This opinion will be unpublished and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

C3-01-542

 

In Re:

 

Conservatorship of Kathleen J. Lord,

Conservatee.

 

Filed August 28, 2001

Reversed and remanded

Harten, Judge

 

Hennepin County District Court

File No. PF961660

 

Gayle Gaumer, Thomas B. Wilson, III, Wilson Law Firm, 7600 France Avenue South, Suite 558, Edina, MN 55435 (for conservatee)

 

R. Thomas Greene, Jr., John R. Neve, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for conservator)

 

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

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant Kathleen Lord, an adult suffering from multiple sclerosis and mental illness, was placed under a conservatorship of her person in 1996.  The district court granted the petition of appellant’s conservator to place restrictions on appellant’s spousal visitation at the residential care facility where she resides.  Appellant contends that under Minn. Stat. § 144.651, subd. 28 (2000), she is entitled to private visitation with her spouse, there being no medical cause documented by a physician restricting such visitation.  Appellant also contends that the district court may grant her conservator only the powers necessary to provide for the conservatee under Minn. Stat. § 525.56, subd. 2 (2000), and that there was no reason to interfere with her marital rights.  Finally, appellant contends that the district court’s decision denied her equal protection.  We reverse and remand.

FACTS

 

            Appellant Kathleen Lord, age 41, suffers from multiple sclerosis, mental illness, and short-term memory impairment; she has been diagnosed with dementia, depression, and a seizure disorder.  In October 1996, appellant’s father was appointed the conservator of her person and was eventually succeeded by non-family conservators.  Appellant and Terrence Lord (Lord) were married in 1993 or 1994, but have frequently lived apart, partially because of Lord’s struggle with mental illness.  Lord has been diagnosed with bi-polar affective disorder and has twice been judicially committed.

For the past several years, appellant’s condition has required that she live in a residential care facility where nurses monitor and assist her with medication, nutrition, and the activities of daily living.  She currently resides at Lynwood Health Care Center.  In late 1999 and early 2000, Lord’s visits with appellant at Lynwood became problematic for the facility and appellant.  Lord appeared at Lynwood dirty and unkempt.  Contrary to Lynwood’s rules, he ate food from appellant’s tray, brought food into the facility for appellant to eat (some of which was of questionable quality because it was beyond its expiration date), and, instead of bathing appellant as planned, took the opportunity to bathe himself in appellant’s room.  Because Lord’s activities were not in appellant’s best interests and jeopardized her ability to stay at Lynwood, the conservator petitioned the district court to allow restrictions on Lord’s visits.  In November 1999, while visiting appellant, Lord became upset that she was wearing a bra and he ripped it off her.  Appellant called the conservator, told her about the incident, and said she was afraid of Lord, but later recanted in the same conversation.  Lord also orally threatened the nursing staff on several occasions.  

            Appellant’s primary physician, Dr. Fred Webber, referred appellant to Dr. James Prokop, a psychologist.  Dr. Prokop noted in appellant’s medical records under “Clinical Impressions” that appellant’s “ideation and behaviors negatively impact her living in the facility usually when her husband [v]isits her.”  As part of the treatment plan he developed after consulting with staff and assessing appellant, Dr. Prokop recommended that appellant’s visitation with Lord be allowed “only in common areas with supervision.”  On January 20, 2000, respondent and the nursing staff formulated a plan to restrict Lord’s visits with appellant.  After two days of testimony at the hearing, the district court referee granted respondent’s petition to restrict visitation, found that “at times [Lord’s] behavior was at least abusive, if not violent,” and approved the January 20, 2000, “Policy for Visiting Kathy at Lynwood Care Center.”  This visitation policy limited Lord’s visits to daytime hours (when full staff was present) in the common areas (for supervision), and it required that Lord be clean, sober, and behave appropriately.  The district court referee found that “[t]he restrictions ensure, among other things, that [appellant] will be allowed to remain at the facility * * * [and] that [appellant] does not feel threatened or unsafe.”  The district court referee directed respondent to review the policy at least every 60 days. 

Appellant filed a notice of motion and motion for review by the district court and motion for review pursuant to Minn. Stat. § 484.70, subd. 7(d) (2000).  The district court denied appellant’s motions for review and for amended findings but sustained the referee’s findings following a section 484.70 review.  This appeal followed.

ANALYSIS

 

Where a trial court weighs statutory criteria in light of its findings of fact, its conclusions include mixed issues of fact and law.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).  In such a case, this court may correct the trial court’s erroneous application of the law, but we review the trial court’s ultimate conclusions under an abuse of discretion standard.  Id.

 

In re Medworth, 562 N.W.2d 522, 524 (Minn. App. 1997). 

Appellant argues that the district court’s decision violated her right under Minn. Stat. § 144.651, subd. 28 (2000), to have private visits with her husband. 

Residents, if married, shall be assured privacy for visits by their spouses and, if both spouses are residents of the facility, they shall be permitted to share a room, unless medically contraindicated and documented by their physicians in the medical records.

 

Minn. Stat. § 144.651, subd. 28.  Respondent asserts that the medical exception to the statute has been satisfied by Dr. Prokop’s recommendation that appellant’s visitation with Lord be allowed “only in common areas with supervision.”  We disagree.  Minn. Stat. § 144.651, subd. 28, requires the documentation of a physician; Dr. Prokop has Psy. D. and M.B.A. degrees, but not a M.D. degree.  Although the record implies that Dr. Webber, appellant’s primary physician, was significantly involved in appellant’s care, there is no testimony or documentation from Dr. Webber in the record advising that private visits between appellant and Lord are medically contraindicated.  Because Minn. Stat. § 144.651, subd. 28, assures residents privacy for spousal visitation “unless medically contraindicated and documented by their physicians in the medical records,” we reverse and remand to the district court for clarification and documentation of Dr. Webber’s (or another physician’s) medical opinion on whether appellant’s spousal visitation is medically contraindicated except as provided under the approved visitation policy.    

