In re: Guardianship and Conservatorship of Bette B. Kersta.

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In re: Guardianship and Conservatorship of Bette B. Kersta. A04-754, Court of Appeals Unpublished, April 5, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA IN COURT OF APPEALS A04-754

 

In re:  Guardianship and Conservatorship of Bette B. Kersta.

 

Hennepin County District Court

File No. P6031714

 

Filed April 5, 2005

Affirmed

Peterson, Judge

 

Stephen C. Fiebiger, Stephen C. Fiebiger & Associates, 2500 West County Road 42, Suite 190, Burnsville, MN  55337 (for appellant Bette B. Kersta)

 

Richard E. Brown, 50 Medina Street South, Loretto, MN  55357 (pro se respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Appellant Bette B. Kersta appeals from an order appointing respondent Richard E. Brown as her guardian and conservator.  Kersta argues that the district court erred in concluding that (1) she lacks sufficient capacity to manage her personal affairs to justify the appointment of a guardian with all powers under Minn. Stat. § 524.5-313(c)(1)-(6) (2004); and (2) she lacks sufficient capacity to manage her financial affairs to justify the appointment of a conservator to handle her estate.  We affirm.


FACTS

            Around March 2003, Brown became concerned about his aunt, Kersta, who was then 80 years old and living on her own in Mineral, Washington.  Brown had maintained regular phone contact with Kersta, calling her once a month or every other month to check on her well-being.  Beginning in March 2003 and continuing thereafter, Kersta did not sound like her normal self to Brown.

            Near the end of June 2003, Kersta told Brown that a neighbor would be taking her to the hospital for some tests the following day.  Kersta was unable to explain what the tests were or why they were being done.  Brown called the neighbor, who explained that, following a car accident several months earlier, Kersta had become weaker and her blood and iron count had decreased, so a colonoscopy was being performed to check for internal bleeding.

            Because Kersta was in such a dehydrated, malnourished, and weakened condition, the colonoscopy could not be performed, and she was instead admitted to the hospital, where she remained for at least five days.  Brown's parents traveled to Washington, and Kersta was discharged from the hospital to their care.  Brown's father is Kersta's brother.

            While in Washington, Brown's parents went to Kersta's home intending to stay there, but they declined to do so because of its filthy condition.  Brown's father testified:

We literally couldn't walk through the house.  . . . And I have a station wagon so we pulled the back seat out and we started loading things into the back end of it.  We looked in the refrigerator and basically all the food was moldy in the refrigerator and had been there for a long time.  In the sink there were utensils that hadn't been washed that had mold growing on them.  There was a blender that was literally all moldy.  It really wasn't we couldn't I mean we just put it in a bag and took it.  We didn't even want to touch it.

 

            Q.        What kinds of things did you have to move out of her house in order to get access to her house?

 

            A.        Magazines, papers, cassette tapes, mattresses.  She uses foam mattresses and so particularly upstairs she had a lot of foam mattresses.  And she was sleeping downstairs at the time on a foam mattress.  And when we lifted the foam mattresses up, why, there were mice living in between them.

 

            Q.        How long was that after she had lived there?  Is this a matter of days or weeks or months?

 

            A.        You mean since she was in the hospital?

 

            Q.        Yeah.

 

            A.        . . . [S]he had only been in the hospital for a few days.

 

            Brown's parents brought Kersta to their home in Minnesota.  After a few weeks there, Kersta wanted to return to Washington and resisted moving into an assisted-living situation.  One day, she put her clothes into a paper bag and began walking down the road, saying that she was going to take a bus back to Washington.  There is no bus service within a mile of Brown's parents' house.  Brown's father called the police.  The police returned Kersta to Brown's parents' house, where police and EMTs questioned her about going back to Washington.  Kersta initially said it would take about three hours to travel by bus from Minnesota to Washington and then stated she "could probably make it in about six hours because the bus drivers can go pretty fast."  Police and medical personnel determined that Kersta needed a medical evaluation and transported her to the hospital.

