This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).





In Re the Conservatorship of:

Dorothy F. Brady, Conservatee.

Filed May 25, 1999


Schumacher, Judge

Dissenting, Huspeni, Judge[*]

Hennepin County District Court

File No. P2971246

Stephen D. Radtke, 236 Valley Office Park, 10800 Lyndale Avenue South, Bloomington, MN 55420 (for conservatee)

James M. Crist, Steinhagen & Crist, P.L.L.P., 5200 Willson Road, Suite 314, Edina, MN 55424 (for conservator Anthony F. Roszak)

Allan R. Poncin, 810 Towle Building, 330 Second Avenue South, Minneapolis, MN 55402-2226 (for Timothy R. Brady)

Laura J. Hanson, Jenneane L. Jansen, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Coleen Brady)

Randy F. Boggio, Garvey, Mathison & Boggio, P.A., 9995 Lyndale Avenue South, Bloomington, MN 55420 (for Maureen Brady Jordan)

Ruth E. Fry, Mount Olivet Home, 5517 Lyndale Avenue South, Minneapolis, MN 55410 (pro se respondent)

Clarence Fry, 95 Kissme Road, Newville, PA 17241 (pro se respondent)

Glenn Fry, 600 Grahams Wood Road, Newville, PA 17241 (pro se respondent)

Mark Brady, Post Office Box 249, Belgrade Lake, ME 04918 (pro se respondent)

Daniel F. Brady, 3996 Braddock Road, High Point, NC 27265 (pro se respondent)

Kathleen L. Brady, Post Office Box 5744, Collegeville, MN 56321 (pro se respondent)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.



Appellants Dorothy F. Brady (conservatee), Anthony F. Roszak (conservator), and Timothy R. Brady challenge the district court's determination that conservatee's place of abode should be an assisted-living facility in Minnesota. We affirm.


Conservatee is 72 years old and suffers from Alzheimer's-type dementia. In June 1997, a petition for appointment of a general conservator was filed. The district court's November 3, 1997 order found conservatee incapacitated and without the competency to determine where she should live.

In January 1998, conservator petitioned the court to determine conservatee's abode to be Minnesota. In March 1998, conservator filed an affidavit to determine Pittsburgh as the place of abode.

On April 23, 1998, a hearing to determine conservatee's place of abode was held. On June 18, 1998, the district court issued an order which stated in part:

Dorothy Brady shall be returned to Minnesota to reside at the Kenwood assisted living facility in Minneapolis or another appropriate assisted-living facility determined by the conservator, Anthony Roszak.

These consolidated appeals followed.


Particularly in cases of this kind, where the trial court is weighing statutory criteria in light of the found basic facts, the trial court's conclusions of law will include determination of mixed questions of law and fact, determination of `ultimate' facts, and legal conclusions. In such a blend, the appellate court may correct erroneous applications of the law. As to the trial court's conclusions on the ultimate issues, mindful of the discretion accorded the trial court in the exercise of its equitable jurisdiction, the reviewing court reviews under an abuse of discretion standard.

Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990). On appeal, we will not set aside a trial court's factual findings unless clearly erroneous. Minn. R. Civ. P. 52.01; In re Conservatorship of Lundgaard, 453 N.W.2d 58, 60-61 (Minn. App. 1990).

Minn. Stat. § 525.56, subd. 3(6) (1996) provides that in fulfilling his or her duties and powers of authority over a conservatee, a conservator must do so in a way that limits the conservatee's civil rights and restricts personal freedom only to the extent necessary to provide needed care and service.

The right to establish one's home is inherent and inalienable. Thiede v. Town of Scandia Valley, 217 Minn. 218, 224-25, 14 N.W.2d 400, 405 (Minn. 1944). The Minnesota Constitution recognizes an individual's right to "life, liberty, or property" and provides that the "enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people." Minn. Const. art. I, §§ 7, 16.

The conservator, conservatee, and Timothy Brady argue the least restrictive option was to allow Dorothy Brady to live in Pittsburgh as she preferred, but the preference, though important, must be reliably expressed. In re Guardianship of Kowalski, 382 N.W.2d 861, 867 (Minn. App. 1987), review denied (Minn. Apr. 18, 1986). The November 3, 1997, order found conservatee did not reliably express a preference to live in Pittsburgh.

The record contains testimony supporting the district court's findings of fact including, but not limited to, conservatee's health insurance coverage, the existence of a great number of relatives living in Minnesota, the lack of a reliably expressed preference to live with her daughter in Pittsburgh, and that the Kenwood or another assisted-living facility in Minnesota could provide for conservatee's current and future medical needs.

