IN THE 16th JUDICIAL CIRCUIT AT KANSAS CITY, MISSOURI PROBATE DIVISION AT KANSAS CITY MARK T. LALLY Petitioner, vs.

MARTHA M. LALLY and SUSAN L. McGEE Respondents. PETITIONER, MARK LALLY'S MOTION AND SUGGESTIONS IN SUPPORT FOR REHEARING1 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 Estate No. 10P8-PR00243-01

MAKE SURE EVERYTHING

Petition for "failure to state a claim which seeks relief under and the Missouri Probate Code." The Judgment must be reversed because:

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.

(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 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 coguardians. 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
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away." See Affidavit of Richard W. Miller at 5, Exhibit A to Petitioner's Petition 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 undersigneds 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 undersigneds 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.
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The Petition is attached hereto as Exhibit B and is incorporated herein by reference.

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. Lallys

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

condominium and appropriate the money from that sale and all of Marks 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 Marks 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 Marks 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 mothers 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 Marks 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 Marks rights, allowed Martha to become Marks conservator and guardian. Mr. Murphy never brought any of the above information to the probate courts 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 Marks 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 Murphys GAL Report, Martha, by manipulating Marks 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 courts 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." 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. In re

"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).

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. Lallys 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 guardiana 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. Murphys 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.Lallys rights. However, in order for Mr. Murphy to be able to
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assume the role as Mr. Lallys advocate and adjudicator, this Courts Order appointing him as guardian ad litem must so specify that Mr. Murphy is appointed to adjudicate Mr. Lallys 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 Courts 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. Lallys 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 Lallys request to suspend the co-guardians authority and to get him released from his confinement in Michigan. Instead, Mr. Murphys duties were specifically limited to investigating the allegations in the Petition and to determine if Mr. Lallys 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. A. THE PETITION CLEARLY STATES A VALID CLAIM 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. Lallys freedom has been unduly infringed upon by the co-guardians 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. Lalleys rights in the following particulars:
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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. 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.

ii.

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. 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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iv.

be released, places the Guardians in contempt of this Courts 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. 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 wards 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:

vi.

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 Lallys 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. Lallys 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 protectees 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 Marthas 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 wards 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.

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). instance: -$41,000.00 to the Guardian Angels to assist in Marks 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 Marks 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 expenditures themselves are shocking, For

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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