            Brown opined that Kersta was incapable of lining up appropriate living arrangements for herself.  Brown explained that Kersta becomes sidetracked and "doesn't seem to have the ability of being able . . . to put together a lot of sequential things and then following through on them."  Brown also testified, "[Kersta's] main goal is to go back to Washington and live in her house.  And she doesn't see any other options and doesn't recognize any dangers or any adverse things that could happen to her.  She doesn't recognize her own limitations is [sic] the problem."

            Brown testified that, in Washington, Kersta was a member of a group called Ramtha, which made her vulnerable to financial exploitation.  He testified that several years earlier, Kersta had lost about $35,000 by investing it in an offshore-trust scheme on the advice of a speaker sanctioned by Ramtha.

            Brown also testified that, due to memory loss, Kersta was unable to pay her bills, write a check, or maintain her checkbook register without assistance.  Brown explained:

[W]hen she first came [to Minnesota] and I was trying not to do the bills on my own, I was going to have her do them, there were two bills.  I think there were a total of two or three at the time that I wanted her to write checks for.  So she had the checkbook.  We sat down and I had the bills there.  And I said, "Well, let's pay this one", the electric bill.  And so we noted that it was paid on the bill itself.  And within, like, a minute when I said, "Okay.  We need to write this check", she saw that it said paid on it and said, "Oh, I think I have already done this one."  She also had some confusion at the time going back and forth between writing the check and going back and finding the spot in the register to note it.  The process of writing two checks took about 20 minutes so.

 

            Kersta testified that in the middle of May, she became very ill with food poisoning after eating gourmet soup from a can she had just opened and that she was sick in bed for approximately three weeks.  Kersta believed food in her refrigerator might have spoiled during that time period.  She expressed a preference to return to her home in Washington, and believed she was capable of living in her home with some help from neighbors.

            The district court found that clear and convincing evidence established that Kersta is an incapacitated person and is "unable to manage property and business affairs because of an impairment to receive and evaluate information or make decisions, even with appropriate technological assistance."  The district court found that a preponderance of the evidence established that Kersta has property that would be wasted or dissipated without proper management.  The district court found that Kersta's identified needs could not be met by less restrictive means, including appropriate technological support.  The district court appointed Brown guardian and conservator of Kersta.

D E C I S I O N

I.

            The district court has broad statutory authority in appointing a guardian, and a reviewing court will affirm the district court's decision absent an abuse of discretion.  In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992).  The reviewing court is limited to determining whether the district court's findings are clearly erroneous, giving due regard to the district court's determinations regarding witness credibility.  Minn. R. Civ. P. 52.01; In re Conservatorship of Lundgaard, 453 N.W.2d 58, 60-61 (Minn. App. 1990).

Minn. Stat. § 524.5-310(a) (2004) states that the "court may appoint a limited or unlimited guardian 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 use of appropriate technological assistance."  Minn. Stat. § 524.1-201(22) (2004) states, "‘Incapacitated person' is as described in section 524.5-102, subdivision 6, other than a minor."  Minn. Stat. § 524.5-102, subd. 6 (2004), states:

            "Incapacitated person" means an individual who . . . is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.

 

"[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).

Kersta argues that because there was no expert medical testimony regarding Kersta's medical diagnosis or condition, the evidence is insufficient to support the district court's finding that clear and convincing evidence established that she is an incapacitated person.  The record does not contain evidence about the diagnosis of a medical condition of Kersta.  A question that elicited an answer from Brown about an Alzheimer's diagnosis and progression of the disease was withdrawn, and an objection to a question about the opinion of a physician who evaluated Kersta was sustained.  No medical records were admitted into evidence.

Kersta cites no authority supporting her argument that expert medical evidence is required to support a finding of incapacity, and the statutory language contains no such requirement.  To obtain reversal, an appellant must show both error and prejudice.  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).

Kersta argues that "[t]o the extent the district court's findings are grounded in data contained in the medical records not admitted into evidence and [Brown's] testimony [about the Alzheimer's diagnosis ], they are erroneous."  We agree.  However, while finding of fact no. 2 refers to a "diagnosis [of] mild and advancing Alzheimer's disease," the principal finding is that Kersta is unable to put together a sequence of thoughts and that her short-term memory is impaired.  The finding describes Kersta's inability to track which bills were paid even with Brown's help.  The record contains evidence that Kersta is unable to put together a sequence of thoughts and suffers from impaired short-term memory.  Where the findings necessary for a legal conclusion are adequately supported, a court's inclusion of other unsupported findings is harmless error.  Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979).

