This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In re: Guardianship of Herbert D. Emswiler, Ward


Filed December 18, 2007


Wright, Judge


 Hennepin County District Court

File No. 27-GC-PR-06-246


Stephen C. Fiebiger, Stephen C. Fiebiger & Associates, 2500 West County Road 42, Suite 190, Burnsville, MN  55337 (for appellant)


Jennifer S. Anderson, Thiel, Campbell, Gunderson & Anderson, 411 Edina Executive Plaza, 5200 Willson Road, Edina, MN  55424; and


Pamela M. Spera, 8950 Victoria Drive, Eden Prairie, MN  55437 (for respondent)

Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge. 

U N P U B L I S H E D   O P I N I O N


Appellant-ward challenges (1) the district court’s conclusion that he requires a guardian, (2) the comprehensive grant of the statutory powers to his guardian, and (3) the appointment of his daughter to serve as his guardian.  We affirm.




At the time of the district court’s appointment of a guardian for appellant Herbert Emswiler, he was 76 years old with a diagnosis of “dementia with fairly prominent executive deficits.”  Emswiler has three adult children—Brian Emswiler, Jennifer Utecht, and respondent Brinn Marie Witt.  Emswiler had been estranged from his family for approximately 20 years.  But by the mid-1990s, he had permitted his son and Witt to assist him.  Because of resumed hostilities between Emswiler and his son, however, Witt is the only child currently willing to assist in Emswiler’s care.

In late 2005, Witt petitioned to become her father’s guardian.  In January 2006, the district court denied the petition, finding that the evidence did not clearly establish that a guardian was required.  In May 2006, Emswiler was civilly committed because he suffered from mental illness.  Shortly thereafter, Witt filed another petition for appointment as her father’s guardian, which was accompanied by a physician’s statement in support of guardianship prepared by Dr. Dana Hazel, Emswiler’s treating physician.  On July 20, 2006, an evidentiary hearing was held on the petition.

Emswiler has a history of alcohol abuse and hostility.  Emswiler received treatment for alcohol dependency more than 25 years ago; and as recently as May 2006, his doctor diagnosed him as alcohol dependent.  At trial, Dr. Hazel testified that Emswiler’s ongoing alcohol abuse could have a detrimental effect on his dementia. 

In recent years, Emswiler also has displayed physically assaultive behavior.  In January 2005, Emswiler hit Witt with his cane.  Later that year, Emswiler displayed assaultive behavior toward staff and other patients at an assisted-living facility where he was residing.  In late 2005, Emswiler again displayed his anger with Witt by striking her dog with his cane.

            Emswiler has had difficulty maintaining stable housing over the past few years.  Emswiler was evicted from his apartment in January 2005.  After Emswiler was evicted, Volunteers of America and social workers helped Emswiler gain admission to Meridian Manor, an assisted-living facility.  When Emswiler was asked to leave because of his assaultive behavior, he was sent to the veterans hospital to receive treatment for dementia and depression.  After his discharge from the hospital, Emswiler went to St. Louis Park Plaza Health Care Center (PHCC) for rehabilitation.

            Emswiler wanted to leave PHCC and move in with Witt.  Although she would not permit Emswiler to live with her, Witt arranged for him to move into a private home where he lived with three women.  Although his house-mates liked him, Witt was concerned that the arrangement was unsafe, in part, because Emswiler’s house-mates permitted him to drink alcohol regularly.

            Emswiler later moved to the Hopkins Care Center (HCC).  In April 2006, Emswiler again asked to live with Witt.  Because she had recently acquired a roommate and because of Emswiler’s past assaultive behavior, Witt declined.  Emswiler left HCC against medical advice and went to an Extended Stay America hotel, which is located next to Witt’s home.  Within 24 hours of leaving HCC, Emswiler called 911 for help.  But he could not tell emergency responders why he had called or where he had been staying previously.  In May 2006, pursuant to a civil commitment order, Emswiler was moved to a mental-health facility.

            Emswiler’s relevant medical history began in 2002 when he commenced his treatment with Dr. Hazel at the Veterans Administration Medical Center.  In February 2005, shortly after the eviction from his apartment, Emswiler complained about memory loss and difficulty managing his affairs.  Between February 2005 and April 2006, Dr. Hazel saw Emswiler six to eight times to address his memory loss.  Emswiler underwent neuropsychological and other testing to “confirm the presentation of dementia, significant difficulty with problem solving, . . . [and] executive deficits.”  By April 2006, Dr. Hazel had concluded that Emswiler “lacked decisionmaking capacity” and needed assistance with decision-making because of his dementia.  Other psychiatrists at the Veterans Administration Medical Center examined Emswiler and agreed with Dr. Hazel’s diagnosis. 

On August 29, 2006, based on the evidence presented, the district court granted the petition and appointed Witt as Emswiler’s guardian with full powers allowed by statute.  This appeal followed.



