*1 Matter of GUARDIANSHIP In the BRAATEN, an Marie OF
Incapacitated Person. No. 920266.
Civ. Dakota. of North
Supreme Court
July
Currently, Workshop’s Diane uses Supported Living Arrange- Individualized (ISLA). ment She in “supervised resides a setting,” and sheltered receives hours of weekly direct contact from a residential daily trainer who assists her with house- personal Except hold and for activities. Dakota, Legal of North Mi- Assistance purchases, occasional small her financial not, respondent appellant for and Diane long affairs have been handled Braaten; R. argued by Marie Richard Le- times, Workshop. neglects At Diane her May. guidance nutritional needs and refuses Firm, Towner, petition- Mclntee Law for from others. appellees ers and Gordon Braaten and in reported ISLA evaluation Braaten; Greg argued Michael S. Mcln- that, retardation, in addition mild mental tee. dependent personality has a de- she and a spondency disorder. Diane receives MESCHKE, Justice. psychologist services of a clinical a and Marie appeals Diane Braaten order manager through case the North Central (the appointing her father brother Human cooper- Services Center. When she Braatens) co-guardians as her conser- ates, Workshop help day staff her twice a general powers. vators with unlimited We with medication. part, part, affirm in in remand reverse 1991, In Diane became November severe- with instructions for a limited ly depressed, perhaps a from medication ship. Encouraged by later phy- withdrawn. her 38-year-old is a Diane woman who en- therapist, sician and her Diane a entered tered Public in When Yelva School Minot, hospital psychiatric unit in where seven, psychological she was a evaluation stayed nearly Against weeks. she for six pro- in recommended that she be enrolled advice, prematurely she left the gram educable retarded. hospital, resulting psychiatrist’s in her program, Because Velva school had no her withdrawal from case. special Diane classes in attended education ISLA, returning Workshop After Drake, and, Sawyer junior and senior and did Diane refused medication not care school, high 1973, gradu- Minot. Diane for herself. the Braatens discovered When special ated high school with a education mid-February physical her deterioration diploma. 1992, they strongly Diane was intervened. long, Before Diane became a client again hospitalized for re- five weeks and Adjustment Workshop, Minot Vocational briefly to the turned Braatens’ home. repeatedly where she has habilita- received petitioned The Braatens par- tive services. Diane returned to her her conservatorship of her times, routinely ents’ several home but that, alleging “due property, to mental Workshop. reentered She married and can make problems, Diane not 1988, Workshop left the left her husband health, her decisions about nutrition Workshop early returned to the Un- properly finances to care for herself.” returning and divorced. After to the 30.1-28-03(3), the der NDCC trial court Workshop, protec- help and with the visitor, appointed physician, unit, advocacy tion she obtained a 30- guardian ad litem to with Diane consult day restraining keep parents order report and to the court. then, away from her. Diane Since occasionally boyfriend report visited Bis- Although the visitor’s did marck, once specific who beat and with whom make all of the recommendations sex, engaged she has in anal which causes assessments a visitor’s written contain,” report medical harm to her hemorrhoids. 30.1-28- “must see NDCC health, safety or habitation of that, reported 03(6)(h),the visitor “[s]ince 30.1-28- may need additional Marie Braaten.” See NDCC predicting when she may be 04(2).2 that “the impossible, a The order concluded help is *3 guardian would the necessary, provided conservatorship neces- and guardianship running her needs recognize care, providing sary as the best means of unless life, get involved try and own Diane,” and supervision and habitation of she starts to deteriorate.” upon duties conferred powers that “the and the least appropriate are as guardians the that, advised family physician
Her
form of intervention.”
restrictive
continue
Diane should
supervision,
“[w]ith
however,
does,
daily
need
to do well. She
court reasoned:
The
and
properly
to eat
in order
supervision
the
the
warrants
I feel that
regularly.”
take her medications
particu-
my
concern is
appoint-
advocated
guardian ad litem
The
inability to make
larly Diane Braaten’s
medical
guardian for
a limited
ment of
decisions,
necessary
particularly
the
guardian for
urged that a
purposes, but
health and about how
her own
about
Be-
purpose was unwarranted.
any other
for herself.