            Kersta cites the powers of attorney that she executed on July 3, 2003, as evidence of her competency.  See Younggren v. Younggren, 556 N.W.2d 228, 232-33 (Minn. App. 1996) (reviewing district court's finding that party was competent when he signed power of attorney).  While the power of attorney could be evidence of competency, other evidence supports the district court's finding that Kersta is incapacitated.  Evidence supporting the district court's finding includes her inability to explain what medical tests were being performed in June 2003 or why they were being done; her physical condition when she was admitted into the hospital in June 2003; the condition of her home; Kersta's leaving Brown's parents' home on foot, intending to take a bus to Washington; and the evidence regarding Kersta's inability to put together a sequence of thoughts and her impaired short-term memory.  It is the district court's role to resolve conflicts in evidence.  Agner v. Bourn, 281 Minn. 385, 397, 161 N.W.2d 813, 821 (1968).

The district court found that a guardian needed the following powers to provide for Kersta's demonstrated needs:

a)  To establish the place of abode within or without the State;

b)  To provide for [Kersta's] care comfort and maintenance needs including food, clothing, shelter, health care, social and recreational requirements, and training, educational and rehabilitation requirements;

c)  To take reasonable care of [Kersta's] clothing, furniture, vehicles, and other personal effects;

d)  To give any necessary consent to enable, or to withhold consent for, the necessary medical or other professional care, counseling, treatment or service[.]

 

The Minnesota Uniform Guardianship and Protective Proceedings Act authorizes the court to assign all of these powers and duties to a guardian provided that the powers and duties are necessary to provide for the demonstrated needs of the ward.  Minn. Stat. § 524.5-313(b)-(c) (2004).

            Kersta argues that the district court failed to identify specific evidence supporting its findings that Kersta needs a guardian to establish a place of abode and to provide for her care, comfort, and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements, training, and educational and rehabilitation requirements.  But the district court found that Kersta was physically weak and malnourished when she was admitted into the hospital in Washington.  The court also made specific findings regarding the condition of Kersta's home and her leaving Brown's parents' house on foot, intending to take a bus to Washington.  Additionally, the court found that Kersta is unable to make arrangements for her living because she cannot put together a sequence of thoughts, suffers from impaired short-term memory, and has no understanding of her limitations. 

Kersta cites her own testimony as supporting a finding that she is able to provide for her own care, comfort, and maintenance needs.  But it is the district court's role to resolve conflicts in evidence.  Agner, 281 Minn. at 397, 161 N.W.2d at 821.

Kersta argues that the district court failed to identify evidence supporting its finding that a guardian is needed to care for Kersta's clothing, furniture, vehicles, and other personal effects.  But the court found that when Brown's parents visited Kersta's home, they found it extremely cluttered, containing moldy and spoiled food in the sink, refrigerator, and blender, and rodent infested.  The evidence supports this finding, and the condition of her home shows that she is unable to care for her personal effects.

Citing In re Guardianship of Mikulanec, 356 N.W.2d 683, 686 (Minn. 1984), Kersta argues that the district court failed to cite evidence supporting her need for a guardian to make medical decisions.  Mikulanec, which involved the statutory authority to appoint a guardian/conservator to approve or disapprove of marriage, is not on point.  Id. at 686-89.  Kersta cites no authority to support her argument that expert medical evidence is required on this issue.  See Midway Ctr., 306 Minn. at 356, 237 N.W.2d at 78 (stating that to obtain reversal, appellant must show error).

Kersta's inability, in June 2003, to identify the medical tests she was having the following day and her condition upon being admitted into the hospital in Washington are evidence that Kersta needs a guardian to make medical decisions.  Even Kersta's own testimony supports the determination that she needs a guardian to make medical decisions.  For example, Kersta testified that, after her car accident, a doctor performed a brain scan and that she believed that

[t]he reason they did the brain scan is because the people in the community just found some extra money and bought a brain scan.  And [the doctor] hadn't had a chance to practice it on anybody.  And I happened to be there so he practiced it on me.

