A05-1647

In re: Limited Guardianship of the Person

of LaVonne H. McDonald, and

In re: The Conservatorship of the Estate

of LaVonne H. McDonald.

Filed June 29, 2006

Affirmed

Willis, Judge

Olmsted County District Court

File No. P9-04-1182

Matthew L. Fling, 4018 West 65th Street, Suite 100, Edina, MN 55435 (for appellant Wayzetta Hoffman)

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

Mark G. Stephenson, Stephenson & Sutcliffe, P.A., 1635 Greenview Drive Southwest, Rochester, MN 55902 (for respondent U.S. Bank)

Patrick J. Arendt, 3169 Wellner Drive Northeast, Suite C, Rochester, MN 55906 (for respondent LaVonne H. McDonald)

Therese Wintering, 18 Third Street Southwest, Suite 303, Rochester, MN 55902 (respondent guardian/conservator)

Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, 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 orders appointing a limited guardian of the person and a conservator of the estate of appellant’s sister. Because the record shows that the district court did not abuse its discretion by appointing the guardian or conservator, we affirm.

FACTS

In 2002, LaVonne McDonald, who was then approximately 78 years old, moved from her home in Walnut Creek, California, to reside permanently in Rochester, Minnesota. McDonald has family members, including her sister, appellant Wayzetta Hoffman (Hoffman), in Walnut Creek, and she also has family members in Rochester. In the autumn of 2002, McDonald’s primary-care physician, Casey Caldwell, M.D., diagnosed her with dementia, complicated by an anxiety disorder, depression, and other health problems.

In June 2003, McDonald, using the services of attorney Alan Yanowitz, executed a health-care directive, appointing Hoffman as her agent in the event that she became unable to make her own health-care decisions. On the same day, McDonald executed a power of attorney naming respondent U.S. Bank as her attorney-in-fact, and she established the LaVonne H. McDonald Revocable Trust, naming U.S. Bank as trustee. Approximately one week later, McDonald executed a designation of guardian, in which she selected Hoffman to be the guardian of her person in the event that she was declared an incapacitated person.

After moving to Rochester, McDonald lived in a condominium and received in-home, 24-hour nursing care at a cost of $20,000 per month. Later, on her doctor’s recommendation, McDonald was placed in an assisted-living facility, which cost $10,000 per month. In March 2004, because of McDonald’s worsening condition, U.S. Bank filed a petition for the appointment of McDonald’s friend Reverend James Kroonblawd as the guardian of McDonald’s person and U.S. Bank as conservator of McDonald’s estate. But in April 2004, Kroonblawd notified U.S. Bank that he would not be able to serve as guardian. Therefore, in May 2004, U.S. Bank filed an amended petition, seeking the appointment of McDonald’s nephew James Hoffman as the guardian of McDonald’s person and again asking that U.S. Bank be appointed as conservator of McDonald’s estate. But two weeks later, McDonald signed a document, purportedly at the direction of Hoffman, discharging Yanowitz as legal counsel and U.S. Bank as trustee of McDonald’s revocable trust. Yanowitz withdrew from representation, but U.S. Bank continued to serve as trustee.

Yanowitz subsequently contacted Corrine Erickson, a social worker with Olmsted County Adult Protection Services, who conducted an investigation and determined that Olmsted County would file a petition for a guardianship of the person of McDonald. Before filing the petition, Erickson first contacted family members to find a suitable guardian for McDonald. Erickson spoke to James Hoffman, who refused to become McDonald’s guardian because he felt that “there was nothing that he could do to satisfy [Hoffman’s] concerns about [McDonald].” Erickson spoke to Hoffman, who was “uncooperative, abrupt, . . . yelled and screamed at [her] on the phone” and eventually hung up on Erickson. In August 2004, Olmsted County filed a petition for appointment of Therese Wintering, a local attorney, as limited guardian of McDonald’s person, and U.S. Bank filed a new petition for its appointment as conservator of McDonald’s estate.

In February 2005, the district court held an evidentiary hearing, at which Hoffman appeared through her counsel to contest both petitions. Hoffman orally petitioned the district court to appoint her as the guardian of McDonald’s person but did not request to be appointed conservator of McDonald’s estate. Further briefing was submitted by the parties, and the district court issued two orders in June 2005, appointing Therese Wintering as both the limited guardian of McDonald’s person and as the conservator of her estate. Hoffman now appeals from both orders.

