This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re: Limited Guardianship of the Person
of LaVonne H. McDonald, and
In re: The Conservatorship of the Estate
of LaVonne H. McDonald.
Filed June 29, 2006
Olmsted County District Court
File No. P9-04-1182
Matthew L. Fling, 4018 West 65th Street, Suite 100, Edina, MN 55435 (for appellant Wayzetta Hoffman)
Raymond F. Schmitz, Olmsted County Attorney, Brent Eliot Walz, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904-3710 (for respondent Olmsted County)
Mark G. Stephenson, Stephenson
& Sutcliffe, P.A.,
Patrick J. Arendt, 3169 Wellner Drive Northeast, Suite C, Rochester, MN 55906 (for respondent LaVonne H. McDonald)
Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s orders appointing a limited guardian of the person and a conservator of the estate of appellant’s sister. Because the record shows that the district court did not abuse its discretion by appointing the guardian or conservator, we affirm.
In 2002, LaVonne McDonald, who was then
approximately 78 years old, moved from her home in
In June 2003, McDonald, using the services of attorney Alan Yanowitz, executed a health-care directive, appointing Hoffman as her agent in the event that she became unable to make her own health-care decisions. On the same day, McDonald executed a power of attorney naming respondent U.S. Bank as her attorney-in-fact, and she established the LaVonne H. McDonald Revocable Trust, naming U.S. Bank as trustee. Approximately one week later, McDonald executed a designation of guardian, in which she selected Hoffman to be the guardian of her person in the event that she was declared an incapacitated person.
subsequently contacted Corrine Erickson, a social worker with Olmsted County
Adult Protection Services, who conducted an investigation and determined that
In February 2005, the district court held an evidentiary hearing, at which Hoffman appeared through her counsel to contest both petitions. Hoffman orally petitioned the district court to appoint her as the guardian of McDonald’s person but did not request to be appointed conservator of McDonald’s estate. Further briefing was submitted by the parties, and the district court issued two orders in June 2005, appointing Therese Wintering as both the limited guardian of McDonald’s person and as the conservator of her estate. Hoffman now appeals from both orders.
Hoffman argues that the district
court abused its discretion by appointing Wintering as the limited guardian of
McDonald’s person because Hoffman “has clear priority for appointment” as
guardian for the reasons that: (1) in McDonald’s executed designation of
guardian, McDonald selected Hoffman to be the guardian of her person in the
event that McDonald was declared an incapacitated person; (2) McDonald told Patrick
Arendt, McDonald’s attorney at the evidentiary hearing on the petitions, that
she preferred that Hoffman be appointed the guardian of her person; and (3)
McDonald appointed Hoffman as McDonald’s agent under a health-care directive. Generally, the appointment of a guardian is a
matter peculiarly within the discretion of the appointing court. In re
Guardianship of Kowalski, 478 N.W.2d 790, 792 (
When appointing a guardian, a
district court shall first consider those persons given statutory priority for
such an appointment, including a guardian currently acting on the behalf of the
incapacitated person and an agent appointed by the incapacitated person under a
health-care directive under chapter 145C.
Although McDonald executed a designation of guardian, indicating that McDonald wished Hoffman to be the guardian of her person in the event that McDonald was declared an incapacitated person, Hoffman was not at the time of the evidentiary hearing and is not now and never has been McDonald’s guardian. She, therefore, does not have statutory priority under Minn. Stat. § 524.5-309 (a) (1). And although the record shows that McDonald told Arendt, her attorney, that she wanted Hoffman to be appointed as her guardian, the district court did not abuse its discretion by not deferring to McDonald’s wishes. See Wilkowske v. Lynch, 124 Minn. 492, 495, 145 N.W. 378, 380 (1914) (concluding that it “cannot hold that the court abused its discretion [in its selection of a guardian] because it was not guided by the wishes of respondent as expressed in her answer, and as testified to by witnesses on the trial”). But because Hoffman was appointed by McDonald as her agent under a health-care directive, Hoffman has statutory priority for appointment as McDonald’s guardian under Minn. Stat. § 524.5-309 (a) (2).
Here, however, the district court found that
it would not be in
[McDonald’s] best interests to appoint [Hoffman] as her guardian. [Hoffman] lives in
argues that the evidence does not support the district court’s conclusion that
it would not be in McDonald’s best interests to appoint Hoffman as
guardian. But the district court’s
finding is supported by the record. Dr.
Caldwell’s testimony is accurately described in the district court’s
finding. Hoffman argues that Dr.
Caldwell is biased; that any objections that he or the district court might
have to her as guardian are based on the “speculative belief that [Hoffman]
might, if appointed, make certain health care decisions that the doctor does
not agree with, or that may result in greater expense than the health care
services presently being provided”; and that there is no evidence that she has
made poor decisions regarding McDonald’s care in the past. The district court has “opportunities and
advantages not available to us” because the district court is able to hear
testimony firsthand. In re Guardianship of Dahmen, 192
Based on the record, we conclude that the district court did not abuse its discretion by appointing Wintering as the limited guardian of McDonald’s person.
Hoffman argues that the district
court also abused its discretion by appointing Wintering as conservator of
McDonald’s estate when there was no notice, motion, petition, hearing or other
opportunity to submit evidence or arguments regarding Wintering’s appointment. The district court “has broad powers in
appointing a conservator,” and this court will not reverse such an appointment
absent a “clear abuse” of discretion. In re Conservatorship of Lundgaard, 453
N.W.2d 58, 63 (
“Upon petition and after notice and hearing, the [district] court may appoint a limited or unlimited conservator” for any individual if the district court determines that
(i) by clear and convincing evidence, the individual is unable to manage property and business affairs because of an impairment in the ability to receive and evaluate information or make decisions . . . and
(ii) by a preponderance of evidence, the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual . . . .
The record shows that U.S. Bank
filed a petition to be appointed as conservator of McDonald’s estate. The petition was served on interested
parties, including McDonald and Hoffman.
Therefore, proper notice was given, and an evidentiary hearing was held
on the petition. At the hearing, Hoffman
moved to dismiss U.S. Bank’s petition, arguing that there was a question as to
whether U.S. Bank was the “trustee of a valid trust” and that there would be a
conflict of interest if U.S. Bank were both the trustee and the conservator of
McDonald’s estate. In a letter brief, Olmsted
County suggested that if the district court declined to appoint U.S. Bank as
conservator, the court could grant the power to form contracts and to apply for
government services and benefits to Wintering, as guardian, under Minn. Stat.
§ 524.5-313 (c) (5), (7) (2004). Hoffman’s
response was that she did “not disagree with [
No one disputes that McDonald is unable to manage her own estate and that without such management, her assets could be dissipated and she could be without funds to provide for her support and care. And no one argues that Wintering is unqualified to serve as conservator. At the hearing, Wintering testified that she had provided both “guardianship and conservatorship services” since she began practicing law in 1977. Hoffman does not argue that Hoffman should have been appointed conservator, and she does not propose any other person to be appointed. Hoffman’s only argument is that the district court abused its discretion by appointing Wintering because she had not been identified as a potential conservator before the court issued its order.
statutes governing appointment of a conservator do not prohibit a district
court from appointing as conservator a party not named in a petition. See
the record shows that Hoffman knew that