Matter of Guardianship of Braaten

502 N.W.2d 512, 1993 N.D. LEXIS 136, 1993 WL 236343
CourtNorth Dakota Supreme Court
DecidedJuly 1, 1993
DocketCiv. 920266
StatusPublished
Cited by23 cases

This text of 502 N.W.2d 512 (Matter of Guardianship of Braaten) 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
Matter of Guardianship of Braaten, 502 N.W.2d 512, 1993 N.D. LEXIS 136, 1993 WL 236343 (N.D. 1993).

Opinions

MESCHKE, Justice.

Diane Marie Braaten appeals an order appointing her father and brother (the Braatens) as her co-guardians and conservators with unlimited general powers. We affirm in part, reverse in part, and remand with instructions for a limited guardianship.

Diane is a 38-year-old woman who entered Yelva Public School in 1960. When she was seven, a psychological evaluation recommended that she be enrolled in a program for the educable mentally retarded. Because the Velva school had no program, Diane attended special education classes in Drake, Sawyer and, for junior and senior high school, Minot. In 1973, Diane graduated high school with a special education diploma.

Before long, Diane became a client of the Minot Vocational Adjustment Workshop, where she has repeatedly received habilita-tive services. Diane returned to her parents’ home several times, but routinely reentered the Workshop. She married and left the Workshop in 1988, left her husband in 1990, returned to the Workshop in early 1991, and divorced. After returning to the Workshop, and with the help of the protection and advocacy unit, she obtained a 30-day restraining order to keep her parents away from her. Since then, Diane has occasionally visited a boyfriend in Bismarck, who once beat her and with whom she has engaged in anal sex, which causes medical harm to her hemorrhoids.

Currently, Diane uses the Workshop’s Individualized Supported Living Arrangement (ISLA). She resides in a “supervised sheltered setting,” and receives 24 hours of direct contact weekly from a residential trainer who assists her with daily household and personal activities. Except for occasional small purchases, her financial affairs have long been handled through the Workshop. At times, Diane neglects her nutritional needs and refuses guidance from others.

Diane’s ISLA evaluation in 1992 reported that, in addition to mild mental retardation, she has a dependent personality and a despondency disorder. Diane receives the services of a clinical psychologist and a case manager through the North Central Human Services Center. When she cooperates, Workshop staff help her twice a day with medication.

In November 1991, Diane became severely depressed, perhaps from a medication later withdrawn. Encouraged by her physician and her therapist, Diane entered a psychiatric hospital unit in Minot, where she stayed for nearly six weeks. Against medical advice, she prematurely left the hospital, resulting in her psychiatrist’s withdrawal from her case.

After returning to the Workshop ISLA, Diane refused medication and did not care for herself. When the Braatens discovered her physical deterioration in mid-February 1992, they strongly intervened. Diane was again hospitalized for five weeks and returned briefly to the Braatens’ home.

The Braatens petitioned for guardianship of her person and conservatorship of her property, alleging that, “due to mental problems, Diane can not make necessary decisions about her health, nutrition and finances to properly care for herself.” Under NDCC 30.1-28-03(3), the trial court appointed a visitor, a physician, and a guardian ad litem to consult with Diane and to report to the court.

Although the visitor’s report did not make all of the specific recommendations and assessments that a visitor’s written report “must contain,” see NDCC 30.1-28-[514]*51403(6)(h), the visitor reported that, “[s]ince predicting when she may need additional help is impossible, a guardianship may be necessary, provided the guardian would recognize Diane’s needs for running her own life, and try not to get involved unless she starts to deteriorate.”

Her family physician advised that, “[w]ith supervision, Diane should continue to do well. She does, however, need daily supervision in order to eat properly and take her medications regularly.”

The guardian ad litem advocated appointment of a limited guardian for medical purposes, but urged that a guardian for any other purpose was unwarranted. Because “Diane’s financial concerns are being adequately administered,” the guardian ad litem opposed appointment of a conservator.1

After a two-day trial, the trial court appointed the Braatens as Diane’s co-guardians and conservators with unlimited general powers. The court found that “Diane Marie Braaten ... is an incapacitated person by reason of the fact that [she] has had mental deficiencies since birth,” that “age, eccentricity, poverty or medical diagnosis are not alone the basis of these findings,” and that “there is no available alternative resource plan that is suitable to safeguard the health, safety or habitation of Diane Marie Braaten.” See NDCC 30.1-28-04(2).2 The order concluded that “the guardianship and conservatorship is necessary as the best means of providing care, supervision and habitation of Diane,” and that “the powers and duties conferred upon the guardians are appropriate as the least restrictive form of intervention.”

The court reasoned:

I feel that the evidence warrants the appointment and my concern is particularly Diane Braaten’s inability to make the necessary decisions, particularly about her own health and about how to care for herself.
The family has been less than intrusive into the life of Diane Braaten. They have, and the testimony bears this out, allowed her latitude that is highly unusual for a family with a child of special needs. Most are over-protective and over-sheltering. The Braaten family has not been that way.
I would strongly urge the family to allow Diane just as much latitude as she can be given to enjoy a lifestyle as she now knows it.

But the court stated that it would “not place any legal restriction on the powers of [515]*515the guardian and conservator recognizing that future events may necessitate additional intervention by the guardians.... ” and that “[t]he court will not limit the powers of the Guardians as allowed in 30.1-28-04(5) NDCC. These guardians may make appropriate decisions about health care, vocational living, habitation, medical treatment and all other normal decisions.”

Later, in denying Diane’s motion to stay the guardianship during this appeal, the trial court contradicted its conclusions: “It is my opinion that Diane Braaten is in need of a full time guardian, not for all of her functions and activities but for certain ones that I deem to be life threatening.”

Diane appeals. She disputes that she is incapacitated, that no alternative resource plan is available, and that “a guardianship is necessary and a full guardianship is the least restrictive form of intervention.” The Braatens respond that they “plan on leaving Diane at the workshop as in the past and do not have any intent at this time to change her behavior except” to reduce her smoking and to keep her from the abusive boyfriend.3

I. GROWTH OF LIMITED GUARDIANSHIPS

When North Dakota adopted the 1969 Uniform Probate Code (UPC) in 1973, Chapters 30.1-26 through 30.1-30 in Article V dealt with “Protection of Persons under Disability and Their Property.” These chapters contained “many provisions designed to minimize or avoid the necessity of guardianship and protective proceedings, as well as provisions designed to simplify and minimize arrangements which become necessary for care of persons or their property.” 6 NDCC at p.

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Matter of Guardianship of Braaten
502 N.W.2d 512 (North Dakota Supreme Court, 1993)

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Bluebook (online)
502 N.W.2d 512, 1993 N.D. LEXIS 136, 1993 WL 236343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-guardianship-of-braaten-nd-1993.