D E C I S I O N

Hoffman argues that the district court abused its discretion by appointing Wintering as the limited guardian of McDonald’s person because Hoffman “has clear priority for appointment” as guardian for the reasons that: (1) in McDonald’s executed designation of guardian, McDonald selected Hoffman to be the guardian of her person in the event that McDonald was declared an incapacitated person; (2) McDonald told Patrick Arendt, McDonald’s attorney at the evidentiary hearing on the petitions, that she preferred that Hoffman be appointed the guardian of her person; and (3) McDonald appointed Hoffman as McDonald’s agent under a health-care directive. Generally, the appointment of a guardian is a matter peculiarly within the discretion of the appointing court. In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). A reviewing court will not reverse such an appointment absent a clear abuse of discretion. Id. No one disputes the district court’s finding of McDonald’s incapacity.

When appointing a guardian, a district court shall first consider those persons given statutory priority for such an appointment, including a guardian currently acting on the behalf of the incapacitated person and an agent appointed by the incapacitated person under a health-care directive under chapter 145C. Minn. Stat. § 524.5-309 (a) (1), (2) (2004). But the district court may, in the best interests of the incapacitated person, decline to appoint a person having priority and rather appoint a person having a lower priority or no priority. Id. (b) (2004).

Although McDonald executed a designation of guardian, indicating that McDonald wished Hoffman to be the guardian of her person in the event that McDonald was declared an incapacitated person, Hoffman was not at the time of the evidentiary hearing and is not now and never has been McDonald’s guardian. She, therefore, does not have statutory priority under Minn. Stat. § 524.5-309 (a) (1). And although the record shows that McDonald told Arendt, her attorney, that she wanted Hoffman to be appointed as her guardian, the district court did not abuse its discretion by not deferring to McDonald’s wishes. See Wilkowske v. Lynch, 124 Minn. 492, 495, 145 N.W. 378, 380 (1914) (concluding that it “cannot hold that the court abused its discretion [in its selection of a guardian] because it was not guided by the wishes of respondent as expressed in her answer, and as testified to by witnesses on the trial”). But because Hoffman was appointed by McDonald as her agent under a health-care directive, Hoffman has statutory priority for appointment as McDonald’s guardian under Minn. Stat. § 524.5-309 (a) (2).

Here, however, the district court found that

it would not be in [McDonald’s] best interests to appoint [Hoffman] as her guardian. [Hoffman] lives in Walnut Creek, CA and is not in sufficient position to accompany [McDonald] to medical appointments, attend care conferences, oversee [McDonald’s] care providers and otherwise timely respond to emergent situations. Dr. Caldwell was of the opinion that it would not be in [McDonald’s] best interests to have [Hoffman] serve as guardian. [McDonald’s] medical conditions are complicated and, having worked with [Hoffman] previously in her capacity as healthcare agent, Dr. Caldwell was of the opinion that [Hoffman] is not able to understand and manage [McDonald’s] condition and treatment. Dr. Caldwell characterized [Hoffman] as paranoid and suspicious, angry and combative, prone to rant and rave about past injustices, and unable to reasonably communicate concerning [McDonald’s] care and treatment – for example, hanging up the phone.

Hoffman argues that the evidence does not support the district court’s conclusion that it would not be in McDonald’s best interests to appoint Hoffman as guardian. But the district court’s finding is supported by the record. Dr. Caldwell’s testimony is accurately described in the district court’s finding. Hoffman argues that Dr. Caldwell is biased; that any objections that he or the district court might have to her as guardian are based on the “speculative belief that [Hoffman] might, if appointed, make certain health care decisions that the doctor does not agree with, or that may result in greater expense than the health care services presently being provided”; and that there is no evidence that she has made poor decisions regarding McDonald’s care in the past. The district court has “opportunities and advantages not available to us” because the district court is able to hear testimony firsthand. In re Guardianship of Dahmen, 192 Minn. 407, 410, 256 N.W. 891, 893 (1934). And the record shows that others also testified that Hoffman was difficult to deal with regarding McDonald’s care.

Erickson, the Olmsted County adult-protection social worker, testified that on two occasions when she spoke to Hoffman about a guardianship for McDonald, Hoffman “yelled and screamed” at her and once hung up on her. Erickson also testified that (1) Hoffman wanted to move McDonald from the assisted-living facility back to her condominium without being able to articulate the steps Hoffman would take to facilitate such a move; (2) Hoffman showed no understanding regarding whether McDonald could continue to afford 24-hour nursing care at home; and (3) Erickson had been concerned upon learning that Hoffman had McDonald sign a document removing McDonald’s original counsel and trying to remove U.S. Bank as McDonald’s trustee without having a substitute trustee. Denise Kelly, a trust officer at U.S. Bank, testified that (1) Hoffman was “difficult” and said “irrational things”; (2) when McDonald was in the condominium, Hoffman wanted her at the assisted-living facility; and now that McDonald is at the assisted-living facility, Hoffman wants McDonald to move back to the condominium; and (3) paying $20,000 a month for McDonald’s 24-hour nursing care in her condominium would deplete the principal of her trust, which then had an estimated value of nearly $1 million; would not be sustainable over “an extended period of time.” This could eventually leave McDonald without any means of support.