Appellant also contends that a court may grant a conservator only the powers necessary to provide for the conservatee, under Minn. Stat. § 525.56, subd. 2 (2000), and that the limitations placed on her visitation with her husband were unnecessary.  “The court shall grant to a guardian or conservator only those powers necessary to provide for the demonstrated needs of the ward or conservatee.”  Minn. Stat. § 525.56, subd. 2. 

Under the conservatorship statute and our case law, the courts and by implication the conservator are required to make choices and decisions for the conservatee that are in the conservatee’s best interests.  See generally Minn. Stat. § 525.544, subd. 2 (1998); In re Conservatorship of Torres, 357 N.W.2d 332, 337-38 (Minn. 1984) (recognizing that probate court must act in the conservatee’s best interests in a proceeding).  * * * [I]n making recommendations, the conservator is “subject to the control and direction of the court at all times and in all things.”  Minn. Stat. § 525.56, subd. 1 (1998).  Thus, it is the district court that is ultimately responsible for ensuring that the conservator’s actions are in the conservatee’s best interests.

 

In re Conservatorship of Brady, 607 N.W.2d 781, 784 (Minn. 2000) (other citation omitted).  A court may grant a conservator

[t]he duty and power to exercise supervisory authority over the ward or conservatee in a manner which limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services. 

 

Minn. Stat. § 525.56, subd. 3(6) (2000).  A choice that is least restrictive of a conservatee’s civil rights and personal freedom is not always in the conservatee’s best interests.  See Brady, 607 N.W.2d at 784-85 (rejecting notion that living in private home is always less restrictive of a conservatee’s civil rights and personal freedom than living in assisted-living or other health care facility and stating that “because the ultimate question to be answered is what is in the conservatee’s best interests, such a blanket conclusion is unwarranted”). 

This court has provided criteria for evaluating visitation issues, including the best interests of the ward or conservatee, the recommendations of medical personnel, and the ward or conservatee’s preferences.  In re Guardianship of Kowalski, 382 N.W.2d 861, 866-67 (Minn. App. 1986), review denied (Minn. Apr. 18, 1986).  “The essential issue is whether the ward’s fullest autonomy is preserved in light of her medical needs.”  Id. at 866.  In Kowalski, we stated that the ward’s visitation preference was a significant factor, but noted that she was unable to reliably express her preference.  Id. at 867.  We affirmed the regulation of visitation between the ward and her partner, concluding that it was necessary because the ward would regularly experience depression and moodiness following her partner’s visits.  Id. at 866-67.

In the instant case, the district court considered the best interests of appellant, the recommendations of appellant’s caregivers, and appellant’s objections to the visitation restrictions and concluded:

Kathleen Lord argues that the restrictions violated her rights to have private, conjugal visits with her spouse, and that it was not in her best interests to have the “policy” which restricted those rights.  Her rights, however, are not absolute, and must be considered in light of her condition, her obvious need to live in a nursing facility, the inappropriateness of Terrence Lord’s behavior, and the rights of other residents.  The “policy” did not prohibit such visits, but rather required that they be appropriate.  In addition, the “policy” was not permanent, but rather specifically provided that it be reviewed within sixty days. * * *  The restrictions contained in the “policy” were fair, reasonable and appropriate, and were necessary to provide for the care, comfort and safety of the conservatee.

 

The district court made a considered decision that limited visitation restrictions were necessary and in appellant’s best interests.  On remand, in addition to clarification of a physician’s opinion as to whether private spousal visitation is medically contraindicated, we invite the district court to consider, in its discretion, the narrow issues of (1) whether it is in appellant’s best interests to remain at this particular nursing home, and (2) whether it is likely that appellant would face discharge if the visitation policy is withdrawn.     

Finally, appellant contends that the district court’s decision denied her equal protection.  “[M]arriage is part of the fundamental right of privacy.  It is [also] a social relationship subject to the state’s police powers.”  In re Guardianship of Mikulanec, 356 N.W.2d 683, 688-89 (Minn. 1984) (citations omitted).  In Mikulanec, a guardian petitioned the court to prevent a ward from marrying.  The supreme court affirmed the limitation on the ward’s right to marry and upheld the constitutionality of Minn. Stat. § 525.56, the statute governing guardian and conservator powers and duties.  Id.  Appellant fails to identify how she has been treated differently from “similarly situated individuals” and, therefore, fails to state a viable constitutional claim for denial of equal protection.  See Scott v. Minneapolis Police Relief Ass’n, Inc., 615 N.W.2d 66, 74 (Minn. 2000) (holding that while the constitution mandates that all similarly situated individuals be treated alike, only invidious discrimination is deemed constitutionally offensive) (quotation and citation omitted).

We agree with the district court that some visitation restrictions are in the best interests of appellant and that no constitutional violation occurred here.  However, because there is no express documentation by a physician in the medical records that unrestricted spousal visits are medically contraindicated, we reverse and remand for findings on this issue.  The district court has discretion to reopen the record to receive additional evidence.   

Reversed and remanded.