care
being
concerns are
“Diane’s financial
cause
intrusive
family
The
has been less than
administered,”
ad
guardian
the
adequately
They
Braaten.
the life of Diane
into
of a conserva-
opposed appointment
litem
out,
have,
testimony
and the
bears
tor.1
highly
her latitude that is
unusu-
allowed
trial,
ap-
two-day
the trial court
After a
special
a child of
family
al
co-guard-
as Diane’s
pointed the Braatens
over-protective
are
needs. Most
gener-
unlimited
ians and conservators
family
Braaten
over-sheltering. The
that “Diane
powers. The court found
al
way.
not been that
incapacitated per-
is an
Marie Braaten ...
urge
family to allow
strongly
I
the
would
that
has had
by reason of the fact
son
[she]
can
much latitude as she
just
as
birth,”
“age,
mental deficiencies since
lifestyle as she now
given
enjoy
diagnosis
eccentricity, poverty or
knows it.
findings,”
the
of these
are not alone
basis
would “not
the court stated that
But
alternative
“there is no available
and that
powers of
any legal restriction on the
safeguard
place
plan
is suitable to
resource
(2)
re-
advocacy
available alternative
There is no
of the
role of
1. For a discussion
litem,
safeguard
plan
guardian
Dakota Handbook
source
that is suitable
ad
see North
health,
Adjudi-
safety,
proposed
In Actions For
or habilitation
For Guardians Ad Litem
ward’s
(1990).
Incapacity, 66 NDLRev 45
cation
could be used instead
Of
ship;
(3)
necessary
say:
as the
controlling parts
30.1-28-04
The
2. of NDCC
care,
providing
supervision, or
best means
authority
con-
1. The court shall exercise
ward;
habilitation of
chapter
max-
consistent with the
ferred in this
(4)
upon
powers and duties conferred
independence of the
imum self-reliance
guardian
re-
as the least
appointive
incapacitated person and make
intervention consistent with
strictive form of
necessitat-
to the extent
and other orders
ability
ward for self-care.
person's
incapacitated
actual mental
ed
adaptive limitations or other conditions
appointing
guardian
confers
5. The order
warranting
procedure.
guardian only
powers
upon
those
chapter,
hearing
under this
2. At a
held
specified in the order.
In addition to
duties
court shall:
powers
upon
conferred
proposed
that the
ward
a. Hear evidence
ian,
the court's order must state whether
Age, eccentricity,
incapacitated person.
general authority,
guardian
authority,
has no
diagnosis
poverty,
alone is not
or medical
authority to make decisions on
or limited
finding
incapacity;
justify
sufficient to
ward in each of the areas of
behalf of the
specific
Appoint
guardian
b.
and confer
medical,
residential, educational,
legal, voca-
finding
powers
guardianship only
after
tional,
decisionmaking.
grant
and financial
evi-
the record based on clear
authority
specify the limita-
of limited
must
dence that:
authority
guardian
(1)The
upon
incapacitated
tions
proposed ward is an
by the ward.
person;
retained
Chapters
recognizing
30.1-26
30.1-30 Article
and conservator
may necessitate addi-
that future events
V dealt with “Protection of Persons under
”
guardians....
intervention
Disability
Property.”
tional
and Their
These
not limit the
and that
court will
chapters
“many provisions
contained
de-
as allowed
powers of the Guardians
signed
necessity
to minimize or avoid the
30.1-28-04(5)
guardians
These
NDCC.
protective proceedings,
appropriate decisions about
may make
provisions designed
simplify
well
as
habitation,
care,
living,
health
vocational
arrangements
and minimize
which become
and all other normal de-
medical treatment
prop-
for care of
or their
cisions.”
(1976).
erty.”
p.
6 NDCC at
Yet a
*4
Later,
denying
stay
Diane’s motion to
powers, rights,
had “the same
guardianship during
appeal,
respecting
par-
and duties
his ward that a
trial court contradicted its conclusions: “It
respecting
unemancipated
ent
mi-
his
in need
my opinion
that Diane Braaten is
custody
nor child
and
...”
was “entitled to
guardian, not for all
of a full time
of
...of
his ward....”
