N.P. v. M.E. (In re M.E.)

871 N.W.2d 435

In re GUARDIANSHIP and Conservatorship of M.E., Ward and Protected Person

N.P. and M.N., Petitioners and Appellees

v.M.E., Respondent and Appellant.

No. 20150117.

Supreme Court of North Dakota.

Dec. 1, 2015.

Rehearing Denied Dec. 22, 2015.

Peter E. Karlsson, Moorhead, MN, for petitioners and appellees.

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

KAPSNER, Justice.

[¶ 1] M.E. appeals a district court order appointing co-guardians and co-conservators of her estate and an order denying her petition to be restored to capacity. We affirm the order denying her petition to be restored to capacity. We modify the order appointing co-guardians and co-conservators to restore M.E.'s right to testify in judicial or administrative proceedings and affirm the order as modified.

I

[¶ 2] In October 2014, two of M.E.'s children, N.P. and M.N., petitioned the district court for a temporary (emergency) guardianship and conservatorship. The petition alleged M.E. was in need of a guardian after falling victim to a financial scam and attempting suicide. When the petition was filed, M.E. was hospitalized at Prairie St. John's, a mental health facility in Fargo. M.E.'s daughter J.L. stated in an affidavit supporting the petition that M.E. lost $30,000 to $50,000 as a result of the financial scam. Also attached to the petition was a letter from Dr. LaWana Burtnett, who was treating M.E. at Prairie St. John's. The letter recommended the appointment of a guardian and conservator. The district court, by ex parte order, appointed N.P. and M.N. as emergency co-guardians and co-conservators and also appointed a guardian ad litem for M.E.

[¶ 3] A few weeks later, N.P. and M.N. petitioned for a permanent guardianship and conservatorship. They also moved the district court to approve the letter from Dr. Burtnett as the statutorily required physician's report. The court granted the motion approving Dr. Burtnett's letter as the required physician's report and appointed a visitor to interview M.E.

[¶ 4] At a November 2014 hearing on N.P. and M.N.'s petition for a permanent guardianship and conservatorship, M.E. testified against the appointment of a guardian and conservator, claiming she could take care of herself and did not require a guardian and conservator. The visitor and guardian ad litem submitted reports before the hearing supporting the appointment of a guardian and conservator. In its findings of fact, conclusions of law, and order dated December 2, 2014, the court found M.E. was an incapacitated person and appointed N.P. and M.N. as M.E.'s co-guardians and co-conservators. The order allowed M.E. to retain the right to vote and possess firearms. The order, however, did not allow M.E. to retain the right to change marital status, obtain or retain a driver's license, or testify in judicial or administrative proceedings.

[¶ 5] In January 2015, N.P. and M.N. petitioned the district court for approval to list M.E.'s house for sale. In an affidavit supporting the petition, they stated M.E. was unlikely to return to the house due to her physical limitations and vulnerability to further financial exploitation. N.P. and M.N. stated proceeds from the sale of the house would help pay for M.E.'s care at Bethany Retirement Living, an assisted-living facility in Fargo. The court granted the petition.

[¶ 6] In March 2015, M.E. petitioned the district court to vacate its earlier order appointing co-guardians and co-conservators and restore her to capacity. She also moved the court for an order restraining N.P. and M.N. from selling her house. She argued the guardianship order was defective because she was not personally served with the notice of hearing, the court failed to appoint a physician, the guardian ad litem failed to properly advocate for her, and there was insufficient evidence to support the need for a guardianship and conservatorship. She claimed she would return to her house if she were restored to capacity. The court entered an order delaying the sale of the house until after an April 2015 hearing on M.E.'s petition to restore her to capacity. The court also appointed M.E.'s attending physician to examine her and submit a report.

[¶ 7] At the April 2015 hearing, M.E. testified against the guardianship and conservatorship. The appointed physician declined to examine M.E. and submit a report. The court denied M.E.'s petition at the conclusion of the hearing and vacated the order restraining the sale of the house.

II

[¶ 8] M.E. raises many of the same arguments she raised in her motion to vacate the district court's order appointing co-guardians and co-conservators, including lack of jurisdiction and notice, failure to appoint a physician, errors made by the guardian ad litem, and insufficient evidence to support a guardianship and conservatorship.

