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In re Guardianship of Person and Conservatorship of Estate of V.A.M.

Supreme Court of North Dakota

October 13, 2015

In the Matter of the Guardianship of the Person and Conservatorship of the Estate of V.A.M., an Incapacitated Person P.M., Petitioner
v.
V.A.M., T.M., K.J., D.N., S.M, P.S.M, L.S.; First International Bank and Trust, Limited Conservator; Fiduciary and Advocacy Services, Limited Guardian, Respondents T.M. and K.J., Appellants V.A.M. and D.N., Appellees

Appeal from the District Court of Traill County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.

Zachary E. Pelham, Bismarck, N.D., for appellants.

Samuel S. Rufer (argued), and Stephen Rufer (on brief), for respondent and appellee D.N.

John A. Juelson, Hillsboro, N.D.for respondent and appellee V.A.M; submitted on brief.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. Sandstrom, Justice, concurring specially.

OPINION

Page 202

Carol Ronning Kapsner, Justice.

[¶1] T.M. and K.J., the children of V.A.M., appeal from an order authorizing V.A.M.'s conservator to assign V.A.M.'s legal claims. T.M. and K.J. argue the district court erred in creating a " sub-conservator" to investigate and decide whether to pursue V.A.M.'s legal claims. D.N., V.A.M.'s daughter, contends the court assigned V.A.M.'s legal claims to his children and did not create a " sub-conservator." We are unable to understand the basis for the district court's order, and we reverse and remand.

I

[¶2] In December 2012, P.M., the son of V.A.M., petitioned for the appointment of a guardian and conservator for his father. V.A.M. was 81 years old at the time of the petition; he has seven children. A guardian ad litem was appointed and filed a detailed reply, recommending the district court appoint a third-party limited corporate guardian and a third-party limited corporate conservator.

[¶3] In May 2013, V.A.M. and some of his children, including D.N., P.M., K.J., and T.M., reached an agreement and stipulated a limited guardianship and limited conservatorship were necessary. The stipulation specified V.A.M.'s rights and the guardian and conservator's duties. After a hearing, the district court adopted the parties' stipulation and appointed a third-party limited guardian and a third-party limited conservator for V.A.M. The court found a limited guardianship and a limited conservatorship were necessary as the best means of providing care, supervision, and habilitation for V.A.M. The court appointed Guardian, Fiduciary & Advocacy Services as the limited guardian and First International Bank & Trust of Fargo (" Bank" ) as the limited conservator.

[¶4] In September 2014, the Bank petitioned the district court to approve the retention of real and personal property and the assignment of possible legal claims. The Bank alleged V.A.M.'s monthly income was less than his monthly expenses and requested the court either allow the Bank to lease V.A.M.'s farmstead to T.M., sell the farmstead to T.M., or sell the farmstead at a private auction among V.A.M.'s children. The Bank asserted some of V.A.M.'s children requested it investigate possible claims of undue influence, breach of fiduciary duty, and lack of capacity related to V.A.M.'s transfer of real property to T.M., but it did not believe incurring the costs of investigating the potential claims was in V.A.M.'s best interest. The Bank requested the court allow it to assign the right to pursue any claims equally to all of V.A.M.'s children, as his ultimate heirs, to allow the investigation of any possible claims. The Bank also requested the court allow it to provide copies of V.A.M.'s personal financial information and tax returns to his children.

[¶5] T.M. and K.J. responded to the Bank's petition and requested the court consider V.A.M.'s wishes and best interests in deciding the petition. T.M. stated that he was not opposed to leasing the farmstead, but he was in favor of purchasing the property. T.M. and K.J. opposed the request to assign V.A.M.'s legal claims and claimed V.A.M. has no desire to pursue any legal claims and should not have to pay for pursuing any claims.

Page 203

[¶6] D.N. responded to the petition, requesting V.A.M. be able to retain his farmstead and the court grant the petition to allow the Bank to assign V.A.M.'s possible legal claims to his children.

[¶7] V.A.M. also responded to the petition. He stated that he was in favor of selling the farmstead to T.M. He also stated that he does not have any claims against T.M., that he was opposed to the Bank assigning any of his claims to his children, and that he was opposed to the Bank providing his financial information and tax returns to his children.

[¶8] After a hearing, the district court approved the sale of the real property and the assignment of claims in a November 14, 2014, order. The court authorized the Bank to sell the farmstead to T.M. The court also authorized the Bank to assign to V.A.M.'s children, in equal shares, any and all possible claims V.A.M. holds for undue influence, lack of capacity, or breach of fiduciary duty. The court ordered the Bank was not authorized to disclose any of V.A.M.'s financial information or tax returns to V.A.M.'s children.

[¶9] T.M. and K.J. objected to the district court's order, arguing the decision allowing the Bank to assign V.A.M.'s possible legal claims to the children goes against the stipulation for the guardianship and conservatorship. They also asserted the court did not provide any guidance about who would be responsible for paying the fees and costs related to any potential legal action on the claims and the order did not require the children to take V.A.M.'s wishes into consideration or consult with him before making any decisions as the stipulation and order appointing the conservator require.

[¶10] The district court sent the parties a letter responding to T.M. and K.J.'s objections. The court stated the assignees may be required to pay all costs and fees related to any eventual claim, but that could only be determined in the future. The court also stated that the children would be required to abide by the requirements ...


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