This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-1456

 

In Re the Conservatorship of:  Clara Zontelli,

a/k/a Clara L. Zontelli, a/k/a Clara Lavina Zontelli, Conservatee.

 

Filed February 6, 2001

Affirmed in part and Reversed in part

Kalitowski, Judge

 

Crow Wing County District Court

File No. P1991705

 

William M. Hart, Timothy W. Ridley, Erica Gutmann Strohl, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant Clara Zontelli)

 

Raymond A. Charpentier, Charpentier & Lange, 718 Front Street, P.O. Box 341, Brainerd, MN 56401 (for respondent David Zontelli)

 

James W. Nelson, Fitzpatrick and Nelson Law Firm, 502 Laurel Street, P.O. Box 631, Brainerd, MN 56401 (for respondent Josephine Blanich)

 

            Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant-conservatee challenges the district court’s order imposing a conservatorship of both her person and her estate contending the court abused its discretion because the court had insufficient evidence to support its decision, and made findings that were clearly erroneous.  We affirm the order imposing a conservatorship of the estate and reverse the order imposing a conservatorship of the person.

D E C I S I O N

The district court has broad statutory authority to appoint a conservator.  Minn. Stat. § 525.54, subd. 6 (2000); In re Conservatorship of Edelman, 448 N.W.2d 542, 544 (Minn. App. 1989).  “An appellate court will not interfere with the exercise of this discretion except in the case of clear abuse.”  Edelman, 448 N.W.2d at 544 (quotation omitted).

A.        Conservatorship of the person

            There is a legal presumption of capacity in a proceeding for the involuntary appointment of a conservator, and the burden of proof is on the petitioner to prove by clear and convincing evidence that the proposed ward is incapacitated.  Minn. Stat. § 525.551, subd. 3 (2000).

            A court may appoint a conservator of person of an incapacitated individual.  Minn. Stat. § 525.54, subd. 1 (2000).  For purposes of a conservatorship of the person, “incapacitated” is defined as

any adult person who is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety.

 

Minn. Stat. § 525.54, subd. 2 (2000).  Appellant contends there was insufficient evidence to support the district court’s finding that she is incapacitated and in need of a conservator of her person.  We agree.

            1.         Medical care

            The majority of medical evidence presented focused on appellant’s deteriorating memory, hearing, and eyesight.  The court found that appellant cannot identify medications without someone putting rubber bands around the bottles and that because of her memory deficits, she could easily make a mistake identifying medication or forget whether or not she had taken them.  But appellant’s testimony at trial indicated that it was she who put the rubber bands around her medicine to remind herself which pills to take only once a day.  Moreover, there is no evidence in the record that appellant has ever misidentified or forgotten to take her medication. 

            The district court also found that if an emergency arose and appellant called 911, she would not be able to tell an emergency dispatcher her telephone number or home address.  We agree with appellant that the inability to recite such information does not make a person incapacitated under the statute.

            2.         Shelter

            The district court found that because of appellant’s memory, hearing and vision deficits, she is unable to live independently.  It further found that appellant must depend on her daughter Virginia to be her caretaker.  Appellant argues that her reliance on her daughter for assistance should not be equated with an inability to meet her personal needs.  We agree.  Section 525.54, subdivision 2, does not indicate that reliance on a caretaker necessarily makes one incapacitated to the extent that imposition of a conservator is required.   Instead, involuntary imposition of a conservator is only appropriate where an individual is

impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs.

 

Minn. Stat. § 525.54, subd. 2.

            3.         Safety

            The district court found that appellant is unable to leave the house safely without supervision.  Because there is no evidence in the record to specifically support this finding, it is clearly erroneous.

            4.         Nutrition and clothing

            The district court found that appellant can prepare simple meals for herself.   And appellant testified that she is able to cook breakfast and lunch for herself using the stove and toaster.  There is also evidence in the record that appellant is able to dress and bathe herself.  Moreover, the physician who examined appellant described her as well-groomed with normal hygiene.  Thus, appellant clearly demonstrated an ability to meet her needs for clothing and shelter.

            In conclusion, the record does not provide clear and convincing evidence that appellant “lacks sufficient understanding or capacity to make or communicate responsible decisions” or that she has an “inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety.”   Although the examining physician favored the appointment of a conservator for appellant, he did not specify whether the conservator should be of the person or estate of appellant.  Moreover, his evaluation of appellant and his deposition testimony focused on her inability to manage her money.  Thus, we conclude that the district court clearly erred in imposing a conservator of appellant’s person because there is insufficient evidence to support its findings.

B.        Conservatorship of the estate

            A court may appoint a conservator of a person’s estate involuntarily, if the court determines that

(1) the person is unable to manage the person’s property and affairs effectively because the person is an incapacitated person, and (2) the person has property which will be dissipated unless proper management is provided, or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person, and (3) a guardian or conservator is necessary to adequately protect the person’s estate or financial affairs.

 

Minn. Stat. § 525.54, subd. 3.  An incapacitated person, for purposes of a conservatorship of the estate is

any adult person who is impaired to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the person’s estate or financial affairs, and who has demonstrated deficits in behavior which evidence an inability to manage the estate.

 

Id.

            An examination of whether appellant meets the statutory definition of an incapacitated person for purposes of the estate focuses on the management of her estate and financial affairs.  See id.  Appellant argues that because she is aware of the type and extent of her property and has no overdue bills, she is able to manage her financial affairs.  We disagree.  There is sufficient evidence in the record illustrating deficits in appellant’s memory that make it difficult for her to manage her financial affairs.

            The district court found that appellant

does not know the nature and extent of her assets, nor does she have the ability to remember or understand the bills she receives.  She is totally dependent on Virginia MacCharles to manage her estate and is not capable of making decisions about her property. 

 

In addition, appellant expressed great confusion at trial concerning the description of her real estate and was unable to perform simple arithmetic during her testimony.

            Further, the district court gave considerable weight to the examining physician’s recommendation in favor of appointing a conservator for appellant.  Specifically, the physician found that appellant’s cognitive and sensory losses limit her ability to manage her affairs.  Thus, the evidence supports a finding that appellant is incapacitated for purposes of her estate.

            In addition to being incapacitated, the district court must also determine that appellant has property that will be dissipated unless proper management is provided.  Regarding this issue, the district court found that

because of her memory and cognitive deficits, Clara Zontelli is vulnerable and is very susceptible to influence by others who may or may not be motivated to act in her best interests.  Under the circumstances, proper management of Clara Zontelli’s estate by a neutral and detached person is necessary to prevent assets from being dissipated.

 

Appellant contends that because her estate has not been dissipated up to this point, there is no evidence that her estate will be dissipated.  We disagree.  Appellant’s memory deficits, coupled with the examining physician’s opinion that she is unable to manage her affairs, constitute clear and convincing evidence that appellant’s estate will be dissipated in the future without some assistance in the management of her estate.  We conclude the district court did not clearly err in its appointment of a conservator of appellant’s estate.

            Finally, appellant argues that the court clearly erred in failing to consider Virginia MacCharles, her daughter and caretaker, as a least restrictive alternative to imposing a conservator of appellant’s estate.  See Minn. Stat. § 525.551, subd. 5 (2000).  She argues that her daughter should be able to continue to help her manage her financial affairs, not a conservator.  We disagree.  The court found that “[b]ecause of the conflict involving some of the siblings, it [was] not appropriate that any of the children serve as conservator.”  Thus the court addressed the issue of alternatives and found that no appropriate options were available.

            Affirmed in part and reversed in part.