[¶ 9] In guardianship proceedings, this Court reviews findings of fact under the clearly erroneous standard of N.D.R.Civ.P. 52(a). In re Guardianship of B.K.J., 2015 ND 191, ¶ 4, 867 N.W.2d 345. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Sweeney v. Kirby, 2015 ND 148, ¶ 7, 864 N.W.2d 464. "If a statute requires express findings by the district court, failure to make such findings may constitute reversible error when the record does not reflect whether the issue was considered." B.K.J., at ¶ 4.

A

[¶ 10] M.E. argues the district court lacked personal jurisdiction over her because she was not personally served with notice of the November 2014 hearing. Under N.D.C.C. § 30.1–28–09(1)(a), the proposed ward in a guardianship proceeding must be served with notice of the hearing. Under N.D.C.C. § 30.1–28–09(2), "[n]otice must be served personally on the ward or proposed ward, and ... [w]aiver of notice by the ward or proposed ward is not effective unless the ward or proposed ward attends the hearing."

[¶ 11] Although the guardian ad litem's notes indicate she gave a copy of the notice of hearing to M.E. when she met with her on October 31, 2014, there is no affidavit of service stating M.E. was personally served with notice of the November 2014 hearing, and there is no evidence M.E. waived notice. Although M.E. was not personally served with a notice of hearing, she appeared at the hearing and did not argue service of the notice was defective. Under these circumstances, we conclude the district court acquired personal jurisdiction over M.E., and M.E. waived any objection regarding personal jurisdiction by not raising it at the November 2014 hearing.

B

[¶ 12] M.E. argues the district court violated her statutory rights by failing to appoint a physician.

[¶ 13] The Uniform Probate Code, N.D.C.C. tit. 30.1, governs the appointment of a guardian and conservator. Title 30.1 "shall be liberally construed and applied to promote its underlying purposes and policies." N.D.C.C. § 30.1–01–02. In cases before the adoption of the Uniform Probate Code, this Court stated, "Probate procedure ... is wholly statutory. Substantial compliance is required." In re Estate of Ashbrook, 110 N.W.2d 184, 190 (N.D.1961) ; see also In re Estate of Anderson, 76 N.D. 163, 167, 34 N.W.2d 413, 415–16 (N.D.1948).

[¶ 14] Under N.D.C.C. § 30.1–28–03(3), "[u]pon the filing of a petition, the court shall ... appoint a physician or clinical psychologist to examine the proposed ward." See also In re Estate of Gleeson, 2002 ND 211, ¶ 14, 655 N.W.2d 69 ("The appointment of a guardian requires the participation of a physician or clinical psychologist."). Under N.D.C.C. § 30.1–28–03(5), the physician must submit a written report to the court, which must contain:

a. A description of the nature and degree of any current incapacity or disability, including the medical or psychological history, if reasonably available;

b. A medical prognosis or psychological evaluation specifying the estimated severity and duration of any current incapacity or disability;

c. A statement as to how or in what manner any underlying condition of physical or mental health affects the proposed ward's ability to provide for personal needs; and

d. A statement as to whether any current medication affects the demeanor of the proposed ward or the ability of the proposed ward to participate fully in any court proceeding or in any other procedure required by the court or by court rule.

[¶ 15] Rather than appointing a physician to examine M.E., the district court accepted the petitioners' letter dated September 30, 2014, from Dr. Burtnett as the physician's report under N.D.C.C. § 30.1–28–03(5). Dr. Burtnett stated M.E. was transferred from Essentia Health and admitted to her care at Prairie St. John's on September 19, 2014, after overdosing on medication. Dr. Burtnett stated M.E. was prescribed pain medications and benzodiazepines that cause cognitive impairment if taken in excess. Dr. Burtnett stated M.E. showed mild-to-moderate memory impairment and may have some underlying dementia. Dr. Burtnett opined M.E. is a disabled person on the basis of her impaired judgment and insight, and the impairment is "to such an extent that she lacks the capacity to manage her financial resources or to meet essential requirements for her physical health or safety or both." Dr. Burnett concluded her letter by recommending the appointment of a guardian and conservator for M.E.

[¶ 16] The purpose of the physician's report under N.D.C.C. § 30.1–28–03(5) is to ensure the district court has an adequate medical basis for a finding of incapacity to justify the appointment of a guardian. In re Conservatorship and Guardianship of Pulver, 117 N.M. 329, 871 P.2d 985, 991 (Ct.App.1994) ("We believe that the purpose of [the physician's report] is to ensure that the court has the necessary medical and mental evaluations needed in a guardianship case.").

[¶ 17] Although the district court did not appoint a physician to...