Opinion
A23-1473
07-08-2024
In re the Guardianship and Conservatorship of Brian Powers.
Hannah L. Scheidecker, Fremstad Law, Fargo, North Dakota (for appellant Brian Powers) Robert A. McLeod, O. Joseph Balthazor, Jr., Hannah Fereshtehkhou, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota (for respondent Paul Peterson) Chad M. Roggeman, Rajkowski Hansmeier, Ltd., St. Cloud, Minnesota (for respondent Presbyterian Family Foundation)
This Opinion is Nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Clay County District Court File No. 14-PR-23-998
Hannah L. Scheidecker, Fremstad Law, Fargo, North Dakota (for appellant Brian Powers)
Robert A. McLeod, O. Joseph Balthazor, Jr., Hannah Fereshtehkhou, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota (for respondent Paul Peterson)
Chad M. Roggeman, Rajkowski Hansmeier, Ltd., St. Cloud, Minnesota (for respondent Presbyterian Family Foundation)
Considered and decided by Connolly, Presiding Judge; Gaitas, Judge; and Larson, Judge.
LARSON, JUDGE.
Appellant Brian Powers appeals a district court order appointing him a guardian. Powers argues that the district court clearly erred when it determined that he is an incapacitated person and no less-restrictive means could meet his needs. See Minn. Stat. § 524.5-310(a) (2022). We affirm.
FACTS
Respondent Paul Peterson and Powers are first cousins. In March 2023, Peterson filed an emergency petition to appoint a guardian for Powers. According to the petition, Powers was subject to civil commitment and was residing at a hospital.
In April 2023, Peterson petitioned the district court to appoint Peterson as Powers's guardian and requested a hearing. Peterson later requested a continuance to locate a professional guardian. In May 2023, Peterson filed an amended petition proposing the district court appoint respondent Presbyterian Family Foundation (PFF) as Powers's guardian. At the time, Powers remained subject to civil commitment.
The district court also initially appointed Peterson as Powers's emergency guardian but later changed the emergency guardian to PFF.
In the amended petition, Peterson described that Powers had a history of mental illness and paranoia, including that Powers: purchased over 40 cellphones due to concerns that people were listening to him; removed his mailbox to avoid contact with the postal service; placed and frequently changed locks on the outside of his front door; and expressed perpetual concern over radon gas. Peterson also noted that Powers refused to take his medications and would not visit a dentist to repair broken teeth. In addition, Peterson described that, during a trip to the emergency room, Powers expressed fear that medical staff were trying to poison him. With respect to Powers's home, Peterson explained that fixtures and plumbing had "been ripped from the walls and ceilings," resulting in water damage, and that the only food inside was "canned chicken and a jar of peanut butter." At the time of the amended petition, Peterson stated that Powers had over $1,762,748 in assets, including a homestead worth $271,500 and investments worth $883,761.
In July 2023, the district court held a hearing on Peterson's amended petition. By the time of the hearing, Powers's civil commitment had ended, and he was residing at a senior-living facility. At the hearing, consistent with his amended petition, Peterson offered the following testimony. Powers has suffered from mental illness since around age 18 and has a diagnosis of Paranoid Schizophrenic Bipolar Depressive disorder. Peterson had concerns related to Powers's mental health. Prior to his civil commitment, Powers had not kept up with medical appointments and was undernourished. Peterson also found it difficult to contact Powers because he frequently changed phone numbers. Peterson stated that Powers "made various reports of paranoid delusions about neighbors looking at him [in] strange ways" and being exposed to radiation. Peterson testified that Powers had a case manager with Carver County, with whom Peterson talked "extensively on the phone" regarding his concerns for Powers. Despite Peterson's interactions with the county, Powers remained "very absconded" and difficult to contact.
In addition, Peterson testified about Powers's living situation, describing his home as uninhabitable. Neighbors informed Peterson that Powers entered the home through a broken window. The home had no heat, "large amounts of water damage," and the plumbing did not work. Because the home was uninhabitable, prior to civil commitment, Powers often stayed in hotels. At the time of the hearing, Peterson was worried that if Powers were not subject to guardianship, he would not attend medical appointments, take his medication, or have a safe living environment.
