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In re Guardianship of Person & Conservatorship of Estate of B.K.J.

Supreme Court of North Dakota

July 30, 2015

In the Matter of the Guardianship of the Person and Conservatorship of the Estate of B.K.J, an Incapacitated Person, J.W., Co-guardian, Petitioner and Appellee
B.K.J., First International Bank, Conservator, and Guardian and Protective Services, Inc., Co-guardian, Respondents, B.K.J., Appellant

Page 346

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin Ann Schmidt, Judge.

Allyson M. Hicks (argued) and Scott T. Solem (appeared), Beulah, ND, for petitioner and appellee.

Gene W. Doeling Jr. (argued) and Jonathan L. Voigt (on brief), Fargo, ND, for respondent and appellant B.K.J.

Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.


Page 347

Lisa Fair McEvers, Justice.

[¶1] B.K.J. appeals from a district court order appointing J.W. and Guardian and Protective Services, Inc. (" G.A.P.S" ), as her co-guardians. We affirm, concluding the district court did not abuse its discretion in appointing J.W. and G.A.P.S. as B.K.J.'s co-guardians.


[¶2] B.K.J.'s niece, J.W., petitioned for the appointment of a guardian and a conservator for B.K.J. on the grounds B.K.J. suffered mild to moderate Alzheimer's disease and dementia and had shown decline in her ability to care for herself and her finances. Particularly, J.W. asserted B.K.J. had over $600,000 in unpaid taxes, interest, and penalties and had allegedly been taken advantage of monetarily by certain friends and family members. Specifically, the petition sought to appoint J.W. as B.K.J.'s guardian and conservator. After a hearing for emergency guardianship, the district court appointed J.W. and G.A.P.S. as emergency co-guardians to B.K.J. pending further hearing. The district court appointed a physician and a visitor to examine B.K.J., and an attorney to represent B.K.J. as guardian ad litem. A hearing was held on the petition. At the beginning of the hearing, the parties stipulated that a guardianship is necessary for B.K.J., and that she did not oppose the appointment of First International Bank as her conservator. The court-appointed physician, the court-appointed visitor, B.K.J.'s guardian ad litem, and others testified regarding the extent of B.K.J.'s incapacity, the necessity of a guardian, and who should be appointed as B.K.J.'s guardian. B.K.J. testified that she did not want J.W. appointed as her guardian and nominated two of her friends, F.C. and T.C., to be appointed as her co-guardians. The district court appointed First International Bank as B.K.J.'s conservator and appointed J.W. and G.A.P.S. as B.K.J.'s co-guardians, concluding the evidence established

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they were the proper and best qualified persons to serve as her guardians and represent the best interests of B.K.J. B.K.J. appealed.


[¶3] On appeal, B.K.J. argues the district court abused its discretion by misinterpreting and misapplying the law when it did not appoint F.C. and T.C., the individuals whom she nominated to be her co-guardians, because her preference should have taken priority under N.D.C.C. § 30.1-28-11(3)(a).

[¶4] The standard of review applied in guardianship proceedings is as follows:

Although we apply the clearly erroneous standard under N.D.R.Civ.P. 52(a) when reviewing findings of fact in a guardianship proceeding, see, e.g., Matter of Guardianship of Larson, 530 N.W.2d 348, 351 (N.D. 1995); Matter of Guardianship of Nelson, 519 N.W.2d 15, 17 (N.D. 1994); Matter of Guardianship of Renz, 507 N.W.2d 76, 77 (N.D. 1993), courts in Uniform Probate Code jurisdictions apply the abuse of discretion standard when reviewing a trial court's selection of a guardian and conservator. See, e.g., In re Guardianship of Kowalski, 382 N.W.2d 861, 864 (Minn. [Ct.] App. 1986); Matter of Guardianship of Nelson, 204 Mont. 90, 663 P.2d 316, 318 (1983); In re Guardianship of Blare, 1999 SD 3, ¶ 9, 589 N.W.2d 211; Peter G. Guthrie, Annotation, Priority and Preference in Appointment of Conservator or Guardian for an Incompetent, 65 A.L.R.3d 991, 995 (1975). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. In re E.G., 2006 ND 126, ¶ 7, 716 N.W.2d 469. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. City of Bismarck v. Mariner Constr., Inc., 2006 ND 108, ¶ 8, 714 N.W.2d 484.

In re Guardianship and Conservatorship of Thomas, 2006 ND 219, ¶ 7, 723 N.W.2d 384. If a statute requires express findings by the district court, failure to make such findings may constitute reversible error when the record does not reflect whether the issue was considered. See Schempp-Cook v. Cook, 455 N.W.2d 216, 217-18 (N.D. 1990). When express findings are not required by statute, the fact-finder must consider all applicable factors. See Mertz v. Mertz, 439 N.W.2d 94, 97 (N.D. 1989).

[¶5] Under N.D.C.C. § 30.1-28-04(2)(c), at a hearing regarding establishing a guardianship, the district court shall:

Appoint a guardian and confer specific powers of guardianship only after finding in the record based on clear and convincing evidence that:
(1) The proposed ward is an incapacitated person;
(2) There is no available alternative resource plan that is suitable to safeguard the proposed ward's health, safety, or habilitation which could be used instead of a guardianship.
(3) The guardianship is necessary as the best means of providing care, supervision, or habilitation of the ward; and
(4) The powers and duties conferred upon the guardian are appropriate as the least restrictive form of intervention consistent with the ...

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