This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In the Matter of:

Karla A. Iwen,

Proposed Conservatee.


Filed May 6, 2003

Affirmed in part and reversed in part
Forsberg, Judge


Ramsey County District Court

File No. P9025086


John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant Heinz Iwen)


Jeffrey W. Schmidt, Schmitz & Schmidt, P.A., 400 North Robert Street, #1840, St. Paul, MN 55101 (for respondent Thomas Iwen)


Robert A. McLeod, McLeod & Troy, P.A., 2550 University Avenue West, Suite 459 South, St. Paul, MN 55104; and


Patti J. Sullivan, Ulvin & Sullivan, P.A., 51 South Albert Street, St. Paul, MN 55105 (for respondent Karla A. Iwen)


Daniel Steinhagen, Steinhagen & Crist, P.L.L.P., 5001 Chowen Avenue South, Minneapolis, MN 55410-2150 (for respondent Karl R. Bushmaker)


            Considered and decided by Hudson, Presiding Judge, Minge, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from an order appointing a neutral conservator of the person and estate of Karla Iwen, Heinz Iwen, the conservatee’s son, argues that (1) the appointment of a neutral conservator was contrary to the conservatee’s stated preference and her best interests; (2) the district court violated his due-process rights by denying him a full opportunity to be heard; and (3) the district court abused its discretion in restricting his contact with the conservatee.  We affirm in part and reverse in part.


            On January 25, 2002, respondent Thomas Iwen filed a petition to be appointed conservator for his mother, Karla Iwen.  Heinz Iwen, the conservatee’s only other child, filed an objection to the petition and sought to be named conservator on March 1, 2002.

            On May 3, 2002, the district court heard the initial motions for the conservatorship proceeding.  At this hearing, the parties stipulated that Karl R. Bushmaker, LLC (Bushmaker), would be appointed as special conservator of the person of Karla Iwen, and the court so ordered by an order dated May 20.

            The parties later stipulated that appointment of a conservator of the person and of the estate was appropriate.  On July 29, 2002, a trial was held on the only remaining issue of who should be appointed as conservator. 

            At the trial, the court heard substantial testimony regarding the conservatee and her family.  The conservatee is an 83-year-old widow who was born in Germany and moved to the United States in the 1940s.  Prior to the initiation of this action, Karla Iwen executed a will, statutory and common-law durable powers of attorney, and a health-care directive.  The health-care directive nominated Heinz Iwen as conservator of the person of Karla Iwen. 

            Thomas Iwen initiated this action when he noticed a decline in the conservatee’s living conditions, lapses in her memory and understanding, and questionable financial transactions.  Medical records indicate that the conservatee has suffered from dementia, confusion, memory loss, and depression since at least January 2000.  Additionally, the conservatee has confused appellant, Heinz Iwen, with her deceased husband, whose first name was also Heinz, and she has asserted that both her husband and her deceased parents are still living.

            Medical records also indicate that appellant observed deterioration in the conservatee’s mental and physical condition as early as April 1998.  Appellant testified that while his mother was living on her own, he brought her breakfast and dinner every day and took her to doctor appointments.  Appellant also testified that he saw no problem with the cleanliness of the conservatee’s home, even though a dead mouse was found in the fireplace and mice excrement was found on the floor, kitchen table, and in the sheets of the conservatee’s bed.

            Throughout the one-day trial, the court heard testimony from medical professionals regarding the safety of the conservatee’s home and the conservatee’s ability to care for herself.  According to the record, the conservatee walks with a cane and, therefore, the house caused safety concerns because the only full bathroom is on the second floor, and the laundry room is in the basement.  Both nurses involved in the case questioned how the conservatee was able to bathe and noticed an odor of urine in the house and on the conservatee’s person.  The overall impression of the medical personnel involved was that the conservatee did not have enough assistance to keep her safe, was not getting enough nutrition, was not able to do her own cleaning and laundry, and was very vulnerable to outside influence.

            Moreover, there was evidence that the conservatee was afraid of appellant.  The conservatee said that appellant would kill her if she did not say the right things and she would turn to him and ask, “Did I say the right thing?”  The conservatee often said things like, “I promise to be good, I will be good.”  And respondent testified that the conservatee told him that on one occasion appellant shoved her.  Additionally, appellant intimidated the conservatee’s home health aides, causing more than one of them to quit. 