The conservator, conservatee, and Timothy Brady also argue that the difficulty of supervision when conservatee is living out of state is not an issue. While Minn. Stat. § 525.56, subd. 3(1) (1996) allows a conservatee to live outside the jurisdiction of the court, the placement of a conservatee out of state is to be examined more closely. In re Medworth, 562 N.W.2d 522, 524 (Minn. App. 1997).

Furthermore, the conservator's power to determine the conservatee's abode is not absolute, but rather is subject to the direction and control of the court. Minn. Stat. § 525.56, subd. 1 (1996). In State ex. rel. Raymond v. Lawrence, 86 Minn. 310, 90 N.W. 769 (1902), the court stated:

The guardian does not have unlimited power over the ward, and cannot change its temporary or permanent residence to its detriment, and this is especially true where an attempt is made to remove the ward to a point outside of the jurisdiction of the court appointing the guardian. And a court of chancery has full and complete jurisdiction over the persons and the estates of infants and all others laboring under legal disability, as well as their guardians, trustees, or other custodians.

86 Minn. at 312, 90 N.W. at 770.

The district court properly applied the law, its findings of fact are not clearly erroneous, and the court did not abuse its discretion in concluding it was in conservatee's best interests to return to Minnesota to live in an assisted-living facility.


HUSPENI, Judge (dissenting)

I respectfully dissent and would reverse and remand. On June 18, 1998, the district court determined, over the objection of both conservatee Dorothy Brady and conservator Anthony Roszak, that it would be in "Dorothy's best interests that Minnesota be her permanent place of abode." This language strongly echoes that used by family courts when they determine custody of minor children. It follows, I believe, that we should demonstrate the same conscientiousness in conducting appellate review in this case as we are called upon to demonstrate in the family law setting.

First, we should require that findings of fact be sufficient to enable this court to conduct meaningful review. The findings in this case frustrate meaningful review by failing to address certain financial considerations and, more importantly, by failing to address fully the compelling and challenging human and interpersonal relationship questions here present.

The district court made a finding regarding certain adverse financial consequences that would result from moving Dorothy Brady's residence to Pittsburgh.[1] There is no finding, however, on the seemingly uncontested fact that residing in Pittsburgh would save Dorothy Brady the $l,500 per month living expenses she incurred at The Kenwood; expenses almost certain to increase as the need for more substantial medical services arose.

The district court also determined that Dorothy Brady is an incapacitated person who "lack[s] sufficient understanding to form the requisite intent to acquire a new domicile." This finding, although made in the face of a consistent, unequivocal desire expressed by Dorothy Brady since at least 1991 to live with daughter Maureen in Pittsburgh, must be accepted on appeal as not clearly erroneous. I am troubled, however, by the trial court's apparent reliance a few paragraphs later on the importance of the fact that Dorothy Brady "has lived in Minnesota over 32 years and has substantial ties to the Twin Cities community, including her family home, friends, and three of her six children." If, indeed, Mrs. Brady is incapacitated to the extent that she is not able to express a credible opinion about where she would like to live, the district court should be required to consider whether, unfortunately, that incapacitation might weaken substantially the importance of longtime community ties and relationships.

Finally, just as decisions regarding child custody are made in situations that are dynamic and fluid, so the decision here was made in a changing situation. On December 1, 1998, this court granted respondent Kathleen Brady's motion to suspend the automatic stay imposed by Minn. Stat. § 525.714 (1998) on the district court's June 18, 1998 order. The effect of this court's order was to compel the immediate return of Mrs. Brady to Minnesota. On December 18, 1998, however, the district court found that Mrs. Brady's "medical condition has deteriorated substantially since the Court issued its Order and the Court now believes that moving Dorothy back to Minnesota pending the appeal of this matter would be detrimental to her health and well being." The court then suspended its June 18, 1998 order "pending * * * appeal."

That is how matters now stand. While it appears that, even under the affirmance of the majority here, it will be necessary for the district court to determine at least the present circumstances of this case when it decides whether to lift the suspension of its June 18 order, I believe the best interests of Dorothy Brady can be served only by requiring that the district court review the bases upon which that June 18 order was issued, and the propriety of the decision reached therein.

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

[1] The court found that

Dorothy has medical insurance in Minnesota that requires a minimal co-pay cost of $9.00 per month. If [she] were to reside in Pennsylvania, her medical insurance would not cover many of her medical costs. As a result, [the] estate would be required to pay considerably more than $9.00 per month to cover the cost of * * * medical needs. Given Dorothy's health, it is foreseeable that she will require substantial future medical care, therefore, it would not be financially reasonable to place her in Pennsylvania.