This opinion will be unpublished and

may not be cited except as provided by

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






In Re: Conservatorship of Hazel Margaret Wolens, Conservatee.


Filed December 11, 2001


Crippen, Judge


Anoka County District Court

File No. P8998453



Felix A. Mannella, Christopher M. Soppe, Babcock, Neilson, Mannella, Lafleur & Klint, P.L.L.P., 118 East Main Street, Anoka, MN 55303 (for appellant Richard Wolens)


Thomas P. Malone, Cheryl A. Jorgensen, Barna, Guzy & Steffen Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN 55433 (for respondent Hazel Wolens)


Brent W. Primus, Primus Law Office, 630 Norwest Midland Building, 401 Second Avenue South, Minneapolis, MN 55401 (for respondent Taylor)


            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Schumacher, Judge.


U N P U B L I S H E D   O P I N I O N


            In this conservatorship appeal, we are presented with a challenge to the trial court’s findings that (1) it was in conservatee’s best interests that she live at home and (2) appellant erred as trustee of conservatee’s estate.  Appellant’s contentions include the claim that greater process was required respecting deprivation of his interests.  Finding no merit in the questions raised, we affirm.  


Respondent conservatee, Hazel Wolens, age 82, has numerous health problems.  She is also the settlor and beneficiary of the Hazel Margaret Wolens Trust.  Her son, appellant Richard Wolens, is the trustee and beneficiary upon her death.  The trust provides that “[u]pon my incapacity, my Trustee shall * * * expend the net income for my care, support, and maintenance.”  In February 2000, the trial court found respondent incapacitated and unable to establish her place of abode, and the court created a conservatorship.  Over the next year, conservatee was placed in several institutions. 

In February 2001, the trial court granted conservatee’s petition to return home, reasoning that her best interests were the paramount consideration in her placement.  The court pointed to several factors in its decision.  First, experts testified that conservatee could live at home with assistance.  Also, conservatee displayed the capacity and desire to cooperate with a home-placement care plan.  Although she had mild to moderate dementia, conservatee showed no degradation of cognitive ability or paranoia.  Further, appellant had shown no need for conservatee to be placed outside her home.  Conservatee did not require constant and direct monitoring, she was not a risk to herself, and she had no imminent health crisis.  The court pointed out that conservatee had been removed from her home primarily because of the actions of third parties and not pursuant to her best interests. 

Conservatee had a strong desire to live in her home of nearly 50 years, with its close proximity to her friends, church, and community.  And the trial court noted that dementia patients benefit from a consistent routine and structure in their lives.  Absent a showing of any need to interfere, the court gave great weight to conservatee’s choice of placement.  Additionally, the court found that conservatee’s home would provide the least restrictive environment. 

In March 2001, the court found that appellant abused his discretion as trustee by threatening to sue the conservator and by telling the conservator that he would not provide any trust money to care for conservatee during the trustee’s vacation.  This appeal followed.






Findings of fact will not be set aside unless clearly erroneous, and due regard is to be given to the trial court’s opportunity to judge the witnesses’ credibility.  Minn. R. Civ. P. 52.01.  The trial court’s determination of what is in the conservatee’s best interests is an ultimate issue deduced from facts in the record, and this court reviews that determination under an abuse of discretion standard.  In re Conservatorship of Brady, 607 N.W.2d 781, 784 (Minn. 2000). 

This is a unique litigation topic, one about which we find few precedents in Minnesota history.  Because of conservatee’s current health problems, the trial court’s February 2001 determination is necessarily of little permanence.  In fact, recent events permit speculation that the decision is moot.  Although this court must review the trial court’s order, we do not intend our decision to enlarge its significance.  A conservatee’s best interests are an ongoing personal and judicial concern.

Appellant challenges the trial court’s finding that it was in conservatee’s best interests to return home.  “A guardian or conservator shall be subject to the control and direction of the court at all times and in all things.”  Minn. Stat. § 525.56, subd. 1 (2000).  “[T]he courts and by implication the conservator are required to make choices and decisions for the conservatee that are in the conservatee’s best interests.”  Brady, 607 N.W.2d at 784. 

Appellant argues that the trial court improperly determined conservatee’s placement “based on what was least restrictive, rather than what was in her best interests.”  When deciding what is in a conservatee’s best interests, courts must choose the alternative that least restricts the conservatee’s civil rights and personal freedom.  Brady, 607 N.W.2d at 784.  Here, the court deliberately examined the evidence as to the suitability of conservatee’s home and did not give undue attention to the least restrictive alternative.  For example, the court also found that conservatee had lived in her home for nearly 50 years and that her friends and church were nearby.  Moreover, her neighbors and friends indicated a willingness to assist in meeting her needs.  Ultimately, the court found that living at home was both in conservatee’s best interests and the least restrictive placement for her. 

Appellant further asserts that it was “an error of law to conclude that a conservatee’s homestead is the least restrictive place for her to reside” and “[w]ithout an in-home plan to consider, the Court asserts that the home is always going to be less restrictive, which is contrary to the law in Brady.”  But the trial court never stated that the home is always less restrictive.  Rather, the court found that conservatee’s home was less restrictive than the alternative care placements based upon specific findings as to the harmfulness of the institutional choices and the benefits of home placement.  In making this factual determination, the court did not abuse its discretion. 