            As soon as Bushmaker became aware that he would be appointed the special conservator for the conservatee, he spoke with the nurses involved in her case and began looking into other living options for her, as recommended by the nurses.  During Bushmaker’s meetings with the conservatee, he informed her that there were allegations that appellant had transferred large sums of money from her bank accounts for his personal benefit, including approximately $138,000 to purchase a home.  The conservatee responded to this information by asking, “Heinz, what did I say, did I say the right thing?  Did I say the right thing?”

            Bushmaker took the conservatee to tour different living facilities.  Bushmaker testified that when he and the conservatee visited the Arbor at EagleCrest Retirement Community, she liked it and was willing to stay there.  The Arbor is a special needs unit for people with memory loss, dementia, and/or Alzheimer’s, and the conservatee currently resides there.

            As previously mentioned, the parties stipulated before trial that a conservator for conservatee’s estate and person is appropriate.  Therefore, the only issue before the court was appointment of an appropriate conservator.  Prior to taking testimony, the attorneys took quite a long time to finish up some “housekeeping” duties for the case, and therefore, were unprepared for the hearing.  At times, the court admonished both sides for being unprepared, for going outside the narrow issue before the court, and for wasting the court’s time.  The court also told the parties that the hearing was set for a one-day trial and all testimony must be completed in one day because the court’s calendar was booked.

            The court issued findings of fact, conclusions of law, and an order appointing Bushmaker as the conservator of Iwen’s person and estate.  The court determined that it was not in the conservatee’s best interests to appoint appellant as conservator of her person.  Appellant now challenges the district court’s appointment of Bushmaker as conservator of the conservatee’s person.[1]



            The district court has broad powers in appointing a conservator.  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” of that discretion.  Id. 

            Appellant argues that the district court abused its discretion in appointing Bushmaker as conservator of Iwen’s person because (1) the conservatee expressed a reliable preference for appellant to be her conservator by signing a valid health care directive that nominated appellant; and (2) it is in the conservatee’s best interests to have appellant as her conservator.

            Expressed Preference for Appellant as Conservator

            According to Minn. Stat. § 145C.07, subd. 2 (2002), a valid health care directive is to be considered a nomination of a conservator for the purposes of Minn. Stat. § 525.544 (2002).  Minn. Stat. § 525.544, subd. 1(c) (2002), states that the court shall appoint the person nominated in the health care directive to be the conservator, unless the court finds that the appointment is not in the proposed conservatee’s best interests.  Here, the court specifically found that appointing appellant to be the conservatee’s conservator was not in her best interests.

            The district court’s determination has ample support in the record.  First, appellant improperly handled the conservatee’s personal hygiene, nutrition, and house cleaning.  Second, the conservatee’s behavior indicated that she was afraid of appellant and that he intimidated her.  Third, appellant intimidated and criticized the home health aides hired to care for the conservatee, causing more than one aide to quit and therefore, appellant interfered with the conservatee’s care.  Fourth, appellant failed to follow physician directives and also failed to keep the conservatee’s medications filled or notify her physicians when she failed to respond to the dosage.

            Therefore, despite the conservatee’s expressed preference to have appellant appointed as her conservator, the district court did not abuse its discretion in concluding that it was not in the conservatee’s best interests to appoint appellant as her conservator. 

            Additionally, appellant argues that the district court abused its discretion in determining that the conservatee lacked capacity to sign the health-care directive and that she was under appellant’s undue influence.  But because we agree with the district court that it would not be in the conservatee’s best interests to appoint appellant as conservator of her person, we do not reach these arguments.


            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).  Additionally, constitutional issues are questions of law reviewed de novo.  State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999). 

            Appellant argues that because Minn. Stat. § 525.55 (2002) requires notice to be given to a proposed conservatee’s adult children, he has a liberty or property interest in this matter.  But appellant fails to adequately explain how the court’s conduct of the hearing infringed on a protected liberty or property interest of appellant.  Contrary to appellant’s assertion, his situation is not the same as when an interested party has standing to contest a will.  Here, appellant does not stand to lose any future property by the court’s decision to appoint a neutral conservator.

            Moreover, appellant does not claim that he did not receive notice, rather he argues that he was not allowed an adequate opportunity to present to the court why he should be chosen as conservator.  We disagree.