NDCC 30.1-28-12
for certain ones
functions and activities but
(1976).
originally
The UPC did not
autho-
threatening.”
that I deem to be life
guardianship.
rize a limited
appeals.
disputes
that she is
She
guardianships grew
Limited
im
out of
incapacitated, that no alternative resource
proving
develop
norms for treatment of
available,
guardianship
plan is
and that “a
persons, exemplified by
disabled
necessary
and a full
is the
Judge Bruce
Van Sickle’s decision Asso
least
restrictive form of intervention.”
Olson,
ciation
Retarded Citizens v.
respond
they “plan
The Braatens
on
(D.N.D.1982),
F.Supp.
aff'd,
494
leaving
workshop
Diane at the
as in the
(8th Cir.1983),
GUARDIANSHIPS Legislative Judiciary A Council Commit- adopted hurriedly many affecting laws When North Dakota the 1969 tee studied (UPC) 1973, developmentally persons. Report Uniform Probate Code disabled or treatment 3. The Braatens assert that record indi 3. Monitor individual habilitation cates that advocates have either inter plans, program plans, plans, educational facil- making processes fered with her decision programs, all and ities and and other services things have advised her to do By to her detriment." provided persons developmental care with "advocates,” evidently designate the Braatens disabilities or mental illnesses. protection advocacy project adminis Employ represent pur- 4. counsel to clients to attorney tered under NDCC 25-01.3. Diane’s administrative, legal, appropri- sue and other acknowledges that Diane was referred to him protection ate remedies to of the ensure project, activity project an authorized rights persons developmental disabili- with under NDCC 25-01.3-06. This record is devoid illnesses,.... ties or mental any impropriety by of evidence that indicates administrative, legal, ap- Pursue 5. advocacy project responding to Diane’s propriate protection remedies to ensure the interests. The Braatens’ assertion of detrimen rights persons developmental and the with tal interference is meritless. disabilities or mental illnesses.... parts say: The relevant Authority of NDCC 25-01.3-06 Sign any complaint necessary 6. criminal may: project.... project The protect the interests of with devel- Represent persons developmental 1. with disa- illness, opmental disabilities or mental they may bilities or mental illnesses so that developmental group of disabili- rights they realize the and services to which illnesses, appear ties or mental who to have entitled. subjected been victimized to criminal Investigate complaints reports if the al- leged conduct. reported incidents are to the committee project probable or the or if there is cause to believe that the incidents occurred. guardian. call for court and The Legislative Council Dakota call for Assembly guardianship” “limited Legislative at Forty-Eighth ap- procedures Webster, more Study sensitive (1983); Melvin L. Dakota, pointments fashioned so the authori- Guardianship in North only to ty protector would intrude (1984). Legisla N.D.L.Rev. 56-57 necessary degree liberties lim a bill for “a Council recommended tive protected person. prerogatives of the type conservator ited short, permitting than an all-or- rather supra, at 84. ship.” Report, status, interme- none there should acted and amended Legislature courts diate available status 30.1-28-04(1) direct: will protected person shall The court exercise prerogatives personal liberties chapter conferred in this consistent only restricted the extent indepen- self-reliance and the maximum The court under the circumstances. incapacitated person dence of to look for a least- should be admonished only to appointive make and other orders approach. restrictive incapaci- the extent necessitated *5 person’s actual mental tated Idaho, adopt the the first state ... adaptive limitations or other conditions Code, and states Uniform Probate other warranting procedure. the acting response requests by follow- in 313, 7. of ND Laws ch. The source 1983 § work, of ABA ers the Commission’s in beginning apparent is not this modest enacting guardian- new “limited been Still, legislative history. the source is the Idaho, ship” In the limited statutes. new similarity of the evident from the close legislation enacted guardianship was wording 2-206 of the Uniform Guard- to § specific repeal provisions without Act, Proceedings ianship arid Protective the Code that were of Uniform Probate published in 1983 recommended 1982 and statutory Oth- already part of their law. by the of National Conference Commission- enacting stat- er rather short states were ers on State Laws. Uniform adopted utes the least-intrusive UPC, expands Ar- “This act and extends concept guard- of limited least-restrictive V, 1, 2, 3, Parts and 4 to include the ticle without further ianship in skeleton form ” concept 8A guardianships.’ of ‘limited These, in- other elaboration. similar (1983). ex- U.L.A. 437 The Commissioners confusion, overlap of stances plained: accep- hasty legislative of problems born guardianship language limited guard- tance of impetus adding