Peterson testified further regarding Powers's finances. Peterson testified that Powers has a credit score of zero because he did not pay his bills, and Powers would put financial records in his fireplace. Peterson believed that when Powers would get bills in the mail, he would get "very paranoid about whether they were real or not." Powers's home had been subject to foreclosure twice, even though Powers had funds to pay the mortgage. Peterson described one incident when Powers had a $400,000 check on his person during a hospital stay because Powers did not trust banks. According to Peterson, due to paranoia about banks, Powers would withdraw funds and close his accounts. At one point, Powers appointed Peterson as his power of attorney. Peterson then assumed control of Powers's finances and began taking steps to repair his home. But Powers eventually revoked Peterson's power of attorney.
Peterson testified that Powers filed claims with Clay County Social Services and with the Minnesota Judicial Center Conservator Account Auditing Program, alleging that Peterson stole money from him. The county determined that Powers's claim was false after Peterson provided financial records showing that he had been using Powers's funds for repairs to Powers's home.
A PFF employee who helped manage Powers's emergency guardianship also testified. She stated that she visited Powers once a month at the senior-living facility since PFF became his emergency guardian. The PFF employee explained that she did not believe that Powers would take his medications absent assistance and had concerns about his mental health if he lived independently.
Powers also testified. Powers stated that he had been taking his medications and kept up with his mental-health appointments. Powers emphasized that, as of July 2023, he had been discharged from civil commitment. Powers said that he attempted to leave the senior living facility but was not able to do so. Powers also stated that he intended to temporarily inhabit his home before selling it and finding another place to live. But Powers explained that, if the district court refrained from appointing a guardian, he would stay at the senior living facility until he could find an apartment and would continue taking his medication and receiving mental-health care. Powers testified that he had consistently taken his medications for 40 years and that taking his medications had never been a problem.
In August 2023, the district court issued an order appointing PFF as Powers's guardian. Powers appeals.
DECISION
Powers challenges the district court's decision to appoint a guardian under Minn. Stat. § 524.5-310(a) (2022). We review a district court's decision to appoint a guardian for a clear abuse of discretion. In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn.App. 1991), rev. denied (Minn. Feb. 10, 1992). When reviewing a district court's decision to appoint a guardian, we do not reverse factual findings unless they "are clearly erroneous, giving due regard to the district court's determinations regarding witness credibility." In re Guardianship of Wells, 733 N.W.2d 506, 510 (Minn.App. 2007), rev. denied (Minn. Sept. 18, 2007). "We will not conclude that a factfinder clearly erred unless, 'on the entire evidence,' we are 'left with a definite and firm conviction that a mistake has been committed.'" In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021) (quoting N. States Power Co. v. Lyon Food Prods., Inc., 229 N.W.2d 521, 524 (Minn. 1975)). When reviewing factual findings for clear error, we (1) "view the evidence in a light favorable to the findings," (2) do not find our own facts, (3) do not "reweigh the evidence," (4) do not "reconcile conflicting evidence," and (5) "need not go into an extended discussion of the evidence to prove or demonstrate the correctness of the findings of the [district] court." Id. at 221-22 (quotations omitted). "[Our] duty is fully performed after [we have] fairly considered all the evidence and [have] determined that the evidence reasonably supports the decision." Id. at 222 (quotation omitted).
The district court also appointed PFF as conservator for Powers. See Minn. Stat. § 524.5409, subd. 1 (2022). Although Powers intermittently challenges the conservatorship in his brief, he failed to cite any legal authority related to conservatorships. Therefore, he inadequately briefed the issue and forfeited it on appeal. See State, Dep't of Lab. & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to consider issue that is inadequately briefed); In re Est. of Hadaway, 668 N.W.2d 920, 924 (Minn.App. 2003) (applying this concept in a probate appeal).
Under Minn. Stat. § 524.5-310(a):
The court may appoint a guardian, limited or unlimited in duration or power, for a respondent only if it finds by clear and convincing evidence that:
(1) the respondent is an incapacitated person; and
(2) the respondent's identified needs cannot be met by less restrictive means, including but not limited to use of appropriate technological assistance, supported decision making, community or residential services, or appointment of a health care agent under section 145C.01, subdivision 2. The court must make specific findings particular to the respondent why less restrictive alternatives do not work.
