In re Guardianship and Conservatorship of M.E., Ward and Protected Person N.P. and M.N., Petitioners
M.E., Respondent and Appellant
from the District Court of Cass County, East Central Judicial
District, the Honorable Frank L. Racek, Judge.
and M.N., petitioners; no appearance.
A. Garaas, Fargo, N.D. 58103, for respondent and appellant.
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.
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.
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
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 ...