 

Kersta also testified that a colonoscopy was not scheduled until she got to Minnesota.

The evidence supports the district court's findings, and those findings are sufficient to support the assignment of powers to the guardian.

            Kersta argues that the evidence does not support the finding that Kersta's needs could not be met by less-restrictive means.  Kersta argues that no effort was made to explore in-home services that could have been provided at her home in Washington.  Kersta, however, resisted moving into an assisted-living situation.  Kersta also cites her neighborhood support system, but the record shows that that was insufficient.  We conclude that, under these circumstances, additional exploration of less-restrictive alternatives was not required.

II.

            The appointment of a conservator "is a matter peculiarly for and within the discretion of the appointing court."  In re Conservatorship of Deutsch, 415 N.W.2d 383, 385 (Minn. App. 1987).  The reviewing court will not interfere with the district court's appointment of a conservator absent a showing of clear abuse of discretion.  Id. This court will not set aside the district court's findings unless they are clearly erroneous.  Lundgaard, 453 N.W.2d at 60-61.

The court found that a conservator needed the following powers to provide for Kersta's demonstrated needs:

a)  To pay reasonable charges for the support, maintenance and education of [Kersta] in a manner suitable to [Kersta's] station in life;

b)  To pay out of [Kersta's] estate all just and lawful debts of [Kersta]; and to pay the reasonable charges for the support, maintenance and education of her spouse and dependent children;

c)  To possess and manage [Kersta's] estate, collect all debts and claims in her favor or compromise them, institute suit on behalf of [Kersta], or invest [Kersta's] assets not currently needed for debts, charges, and management of the estate;

d)  To approve or withhold approval of any contract, except for necessities, which [Kersta] may make or wish to make; and

e)  To apply on behalf of [Kersta] for any assistance, services or benefits available to [Kersta] through any unit of government.

 

The Minnesota Uniform Guardianship and Protective Proceedings Act authorizes the court to assign all of these powers and duties to a conservator provided the powers are necessary to provide for the demonstrated needs of the protected person.  Minn. Stat. § 524.5-417(c) (2004).

            Kersta argues that the district court "failed to identify the specific current needs of Kersta with respect to her inability to manage her financial affairs and estate" and instead "engaged in conjecture about potential for problems that does not justify a conservatorship."  But the district court found that Kersta suffers from impaired short-term memory, is unable to put together a sequence of thoughts, and has no understanding of her limitations.  The district court made a specific finding regarding Kersta's confusion when Brown was helping her pay bills in September 2003.    The district court also found that Kersta might have been financially exploited through an offshore-trust scheme.

            Kersta cites her testimony that she paid her bills and understood the need to pay them and that she was able to manage her checking and money-market accounts.  As previously discussed, it is the district court's role to resolve conflicting evidence.

Kersta argues that the district court erred in finding that she "refused" to write checks after marking "paid" on the bills.  While "resisted" would be a more accurate term than "refused," use of the term "refused" was not prejudicial error.  To obtain reversal, an appellant must show both error and prejudice.  Midway Ctr., 306 Minn. at 356, 237 N.W.2d at 78.

Kersta argues that the evidence regarding the financial exploitation was speculative, noting that no documentary evidence was provided to substantiate the exploitation.  But Brown specifically testified that Kersta lost about $35,000 by investing it in an offshore-trust scheme on the advice of a speaker sanctioned by Ramtha, and Kersta did not object to Brown's testimony before the district court.

Kersta argues that the evidence does not support the district court's finding that she was an incapacitated person requiring a conservator under Minn. Stat. § 524.5-310(a)(1) and that the district court erred in failing to consider less-restrictive alternatives as required by Minn. Stat. § 524.5-310(a)(2).  But Minn. Stat. § 524.5-310 (2004) expressly applies only to the appointment of a guardian.

The district court did not err in determining that Kersta lacks sufficient capacity to manage her financial affairs and appointing a conservator of her estate.

Affirmed.