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In re Guardianship & Conservatorship of R.G.

Supreme Court of North Dakota

May 26, 2016

In the Matter of the Guardianship and Conservatorship of R.G., an Incapacitated Person; C.G., Petitioner
v.
K.P.; S.P.; R.G.; K.N., co-guardian; S.S., co-guardian; Audrey Ulrich, co-guardian; GAPS; American State Bank & Trust, conservator; Jeff Nehring, guardian ad litem; and Christopher Carlson, guardian ad litem, Respondents, K.P., Appellant C.G.; American State Bank & Trust, conservator, Appellees

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

         Taylor D. Olson, Williston, N.D., for petitioner and appellee.

         C.G. Lisa M. Six (argued) and Garth H. Sjue (on brief), Williston, N.D., for respondent and appellee.

         American State Bank & Trust. William C. Black, Bismarck, N.D., for respondent and appellant K.P.

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

          OPINION

Page 417

         Dale V. Sandstrom, Justice.

          [¶1] K.P. appeals from an order appointing a conservator and co-guardians for his adult uncle, R.G. We conclude the district court did not clearly err in finding good cause not to appoint K.P. as guardian and conservator for R.G. and did not abuse its discretion in appointing other individuals and entities as conservator and co-guardians for R.G. We affirm.

         I

          [¶2] In September 2014, R.G. lived in one of several mobile homes on land in rural McKenzie County owned by him and members of his family. R.G.'s brother helped care for him until that brother died in May 2014. According to R.G., his niece, S.P., became his caregiver after his brother's death, and she lived near Billings and usually saw him once or twice a month. In September 2014, law enforcement officers raided the property where R.G.'s mobile home was located as part of an investigation of others. According to a McKenzie County Deputy Sheriff, R.G.'s mobile home had dog feces throughout and did not have running water, a sewer or septic system, a furnace, a working refrigerator, or an adequate food supply.

          [¶3] After the law enforcement raid, C.G., a niece of R.G.'s, petitioned for appointment of an emergency conservator and guardian for her uncle, alleging he was between 86 and 87 years old and was being unduly influenced by S.P., who was nominated as his attorney-in-fact under a July 2014 durable power of attorney. C.G.'s petition sought to have R.G. declared an incapacitated person and to establish protective proceedings for his residential, medical, and financial affairs. The district court appointed Guardian and Protective Services, Inc. (" GAPS" ) as an emergency conservator and co-guardian and K.N., a relative of R.G.'s by marriage, as a co-guardian. The court also appointed a guardian ad litem for R.G. At a hearing on the emergency order, R.G. testified he executed a power of attorney in July 2014, appointing S.P. as his attorney-in-fact and he had recently transferred some property to her. According to the guardian ad litem, R.G. had recently transferred property, including an oil well, to S.P. and the condition of " the trailer house was very, very poor." The guardian ad litem testified

Page 418

he believed a conservatorship and guardianship was necessary. After that hearing, the court determined the emergency order was appropriate for a period not to exceed 60 days and invalidated R.G.'s power of attorney pending further proceedings.

          [¶4] C.G. thereafter petitioned for appointment of a conservator and a guardian for R.G. The district court appointed a visitor, a physician, and a guardian ad litem to examine R.G., and those entities made written reports to the court. At a hearing on that petition, R.G., K.P., C.G., and the guardian ad litem agreed R.G. needed a conservator and a guardian, and the court considered the appropriate entity or entities for appointment. At the hearing, K.P. testified his sister, S.P., was willing to waive her appointment as her uncle's designated attorney-in-fact and healthcare agent under the July 2014 power of attorney and K.P. sought to be appointed as his uncle's conservator and guardian as the named alternate under that document. The district court said reports by the physician, the visitor, and the guardian ad litem had been submitted to the court for review and found R.G. was an incapacitated person in need of the continuing care and supervision of a conservator and guardian. The court appointed GAPS, K.N., and S.S., a granddaughter of R.G.'s brother, as co-guardians and appointed American State Bank & Trust as conservator for R.G.

          [¶5] The district court had jurisdiction to appoint a conservator and guardian under N.D. Const. art. VI, § 8, and N.D.C.C. § § 27-05-06 and 30.1-02-02. K.P.'s appeal from the order is timely under N.D.R.App.P. 4(a). Appeals from an order appointing a conservator and guardian are authorized under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § § 28-27-01, 28-27-02, and 30.1-02-06.1. American State Bank argues, however, we ...


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