"[T]he burden of clear and convincing evidence is less than that required by the 'beyond a reasonable doubt' standard in criminal matters and is met when the truth of the fact to be proven is 'highly probable.'" Rogers v. Moore, 603 N.W.2d 650, 657 (Minn. 1999).
Here, Powers challenges the district court's findings that the evidence established by clear and convincing evidence that he "is an incapacitated person" and that his "identified needs cannot be met by less restrictive means." See Minn. Stat. § 524.5-310(a). We address each argument in turn.
I.
Powers first argues that the district court clearly erred when it found Powers was an "incapacitated person" under Minn. Stat. § 524.5-310(a)(1). Under the statute, an "incapacitated person" means a person "who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make personal decisions, and who is unable to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological and supported decision making assistance." Minn. Stat. § 524.5-102, subd. 6 (2022).
Here, the district court found, based on the evidence presented at the hearing, that Powers lacked "sufficient understanding or capacity to make or communicate responsible decisions concerning [his] personal needs for medical care, nutrition, clothing, shelter or safety." The district court based its finding on the following facts presented at the hearing: (1) Powers has a long history of mental illness; (2) at the time of the petition, Powers was subject to a civil-commitment order and was eventually placed in a senior-living facility; (3) Powers had demonstrated signs of paranoia; (4) Powers failed to attend medical appointments or take medication prior to his civil commitment; (5) Powers revoked Peterson's power of attorney; (6) Powers attempted to leave the senior-living facility; and (7) Powers's home had fallen into severe disrepair.
We are not left with a definite and firm conviction that the district court made a mistake when it found Powers was an incapacitated person. See Kenney, 963 N.W.2d at 221. The district court's findings are well supported by the testimony presented at the evidentiary hearing. And the findings are more than sufficient to show that incapacity was "highly probable." See Rogers, 603 N.W.2d at 657; see also, e.g., In re Guardianship of Broome, No. A20-0093, 2020 WL 5757481, at *3 (Minn.App. Sept. 28, 2020) (affirming incapacity finding based on testimony that appellant did not seek treatment for serious medical condition and was unable to meet personal needs); In re Burke, No. A18-1894, 2019 WL 3294072, at *3 (Minn.App. July 22, 2019) (affirming incapacity finding based on evidence that appellant had "history of hospitalizations and medical issues," that appellant "repeatedly refused to follow recommendations of medical staff," and that "the condition of [appellant's] apartment was both unsanitary and made it difficult for him to maneuver in his wheelchair"); In re Guardianship of Berge, No. A13-0585, 2014 WL 621566, at *4 (Minn.App. Feb. 18, 2014) (affirming incapacity finding based on testimony that appellant's farmhouse lacked running water, furnace needed repairs, and appellant's dementia would result in difficulty managing finances and medications).
These cases are nonprecedential and, therefore, not binding. To the extent we cite nonprecedential cases in this opinion, we cite them only as persuasive authority. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
Powers disagrees, arguing the record did not support the incapacity finding because Peterson did not attach any medical records to the petition. But Minn. Stat. § 524.5-310(a) does not require medical records to support an incapacity finding, and Powers does not cite caselaw to support his position. See In re Conservatorship of Kleven, No. A07-2022, 2008 WL 4777369, at *7 (Minn.App. Nov. 4, 2008) (noting that conservatorship does not require medical evidence of impairment, and "[a]s is true with respect to . . . guardianship, the condition required by statute may be proved by circumstantial evidence"), rev. denied (Minn. Jan. 28, 2009). Powers also asserts the record does not support the incapacity finding because the district court overly emphasized his "past actions and history of civil commitment." But guardianship petitions often rely on a person's past actions to evaluate incapacity, including prior civil commitments. See, e.g., In re Guardianship of Esterly, No. A13-0920, 2014 WL 349729, at *3 (Minn.App. Feb. 3, 2014) (using as basis to determine incapacity appellant's history of alcoholism, medical problems, and making note of three prior civil commitments).
