This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-579

 

In Re:  Conservatorship of

Carol R. Fisher, Conservatee.

 

 

Filed November 19, 2002

Affirmed

Willis, Judge

 

Olmsted County District Court

File No. P3012796

 

Jeffery D. Bagniefski, Bagniefski & Murakami, PLLP, 9 First Street NW, P.O. Box 6, Rochester, MN  55903 (for appellant)

 

Raymond F. Schmitz, Olmsted County Attorney, Brent Eliot Walz, Assistant County Attorney, Government Center, 151 4th Street SE, Rochester, MN  55904-3710 (for respondent county)

 

            Considered and decided by Minge, Presiding Judge, Willis, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the district court’s appointment of a conservator of her person.  Appellant argues that the district court erred by appointing a conservator without clear and convincing evidence of the need for a conservator and by failing to consider a less-restrictive alternative to the conservatorship.  Because we conclude that the district court did not err, we affirm.

FACTS

Appellant Carol R. Fisher is an unmarried 54-year-old woman who suffers from paranoid schizophrenia.  At the time of the conservatorship hearing, Fisher resided by herself in an apartment and received assistance from public-health and social services.

            A July 2001 petition to appoint a conservator of Fisher’s person alleged that she was unable to make decisions about her daily care without assistance from others and was in need of assistance in providing for her medical care, safety, and nutrition.  Fisher’s psychiatrist provided a statement recommending the appointment of a conservator because of Fisher’s “inability to provide for adequate self-care” due to schizophrenia.  Testimony at the December 2001 hearing on the proposed conservatorship showed that Fisher refused to acknowledge her mental illness and did not take her prescribed neuroleptic medication as directed.  Fisher has expressed the belief that the medication prescribed to control her paranoid delusions actually causes the delusions and that someone had put LSD in the medication. 

Testimony showed that Fisher was often drowsy and sometimes fell asleep when people were talking to her.  Fisher’s psychiatrist attributed the drowsiness to improper medication.  Fisher also suffered from severe bedsores that, according to her psychiatrist, are unusual in someone alert and able to get out of bed and move around. 

            Testimony further showed that Fisher suffered severe weight loss, dropping from 120 pounds in September 2000 to only 88 pounds at the time of the hearing.  Fisher prepared small meals for herself and got deliveries from Meals on Wheels, but blamed her problems gaining weight on poor dental health, something she hoped new dentures would alleviate.  But she refused to increase her intake of soft foods in the interim.  Because of her emaciation, Fisher suffered edema and hypoproteinemia, a condition in which insufficient protein intake causes body tissues to retain fluid, to swell, and sometimes to weep fluid.  Fisher refused her psychiatrist’s referral to a nutritionist or gastroenterologist to address her nutritional needs.

In April 2001, a candle in Fisher’s apartment set her hair on fire.  The following month, a can of milk that she was heating on her stove exploded after Fisher fell asleep.  Testimony showed that Fisher often fell asleep while smoking cigarettes and there were several cigarette burns in her living room carpeting as a result.  She continued to smoke in her living room despite acknowledging the fire hazard.  Fisher also suffered paranoid delusions about intruders entering her apartment.  The delusions sometimes caused her to make repeated, unwarranted calls to the police, which resulted in threats of eviction from her landlord.

Following the hearing, the district court made findings of fact and concluded that Fisher was unable to provide for her personal needs for medical care, nutrition, and safety.  The district court appointed a conservator of Fisher’s person.  This appeal follows.

D E C I S I O N

I.

 

Fisher argues that the district court abused its discretion by appointing a conservator without clear and convincing evidence of the need for one.  The district court has broad power to appoint a conservator.  Minn. Stat. § 525.54, subd. 6 (2000).  An appellate court “will not interfere with the exercise of this discretion except in the case of clear abuse.”  Schmidt v. Hebeisen, 347 N.W.2d 62, 64 (Minn. App. 1984) (citation omitted).  Minnesota’s conservatorship statute provides that

[u]pon petition as provided in this chapter, the court, if satisfied of the need therefor, may appoint one or more persons * * * as guardians of the person * * * of any incapacitated person.

 

Minn. Stat. § 525.54, subd. 1 (2000).

An “incapacitated person” is one who 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.

 

Minn. Stat. § 525.54, subd. 2 (2000).

In the proceedings to appoint a conservator

there is a legal presumption of capacity and the burden of proof is on the petitioner.  The standard of proof is that of clear and convincing evidence.

 

Minn. Stat. § 525.551, subd. 3 (2000).

Fisher argues that there was insufficient evidence to support the district court’s finding that she was unable to meet her personal needs for medical care.[1]  She argues that she has always taken her medication as prescribed but questioned the prescribed dosages because she believed she suffered paranoia as a side effect.

There is ample evidence in the record, however, to support the district court’s finding.  It is undisputed that Fisher suffers from schizophrenia.  Her psychiatrist testified at length about Fisher’s refusal to acknowledge her mental illness and her illogical attribution of her paranoia to her prescribed neuroleptic medication.  Because Fisher refused to comply with her psychiatrist’s recommendations, she was unable to meet her personal needs for medical care.  

The district court also found that Fisher suffered drastic weight loss and did not heed the advice of her doctors to increase her caloric intake.  Fisher argues that the evidence showing that she prepared small meals for herself and received food from Meals on Wheels demonstrated her ability to provide for her own nutrition.  She also argues that her caloric intake will increase once her dental problems are resolved.

While Fisher may have been able to prepare small meals for herself, that fact alone should not have been determinant because she was simply not eating enough.  Fisher herself acknowledged that she needed to gain weight.  And her psychiatrist expressed concern about Fisher’s emaciation and her refusal of a referral to a nutritionist or gastroenterologist.

The district court also found that Fisher’s cigarette smoking and candle burning in her apartment threatened her safety.  Fisher argues that she could provide for her own safety because she knew her address and phone number and had frequent contact with social-services personnel.  Fisher characterizes the incidents involving her hair catching on fire, the exploding can of milk, and the cigarette burns on the carpeting as “mishaps” that do not rise to the level of clear and convincing evidence.

The district court made reference to specific factual findings in concluding that Fisher was unable to meet her personal needs for medical care, nutrition, and safety.  The evidence on which these findings were based is clear and convincing.  Therefore, the district court did not abuse its discretion as to the evidence supporting its decision to appoint a conservator of Fisher’s person.

II.

 

Fisher next argues that the district court abused its discretion by failing to consider a less-restrictive alternative to the conservatorship.  Minnesota’s conservatorship statute requires that “no appropriate alternatives to the * * * conservatorship exist which are less restrictive of the person’s civil rights and liberties * * * .”  Minn. Stat. § 525.54, subd. 5 (2000).  Fisher argues that she functions well on her own, with only the help of social services and her doctors, thus obviating the conservatorship.

The clear and convincing evidence that Fisher was unable to provide for her personal needs for medical care, safety, and nutrition demonstrates that the care Fisher received from her doctors and social services was insufficient, by itself, to address her needs.  In its order appointing a conservator, the district court found that there was no appropriate, less-restrictive alternative, including a protective arrangement under Minn. Stat. § 525.54, subd. 7 (2000).  Fisher fails to show that there was insufficient evidence of the need for a conservatorship and further fails to show that there is any appropriate, less-restrictive alternative.  The district court did not, therefore, abuse its discretion in finding that there was no appropriate, less-restrictive alternative.

The district court’s decision to appoint a conservator of Fisher’s person is affirmed.

Affirmed.