This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In Re Guardianship of Harvey E. Melcher, Proposed Ward.


Filed March 7, 2000

Reversed and Remanded

Davies, Judge


Aitkin County District Court

File No. P799366



Jeffrey J. Haberkorn, Haberkorn Law Offices, Ltd., 122 Second St. N.W., Aitkin, MN 56431 (for appellant Harvey E. Melcher)


Catherine M. Miller, Steven D. Schlagel, P.A., 210 Second St. N.W., Aitkin, MN 56431 (for respondent Steven T. Kohan)


            Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant seeks review of a probate court order appointing a guardian of appellant’s person and estate.  Appellant asserts that the findings violated the statutory mandate for specificity and that the evidence is insufficient to support the findings made.  Because we agree that the findings lack the requisite specificity, we reverse and remand.


Appellant Harvey Melcher, an 81-year-old man with insulin-dependent diabetes, was hospitalized in June 1999, following a fall in his home in Aitkin.  When he was admitted, Melcher was anemic and malnourished, smelled of alcohol, and was dirty and unkempt.  Shortly afterwards, Melcher’s son-in-law, Steven Kohan, was named Special Guardian, based, in part, on a doctor’s letter outlining Melcher’s condition when he was first hospitalized.

Kohan filed a petition the following month to be named general guardian of both Melcher’s person and estate; a hearing was held in probate court on August 17.  Testimony was taken from Melcher and an Aitkin County social worker who had worked with Melcher for two-and-a-half years.  In addition to this testimony, the court considered a report from a court-appointed visitor and the doctor’s letter.  The court  granted Kohan’s petition on the day of the hearing.

Melcher contends the probate court abused its discretion in appointing Kohan as guardian, claiming the findings do not meet the statutory requirement for specificity and the evidence does not support the finding that he is an incapacitated person in need of a guardian of either person or estate.  Melcher further asserts that the court committed reversible error by failing to elect a less restrictive alternative, as required by statute.


            The probate court has broad statutory authority to appoint a guardian and a reviewing court will reverse the probate court’s decision only upon an abuse of discretion.  In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992).  The burden to show that a guardian is necessary rests with the petitioner and requires clear and convincing evidence.  Minn. Stat. § 525.551, subd. 3 (1998).

Appointment of a guardian for a person or estate requires specific, written findings of fact.  Minn. Stat. § 525.551, subd. 5 (1998).  This court has previously warned that “‘general,’ conclusory findings” are insufficient to meet the legislative mandate.  In Re Conservatorship of Lundgaard, 453 N.W.2d 58, 63 (Minn. App. 1990).

            In its order naming Kohan as Melcher’s guardian, the probate court issued separate findings of fact and conclusions of law, as required by section 525.551, but the court provided no specific findings that explained how the evidence supported the court’s legal conclusions.  In finding Melcher “incapacitated” for managing his estate or person and in need of protection, the findings merely restate the statutory requirements in conclusory language.  The probate court’s failure to provide the required specific findings requires a remand.  Id.

            We do not reach the issue of whether the evidence was sufficient to support a determination of incapacity or whether less-restrictive alternatives were available.

Reversed and remanded.