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In re Guardianship and Conservatorship of M.E.

Supreme Court of North Dakota

May 16, 2017

In re Guardianship and Conservatorship of M.E., Ward and Protected Person N.P. and M.N., Petitioners
v.
M.E., Respondent and Appellant

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.

          N.P. and M.N., petitioners; no appearance.

          David A. Garaas, Fargo, N.D. 58103, for respondent and appellant.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 1] M.E. appeals from an order denying her petition to be restored to capacity. M.E. argues the district court erred by denying her petition because no evidence shows she currently lacks the ability to care for herself and the court failed to order the least restrictive form of intervention. We affirm, concluding M.E. failed to establish a prima facie case for termination of the guardianship or for a less restrictive form of intervention.

         I

         [¶ 2] In 2014 M.E.'s children, N.P. and M.N., petitioned the district court for a guardianship and conservatorship, alleging M.E. was in need of a guardian after falling victim to a financial scam and attempting suicide. The district court appointed N.P. and M.N. as M.E.'s co-guardians and co-conservators. In 2015 M.E. petitioned the court to vacate its order appointing the co-guardians and co-conservators and to restore her to capacity. The court denied her petition. On appeal, this Court modified and then affirmed the order appointing the co-guardians and co-conservators, and we affirmed the order denying the petition to be restored to capacity. In re Guardianship of M.E., 2015 ND 267, ¶ 1, 871 N.W.2d 435.

         [¶ 3] In June 2016 M.E. petitioned the district court to be restored to capacity, claiming she no longer was incapacitated and she was able to care for herself. The court appointed a visitor. A visitor's report was filed, recommending some type of guardianship remain in place, but stating the visitor believed M.E. could live in a less restrictive environment if certain services were in place.

         [¶ 4] At a July 2016 hearing the district court allowed the parties to provide argument to the court. M.E. informed the court she wanted to move out of the assisted living facility and move to an apartment, and she claimed she could be responsible for taking her medications and could get help with her finances. M.E.'s attorney informed the court they would provide a specific plan at a later date. The court continued the hearing and requested M.E. provide a specific formal plan addressing her needs.

         [¶ 5] A second hearing was held in August 2016. M.E.'s attorney informed the court that M.E. wanted to move out of the assisted living facility and into an apartment, she probably could afford an apartment on her income and Fargo Public Health could possibly offer a service to assist her with taking medication if necessary. M.E.'s attorney also stated M.E. was willing to authorize a general durable power of attorney that would be effective if a doctor said she is incapable of caring for herself or her finances because of disability. The co-guardians and co-conservators objected to the termination of the guardianship and conservatorship.

         [¶ 6] In an August 2016 order the district court denied M.E.'s petition to be restored to capacity. The court found M.E. did not comply with the court's request to present a formal plan for a less restrictive form of intervention. The court found M.E. continues needing a guardian and evidence of a workable alternative plan to provide for her health and safety was not provided.

         II

         [¶ 7] M.E. argues the district court erred by not restoring her to full capacity and not terminating the guardianship and conservatorship. She contends the co-guardians had the burden to prove she remains incapacitated and the guardianship is the least restrictive form of intervention. She claims no evidence established she lacks the ability to care for herself and handle her finances because the co-guardians did not testify or present any other evidence about her current condition.

         [¶ 8] In guardianship proceedings we review the district court's factual findings under the clearly erroneous standard. Guardianship of M.E., 2015 ND 267, ¶ 9, 871 N.W.2d 435. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, no evidence supports the finding, or if, on the entire ...


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