            Emswiler challenges the district court’s appointment of a guardian and the findings of fact on which the decision to do so is based.  The “appointment of a guardian is a matter peculiarly within the discretion of the [district] court” and will not be disturbed on appeal absent an abuse of discretion.  In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992).  Such deference is afforded the district court’s decision because of the district court’s ample opportunity to observe the witnesses and fully consider the evidence.  In re Guardianship of Stanger, 299 Minn. 213, 215, 217 N.W.2d 754, 756 (1974).

In light of the district court’s broad statutory authority in appointing a guardian, our review is limited to determining whether the district court’s findings are clearly erroneous, giving due regard to the district court’s determinations of witness credibility.  Minn. R. Civ. P. 52.01; In re Conservatorship of Lundgaard, 453 N.W.2d 58, 60-61 (Minn. App. 1990).  Accordingly, the district court’s findings will be upheld if they are reasonably supported by the evidence.  In re Trusteeship of Trust of Williams, 631 N.W.2d 398, 407 (Minn. App. 2001), review denied (Minn. Sept. 25, 2001).

            A guardian may be appointed if the district court finds by clear and convincing evidence that the proposed ward is an “incapacitated person” whose “identified needs cannot be met by less restrictive means.”  Minn. Stat. § 524.5-310(a) (2006).  An “incapacitated person” is defined as one who,

for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.


Minn. Stat. § 524.5-102, subd. 6 (2006).


            The district court found that, because Emswiler has “fairly prominent executive deficits,” particularly in decision-making, he is unable to provide for his needs.  In light of Emswiler’s inability to recognize these deficits, the district court determined that Emswiler is in need of assistance to meet his basic personal needs, including shelter, food, clothing, and health care.

            In support of its findings, the district court relied on the medical evidence of Emswiler’s history of mental illness offered through his medical records and Dr. Hazel’s testimony.  Dr. Hazel testified that Emswiler’s dementia makes him unable to provide for his own needs.  His lack of insight into his cognitive deficits prevents him from understanding his need for assistance taking care of himself.  Because Emswiler’s decision-making is affected, according to Dr. Hazel, Emswiler lacks the capacity to understand the consequences of his decisions or the nature of his needs.  The district court found Dr. Hazel’s testimony credible based on several factors, including the length of her treating relationship with Emswiler, Emswiler’s medical records, and his recent conduct.  The district court also observed that, since its January 2006 order denying Witt’s petition for appointment as Emswiler’s guardian, Emswiler had been civilly committed for treatment of mental illness.

            Although the district court did not use the statutory term “incapacitated person,” there is substantial evidentiary support for the district court’s determination that Emswiler requires a guardian and “[n]o less restrictive alternative to guardianship is available.”  Our review of the record establishes a substantial volume of evidence regarding Emswiler’s history of memory loss, confusion, housing difficulties, physically assaultive behavior toward caretakers, chemical dependency, and disregard for his own welfare. 

We defer to the district court’s assessment of witness credibility and will not reweigh the evidence on appeal.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Vangsness v. Vangsness, 607 N.W.2d, 468, 474 (Minn. App. 2001).  That some evidence may suggest that Emswiler is not an incapacitated person, such as the testimony of Emswiler’s long-time friend that Emswiler seemed “fine” to her during a visit, does not preclude our conclusion that the district court’s finding that Emswiler is incapacitated and requires the assistance of a guardian is supported by substantial evidence.  Similarly, there is ample evidence in the record to support the district court’s finding that, because Emswiler’s personality will “defeat any mechanism that is not court ordered,” “[n]o less restrictive alternative to guardianship is available.”  Witness testimony regarding Emswiler’s multiple changes in living arrangements, disregard for medical directives when they interfered with his desires, and history of assaultive conduct are persuasive evidence in support of this determination. 

On the record before us, there is ample support for the district court’s decision.  Accordingly, the appointment of a guardian for Emswiler was not an abuse of discretion.


            The district court’s grant of powers to a guardian will not be disturbed absent an abuse of discretion.  See Kowalski, 478 N.W.2d at 792 (stating that appointment of guardian is discretionary with district court).  The district court may grant the power to consent to medical or professional care for the ward, the power to approve or withhold approval of any contract, the duty and power to restrict the ward’s civil rights as necessary to provide care and services, and the power to apply for public assistance or benefits for the ward.  Minn. Stat. § 524.5-313(c) (2006).  The district court also may grant a guardian power over the ward’s care, comfort, and maintenance needs.  Id. (setting forth nonexclusive list of powers that may be granted to guardian).  But the district court must grant to the guardian only those powers necessary to address the ward’s demonstrated needs.  Minn. Stat. § 524.5-313(b) (2006). 

Emswiler challenges the scope of powers granted to the guardian, arguing that there is insufficient evidence in the record to support Emswiler’s incapacity to make responsible decisions regarding each grant of power.  Here, the record demonstrates that the district court was presented with a man suffering from a mental illness that fundamentally impairs his daily living.  In its order, the district court specifically listed the powers enumerated in the statute, finding that Emswiler needed a guardian for the exercise of each of those powers.  Following the statutory mandate, the district court also enunciated that area in which the guardian was not granted power to restrict or control, namely, Emswiler retains the right to vote.  See Minn. Stat. § 524.5-313(c)(8) (indicating that “unless otherwise ordered by the court, the ward retains the right to vote”).

