Guardianship/Conservatorship of B.K.J.
2015 ND 191
| N.D. | 2015Background
- J.W., niece of B.K.J., petitioned for guardianship and conservatorship after evidence of dementia/Alzheimer’s and financial mismanagement (including ~$600,000 in unpaid taxes). Emergency co-guardianship with Guardian and Protective Services, Inc. (G.A.P.S.) was initially appointed.
- Parties stipulated guardianship was necessary and did not oppose First International Bank as conservator; dispute concerned who should be guardian(s).
- B.K.J. opposed J.W. and nominated two friends (F.C. and T.C.) as co-guardians at the hearing. The court-appointed physician, visitor, and guardian ad litem testified about B.K.J.’s incapacity and recommended J.W. and G.A.P.S.
- Evidence included physician diagnosis of dementing syndrome with executive impairment, visitor and guardian ad litem concerns about the nominees F.C. and T.C., and testimony about J.W.’s involvement and competence.
- The district court appointed J.W. and G.A.P.S. as co-guardians, finding them best qualified and acting in B.K.J.’s best interests; B.K.J. appealed.
Issues
| Issue | Plaintiff's Argument (B.K.J.) | Defendant's Argument (Appellee/J.W.) | Held |
|---|---|---|---|
| Whether court erred by not giving controlling weight to B.K.J.’s nomination of F.C. and T.C. under N.D.C.C. § 30.1-28-11(3)(a) | B.K.J.: her preference should have priority; court needed to find she had capacity to nominate or explicitly explain passing over nominees | J.W.: statute allows court to consider capacity and to pass over higher-priority persons when not in ward’s best interest; evidence supports appointing J.W. and G.A.P.S. | Court: affirmed — subsection (a) inapplicable because court was not of opinion B.K.J. had sufficient mental capacity to make an intelligent choice; appointment within discretion |
| Whether court was required to make express findings when passing over higher-priority nominees under § 30.1-28-11(4) | B.K.J.: district court should have made specific findings that justified passing over her nominees | J.W.: no statutory requirement for particularized findings if record and written findings explain decision; abuse-of-discretion standard applies | Court: affirmed — no required specific finding; written findings sufficiently explain reasons and are controlling |
| Whether appointment conflicted with statute requiring maximum self-reliance/independence (N.D.C.C. § 30.1-28-04(1)) | B.K.J.: appointment will force removal to assisted living and reduce independence; wrong choice of guardians violated independence mandate | J.W.: guardianship was stipulated necessary; evidence showed need for constant supervision regardless of guardian identity | Court: affirmed — guardianship necessary, court considered least-restrictive options, appointment consistent with independence mandate |
Key Cases Cited
- In re Guardianship and Conservatorship of Thomas, 723 N.W.2d 384 (N.D. 2006) (abuse-of-discretion review for guardian selection)
- City of Bismarck v. Mariner Constr., Inc., 714 N.W.2d 484 (N.D. 2006) (definition of abuse of discretion)
- In re E.G., 716 N.W.2d 469 (N.D. 2006) (when findings are clearly erroneous)
- Federal Land Bank of St. Paul v. Lillehaugen, 404 N.W.2d 452 (N.D. 1987) (written findings control over inconsistent oral statements)