This opinion will be unpublished and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.


Filed February 26, 2002


Crippen, Judge


Anoka County District Court

File No. P8998453



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


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


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


            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N




In this on-going conservatorship proceeding, appellant contends that the trial court, when appointing a successor conservator for his mother, failed to adhere to a number of statutory requirements.  Because the appointment process occurred according to the only statute governing the circumstances of the case, we affirm. 



Appellant Richard Wolens is respondent Hazel Wolens’ son and the trustee of her assets.  In February 2000, the trial court placed respondent under a conservatorship and appointed Shawn Taylor as the conservator.[1]  In December 2000, respondent petitioned the trial court to remove Taylor.  In June 2001, Taylor resigned, and respondent moved to appoint a successor. On July 16 and 17, the trial court heard arguments on appointing a successor.  Respondent nominated Sheila Gast, while appellant opposed Taylor’s resignation and argued, alternatively, that either he or Terrance Larpenteur be appointed.  The court accepted Taylor’s resignation and appointed Gast, finding that she was qualified to act as conservator and that her appointment would be in respondent’s best interests. 




Appellant asserts that there were numerous errors of law in the trial court’s decision.  The choice of a guardian is within the trial court’s discretion. In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992).  The reviewing court may interfere with this decision only in the case of a clear abuse.  In re Conservatorship of Lundgaard, 453 N.W.2d 58, 63 (Minn. App. 1990). 

Appellant first asserts that Minn. Stat. §§ 525.544 and 525.551 (2000) create numerous mandates that constrain a court’s power to appoint a conservator.[2]  Minn. Stat. § 525.544, subd. 2 (2000), provides, “[i]f the proposed * * * conservatee lacks capacity * * * the court may appoint a qualified person after review by a screening committee * * * [.]”).  And Minn. Stat. § 525.551, subd. 5 (2000), requires a hearing and specific best-interests findings for the initial appointment of a conservator.  But by their very language, these sections apply only to the creation of conservatorships, and respondent is already under a conservatorship. 

Appellant also relies on In re Conservatorship of Kocemba, 429 N.W.2d 302 (Minn. App. 1988).  There, the conservatee petitioned to remove the conservator and appoint a successor.  Id. at 303.  The court pointed out that the conservatee’s motion was governed by Minn. Stat. § 525.61, subd. 3 (2000), which requires specific findings that the previous conservator failed to perform her duties and that the conservatee’s best interests would be better served by the new conservator.  Id. at 306.  Kocemba does not discuss Minn. Stat. § 525.59 (2000)—the only controlling statute in this case. 

Appellant also cites Lundgaard.  But there the court required specific findings, for the creation of a conservatorship under section 525.551, to demonstrate that Lundgaard was incapacitated and that the choice of conservator would be in her best interests.  453 N.W.2d. at 63.  Thus, Lundgaard does not apply because respondent is already under a conservatorship.

Appellant next disputes the application of Minn. Stat. § 525.59, which permits a court to appoint a successor conservator in a fashion independent of the procedures that appellant prefers.  Section 525.59 provides:

If a * * * conservator * * * resigns, * * * the court may appoint a successor * * * .  A * * * conservatee having capacity to do so may nominate a person to serve as successor * * * .  The court shall appoint the person so nominated * * * unless the court finds that the appointment of the nominee [is] not in the best interests of the * * * conservatee. 


(Emphasis added); see Minn. Stat. § 645.44, subd. 16 (2000) (stating “[s]hall is mandatory”).  Thus, if a ward has sufficient capacity, a court may deny the ward’s choice of guardian only if it finds that choice is not in the ward’s best interests.  Kowalski, 478 N.W.2d at 793. 

Appellant argues that, because the court’s February 2000 order[3] found respondent incapacitated, respondent is incapacitated for purposes of section 525.59 and thus cannot nominate a successor conservator.  There is no merit in this assertion. 

We first observe that the court never determined that respondent was incapable of choosing a successor conservator.  And appeal of this issue is fundamentally flawed because appellant never asserted to the trial court that respondent was incapacitated.  See Thiele, 425 N.W.2d at 582 (stating, generally, appellate courts address only issues presented to an considered by trial court).  In fact, appellant asserted at trial that if respondent “would take the stand,” respondent would renominate Taylor as conservator, suggesting that appellant believed respondent fully capable of nominating a successor conservator.  Moreover, appellant never objected to respondent’s capacity when respondent nominated Gast.

Secondly, the trial court’s February 2001 order granting respondent’s petition to return home superseded any prior finding of incapacity.  In granting respondent’s petition, the court clarified that respondent “clearly had the cognitive capacity to express her preference and there was no testimony or argument of counsel to the contrary.”  Thus, the court had already decided that respondent had the capacity to express personal preferences.  See In re Trust by Hill, 499 N.W.2d 475, 484 (Minn. App. 1993) (collateral estoppel prevents relitigation of an issue if (1) the issue is identical to a previously litigated issue; (2) there has been a final judgment on the merits; (3) the estopped party was part of the previous case; and (4) there was a full and fair opportunity to be heard), review denied (Minn. July 15, 1993). 

Thirdly, appellant’s construction of section 525.59 to eliminate the nomination of a person once found incapacitated would conflict with the language of the statute itself, which permits persons generally found incapacitated to express to the court a preference for a successor conservator.  The language of section 525.59, for example, suggests that respondent might be incapable of deciding her financial or medical affairs yet still be capable of choosing a conservator to make those decisions for her.  

