Electronically Filed FIRST CIRCUIT 1CG181000044 12-MAR-2020 02:53 PM IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII IN THE MATTER OF THE CONSERVATORSHIP AND GUARDIANSHIP CG. 18-1-000044 (Conservator and Guardian of Adult) ORDER REGARDING EVIDENTIARY HEARING FOR CONSERVATORSHIP OF JUDGE: Honorable James H. Ashford DATE(S): March 9-11, 2020 ABIGAIL K. K. KAWANANAKOA, RESPONDENT. ORDER REGARDING EVIDENTIARY HEARING FOR CONSERVATORSHIP Pursuant to Order of Assignment of Contested Matter From the Regular Probate Calendar to the Civil Trials Calendar filed November 5, 2019 (the “Order”), this Court was ordered to determine whether a conservatorship for Abigail K. K. Kawananakoa (“Ms. Kawananakoa”) is appropriate under Hawaii Revised Statutes section 560:5-401(2). Pursuant to the Order, the Court conducted an evidentiary hearing on March 9, 2020, March 10, 2020, and March 11, 2020. The following individuals and entities, through their respective legal counsel, appeared at the hearing: 1) Ms. Kawananakoa; 2) Veronica Gail Kawananakoa (“Veronica Kawananakoa”); 3) petitioner Thongbay Smart; 4) petitioner The 1 Abigail K. K. Kawananakoa Foundation; 5) guardian ad litem Randall Morikawa; 6) James H. Wright; and 7) kokua kanawai James Kawachika. At the hearing, the bulk of most witnesses’ direct testimony occurred via written declarations or written reports that were received in evidence. Witnesses were also subjected to cross-examination, redirect examination, etc., as well as limited examination by the Court; except to the extent that all parties waived their opportunity to cross-examine some witnesses. The Court having considered all of the evidence submitted at trial and having considered the credibility of each witness—as well as the foundation for each witness’ testimony and the foundation for all other evidence received—and being fully informed, finds that a conservator is appropriate and should be appointed. Ms. Kawananakoa is a charming and gracious lady, in the best sense of the word. She has a great sense of humor and is tremendously endearing. Nevertheless, the Court finds by clear and convincing evidence that for reasons other than age Ms. Kawananakoa is unable to manage her property and business affairs effectively because of an impairment in her ability to receive and evaluate information or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance. The Court also finds by a preponderance of evidence that Ms. Kawananakoa’s property is currently being inappropriately wasted and dissipated and will continue to be wasted or dissipated unless management is provided by a conservator. Further, the Court finds that there is no less restrictive alternative to remedy or prevent this, as clearly evidenced by the testimony of numerous witnesses and exhibits at the evidentiary hearing. Regardless of how Ms. Kawananakoa came to be in her current financial situation, it is clear to the Court that a conservator is appropriate and necessary. In reaching these conclusions, the Court finds Dr. Trader’s February 3, 2020, written 2 report (Exhibit P-2)—including Dr. Trader’s methodology and analytical framework, factual bases, and conclusions—to be particularly probative. The Court also finds Ms. Kawananakoa’s testimony to be particularly persuasive. Conversely, the Court finds much of the testimony of the other lay witnesses who testified at the evidentiary hearing to have relatively little probative value, as those witnesses tended to focus on topics of little significance to the issue of whether a conservator is appropriate. Finally, based on a variety of factors, the Court finds Dr. Trader’s analysis and conclusions to be far more persuasive than the opinions and conclusions of Dr. Spar, Dr. Blanchette, and Dr. McEwan, all of whose testimony was offered by Ms. Kawananakoa and Veronica Kawananakoa. Those factors include, but are not limited to (i) disparities in the witnesses’ respective factual bases; (ii) disparities in the thoroughness of the witnesses’ respective analyses; (iii) disparities in the witnesses’ respective backgrounds and qualifications; (iv) the passage of time between some witnesses’ interaction with or information about Ms. Kawananakoa compared to the dates of the evidentiary hearing; and (v) disparities in the witnesses’ respective methodologies. March 12, 2020 DATED: HONOLULU, HAWAII, _______________________. _______________________________________ JUDGE OF THE ABOVE-ENTITLED COURT 3 IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII IN THE MATTER OF THE CONSERVATORSHIP AND GUARDIANSHIP CG. 18-1-000044 (Conservator and Guardian of Adult) NOTICE OF ENTRY OF JUDGE: Honorable James H. Ashford DATE(S): March 9-11, 2020 ABIGAIL K. K. KAWANANAKOA, RESPONDENT. NOTICE OF ENTRY I hereby certify that the foregoing document was duly served upon the following parties March 12, 2020 via JIMS electronic filing or USPS on _______________________________: BRUCE D. VOSS, ESQ. JOHN D. FERRY III, ESQ. Bays Lung Rose & Holma 700 Bishop Street, Suite 900 Honolulu, Hawaii 96813 Attorneys for Petitioner ABIGAIL K. K. KAWANANAKOA RAYMOND K. OKADA, ESQ. EDMUND K. SAFFERY, ESQ. ROSEMARIE S. J. SAM, ESQ. JUDY Y. LEE, ESQ. DEIRDRE MARIE-IHA, ESQ. Goodsill Anderson Quinn & Stifel 999 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 Attorneys for JAMES H. WRIGHT, Successor Trustee of the Abigail K.K. Kawananakoa Revocable Living Trust, dated April 4, 2001, as amended MICHAEL D. RUDY, ESQ. PAUL A.C. HIGA, ESQ. ERIK D. OLSON, ESQ. 1001 Bishop Street, Suite 2350 4 Honolulu, Hawaii 96813 Attorneys for Interested Person VERONICA GAIL WORTH-KAWANANAKOA RANDALL I. MORIKAWA, ESQ. Ching & Morikawa 4211 Waialae Avenue, Suite 34 Honolulu, Hawaii 96816 GUARDIAN AD LITEM RONALD R. SAKAMOTO, ESQ. CAROLYN E. HAYASHI, ESQ. Char Sakamoto Ishii Lum & Ching 841 Bishop Street, Suite 850 Honolulu, Hawaii 96813 Attorneys for Interested Person BETTY LOU STROUP MEGAN K. KAU, ESQ. MK Law, LLC 820 Mililani Street, Suite 701 Honolulu, Hawaii 96813 Attorney for Co-Petitioner THONGBAY SMART JAMES A. KAWACHIKA, ESQ. Deeley King Pang & Van Etten 1003 Bishop Street, Suite 1550 Honolulu, Hawaii 96813 KOKUA KANAWAI ROSANNE K. GOO, ESQ. 44-662 Kuono Place Kaneohe, HI 96744 Attorney for Co-Petitioner THE ABIGAIL K. K. KAWANANAKOA FOUNDATION REGAN IWAO, ESQ. DEREK R. KOBAYASHI Schlack Ito 745 Fort Street, Suite 1500 Honolulu, Hawaii 96815 Attorney for Co-Petitioner THE ABIGAIL K. K. KAWANANAKOA FOUNDATION 5 March 12, 2020 DATED: Honolulu, Hawaii, _______________________ /s/ Lindsey Ursua _______________________________________ Clerk of the Above-Entitled Court, 10th Division 6