Based on the record, we conclude that the district court did not abuse its discretion by appointing Wintering as the limited guardian of McDonald’s person.

II.

Hoffman argues that the district court also abused its discretion by appointing Wintering as conservator of McDonald’s estate when there was no notice, motion, petition, hearing or other opportunity to submit evidence or arguments regarding Wintering’s appointment. The district court “has broad powers in appointing a conservator,” and this court will not reverse such an appointment absent a “clear abuse” of discretion. In re Conservatorship of Lundgaard, 453 N.W.2d 58, 63 (Minn. App. 1990).

“Upon petition and after notice and hearing, the [district] court may appoint a limited or unlimited conservator” for any individual if the district court determines that

(i) by clear and convincing evidence, the individual is unable to manage property and business affairs because of an impairment in the ability to receive and evaluate information or make decisions . . . and

(ii) by a preponderance of evidence, the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual . . . .

Minn. Stat. § 524.5-401 (2004). The petition for conservatorship “must also set forth to the extent known,” “the name and address of any proposed conservator and the reason why the proposed conservator should be selected.” Minn. Stat. § 524.5-403 (c) (1) (2004) (emphasis added). The district court, “acting in the best interest of the protected person, may decline to appoint a person having priority and appoint a person having a lower priority or no priority.” Minn. Stat. § 524.5-413 (c) (2004).

The record shows that U.S. Bank filed a petition to be appointed as conservator of McDonald’s estate. The petition was served on interested parties, including McDonald and Hoffman. Therefore, proper notice was given, and an evidentiary hearing was held on the petition. At the hearing, Hoffman moved to dismiss U.S. Bank’s petition, arguing that there was a question as to whether U.S. Bank was the “trustee of a valid trust” and that there would be a conflict of interest if U.S. Bank were both the trustee and the conservator of McDonald’s estate. In a letter brief, Olmsted County suggested that if the district court declined to appoint U.S. Bank as conservator, the court could grant the power to form contracts and to apply for government services and benefits to Wintering, as guardian, under Minn. Stat. § 524.5-313 (c) (5), (7) (2004). Hoffman’s response was that she did “not disagree with [Olmsted County’s] analysis.” In a letter brief, U.S. Bank proposed that Wintering be appointed as conservator of McDonald’s estate and that U.S. Bank be appointed as conservator only if Wintering was not appointed. Instead of granting Wintering the power only to form contracts and to apply for government services on McDonald’s behalf, the district court appointed Wintering as conservator of McDonald’s estate.

No one disputes that McDonald is unable to manage her own estate and that without such management, her assets could be dissipated and she could be without funds to provide for her support and care. And no one argues that Wintering is unqualified to serve as conservator. At the hearing, Wintering testified that she had provided both “guardianship and conservatorship services” since she began practicing law in 1977. Hoffman does not argue that Hoffman should have been appointed conservator, and she does not propose any other person to be appointed. Hoffman’s only argument is that the district court abused its discretion by appointing Wintering because she had not been identified as a potential conservator before the court issued its order.

The statutes governing appointment of a conservator do not prohibit a district court from appointing as conservator a party not named in a petition. See Minn. Stat. §§ 524.5-401-.5-433 (2004). Minnesota courts have approved appointments of conservators who were not suggested by the parties when the district court determined that such appointments were in the best interests of the incapacitated person. See, e.g., In re Conservatorship of Edwards, 390 N.W.2d 300, 302, 305 (Minn. App. 1986) (affirming conservator appointment when “[a]fter the hearing, the court amended the petition from a guardianship proceedings to a conservatorship proceeding [and] . . . appointed . . . an attorney, as general conservator of the person and [the] estate”); cf. Schmidt v. Hebeisen, 347 N.W.2d 62, 63, 65 (Minn. App. 1984) (affirming guardianship appointment of a party who was not named in any petition and noting that “[a]ctual testimony as to the fitness, qualifications and availability [of the appointee] need not be taken where the court already possesses knowledge of such matters unless a party formally objects on such grounds”).

Here, the record shows that Hoffman knew that Olmsted County had suggested that the district court give Wintering the authority that U.S. Bank sought as conservator if the district court declined to make U.S. Bank conservator, and Hoffman did not object, although she had an opportunity to do so. Based on this record, we conclude that the district court did not abuse its discretion by appointing Wintering as conservator of McDonald’s estate.

Affirmed.