C. App. 467, 475, 439 S.E.2d 216, 220 (1994). Respondent contends that she was wrongfully removed as Guardian Of The Person because there was no evidence to show that she was unable to perform her duties as guardian. As the Clerk's findings of fact supported her conclusion of law that there were potential conflicts between Respondent's interests and the Ward's interest, we hold the superior court did not err in affirming the Clerk's order of removal.    On 26 November 2003, Charles E. Nance filed a Petition for Adjudication of Incompetence and Application for Appointment of Guardian for his father, Gurney Nance. Following a hearing before the Clerk of Superior Court, Randolph County, the Clerk declared Gurney Nance incompetent, appointed Charles Nance Guardian of the Estate, and appointed Lilly Nance, Gurney Nance's wife, Guardian of the Person. However, Charles Nance was unable to obtain a bond to qualify as a Guardian of the Estate; consequently, the Clerk appointed Lurlene Millikan to act as the Public Guardian of the Estate.
    In January 2004, Lilly and Gurney Nance began living at the residence of her daughter Patty Strickland and Patty's husband, Owen. Sometime thereafter, Lilly Nance petitioned the Clerk of Superior Court for reimbursement of living expenses, medical expenses, legal fees, and personal care of Gurney Nance. By order dated 23 September 2004, the Clerk allowed the requested reimbursements.     
    On 28 September 2004, Charles Nance filed a Complaint and Motion seeking removal of Lilly Nance as Guardian of the Person for Gurney Nance. Charles Nance contended that appointment was made due to a mistake as Gurney Nance had executed a durable power of attorney on 1 January 1991, directing Charles or Jesse Nance be appointed guardian of his person and property in the event that he was declared incompetent. Charles Nance further contended that Lilly Nance could no longer adequately fulfill her duties “due to age and physical weakness and senility.” By order entered 19October 2004, the Clerk removed Lilly Nance as Guardian of the Person pursuant to section 35A-1290(b)(7) of the North Carolina General Statutes, and appointed Lurlene Millikan as the General Guardian of Gurney Nance. By order entered 23 December 2004, the superior court affirmed the order of the Clerk. From this order, Lilly Nance appeals.
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    On appeal, Lilly Nance contends that the superior court erred by affirming the order of the Clerk removing her as guardian of the person. We disagree.
    Our Supreme Court has previously set out the superior court's standard of review in a proceeding to appoint or remove a guardian for an incompetent:
        In the appointment and removal of guardians, the appellate jurisdiction of the Superior Court is derivative and appeals present for review only errors of law committed by the clerk. In exercising the power of review, the judge is confined to the correction of errors of law. The hearing is on the record rather than de novo.

In re Simmons, 266 N.C. 702, 707, 147 S.E.2d 231, 234 (1966) (internal citations omitted); see also In re Bidstrup, 55 N.C. App. 394, 396, 285 S.E.2d 304, 305 (1982) (“The clerk's appointment of a guardian for an incompetent's estate therefore involves a determination too routine to justify saddling a superior court judge with a review any more extensive than a review of the record.”). Likewise, when the superior court sits as an appellate court, “[t]he standard of review in this Court is the same as in the Superior Court.” In re Estate of Pate, 119 N.C. App. 400, 403,459 S.E.2d 1, 2-3, disc. review denied, 341 N.C. 649, 462 S.E.2d 515 (1995) (citation omitted); see also In re Flowers, 140 N.C. App. 225, 228, 536 S.E.2d 324, 325 (2000).    
    Section 35A-1290(b) provides that, “It is the clerk's duty to remove a guardian or to take other action sufficient to protect the ward's interests in the following cases: . . . (7) The guardian has a private interest, whether direct or indirect, that might tend to hinder or be adverse to carrying out his duties as guardian.” N.C. Gen. Stat. § 35A-1290(b) (2005). Section 35A-1290(b)(7) “authorizes the removal of a guardian where there is a showing of any potential for conflict between the interests of the ward and those of the guardian.” In re Estate of Armfield, 113 N.C. App. at 475, 439 S.E.2d at 220.
    Lilly Nance first contends there was insufficient evidence to support the findings of fact and conclusion of law made by the Clerk:
        Findings of Fact:
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        10. That the Court has concerns of the well being of the Ward, due to the private interest of the Guardian of the Person, Lilly B. Nance, in making a decision of the skill level of care the Ward may need, so that they may not have to live apart and there maybe an interest of financial gain for her daughter, Patty Strickland, as the care giver.

        11. That it would be in the Ward's best interest to remove Lilly B. Nance as Guardian of the Person and appoint a disinterested party.

        Conclusions of Law:
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        2. It is in the best interest of the Ward that a disinterested party be appointed as Guardian of the Person and that such person should be the Public Guardian, Lurlene Millikan, who has already been appointed as Guardian of the Estate.

    After thoroughly reviewing the record before us   (See footnote 1)  , we find that there was competent evidence to support the Clerk's findings of fact. Evidence presented to the Clerk indicated that Lilly Nance did not want to live separately from her husband and this personal interest could influence her decision of whether Gurney Nance needed to be placed in a nursing home. Also, Patty Strickland receives $5100.00 for every month Gurney Nance lives in her home. This supports the Clerk's finding that there may be a conflict between Lilly Nance's daughter's financial interest and the best living environment for Gurney Nance.
    The Clerk's findings of fact support her conclusion of law that it is in the best interest of Gurney Nance that Lilly Nance be removed as Guardian of the Person and the Public Guardian appointed. Significantly, the findings state that Gurney Nance's health had deteriorated to the point that he was bedriddened requiring physical lifting and moving that Lilly Nance was unable to do. Lilly Nance argues that her private interests are “the same interests that any family in a similar situation would have.” However, this Court does not re-weigh the evidence and potential conflicts, but simply reviews for any errors of law. In re Simmons, 266 N.C. at 707, 147 S.E.2d at 234. Section 35A- 1290(b)(7) allows the Clerk to remove a guardian “where there is a showing of any potential for conflict between the interests of the ward and those of the guardian.” In re Estate of Armfield, 113 N.C. App. at 475, 439 S.E.2d at 220 (emphasis added). Here, there is a potential for conflict between Lilly Nance's private interests, not wanting to be separated from her husband and her daughter's financial gain, and Gurney Nance's interests. Therefore, the Clerk did not err in removing Lilly Nance as Guardian of the Person and the trial court did not err in affirming the Clerk's order.
    Affirmed.
    Judges HUNTER and JACKSON concur.
    Report per Rule 30(e).


Footnote: 1
     We note that no transcript of the hearing before the Clerk of Superior Court was made. Accordingly, our review is limited to the Clerk's notes and exhibits, all of which were included in the record.

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