Appellant additionally argues that the trial court improperly accepted Taylor’s resignation in violation of Minn. Stat. §§ 525.6195, 525.551, and 525.55 (2000).  But section 525.6195 provides for procedures relating to guardians, and sections 525.511 and 525.55 apply to the creation of a conservatorship.  Thus, appellant cites no relevant authority supporting his position and does not explain why a court cannot accept a conservator’s resignation upon finding a suitable replacement. 

Appellant also argues that, if respondent had testified, respondent would have preferred to maintain Taylor as conservator.  But the trial court found, in its February 2001 findings, that Taylor placed respondent in a series of institutions against her will and did not act in respondent’s best interests.  And the record furnishes no basis for predicting that respondent would have testified as appellant speculated.

Appellant further suggests that respondent sought to nominate him as conservator, or that he has the power to nominate, because respondent executed a 1997 Durable Power of Attorney for Health Care, making appellant her agent for health care decisions.  Minn. Stat. § 145C.07, subd. 2 (2000), provides that a “health care agent in a health care directive is considered a nomination of a * * * conservator of the person for purposes of section 525.544.”  But the document giving appellant power of attorney restricted appellant’s authority to respondent’s healthcare decisions.  And the creation of the February 2000 conservatorship superseded any authority appellant exercised as respondent’s healthcare agent.  Moreover, the 1997 document never impliedly or expressly gave appellant any power to appoint a conservator—a power that is reserved for the courts.  See, e.g., Minn. Stat. § 525.544, subd. 1(c) (2000) (providing that court shall appoint conservator);Minn. Stat. § 525.56, subd. 1 (2000) (“A guardian or conservator shall be subject to the control and direction of the court at all times and in all things.”).  Further, appellant has never disputed Taylor’s authority and cannot now assert that he has had conservator authority during the time of Taylor’s service. 

The power-of-attorney document also mandated that appellant “act consistently with [respondent’s] desires.”  But when respondent petitioned to return home, the trial court found that (1) appellant had abused his discretion as trustee of respondent’s estate; and that (2) while acting as special guardian of respondent, appellant had not honored her wishes to live in her own home.  In rejecting appellant’s self-nomination as conservator in this proceeding, the court acted with ample cause, including the previous finding that appellant opposed respondent’s will to live at home. 

Appellant further disputes whether respondent nominated Gast, but we note that appellant never objected to the court’s trust in respondent’s counsel’s representation in that regard.  The court found that respondent wanted Gast to be the successor and that she offered evidence on Gast’s nomination, and a trial court’s findings of fact are entitled to deference if not clearly erroneous.  Lundgaard, 453 N.W.2d at 60-61.  Moreover, appellant made no offers to present evidence on alternatively appointing Larpenteur.


            Appellant also contends, independent of any statutory reference, that he was denied due process of law in the handling of this case.  Essentially he insists that, although timely notice was given of the proceedings, he was denied the opportunity to present the testimony of witnesses. 

In determining whether due process has been violated, a court must (1) identify the threatened liberty or property interest; and (2) weigh the particular interests involved to determine what process is due.  Humenansky v. Minnesota Bd. of Med. Exam’rs, 525 N.W.2d 559, 566 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  Constitutional issues are questions of law.  State. v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999). 

We observe initially that appellant states his argument in constitutional terms but fails to identify any protected interest.  And he cites no authority suggesting that, as trustee of respondent’s estate, he had a property or liberty interest threatened by the appointment of Gast as conservator.  Appellant does not explain how the court’s refusal to appoint him or his choice as conservator implicated a protected liberty or property interest that would require due process. 

Whether or not required, appellant received sufficient notice of (1) respondent’s nomination for a new conservator; (2) Taylor’s resignation; and (3) the hearing to appoint a successor.  For example, appellant knew seven and one-half months in advance that respondent sought to remove Taylor, and appellant knew that Taylor resigned three weeks before the hearing to nominate a successor. 

Equally important, we observe that the court convened a hearing, as well as a continuation of that hearing, and appellant wholly failed to make an offer of proof or suffer a court rejection of such an offer.  Although appellant offered his nomination of Larpenteur, he did not mention what this witness would offer to the court.  Appellant also abandoned the discussion of available conservators and never made a general request for an evidentiary hearing.  And when the possibility of an evidentiary hearing arose, appellant instead offered his views on terminating the conservatorship of respondent and her estate.  Finally, appellant’s opposition to his mother’s residence in her home supports the court’s rejection of a hearing on the appointment of appellant. 




[1]In June 2000, Taylor began placing respondent in a series of institutions, and in August 2000, respondent petitioned the court to return home.  In February 2001, the trial court granted respondent’s petition, and this court affirmed.  In re Conservatorship of Wolens, No. CX-01-523 (Minn. App. Dec. 11, 2001), review denied (Minn. Feb. 19, 2002). 


[2] Respondent argues that appellant did not raise at trial the procedural errors he now alleges.  We will generally consider only matters argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Our review of the record shows that appellant properly raised these issues with the trial court.


[3] The order creating the conservatorship states “conservatee lacks sufficient understanding or capacity to make or communicate responsible decisions concerning her person and estate or financial decision.”