The trial court properly applied Brady to this case.  Brady observed that living in a private home is not always going to restrict a conservatee’s civil rights and personal freedoms less than living in an assisted living facility.  Brady, 607 N.W.2d at 784.  Rather, the particular facts of each case will determine what is least restrictive.  Id.  A plain reading of Brady permits a conclusion that the home might be in a conservatee’s best interests if the trial court so finds.  Here, the court compared conservatee’s home to two assisted living institutions and found that placement at home would be in her best interests. 

 And the trial court did not abuse its discretion in considering conservatee’s strong desire to return home.  A best interests determination considers the reasonable preference of the conservatee if the court determines that the conservatee has sufficient capacity to express a preference.  Minn. Stat. § 525.539, subd. 7(1) (2000).  Also, the court did not err in permitting respondent conservatee to return home without a care plan, because a completed care plan is only one factor in deciding a conservatee’s best interests.  See In re Medworth, 562 N.W.2d 522, 524 (Minn. App. 1997).  Finally, the care plan is not under review, and appellate courts will not consider issues that were not presented to or decided by the trial court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  In any event, the court ordered a care plan directed to best interests considerations, such as personal safety and 24-hour supervision.



The appellate court may correct erroneous applications of the law, although the trial court’s conclusions on the ultimate issues are reviewed under an abuse of discretion standard.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).   In reviewing the trial court’s conclusions on ultimate issues or mixed questions of law and fact, we must carefully examine the explanations given by the court for its decisions.  Id.  The application of law to stipulated facts is a question of law, which this court reviews de novo.  Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).    

Appellant argues that the trial court denied him due process of law.  “Procedural due process protections restrain government action which deprives individuals of ‘liberty’ or ‘property’ interests within the meaning of the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 7 of the Minnesota Constitution.”  Humenansky v. Bd. of Med. Examiners, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  In determining whether due process has occurred, courts must: (1) identify the threatened liberty or property interest; and (2) weigh the particular interests involved to determine what process is due.  Id. at 566.

            Appellant contends that the trial court “removed any discretion that the trust gave to the trustee.”  But the court took no such conclusive action.  The court ruled:

Trustee * * * shall cooperate with the Conservator and shall use the income and assets of the Hazel Margaret Wolens Trust to accomplish the placement of the Conservatee in her homestead. 


And as to the amount of process due, trustees may be subject to judicial control when they abuse their discretion or act in bad faith.  Kirsch v. Kahn, 276 Minn. 294, 299, 149 N.W.2d 676, 680 (1967).  The trial court made an explicit finding that appellant abused his discretion as trustee, thus subjecting him to judicial control.  The court explained that appellant’s discretion as trustee was necessarily limited by the operation of the conservatorship statute and by the court’s creation of the conservatorship.  The court stated:

            The discretion of the Trustee whether to cooperate or not in the decisions of the Conservator became, from the Conservator’s appointment, inherently limited.  To allow a trustee to frustrate the purposes of a conservatorship by exercising his independent discretion would be contrary to the intent of the conservatorship statute, namely, to provide for the best interests of the conservatee and to do so subject to the supervision of the Court.


Thus, the court did not inappropriately, judicially limit appellant’s discretion in trust activities but correctly announced the legal proposition that trustees cannot veto or interfere with legal characteristics of a conservatorship. 

Appellant further claims that the trial court did not follow the statutory procedure in making its decision.  Notice and a hearing are required when filing a petition to remove a trustee, change the trust’s terms, or instruct the trustee on trust administration or trust duties.  Minn. Stat. § 501B.18 (2000).  But the court did not remove appellant, change the terms of the trust, or instruct appellant beyond what was inherent in conservatee’s care plan.  A plain reading of the February 2001 order merely suggests that the court ordered appellant to help the conservator in moving the conservatee home.  As the court explained, the conservatorship statute and the conservator’s powers under it necessarily limited appellant’s discretion.  The court stated:

As between a trust not subject to the Court and a conservatorship subject to the Court, this Court finds that the supervisory powers of the Court take precedence, particularly when both the trust and the conservatorship explicitly share the same purposes. 


Appellant particularly argues that he received no notice for a hearing on whether he abused his discretion as trustee.  But it is not clear that a trial court must give notice and a hearing to the trustee before determining the breadth of a conservatee’s need for care or legal duty of the trustee to respond to them; the trial court did not deprive the trustee of a liberty or property interest.  Although trustees have broad discretion, it does not go “beyond sound judgment and a reasonable and prudent discretion.”  In re Watland, 300 N.W. 195, 199 (Minn. 1941).  The court found that appellant told the conservator that she would have to use her own money to care for conservatee while appellant was on vacation, in dereliction of his trust duties.  The court also found that appellant had not acted in conservatee’s best interests by putting her in an assisted living facility against her wishes.  It is evident that these findings support a conclusion that appellant abused his discretion as trustee.

             Lastly, the trial court has the discretion to grant a new trial, and this court will not disturb the decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  Because appellant’s contention that the trial court erred by not granting him a new trial is essentially founded on his previous arguments, we find no merit to this challenge.  The record supports the court’s conclusion that living at home early in 2001 would have been in conservatee’s best interests.