This opinion will be unpublished and

may not be cited except as provided by

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




In re: Conservatorship of Florence Christopher,

Proposed Conservatee.

Filed August 12, 1997.


Randall, Judge

Hennepin County District Court

File No. P296894

Jennie M. Brown, Jennie M. Brown Law Office, 5909 Woodland Road, Minnetonka, MN 55345 (for appellant).

James M. Crist, Steinhagen & Crist, P.L.L.P., 5200 Willson Road, Suite 314, Edina, MN 55424, Charles W. Singer, 270 Grain Exchange North, 301 Fourth Avenue South, Minneapolis, MN 55415 (for respondent).

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.



Appellant challenges the appointment of a conservator of her person and her estate. We affirm.


Appellant Florence Christopher was born on July 26, 1933. She was committed to Anoka State Hospital for paranoid schizophrenia in 1968 and 1975, but has not been hospitalized for schizophrenia since 1975. She currently suffers from chronic obstructive pulmonary disease, edema of the legs, and hyperthyroidism.

On November 2, 1995, appellant was taken to the emergency room for hypothermia and edema. She remained in the hospital, where she received the drug Synthroid to treat her hyperthyroidism, for several days. On November 7, 1995, the hospital released appellant to live with her brother, respondent James Christopher . On November 9, appellant returned to her home, where a nurse began daily visits to administer Synthroid to appellant. Appellant cancelled the nurse's visit for November 10 and did not take her medication that day. On November 11, 12, and 13, appellant did not let the nurse into her home or take her medicine. As a result, appellant's hyperthyroid symptoms returned. She was re-hospitalized on November 15, 1995, with a body temperature of 92 degrees.

Later that month, the hospital released appellant for placement in St. Olaf's Residence nursing home. Appellant took her medicine from November 1995 to February 1996. In February, however, she refused to continue taking it. As a result, in April or May 1996, appellant's temperature dropped to 91.6 degrees, and her caregivers at St. Olaf's feared she would lapse into a coma as she had during one of her hospitalizations in November 1995. The court granted a special conservatorship, effective until July 31, 1996, under which St. Olaf's caregivers administered appellant's medicine hidden in her food. The record indicates that appellant's condition improved dramatically when she received her medicine.

As the expiration date of the special conservatorship approached, respondent petitioned for a general conservatorship authorizing him to establish a place of abode for appellant and make medical decisions for her. At the hearing on respondent's petition, Robin Denny, the director of social services at St. Olaf's, testified that she believed appellant needed a conservator to establish her place of abode because she feared that otherwise, appellant

would decide to go someplace, and no one would be able to monitor her medications; and she'd stop taking them again, putting her at risk again and putting us back in the same boat were in before.

John Brunkow, a Hennepin County Adult Protection worker, testified as to his concern that, given appellant's history of refusing to take her thyroid medicine, she would not take it if she lived at home. Respondent stated that he sought appointment of a conservator to "see that [appellant] gets proper medication." On the basis of this testimony, the district court referee found that "[t]he evidence was clear * * * that if she does not have supervision concerning her medications, she is likely to discontinue them and create a medical crisis for herself."

On October 18, 1996, the court granted respondent's petition and appointed him conservator to establish appellant's place of abode and consent to any necessary medical treatment for her. Appellant now challenges several of the court's factual findings and its order appointing a conservator for her.


A court's findings of fact will not be disturbed unless clearly erroneous, giving due regard to the district court's opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01; In re Conservatorship of Lundgaard, 453 N.W.2d 58, 60-61 (Minn. App. 1990). A reviewing court will not interfere with a probate court's appointment of a conservator absent an abuse of discretion. In re Conservatorship of Foster, 547 N.W.2d 81, 84 (Minn. 1996).

A court shall grant a petition for appointment of a conservator if it specifically finds, in writing, that the proposed conservatee is incapacitated and needs the supervision and protection of a conservator, and that no appropriate alternatives less restrictive than a conservatorship exist. Minn. Stat. § 525.551, subd. 5 (1996). "Incapacitated" means "impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and [showing] an inability to meet personal needs for medical care * * * or safety." Minn. Stat. § 525.54, subd. 2 (1996).

Here, the district court found appellant

lacks sufficient understanding or capacity to make or communicate responsible decisions concerning her person. The condition of [appellant] and the events described * * * above establish that [appellant] has demonstrated behavioral deficits evidencing an inability to meet her needs for medical care, safety, and shelter.

The court also found that appellant needs a conservator and that no less restrictive appropriate alternatives exist. The court thus satisfied the statutory requirement of specific written findings on each of the statutory factors.

Incapacitation and need for conservator

Appellant argues that several of the district court's findings are "clearly not supported by the evidence." Appellant specifically challenges the district court's findings that appellant: was hospitalized in May 1996, denied her thyroid problems, and is likely to stop taking her medication unless she remains under supervision.