            Even if appellant does have standing to complain regarding his due process rights, the record indicates that he had a fair opportunity to convince the court that he was the best choice for the conservatorship.  The right to a trial includes the right to be heard, to produce witnesses and documents, to examine and cross-examine witnesses, to present arguments, and to have the case decided on the merits.  State ex rel. Spurck v. Civil Serv. Bd., 226 Minn. 240, 247, 32 N.W.2d 574, 579 (1948); Gutsch v. Hyatt Legal Servs., 403 N.W.2d 314, 315-16 (Minn. App. 1987).  But the goal of a conservatorship proceeding is to provide the court with sufficient information to determine the best interests of the proposed conservatee, not to resolve controversy between the parties.  In re Conservatorship of Smith, 655 N.W.2d 814, 820 (Minn. App. 2003).  In fact, the court may make findings and issue orders that conflict with the desires of the interested parties, if it determines that course to be in the best interests of the proposed conservatee.  See Minn. Stat. § 525.544.

            Here, appellant was afforded the opportunity to testify and to cross-examine all witnesses who testified.  Moreover, appellant submitted pleadings, memoranda, and exhibits to the court, including a written final argument.  While it is true that the court did not allow appellant to examine one witness, the record indicates that the information appellant’s witness was going to testify to was provided by other witnesses who testified.  Therefore, because the court is afforded broad discretion when determining whether to admit or exclude evidence, appellant received a fair opportunity to be heard and his due process rights were not violated.  See Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (absent erroneous interpretation of law, question of whether to admit or exclude evidence is within court’s discretion).

            Appellant also contends that the court was biased against him.  We disagree.  At one point the court reminded appellant that he was under oath.  While it is true that no other witness was reminded of his oath, other witnesses and counsel were also subject to the court’s admonitions.  In fact, the record is replete with instances of the court admonishing witnesses and reminding counsel to not go beyond the narrow issue before the court.  Thus, we conclude that the court was not biased against appellant.


            Appellant and respondent Thomas Iwen both argue that the portion of the court’s order limiting contact between the conservatee and her family members was an abuse of discretion.  The district court’s order states the following:

In the event that any of the Iwen family should visit the Conservatee, such visits will take place in the common areas of EagleCrest.  No family member will be allowed in the Conservatee’s room without the presence of either EagleCrest staff or Karl Bushmaker.  Any communications with the Conservatee will be held in the English language.


            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) (2002).  This court has provided criteria for evaluating visitation issues, including the best interests of the conservatee, the recommendations of medical personnel, and the conservatee’s preferences.  In re Guardianship of Kowalski, 382 N.W.2d 861, 866-67 (Minn. App. 1986).  Moreover, “[t]he essential issue is whether the [conservatee’s] fullest autonomy is preserved in light of her medical needs.”  Id. at 866.

1.         Restricting Visits to Common Areas

            Here, the conservatee’s behavior was clearly affected by her family’s visits.  According to the nursing progress notes from EagleCrest, the conservatee’s “behavior escalated” after appellant “visited in her apartment.”  The nursing notes also outline a specific incident that occurred on July 15, 2002.  According to the notes, one of the sons was observed leaning angrily into the conservatee’s face and shaking his finger at her.  The conservatee was observed turning her head away and attempting to push him away with her hand.  When one of the nurses approached the conservatee, the nurse observed that she was crying and later the conservatee told the nurse, “Thank you for rescuing me.”  After this incident, the conservatee refused to sit with the other residents in the dining room and cried for more than 20 minutes. 

            Because the medical personnel documented that the conservatee experiences depression and moodiness following visits from her sons, we conclude that the district court did not err in restricting visits with the conservatee to common areas of EagleCrest.

2.         Restricting Communications to English Language

            The court’s other visitation restriction was that all communications with the conservatee take place in English.  But the conservatee’s native language is German, and she continues to speak German with her sons.  Apparently, the court was concerned that the conservatee’s sons may attempt to abuse or unduly influence the conservatee by hiding behind the use of another language.  We conclude, however, that this restriction fails to preserve the conservatee’s fullest autonomy.

            First, there is nothing in the record to indicate that the use of German versus English will have any adverse effect on the conservatee’s health.  Second, this restriction did not appear to stem from a recommendation of the conservatee’s medical staff.  Third, requiring the parties to visit the conservatee in common areas will adequately protect her best interests because if she becomes upset during a visit, that will be clear to the facility’s staff whether the conversation is in German or English. 

Thus, in order to protect the conservatee’s fullest autonomy, we reverse that portion of the court’s order requiring all communications with the conservatee to be in English.

Affirmed in part and reversed in part.   


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant does not challenge Bushmaker’s appointment as conservator of the estate.