In Re Conservatorship of Lundgaard

453 N.W.2d 58, 1990 Minn. App. LEXIS 270, 1989 WL 200367
CourtCourt of Appeals of Minnesota
DecidedMarch 27, 1990
DocketC4-89-1356
StatusPublished
Cited by8 cases

This text of 453 N.W.2d 58 (In Re Conservatorship of Lundgaard) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Conservatorship of Lundgaard, 453 N.W.2d 58, 1990 Minn. App. LEXIS 270, 1989 WL 200367 (Mich. Ct. App. 1990).

Opinion

OPINION

PARKER, Judge.

Martha Lundgaard appeals from an order entered on July 12, 1989, appointing Thomas J. Lee, a professional conservator, as conservator of her person and estate. She contends the evidence does not support the necessary findings that she is incapacitated and in need of a conservator, that the court committed reversible error by failing to apply a less restrictive alternative than conservatorship, and that the probate court abused its discretion in appointing Lee as conservator because he did not personally *60 represent to the court that he was willing to be appointed conservator. We affirm.

FACTS

Martha Lundgaard is 80 years old and lived alone in a duplex until she was hospitalized for injuries sustained in a fall at her home. She has remained in either a hospital or in St. Mary’s Rehabilitation Center since May 1988.

Lundberg’s case was referred to Ebenezer Protective Services (Ebenezer) in August 1988 and again in November 1988. The referral was made because a social worker at St. Mary’s became concerned that Lund-gaard was vulnerable and unable to handle her finances without the help of Marvin Attleson, a friend, and that Attleson may have influenced her to revoke the power of attorney she had assigned to her sister. Ebenezer recommended pursuing a conser-vatorship for her.

On March 20, 1989, Attleson filed a petition to be appointed as general conservator for Lundgaard. This petition was signed by Lundgaard as consenting to the appointment. At a hearing on April 26, 1989, the parties agreed to dismissal of the petition. Attleson has not helped Lundgaard pay bills or make bank deposits since.

On May 24, 1989, an Ebenezer social worker filed a petition seeking appointment of Thomas J. Lee as conservator of Lund-gaard’s person and estate. A court-ordered visitor interviewed Lundgaard at a time when she appeared quite lucid and reached no conclusion as to necessity for appointment of a conservator. Her physician filed a statement in support of conser-vatorship. Because of some confusion concerning who Lundgaard authorized as her attorney, two attorneys represented her at the June 21 hearing. Present at the hearing were Lundgaard, two of her sisters, three friends, a niece, Attleson, and the three witnesses for the petitioner. None of Lundgaard’s relatives testified.

Two social workers and her personal physician testified that, among other things, Lundgaard has short-term memory loss; she is suffering from depression and possible senile dementia; she denies her physical incapacities; she asks for help with her finances and does not understand them; and she is inconsistent and “confusing” when making decisions. She has failed to pay her St. Mary’s bill, which exceeded $10,000 at the time of the hearing. She told one person that if she were at home and there was a fire she would run out the door, even though she has not walked for more than a year.

Attleson and a former student of Lund-gaard’s testified in opposition to the petition. Attleson’s testimony that Lundgaard could manage her own affairs with some help was contradictory to the allegation of his earlier petition to become her conservator. Her former student testified that during weekly phone conversations and monthly visits, Lundgaard did not seem confused, talked about her therapy and about trying to walk, recognized her limitations and did not discuss financial matters or ask for help in paying bills.

In her direct testimony at the hearing, Lundgaard represented that she currently resides in her duplex. The referee asked her several questions, to which she seemed unresponsive and confused.

The probate court issued findings and an order appointing a conservator. This order was issued the day of the hearing and appears to be a form order which includes all the statutory powers which may be granted a conservator of an estate and person.

ISSUES

1. Did the probate court err in finding that Lundgaard is incapacitated and that there is no appropriate alternative to con-servatorship of her estate and person?

2. Did the probate court abuse its discretion or otherwise err in appointing Lee as conservator of Lundgaard’s estate and person?

DISCUSSION

I

In reviewing findings of fact, this court may not set aside the probate court’s *61 findings unless they are clearly erroneous, giving due regard for the probate court’s determinations regarding the credibility of witnesses. Minn.R.Civ.P. 52.01; In re Conservatorship of T.L.R., 375 N.W.2d 54, 58 (Minn.Ct.App.1985).

Lundgaard contends the evidence was insufficient to support the finding that she is incapacitated and complains that the trial court “did not give due consideration to the evidence in making its findings,” an omission she claims amounts to reversible error. We observe that the probate court used preprinted findings which are general in nature, making review very difficult.

In 1980 the legislature made substantial amendments to the statutes governing appointment of conservators. The supreme court has noted that the thrust of that legislation was

to make it harder to create a guardianship and, once one is created, that the powers of the guardian should be kept to the bare minimum necessary to care for the ward’s needs.

In re Guardianship of Mikulanec, 356 N.W.2d 683, 687 (Minn.1984). According to one of the Senate sponsors of the 1980 bill, the purpose of the amendments was

an attempt to rewrite the guardianship statute with clear definitions of what incapacity involves and some more specific statements about the powers and duties of a guardian and it expands the due process rights of a proposed ward in a guardianship hearing * * *.

Id. (quoting testimony of Senator Spear before Senate Subcommittee on Judicial Administration, Feb. 12, 1980).

As a result of the 1980 legislation and a subsequent amendment raising the burden of persuasion, the legislature provided that in a proceeding for the involuntary appointment of a conservator, there is a legal presumption of capacity and the burden of proof is on the petitioner to prove, by clear and convincing evidence, that the proposed conservatee is incapacitated as defined in Minn.Stat. § 525.54 (1988). Minn.Stat. § 525.551, subds. 3, 5 (1988); 1982 Minn. Laws ch. 472. In addition, the legislature has mandated that

[i]n all cases the court shall make specific written findings of fact, state separately its conclusions of law, and direct the entry of an appropriate judgment or order.

Minn.Stat. § 525.551, subd. 5 (1988).

In determining that Lundgaard was incapacitated, the probate court made the following findings, inserting “her” for “his” on a preprinted order:

2.

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Cite This Page — Counsel Stack

Bluebook (online)
453 N.W.2d 58, 1990 Minn. App. LEXIS 270, 1989 WL 200367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-conservatorship-of-lundgaard-minnctapp-1990.