Guardianship/Conservatorship of B.K.J.

2015 ND 191, 867 N.W.2d 345, 2015 N.D. LEXIS 206, 2015 WL 4597768
CourtNorth Dakota Supreme Court
DecidedJuly 30, 2015
Docket20140446
StatusPublished
Cited by4 cases

This text of 2015 ND 191 (Guardianship/Conservatorship of B.K.J.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guardianship/Conservatorship of B.K.J., 2015 ND 191, 867 N.W.2d 345, 2015 N.D. LEXIS 206, 2015 WL 4597768 (N.D. 2015).

Opinion

McEVERS, Justice.

[¶ 1] B.K.J. appeals from a district court order appointing J.W. and Guardian and Protective Services, Inc; (“G.A.P.S”), as her co-guardians. We affirm, concluding the district court did not abuse its discretion in appointing J.W. and G.A.P.S. as B.KJ.’s co-guardians.

I

[¶ 2] B.KJ.’s niece, J.W., petitioned for the appointment of a guardian and a conservator for B.K.J. on the grounds B.K.J. suffered mild to moderate Alzheimer’s disease and dementia and had shown decline in her ability to care for herself and her finances. Particularly, J.W. asserted B.K.J. had over $600,000 in unpaid taxes, interest, and penalties and had allegedly been taken advantage of monetarily by certain friends and family members. Specifically, the petition sought to appoint J.W. as B.KJ.’s guardian and conservator. After a hearing for emergency guardianship, the district court appointed J.W. and G.A.P.S. as emergency co-guardians to B.K.J. pending further hearing. The district court appointed a physician and a visitor to examine B.K.J., and an attorney to represent B.K.J. as guardian ad litem. A hearing was held on the petition. At the beginning of the hearing, the parties stipulated that a guardianship is necessary for B.K.J., and that she did not oppose the appointment of First International Bank as her conservator.. The court-appointed physician, the court-appointed visitor, B.KJ.’s guardian ad litem, and others testified regarding the extent of B.KJ.’s incapacity, the necessity of a guardian, and who should be appointed as B.KJ.’s guardian. B.K.J. testified that she did not want J.W. appointed as her guardian and nominated two of her friends, F.C. and T.C., to be appointed as her co-guardians. The district court appointed First International Bank as B.KJ.’s conservator and appointed J.W. and G.A.P.S. as B.KJ.’s co-guardians, concluding the evidence established *348 they were the proper and best qualified persons to serve as her guardians and represent the best interests of B.K.J. B.K.J. appealed.

II

[¶ 3] On appeal, B.K.J. argues the district court abused its discretion by misinterpreting and misapplying the law when it did not appoint F.C. and T.C., the individuals whom she nominated to be her co-guardians, because her preference should have taken priority under N.D.C.C. § 30.1—28—11(3)(a).

' [¶ 4] The standard of review applied in guardianship proceedings is as follows:

Although we apply the clearly erroneous standard under N.D.R.Civ.P. 52(a) when reviewing findings of fact in a guardianship proceeding, see, e.g., Matter of Guardianship of Larson, 530 N.W.2d 348, 351 (N.D.1995); Matter of Guardianship of Nelson, 519 N.W.2d 15, 17 (N.D.1994); Matter of Guardianship of Renz, 507 N.W.2d 76, 77 (N.D.1993), courts in Uniform Probate Code jurisdictions apply the abuse of discretion standard when reviewing a trial court’s selection of a guardian and conservator. See, e.g., In re Guardianship of Kowalski, 382 N.W.2d 861, 864 (Minn.Ct.App. 1986); Matter of Guardianship of Nelson, 204 Mont. 90, 663 P.2d 316, 318 (1983); In re Guardianship of Blare, 1999 SD 3, ¶ 9, 589 N.W.2d 211; Peter G. Guthrie, Annotation, Priority and Preference in Appointment of Conservator or Guardian for an Incompetent, 65 A.L.R.3d 991, 995 (1975). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. In re E.G., 2006 ND 126, ¶ 7, 716 N.W.2d 469. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. City of Bismarck v. Mariner Constr., Inc., 2006 ND 108, ¶ 8, 714 N.W.2d 484.

In re Guardianship and Conservatorship of Thomas, 2006 ND 219, ¶ 7, 723 N.W.2d 384. If a statute requires express findings by the district court, failure to make such findings may constitute reversible error when the record does not reflect whether the issue was considered. See Schempp-Cook v. Cook, 455 N.W.2d 216, 217-18 (N.D.1990). When express findings are not required by statute, the fact-finder must consider all applicable factors. See Mertz v. Mertz, 439 N.W.2d 94, 97 (N.D.1989).

[¶ 5] Under N.D.C.C. § 30.1-28-04(2)(c), at a hearing regarding establishing a guardianship, the district court shall:

Appoint a guardian and confer specific powers of guardianship only after finding in the record based on clear and convincing evidence that:
(1) The proposed ward is an incapacitated person;
(2) There is no available alternative resource plan that is suitable to safeguard the proposed ward’s health, safety, or habilitation which could be used instead of a guardianship.
(3) The guardianship is necessary as the best means of providing care, supervision, or habilitation of the ward; and
(4) The powers and duties conferred upon the guardian are appropriate as the least restrictive form of intervention consistent with the ability of the ward for self-care.

*349 (Emphasis added.) Here, the district court found, by clear and convincing evidence, that the parties had stipulated to the fact that B.K.J. is an incapacitated person and that the remaining elements under N.D.C.C. § 30.1-28-04(2)(c)(2)-(4) had been satisfied warranting appointment of a guardian. B.K.J. does not challenge the district court’s findings under N.D.C.C. § 30.1-28-04(2)(c) governing the district court’s determination that a guardianship is necessary.

[¶ 6] Under N.D.C.C. § 30.1-28-11(1), “[a]ny competent person or a designated person from a suitable institution, agency, or nonprofit group home may be appointed guardian of an incapacitated person.” The district court shall appoint the incapacitated person’s most recent nomination for a durable power of attorney as the person’s guardian, “[u]nless lack of qualification or other good cause dictates the contrary.” N.D.C.C. § 30.1-28-11(2). B.K.J. nominated J.W. as her power of attorney, but revoked that nomination in 2014. When N.D.C.C. § 30.1-28-11(2) does not apply, the order of priority a district court must consider for appointing a guardian is as follows:

a. A person nominated by the incapacitated person prior to being determined to be incapacitated,

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Bluebook (online)
2015 ND 191, 867 N.W.2d 345, 2015 N.D. LEXIS 206, 2015 WL 4597768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guardianshipconservatorship-of-bkj-nd-2015.