This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1104

In Re: Conservatorship of Alice Twite Bancroft,

Proposed Conservatee.

Filed December 24, 1996

Affirmed

Harten, Judge

Ramsey County District Court

File No. P4-95-5590

Eric C. Dammeyer, Dammeyer Law Firm, 5780 Lincoln Drive, Ste. 150, Edina, MN 55436-1652 (for Appellant)

Eric J. Magnuson, Patrick J. Sauter, Karen Imus Johnson, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Centre, 333 South Seventh St., Minneapolis, MN 55402 (for Respondents)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Alice Twite Bancroft appeals from the district court's order dismissing her voluntary petition for appointment of a conservator of her estate. We affirm.

FACTS

In August 1992, Bancroft conveyed all of her assets, with the exception of a small checking account, to a revocable trust. Bancroft, age 88, currently resides at a health care center and suffers from dementia. The trustee regularly visits Bancroft two to four times each year to update her on the financial status of the trust. Due to concerns over her ability to understand the trust financial statements, and for confidentiality reasons, Bancroft's two daughters requested that the trustee not leave any trust documents with her at the health care center.

In June 1995, Bancroft voluntarily petitioned the district court for appointment of a general conservator of her estate. Bancroft's daughters and the trustee (collectively the "respondents") opposed the establishment of a conservatorship. In November 1995, the district court appointed a guardian ad litem for Bancroft and, in March 1996, held a hearing on whether a conservator should be appointed.[1] At the close of Bancroft's case, the district court dismissed her petition. Bancroft appeals.

D E C I S I O N

1. The district court has broad statutory authority in appointing a conservator and a reviewing court will affirm the district court's decision absent an abuse of discretion. In re Conservatorship of Foster, 547 N.W.2d 81, 84 (Minn. 1996). The reviewing court is limited to determining whether the district court's findings are clearly erroneous, giving due regard to the district court's determinations regarding witness credibility. Minn. R. Civ. P. 52.01; In re Conservatorship of Lundgaard, 453 N.W.2d 58, 60-61 (Minn. App. 1990). The scope of review is the same where, as here, the district court renders judgment on the merits. Minn. R. Civ. P. 41.02(b); Fidelity Bank & Trust Co. v. Fitzimons, 261 N.W.2d 586, 588 n.5 (Minn. 1977). "The burden is on the petitioner to show by clear and convincing evidence that a conservator is necessary to protect a party's estate and financial affairs." In re Conservatorship of Edelman, 448 N.W.2d 542, 546 (Minn. App. 1989); see also Minn. Stat. § 525.551, subd. 3 (1996).

The crux of this case concerns respondents' alleged refusal to allow Bancroft and her attorney an opportunity to view the trust instrument and financial statements. Bancroft's trust contains all of her personal assets except for a modest checking account maintained by her two daughters to pay for her daily expenses. The district court was

not satisfied that the need for a conservator of the estate is necessary when the proposed conservatee's assets are primarily made up of trust funds and are currently being supervised, managed and protected by a trust arrangement.

We agree. Since Bancroft's sole purported need for a conservator is access to her trust documents, a conservatorship was properly denied. See Minn. Stat. § 525.54, subd. 3(a) (1996) (voluntary appointment of conservator may be made only if the court is satisfied of the need thereof).

Bancroft argues that the district court may grant a conservator the power to institute suit on behalf of the conservatee, and represent the conservatee in any court proceedings. Minn. Stat. § 525.56, subd. 4(3) (1996). Assuming Bancroft was refused access to her trust documents (which respondents deny), the proper way for Bancroft, as beneficiary of the trust, to obtain this information is through a petition for court order directing a trustee accounting. See Minn. Stat. § 501B.16(8) (1996). Bancroft argues that maintenance of the status quo is not less restrictive than a conservatorship of her civil rights and liberties. See Minn. Stat. § 525.551, subd. 5(b)(3) (1996) (requiring that no appropriate alternatives to the conservatorship exist which are less restrictive of the person's civil rights and liberties). The requirement for "no appropriate alternatives" relates only to a conservatee who is incapacitated, pursuant to an involuntary appointment of a conservator. See Minn. Stat. § 525.54, subd. 3; Edelman, 448 N.W.2d at 545. But even assuming that the district court implicitly found Bancroft to be incapacitated, it nevertheless did not abuse its broad discretion in finding that a conservator was unnecessary to manage her estate.

2. Bancroft argues that the district court's decision is based upon evidence not presented at the hearing, specifically affidavits by her treating physician, her two daughters, and the trustee, submitted in support of respondents' petition for appointment of a guardian ad litem. Although the affiants were not called as witnesses at the hearing, their affidavits were part of the record. Bancroft had the right to summon and cross-examine these people at the hearing but chose not to do so. Minn. Stat. § 525.551, subd. 3. We conclude that the district court properly based its decision on evidence in the record. The district court's ultimate finding that a conservator was unnecessary was based on the undisputed fact that virtually all of Bancroft's assets are held in trust.

3. Absent a clear abuse of discretion, a district court's order with respect to discovery issues will not be disturbed. Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). Bancroft sought the identity of respondents' potential witnesses and a copy of all documents to be introduced at the hearing, specifically a copy of Bancroft's trust. After respondents refused her discovery requests, Bancroft brought a motion to compel, which the court denied at the hearing. As previously noted, respondents did not call any witnesses. Bancroft knew of respondents' allegations from the previously submitted affidavits, but she did not exercise her right to call affiants for cross-examination. Information from the trust documents was neither relevant to the subject matter involved in Bancroft's petition for a conservator, nor was it reasonably calculated to lead to discovery of admissible evidence. Minn. R. Civ. P. 26.02(a). We conclude that the district court did not abuse its discretion in denying Bancroft's motion to compel discovery.

Affirmed.

[ ]1After investigation, the guardian ad litem indicated that he saw no reason for the conservatorship.