            The district court did not specifically address its findings to correspond with each of the powers granted to the guardian.  But after finding that Emswiler has “fairly prominent executive deficits,” the district court identified the ways in which those deficits interfere with Emswiler’s ability to maintain his affairs.  In their entirety, the district court’s findings have ample support in the record and thoroughly demonstrate Emswiler’s needs.

The evidence, for example, establishes that Emswiler has difficulty maintaining stable housing, suffers from dementia, and is unable to meet his basic needs.  Emswiler is physically assaultive, and this behavior interferes with his ability to conduct his own affairs.  Indeed, the record establishes that his executive deficits impair his decision-making ability such that he needs the assistance of a guardian.  In addition, both the court visitor’s testimony and report recommended granting Emswiler’s guardian all statutory powers.

Thus, the district court did not abuse its discretion when it determined the scope of the powers granted to the guardian.


            Emswiler also challenges the appointment of Witt as his guardian.  As with the establishment of a guardianship, the district court has broad discretion in appointing the guardian.  Minn. Stat. § 524.5-309 (2006); see Kowalski, 478 N.W.2d at 792 (stating that appointing guardian is discretionary with district court). 

Section 524.5-309 sets forth those who may be considered for the appointment in order of priority.  Minn. Stat. § 524.5-309(a).  The provision specifically instructs the district court to consider, in order of preference, (1) any current guardian, (2) an agent appointed by the proposed ward under a health care directive, (3) the spouse of the proposed ward or a person nominated by a deceased spouse’s will or other similarly executed document, and (4) an adult child of the proposed ward.  Minn. Stat. § 524.5‑309(a)(1)-(4).  Despite the order of preference, the statute grants the district court the discretion to appoint someone of lesser priority, provided appointment is “in the best interest” of the proposed ward.  Minn. Stat. § 524.5‑309(a), (b).

            The district court concluded that Witt is “the most suitable and best qualified among those indicating a willingness to serve” and found that she had priority for the appointment under paragraphs (3) and (4) of section 524.5-309(a).  Section 524.5-309(a)(3) is inapposite because Emswiler is not married, and there is no evidence that he survived a spouse who “nominated [a guardian] by will or other signed writing executed in the same manner as a health care directive pursuant to chapter 145C.”  Minn. Stat. § 524.5-309(a)(3).  However, the district court’s reliance on section 524.5-309(a)(4), which establishes a priority for an adult child, is supported by the evidence.  The priority applies equally to Emswiler’s three children.  Under such circumstances, the district court may select from individuals of equal priority the one that it considers “best qualified.”  Minn. Stat. § 524.5-309(b).  The district court found that Witt’s siblings “are unwilling to become further involved.”  This finding is supported by the evidence that, other than Witt, Emswiler’s children either have never assisted in his care or have now ceased to provide such assistance.  Thus, it was within the discretion granted to the district court to conclude that Witt is the most suitable choice for appointment as guardian.

Although the district court did not rely on section 524.5-309(a)(2), which gives priority to those named as agents under a health-care directive pursuant to chapter 145C, this statutory priority lends credence to the district court’s appointment.  In April 1998, Emswiler appointed Witt as an alternate agent in a durable power of attorney for health care, which qualifies as a health-care directive under section 524.5-309(a)(2).  Emswiler appointed Witt’s brother, Brian Emswiler, as the attorney in fact.  But because he is unwilling to serve, Witt’s appointment as an alternate agent is effective under a qualifying health-care directive.[1]  Thus, the priority granted under section 524.5-309(a)(2) also supports the district court’s award.[2]

            Certainly it may be appropriate to consider a ward’s preference regarding the person to be appointed guardian.  But the ward’s preference may be given effect only as consistent with the statute and the district court’s obligation to act in the ward’s best interests.  See In re Guardianship of Schober, 303 Minn. 226, 230, 226 N.W.2d 895, 898 (1975) (“best interest of the ward should be the decisive factor in making any choice on his behalf”).  The district court acknowledged Emswiler’s objection to his daughter’s appointment.  However, because Emswiler objects not only to Witt’s appointment but also to the appointment of anyone who would interfere with his ability to control his affairs, the district court could not reasonably give effect to Emswiler’s wishes.  Based on the record before us, it was well within the district court’s discretion to appoint Witt as Emswiler’s guardian.



[1] Section 524.5-309(a)(2) does not state a preference between the named attorney in fact and the alternate.  Furthermore, listing an alternate agent was optional, which suggests that Emswiler affirmatively selected Witt as his agent.

[2] Without expressly relying on the priority established in section 524.5-309(a)(2), the district court found that Witt was “nominated alternate decisionmaker in her father’s durable power of attorney for health care.”