For these reasons, we conclude the district court did not clearly err when it found Powers was an "incapacitated person" under Minn. Stat. § 524.5-310(a)(1).
II.
Powers also argues that the district court clearly erred when it found his needs could not "be met by less restrictive means" under Minn. Stat. § 524.5-310(a)(2). Less-restrictive means are those that allow the individual to keep as much autonomy as possible while providing the necessary protection. See In re Guardianship of Kowalski, 382 N.W.2d 861, 866 (Minn.App. 1986), rev. denied (Minn. Apr. 18, 1986).
Here, in determining that there were not less-restrictive means to guardianship, the district court found:
[Peterson] testified that he has worked extensively with a case manager through Clay County Social Services regarding [Powers]. [Powers] has not been consistently compliant with his medications or regularly attended healthcare/dental appointments. There was no evidence provided that [Powers] is capable of participating in supported decision making or that he would comply with community or residential services.
Again, we are not left with a definite and firm conviction that the district court made a mistake when it found Powers's needs could not be met by less-restrictive means. See Kenney, 963 N.W.2d at 221. The testimony from the evidentiary hearing supports the district court's findings and demonstrates it is "highly probable" that less-restrictive means would not have met Powers's needs. See Rogers, 603 N.W.2d at 657; see also Burke, 2019 WL 3294072, at *3 (affirming decision that less-restrictive means would not satisfy appellant's needs when appellant had history of not following medical recommendations and "did not arrange for new services" after "nurse quit and he fired his housekeeper"); Berge, 2014 WL 621566, at *4-5 (affirming decision that less-restrictive means would not satisfy appellant's needs where neuropsychologist testified that appellant's "frugality would not permit financial management" and she did not believe he would continue care services at home).
Powers's main disagreement with the district court's decision is that it did not credit Powers's testimony that he can currently meet his own needs with the services available to him. But "[w]e defer to the district court's factual determinations and credibility assessments" when assessing a district court's decision on a guardianship petition. In re Guardianship of O'Brien, 847 N.W.2d 710, 714 (Minn.App. 2014). And in finding there were no less-restrictive means to guardianship, the district court implicitly credited Peterson's and the PFF employee's testimony regarding this issue. See In re Guardianship of Pates, 823 N.W.2d 881, 887-88 (Minn.App. 2012) (providing that "district court's credibility findings can be implicit" (citing Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn.App. 2009)).
Powers makes a similar argument regarding the district court's finding that he was incapacitated, arguing that he was already receiving "services in the community that aid him in meeting his needs related to medical care, nutrition, clothing, shelter or safety." To be incapacitated, an individual must be incapable of meeting their needs, "even with appropriate technological and supported decision making assistance." Minn. Stat. § 524.5102, subd. 6. However, in crediting the testimony from Peterson and the PFF employee, the district court again acted within its discretion to determine that, even with his current assistance, Powers still lacked capacity to continue meeting his personal needs absent a guardianship. See O'Brien, 847 N.W.2d at 714.
Powers also argues the district court clearly erred because it failed to account for his preferences when evaluating less-restrictive means. But neither Minn. Stat. § 524.5-310(a)(2) nor the caselaw interpreting the statute required the district court to make findings regarding Powers's preferences. And we have stated more generally that an individual's best interests are "the determinative factor in guiding" a district court's decision making "when making any choice on [the individual subject to a guardianship's] behalf." See In re Guardianship of Doyle, 778 N.W.2d 342, 347 (Minn.App. 2010).
We recognize an individual's preferences are often a factor that a district court must consider. For instance, a district court must consider an individual's preferences when determining who to appoint as a guardian under Minn. Stat. § 524.5-309(b) (2022). Wells, 733 N.W.2d at 511. Furthermore, a "person subject to guardianship . . . retains all rights not restricted by court order," which includes "the right to . . . due consideration of current and previously stated personal desires and preferences." Minn. Stat. § 524.5-120 (2022).
We conclude that the district court did not clearly err when it found Powers's needs could not "be met by less restrictive means" under Minn. Stat. § 524.5-310(a)(2).
Affirmed.