In Re the Guardianship of Fingerholtz

357 N.W.2d 423, 1984 Minn. App. LEXIS 3776
CourtCourt of Appeals of Minnesota
DecidedNovember 13, 1984
DocketC2-84-185
StatusPublished
Cited by6 cases

This text of 357 N.W.2d 423 (In Re the Guardianship of Fingerholtz) 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 the Guardianship of Fingerholtz, 357 N.W.2d 423, 1984 Minn. App. LEXIS 3776 (Mich. Ct. App. 1984).

Opinion

OPINION

RANDALL, Judge.

This is an appeal from two orders of the Ramsey County Probate Court. One order denied the appellant’s petition to succeed as general guardian of the ward, and another order granted the present guardian’s petition to sell the ward’s homestead. We affirm both orders of the probate court.

FACTS

Court proceedings in this case began on March 10, 1983, when the Adult Protection Unit of Ramsey County Community Human Services filed a petition for appointment of a special guardian for the ward, Ann Fingerholtz. The petition alleged that the ward was a confused, disoriented and belligerent 83 year old woman suffering from senile dementia, prone to harm, and in need of 24 hour care. The petition alleged:

The proposed ward has been living independently with the aid of a homemaker (8 hours per week), a nurse, once a week, meals on wheels, and frequent assistance from relatives (including calls twice a day from a grandaughter-in-law). Over the last six months, the nurse and homemaker have noted a marked decrease in the ward’s ability to care for herself. On February j, 1983 an incident occurred between the ward and her son in which she allegedly suffered injuries ‘which resulted in hospitalization and the filing of a Vulnerable Adult Abuse Complaint. Upon discharge from the hospital on February 10, 1983 a plan was initiated which called for 24 hour supervision by the Ramsey County Nursing Service in her home. After approximately 3 weeks, the Nursing Service was forced to withdraw for fear of safety to their personnel, as Mrs. Fingerholz had allegedly attempted to attack one aid with a butcher knife and another with a hatch *425 et. The family refuses to place Mrs. Fingerholz in any type of Nursing Home and the medical authorities are in agreement that 24 hour supervised care is required in order to reduce the risk of Mrs. Fingerholz hurting herself while she is at home.

(Emphasis supplied.)

The Ramsey County Probate Court granted the petition and appointed an employee of Ramsey County Community Human Services as special guardian of the ward.

On March 14,1983, the ward’s son, Richard Fingerholtz, filed a petition seeking to be named general guardian of his mother. The special guardian filed objections to the petition and the court denied Richard Fing-erholtz’s petition, finding that the Vulnerable Adult Abuse Complaint had been substantiated and that Richard Fingerholtz was the son who had physically and verbally abused the ward. The court also found that although three medical doctors had recommended placing the ward in a nursing home, Richard Fingerholtz had unequi-vocably stated he would not place his mother in a nursing home. The court concluded that Richard Fingerholtz was “not a suitable or qualified person to be appointed General Guardian of the person and estate of the ward” and that “[t]he appointment of Richard Fingerholtz as General Guardian of the person and estate would not be in the best interest or safety of the ward.”

On July 1, 1983, the special guardian filed a petition requesting that the court appoint a general guardian for the ward. On that same date John Fingerholtz, the ward’s son-in-law, petitioned the court, requesting that he be appointed general guardian. After taking testimony, the court on August 2, 1983, entered findings of fact and conclusions of law, ordering that Ernest Cutting, an attorney and disinterested third person, be appointed general guardian.

Subsequent petitions for appointment of a successor guardian were filed by Richard Fingerholtz on behalf of the ward’s daughter and by Roy Fingerholtz, the ward’s grandson. The court on October 27, 1983, denied both petitions, determining “that the evidence * * * fails to show any valid reason to remove the guardian.”

Tom Fingerholtz, the present appellant, and another grandson of the ward, filed a petition for the appointment of himself as successor guardian on December 24, 1983. The court on January 16, 1984, denied that petition also, again finding “that the evidence * * * fails to show any valid reason to remove the General Guardian, Ernest E. Cutting.” The present appeal was taken by Tom Fingerholtz from that order. Appeal is also taken from an order of the probate court directing that the present guardian be allowed to sell the ward’s homestead in order to generate income for the payment of the ward’s debts.

ISSUES

1. Did the Ramsey County Probate Court properly deny Tom Fingerholtz’s petition to be appointed successor guardian?

2. Did the Ramsey County Probate Court properly grant the guardian’s petition to sell the ward’s homestead?

ANALYSIS

I

Successor guardian.

The question of when a guardian may be removed and a successor guardian appointed is one which has not been recently addressed in Minnesota. Although it is clear that the probate court has continuing jurisdiction over guardianships, (Minn.Stat. § 525.011 (1982)) the statutory changes which resulted from the adoption of the Uniform Probate Code have left a void in the law concerning removal of general guardians. Prior to 1974 the law was clear:

When a representative becomes insane or otherwise mentally incompetent, or unsuitable, incompetent, or incapable of discharging his trust, or has mismanaged the estate, or has failed to perform any duty imposed by law or by any lawful *426 order of the court, or has absconded, or has ceased to be a resident of this state, the court may remove him. The court on its own motion may, and on the petition of any person interested in the estate shall, order the representative to appear and show cause why he should not be removed. * * *

Minn.Stat. § 525.501 (1971).

In 1974 the above language was repealed. The present statute on removal provides in relevant part:

If a guardian or conservator dies, resigns, or is removed, the court may appoint a successor with at least 14 days prior notice to the ward or conservatee, his spouse, parents, adult children and siblings, and to other persons as the court may direct. If the ward or conser-vatee has capacity to do so, he may nominate a person to serve as successor or may give instructions to the succeeding guardian or conservator or he may do both. * * *

Minn.Stat. § 525.59 (1982). In addition, Minn.Stat. § 525.6195 (1982), entitled “Resignation or Removal Proceedings,” provides:

(a) Any person interested in the welfare of a ward, or the ward, if 14 or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interests of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian.
(b) After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate.

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Bluebook (online)
357 N.W.2d 423, 1984 Minn. App. LEXIS 3776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-of-fingerholtz-minnctapp-1984.