The a “limited the National Confer- demonstrated that ianship” concept guardianship ence of on Uniform State Commissioners provisions of conservator the Uniform adjust Laws its formulations on should grew Probate Code out of the recommen- explicit guardianship language to include of an Bar Association dations American concept of relative to “limited project, the ABA Commission on the concept “limited ianships.” of which, Disabled, Mentally in relation to guardianships” certainly is consistent minors, guardianship rec- other than general policy considerations changed that state laws be ommended Code, upon the Uniform Probate which implicit in avoid an asserted “overkill” V, had been based in 1969. In Article guardianship proceedings. standard addition, by making limited-guardianship asserted, occurs, part, be- was act, in the it was concepts explicit more finding compos cause a of non mentis and is that some confusion could believed incompetence has been the traditional re- be eliminated and that this act could appointment threshold for of a skeleton-type place acts to make the con- result, guardian. consequence As a of cept workable. per- guardian, all legal autonomy stripped sonal and 8A at 437-38. Limited U.L.A. appoint- ships began. from the ward and vested thus
517 expand by ap- North Dakota tated least restrictive continued See 1985 pointment guardians. of limited concept guardianships. limited of 369, 3-6; ND ch. ch. 370. Addi- Laws §§ amendments, II. STANDARDS OF DECISION
tional “to increase extensive process protections” due “to ensure present law protections superficial,” are not individual incapaci the trial find mandates that court ND ch. 405 were enacted Laws ty, plan, lack of an alternative resource 1, July See necessity became effective on supervision, of all on HB Hearings 1480 Before House by convincing evidence, clear and then se Committee, N.D.Leg. (1989) Judiciary 51st lect the least restrictive form of interven of (January Testimony Jo Hilde- 28—04(2)(b). finding tion. NDCC of 30.1— brant, Long-Term Care State Ombuds- by fact is erroneous if it is induced man). by This bill recommended was law, if erroneous view the there is no force,” “protective arrangements task it, if, support although evidence to there up by Legal set Assistance it, support is some the review Dakota, Aging court, funded Servic- ing evidence, on the entire left Department es Division Human firm with a definite and conviction that a Services, county Baches, judge. and assisted been made. Boehm v. mistake Legislative history (N.D.1992). indicates that some of N.W.2d Whether finding came 1989 amendments from Nation- a determinatioh is a or a fact Judiciary al Conference Guardian- conclusion of law is decided the review court, ship Proceedings Elderly, applied by trial June and labels *6 In 1986, co-sponsored by the Interest of court are not Commission on conclusive. (N.D.1983). Kupperion, 22, Legal 331 N.W.2d 27 Elderly, Problems of the Ameri- Accordingly, will Association, we not disturb a trial can Bar and the National Judi- findings College. court’s on unless See Statement Compilation, cial Practices, findings clearly are erroneous. Recommended Judicial of Adopted by the National Conference of the “Treatment, services, for and habilitation Judiciary Guardianship Proceedings developmentally disabled be must (June Elderly 1986) (Preface, p. viii: provided in the least restrictive “Guardianship represents a drastic loss of setting.” 25-01.2-02. “[E]ven rights.”). fundamental human though governmental purpose legiti be substantial, purpose mate and cannot among 14 North Dakota is listed states pursued by broadly means that stifle adopted that have the Uniform Guardian- personal fundamental when the liberties ship Proceedings Act: Protective narrowly end can be more achieved.” While the North Dakota act is substan- Tucker, 479, 488, 81 v. Shelton 364 U.S. adoption major provisions tial of 247, 252, (1960). See L.Ed.2d 231 S.Ct. 5 Act, departs the Uniform from the Dept. Mullins also v. Dakota of text in official such manner that the vari- Services, (N.D. Human 483 160 N.W.2d substitution, omission, ous instances of 1992). guardianships, precepts For these and additional matter cannot be aptly restated: been by statutory indicated notes. Guardianship has considered a ... been Supplementary Pamphlet 8A U.L.A. 128 protect society benevolent act less (1993). unique The to this variations state fortunate Protection af- individuals. amendments, mostly the 1989 through deprivation forded the ward’s compel guardians use of limited Therefore, guard- basic human liberties. greater degree than does the uniform act. ianship is a drastic measure which should if only be taken no other alternatives We conclude that exist. general guardians for this case Litem, ad legislative Handbook Guardians does not conform to the mandate 66 45, (1990). Youngberg autonomy incapaci- maximize the See N.D.L.Rev. 57 518 307, 322-24, guardianship, the statute impose 102 To Romeo, S.Ct. 457 U.S.
v.