The district court did state in its order that appellant was hospitalized in May 1996 after her body temperature had dropped to 91 degrees. A review of the only testimony on this point shows that although appellant's temperature did drop to 91.6 degrees in May 1996 due to her refusal of medication, she did not go to the hospital at that time. Instead, her caregivers at St. Olaf's administered her medication under the authority of the special conservatorship, and her symptoms subsided. On this record, we find the court erred by finding that appellant was hospitalized in May 1996.

Although the district court erred on this point, the error is not reversible. A reviewing court will not reverse the district court for error the reviewing court can see did not affect the substantial rights of the parties and result in manifest injustice. Minn. R. Civ. P. 61; see, e.g., Korf v. Korf, 553 N.W.2d 706, 711 n.3 (Minn. App. 1996) (disregarding error as harmless).

Here, the issue is whether appellant is incapacitated and needs the supervision and protection of a conservator. Appellant was not hospitalized in May 1996 because St. Olaf's was able to administer medication to her under the special conservatorship before her condition deteriorated further. Even though appellant was not hospitalized in May 1996, her repeated refusals to take her medication and her resulting illnesses in November 1995 and May 1996 adequately support the finding that she is incapacitated and needs the supervision and protection of a conservator. On this record, the court's finding of a May 1996 hospitalization constituted harmless error.

Appellant further challenges the district court's finding that appellant "denies having thyroid problems." The district court found that appellant "either denies that she has thyroid problems or states she is not certain she has them." Appellant testified with regard to her two hospitalizations for hyperthermia in November 1995, "I didn't become ill at all" at that time, and "I've never been sick in my life. I've never had an illness and I wasn't sick then."

Appellant argues that she did not deny her thyroid condition, had never denied it, and had no reason to disbelieve her doctor's diagnosis of it. When asked why she denied being ill at the time of her hospitalization, she seemed to say that when she testified that she had not been ill at that time, she meant simply that she did not feel ill.

Although some of the testimony indicates that appellant did not deny her thyroid problems, the record also contains support for the district court's finding that she either did deny them or was uncertain that she had them. We conclude the court's finding on this issue was not clearly erroneous.

Even if the district court had erred by finding that appellant "denied" her thyroid problems, the error would have been de minimis. The real issue here is whether appellant is incapacitated and needs a conservator to ensure that she takes her medication. The record indicates that regardless of whether she technically denied her thyroid problems, she was not willing to take her medication because of the perceived side effects.

Further, the district court properly found that appellant is likely to stop taking her needed medications unless she remains under supervision. After February 1996, appellant's caregivers succeeded in administering her medicine for more than a few days at a time only by hiding it in her meals. Appellant testified that she refused her medication because when she "was on it, [she] felt worse that [she did] off it." She stated that she suffered shortness of breath and a racing heart due to the medicine and that she feared it would cause diabetes. We note that tests administered to appellant show no signs of a racing heart or shortness of breath. In addition, the record contains no medical support for appellant's belief that Synthroid causes diabetes. Also, nothing in the record indicates that respondent or the medical personnel treating appellant had anything other than appellant's best interests in mind in seeking to administer Synthroid. The record indicates that appellant has refused to take properly prescribed medication even in the absence of medically verifiable side effects. The district court properly found that appellant would likely stop taking her medication in the absence of supervision.

Appellant argues that the district court erred by failing to find explicitly that appellant was impaired. The court did not restate the "impaired to the extent of lacking" language of section 525.54 in its findings. See Minn. Stat. § 525.54, subd. 2 (defining incapacitated as "impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions * * * "). The court did state, however, that appellant "lacks sufficient understanding or capacity to make or communicate responsible decisions concerning her person." We conclude the court's findings support a finding of incapacity within the meaning of section 525.54. The court did not err by failing to use the term "impaired" in its findings.

Appellant argues that under In re Conservatorship of Lundgaard, this court should independently review the record and substitute its judgment for that of the district court on the factual issues raised by appellant. See 453 N.W.2d at 61 (court independently searched record to find evidence that rationally might support sufficient findings). But in Lundgaard, the court independently searched the record only because several of the findings in that case had no support in the record. Id. at 61. Here, in contrast, the dispositive findings challenged by appellant are supported by the record. We decline to substitute our view of the facts for that of the trial court. We find absolutely no factual inferences drawn by the trial court that constitute "manifest injustice."

No less restrictive alternatives

Appellant further seems to argue that the district court should have permitted her to execute a durable health care power of attorney as a less restrictive alternative to a conservatorship. Appellant cites no authority in support of this argument, and none appears to exist.

As respondent correctly notes, a principal can revoke a health care power of attorney at any time. Minn. Stat. § 145C.09, subd. 1 (1996). As a result, even if a power of attorney did effectively authorize respondent to make and communicate health care decisions on behalf of appellant initially, appellant could revoke that authority whenever she wanted to refuse treatment. On this record, the district court properly concluded that a health care power of attorney was not an appropriate alternative.