This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1633

 

 

In re the Conservatorship of:  Clara L. Schley, Protected Person.

 

 

Filed July 3, 2007

Affirmed

Toussaint, Chief Judge

 

Martin County District Court

File No. 46-PR-05-1130

 

Matthew T. Nielsen, Krahmer & Nielsen, P.A., 204 Lake Avenue, Suite 201, Fairmont, MN 56031 (for appellant Melodie Schley Ream)

 

James A. Wilson, Johnson, Berens & Wilson, 717 South State Street, Suite 200, Post Office Box 271, Fairmont, MN 56031 (for respondents Donald and Margery Schley)

 

 

            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Melodie Schley Ream petitioned to remove respondents Donald and Margery Schley as conservators of Clara L. Schley, alleging that their failure to notify conservatee’s relatives of the conservatorship petition was a fatal flaw preventing the granting of the petition and that mistakes in the petition, as well respondents’ failure to produce an accounting of the estate to other relatives, indicated that they were not acting with the highest degree of fiduciary duty towards conservatee.  Because under Minn. Stat. § 524.5-404, subd. (b) (2006) the failure to notify interested parties of a petition for conservatorship is not a fatal flaw, so long as the conservatee has notice, and because the record lacks any evidence of wrongdoing by respondents, either in the petition or their accounting, we affirm. 

D E C I S I O N

            The appointment of a conservator is a matter peculiarly within the discretion of the probate court. In re Conservatorship of Foster, 547 N.W.2d 81, 84 (Minn. App. 1996).  The reviewing court shall not interfere with the exercise of this discretion except in the case of clear abuse. In re Guardianship of Stanger, 299 Minn. 213, 215, 217 N.W.2d 754, 755 (1974).  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).   

            Respondents Donald and Margery Schley, Clara Schley’s first cousin and his wife, petitioned for appointment as Clara Schley’s conservators.  Both were Ms. Schley’s attorneys-in-fact.  The court granted respondents the conservatorship of Ms. Schley, a 94-year-old woman with no children, no spouse, no surviving siblings, and who was suffering from dementia. 

            Appellant, Ms. Schley’s niece, challenges respondents’ appointment, arguing that she and Ms. Schley’s two nephews did not receive notice of the petition.   She argues that lack of notice to Ms. Schley’s next-of-kin and Ms. Schley’s personal incapacity to nominate her own conservator were fatal flaws in the appointment.  Appellant further contends that the district court therefore lacked jurisdiction to grant the conservatorship.  We disagree. 

            Minn. Stat. § 524.5-404(a) (2006) requires that a “copy of the petition and the notice of hearing on a petition for conservatorship or other protective order must be served personally on the [conservatee].” The “failure to serve the [conservatee] with [such] notice . . . precludes the court from granting the petition.”  Id.  Proper notice under this statute does not hinge on the conservatee’s capacity to personally elect a conservator. Therefore, Ms. Schley’s capacity is irrelevant for jurisdictional purposes. 

             “Notice of the hearing on a petition for an order after appointment of a conservator. . . shall be given to interested persons.”  Minn. Stat. § 524.5-404(c) (2006).  Next-of-kin are entitled to notice as “interested persons.”  Minn. Stat. § 524.5-102, subd. 7(iv) (2006).  But Minn. Stat. § 524.5-404(b) specifically states that failure to give notice to the persons listed in the petition, including interested persons, “does not preclude the appointment of a conservator . .  . .”  Because the district court correctly determined that the law providing for notice to interested parties and listing relatives in the petition is not jurisdictional, the district court did not err by denying appellant’s petition to remove the conservators for lack of notice to Ms. Schley’s other relatives.    

            Appellant asserts that respondents should be removed as conservators because they omitted important information and made false statements in the petition documents.   When appointing a conservator, a district court shall first consider those persons given statutory priority for such an appointment.  Minn. Stat. § 524.5-413(a) (2006).  Priority is given to a person nominated as conservator by the respondent, “including the respondent’s most recent nomination made in a durable power of attorney.” Id.  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. Minn. Stat. § 524.5-413(c) (2006).

            Respondents had priority over other potential nominees.  Not only had Ms. Schley granted them power of attorney in 2001, before it was confirmed that she was suffering from dementia, but she also agreed to this challenged appointment. Appellant’s assertion  that Ms. Schley’s advanced dementia prevented her from acquiescing to a conservatorship was contradicted by the court-ordered visitor’s report, which indicated that Ms. Schley was aware of where she was and that she had the mental capacity to nominate a conservator.

            Appellant also alleges that respondents did not act with the highest degree of fiduciary duty towards Ms. Schley because they omitted relevant next-of-kin on the petition and because they had previously not provided an accounting to one of the nephews.  Appellant acknowledges, however, that she cannot point to anything in the record that indicates that respondents have failed in their duties as conservators; appellant provides no concrete evidence that the appointment was not in the best interests of Ms. Schley and alleges no breach of a conservator’s statutory duties under sections 524.5-417, 524.5-418, or any other statute.   

            At the hearing, appellant voiced her concerns that “Clara’s needs are [not] fully being met” and that appellant wished to have a “neutral conservatorship.”  But appellant admitted that she had no tangible evidence of any wrongdoing by respondents, and Donald Schley explained his conduct by testifying that Ms. Schley did not want the accounting provided to any other relative.  The district court concluded that “[t]here is no evidence that the current conservators have mishandled [conservatee’s] affairs or not provided financial information to the necessary parties.”    The district court specifically noted that testimony in its findings and made credibility determinations to which we must defer.  The district court did not abuse its discretion in denying the petition to remove respondents.

Affirmed.