(1982)
find,
2462,
(mentally
“based
L.Ed.2d 28
directs that the trial court first
evidence,”
to state institu-
committed
person,
retarded
on clear and
constitutionally protected right of
tion,
incapacitated
proposed ward is an
safety,
reasonably
30.1-28-04(2)(b)(1).
care
reasonable
person;
....” NDCC
confinement, and reasonable
nonrestrictive
“incapacitated person” is
An
safety and to facili-
training ‘‘to ensure his
person
impaired by rea-
any adult
who is
bodily
free
ability to function
from
his
tate
illness,
deficiency,
son of mental
mental
restraints”).
physical
disability,
or chemical
illness
evidentiary stan
trial court’s
dependency to the extent that the
guard
determining the need for
dard for
capacity to make or communicate
lacks
appel
standard for
ianship
this court’s
concerning that
responsible decisions
are in
of that determination
late review
residence, education,
person’s matters of
precedents on the related
terrelated. Our
treatment,
affairs,
legal
voca-
treatment,
care,
and commit
subject of the
tion, finance,
matters,
or which
identify the
persons,
ill
ment of
person’s
endangers
the needs for
conflicts between
safety.
health or
involuntary con
liberty
imposing
30.1-26-01(2).
supplied).
(emphasis
of R.N., 492 N.W.2d
trols. See In Interest
early study
One
of our limited
(N.D.1992).
n. 2
The intrusion
ship
important
identified the
criteria
law
liberty by
involuntary
upon individual
determining “incapacity.”
upon an inca
imposition
sufficiently resembles the
pacitated ward
“incapacity,”
definition of
...
UPC’s
of a mental health
involuntary commitment
to a list
directs the attention of the court
careful standards
patient to call for similar
of causes. This list of causes not
decisionmaking.
See In Interest
court; it
misdirects the attention of the
Gust,
(N.D.1986);
Kottke
392 N.W.2d
unnecessary.
pro-
also
The cause of
(N.D.1989);
U.A.M.,
N.W.2d 23
v.
posed
disability
ward's
is irrelevant
T.A.,
(N.D.
ject “Mentally of title 25 on Ill plan also to learn how to continue Retarded, ...,” that title further clarifies choice, arrange transpor- of her activity (“When- definition. See NDCC 1-01-09 activity. tation and attend an meaning phrase ever of word or support/treatment If Diane receive[s] statute, in such defined definition depression, she will be better able to applicable to the word or phrase same living completely in inde- achieve success wherever it occurs the same or subse- community. pendently in the statutes, quent except contrary when a in- Rixen, psychologist Gloria a licensed at plainly appears.”). Presumption tention Center, incompetency the North Central Human Service per- deficient Diane, prohibited. son NDCC 25-01.2-03. who treated testified that “Diane 25-01-01(3) defines “[mjentally defi- would from benefit some assistance by the retained ward.” access to ian or affecting her making decisions 30.1-28-04(5)(part). No limitations services, that she I do not feel but medical Mary appointment. specified Lou Holli- guardian.” were requires a full at the Center for day, caseworker Diane’s an unsuccess- smoking and Evidence of testified: years, seven relationship cannot be the basis ful knowing Diane for Q your Based Everyone . incapacity. finding complete knowledge your years and eight last poor judg- or exercises makes bad choices proceed- happens in what court-appointed physi- times. The ment at ..., opinion that your is it ings that, depression reported after cian guardianship? a full needs contact, eye treatment, good had “[s]he A No. a much questions readily and had answered may opinion that Diane Q your it Is supervi- outlook on life. With improved of a limited need some form well.” sion, continue to do Diane should ship? indicating complete from Far A Yes. guardianship, general and the need you feel Q that, area would minimal And what the evidence shows largely ability that? guidance, Diane has the independently. about Diane’s grave concerns live A I have I think condition. medical however, does, clearly Diane’s behavior part she can large the most cho[o]se mentally defective her to be “so workshop fol- go to a doctor and her medi- incapable managing” as to be helping her take through with lows and, purpose, “to re- for that cal affairs when Diane But sometimes medication. and care for quire supervision, control [her] has diffi- depressed, I think she gets so 25-01- public welfare.” NDCC or the own needs recognizing that she then culty Bartel, a ser- 01(3). example, Kathy For best help, maybe would be Workshop, testified for the coordinator vice to make