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In the Matter of the Guardianship and Conservatorship of G.L., An v. Guardian and Protective Services

January 12, 2011

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF G.L., AN
INCAPACITATED PERSON. C.V., PETITIONER M.L.,
PETITIONER AND APPELLANT
v.
GUARDIAN AND PROTECTIVE SERVICES, INC., GUARDIAN AND CONSERVATOR,
RESPONDENT AND APPELLEE G.L., AN INCAPACITATED PERSON
APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme CourtGuardianship/Conservatorship of G.L., 2011 ND 10 This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

[-¶1] G.L. and his wife, M.L., appeal from a district court order terminating Guardian and Protective Services, Inc., as his guardian and conservator and ordering G.L., or his estate, to pay $12,088.28 in expenses for administration of the guardianship and the conservatorship.*fn1 We conclude M.L. is collaterally estopped from attacking the initial decision to appoint a conservator and guardian for G.L. and the court did not abuse its discretion in ordering payment of expenses. We affirm.

I

[-¶2] After experiencing behavioral problems at his home on September 6, 2009, G.L. was involuntarily admitted to the psychiatric unit at MedCenter One in Bismarck. M.L. and the couple's daughter, C.V., petitioned for appointment of a guardian and a conservator for G.L., alleging he had the onset of dementia with psychological problems, delusions, and paranoia, and he was unable to make informed decisions. A September 15, 2009, letter from Dr. Patrick Goodman at MedCenter One accompanied the petition and stated G.L. had "evidence of some cognitive decline which is more consistent with dementia" and because of family conflict, recommended a non-family member guardian for his "worsening . . . cognitive functioning" and "dementia with paranoia, probably Alzheimer's dementia." On September 16, 2009, the district court appointed Guardian and Protective Services as a temporary guardian and conservator for G.L. until December 16, 2009, with authority to make all legal, financial, and residential decisions. The court also appointed a visitor, Carol Morast, and a guardian ad litem, Bonnie Storbakken, for G.L., and a hearing for appointment of a permanent guardian and conservator was scheduled for December 3, 2009.

[-¶3] On September 16, 2009, G.L. was discharged from MedCenter One, and he returned to his home. After another incident shortly after his discharge, however, he was again involuntarily admitted to the psychiatric unit at MedCenter One and subsequently was involuntarily placed in a secured memory care facility in Bismarck.

[-¶4] At the December 3, 2009, hearing on the petition for appointment of a permanent guardian and conservator, M.L. sought to dismiss the petition or to have herself appointed guardian and conservator, while C.V. sought to go forward with the petition. At the hearing, the district court received reports from the visitor, the guardian ad litem, and Dr. M.C. Brown, a neuropsychologist, which all supported a third-party guardianship and conservatorship for G.L. The court also heard testimony from G.L., M.L., C.V., and two representatives from Guardian and Protective Services.

[-¶5] The visitor's report summarized the family discord involving G.L. and M.L., their sons, Cr.L. and Ch.L., and their daughter, C.V.:

This is a very difficult case. [M.L.] needs some care that her husband has been providing. [G.L.] and [M.L.] have interacted in a perpetrator/abuser/abuse relationship for 45 years. [M.L.] stated in September that she could no longer live in an abusive relationship, but has recanted most of her information when she and her husband were separated. The family is in opposite camps and some are not speaking to each other. Information has been stated that is as different as night and day. Financial interests that influence getting care and psychiatric help have been alleged and fraud in taking out a credit card using [M.L.'s] social security number without her knowledge has been alleged. Some of this is due to a lifetime of verbal abuse by the children, and a 45 year marriage that the relationship has been alleged to be abusive from the beginning. [M.L.] has also been alleged to be verbally abusive to her husband in conversations that have been overheard by [G.L.'s] residence staff. Added to long term abuse by [G.L.] of his children and wife is the diagnosis of dementia which may cause the abuse to escalate. The possession and threats of loaded weapons ([Ch.L.] states that the constitution guarantees his father the right to bear arms) further makes this a dangerous situation. Given the conflicting information, a distrust that [G.L.] can change his ingrained behavior, distrust in [Ch.L. and his wife's] ability to look after their mother and father's best interests given their financial interest in the situation, the reluctance of [C.V.] to take on guardianship due to living in [another state] and the need for someone to be closely supervising matters, and [Cr.L.'s] desire not to be further involved due to family pressures, I recommend a non family guardian who can access services that are needed without family pressures.

[-¶6] At the hearing, counsel for M.L. objected to the introduction of Dr. Brown's report from a neuropsychological evaluation conducted on November 19, 2009, which summarized G.L.'s condition and also recommended a third-party guardian and conservator:

[G.L.] is a 78 year old right-handed male, with an 8th grade education. Results of the current neuropsychological evaluation indicate that a moderate to severe degree of dementia ...


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