that if someone else were able likely to suc- be more that “we would decision. there if someone were with Diane cessful when decisions on Diane’s behalf to make choices, Q no the three [GJiven making capable of decisions she’s ian; guardian, full guardian; limited conclude, there- interests.” We her best your opinion one in would be found, by fore, properly court that the trial detrimental to Diane’s future? most evidence, that Diane is clear and guardianship. A Full deci- purposes of medical incapacitated for Q one the least detri- Which would be in- finding complete sionmaking, its but mental? by convincing evi- supported capacity is not dence, limited. my A In estimation erroneous. and is contrast, emphasize Di- the Braatens PLAN ALTERNATIVE RESOURCE IV. relationship heavy smoking, her ane’s hospi- boyfriend, guard and her recent may appoint an abusive The trial court depression as evidence that talizations for finding, by clear and convinc ian after herself, and the main *9 evidence, Diane cannot care for “no ing that there is available general guardianship. a reasons for to safe plan” resource suitable alternative inter of the ward’s vital guard some or all chief concern seems to The trial court’s “ 28—04(2)(b)(2). ‘Alter ests. NDCC health and medical have Diane’s been 30.1 — plan a that plan’ resource means native may thought to The court have needs. guardianship, to us provides an alternative by suggesting that guardians the caution arrange support available services much latitude as she they “allow as .Diane alleged acceptable which are to the ments enjoy lifestyle as she now given can be person.” 30.1-26- Still, incapacitated NDCC commands: “A knows it.” the law 01(1). says that her “continued re specify Diane authority must the grant of limited workshop and guard- ceipt from the upon the of services limitations guardianship, using is sup- the North Central Human Service Center native available plan to a definite alternative resource port arrangements services which are guardianship.” agree. Although We the acceptable to” Diane. NDCC 30.1-26- trial found that no alternative exist- court 01(1). We conclude that the trial court was ed, does for much of Diane’s one exist clearly in finding erroneous that there is no decisionmaking. that, plan available alternative resource ex- earlier, opinions As summarized the we cept needs, for medical could be for used psychologist caseworker Diane’s her decisionmaking. Diane’s Workshop projected living that her ar- rangement satisfactorily, could continue V. LEAST RESTRICTIVE expert except for medical needs. No testi- INTERVENTION mony opinions. contradicted those Diane a continual resident at the been Work- argues Diane that “the trial court’s shop part years. better Ex- conclusion of that law is cept inadequate for a few instances of necessary and full is functioning, appear Diane’s needs to have least form of restrictive intervention is not satisfactorily been met the Work- supported by record as whole.” We shop’s preserve Diane services. desires agree. independence. This alternative kind of bypassed only trial is appoint should be when nec- court authorized to essary.4 guardian only by finding, after clear and evidence, guardian’s that caseworker, Holliday, Mary Lou Diane’s powers “appropriate and duties are testified: least restrictive form of con intervention Q Lou, Mary you do have reason ability sistent with the of the ward for self- that believe Diane cannot function as she 30.1-28-04(2)(b)(4). care.” NDCC “Least eight years has for last with the restrictive form of intervention” means same situation? imposed “the guardianship that on the A I have specific no reason to believe compensate ward must those limi Diane I that cannot function. think she’s provide tations needed very capable I functioning, think that services, and care and that the ward must she chooses do I not to that sometimes. greatest personal maybe placement enjoy think that is amount of free right now is enough not structured dom and civil consistent liberties hope I up and would to come physical ward’s mental and limitations.” something that helpful would be more 30.1-26-01(3). the trial Given I Program Diane. think that the ISLA findings court’s erroneous about the extent good a very program and meets a[ ]lot of Diane’s and about the avail needs,.... of Diane’s ability plan, an alternative resource Thus, general guardianship “the unlimited is not relationship with the Workshop plan provides is “a an alter- least restrictive form of intervention.” Litem, specific 4. The Handbook For Guardians Ad ad- vices. One of items to be 52-53, 25-01.2-14, citing at plan N.D.L.Rev. dressed the individualized habilitation explains what an "individualized habilitation developmental whether the individual with plan” should address: guardian. appears disabilities to need a If develop- Services for individuals who guardian, appears individual to need a mental disabilities determined an indi- plan specify type must then plan Any vidualized habilitation team. insti- upon needed individual based the indi- tution, facility, agency, organization adaptive vidual's actual mental and limita- provides services for who have devel- may war- tions other conditions opmental required disabilities to have a guardian. rant the *10 written, plan individualized habilitation devel- ian ad litem therefore to the will want review oped put person effect into for each plan individual habilitation and team minutes institution, facility, agency, whom that or or- reflecting plan preparation. the ganization primarily responsible is to for de- omitted). (Footnote livering, coordinating delivery or the of ser- life, co-guardians’ pursue free her own in hearing, the counsel to as the At the past. treating psychologist: Diane’s asked it do to Diane if the would harm “What law directs: petition the full granted Court appointing guardian The order confers responded: She
ianship?” upon guardian powers those that a central issue in My concern specified in duties the order. In addition feeling has been her treatment Diane’s powers upon to conferred decisions for and on make her that others guardian, the court’s order must state that felt that was she’s when occasion guardian authority, has no whether the in case, ways out that acted she’s general authority, authority limited or to to her. harmful have been in make decisions behalf ward residential,
each of the areas of
edu-
medical,
vocational,
cational,
legal,
very important
respect
to
Di-
...
[I]t’s
decisionmaking. A grant
financial
help her
if
and to
feel as
of
ane’s wishes
authority
specify the
limited
must
lim-
of her life.
is more
control
she
upon
itations
of
testimony
imposi-
contradicts
expert
This
guardian
the authority
retained
general guardianship
excessive
tion of
the ward.
to
welfare.
inimical Diane’s
30.1-28-04(5) (emphasis supplied).
in-
brother envisioned limited
Diane’s
Guardianship
Nelson,
See Matter
of
of
affairs:
Diane's
volvement
(remand-
(1983)
204 Mont.
While this evidence VII. CONCLUSION manage property is and “unable [her] ...,” Although effectively there is evidence in this affairs NDCC 30.1-29- record 01(2)(a), guardian reported guardianship, her ad litem for a limited our review of being that “Diane’s financial concerns are the entire record leaves us with a definite adequately administered.” Diane’s father firm convictionthat a mistake has been Workshop testified that her trainer at the imposing general made in guardianship. checks,” “co-sign[s] all of her care “takes A limited one will do. The evidence here is money,” “gives spend- of her Diane the convincing not clear and that Diane needs a ing money supposed that she’s to have.” conservatorship. mismanagement No of waste or We understand Braatens’ concern by Workshop of funds Diane or the may that future conditions make limita- offered. This record does not demonstrate tions guardianship on their cumbersome. necessary that financial is or But the trial court continuing jurisdic- desirable. tion “to remove limitations previously im- 30.1-28-13(1). posed.” NDCC di- only findings by made law guardian rects “safeguard trial ability manage court on Diane’s civil proprietary rights personal autonomy affairs were that “Diane does of the ward except not handle her own funds possible by for occa to the fullest extent ... [i]n- purchases sional small and these volving fully practicable services the ward as as is provided by many have been others for making by using decisions ... and ... that, therefore, years,” and “a conservator the least restrictive forms of interven- property necessary.” of Diane ... 30.1-28-12(5)(a), (b). tion....” findings A trial court’s in a Even limited for medical mat- conservatorship proceeding questions statutory ters must heed enjoinder. of fact that this court will not disturb un primary duty Given of the court to 52(a); less erroneous. NDRCivP adopt the least restrictive form of interven- Bo, (N.D. Matter 365 N.W.2d tion, judicial additional action “to remove 1985). Miller, See also Gessler v. previously imposed” limitations is the bet- (N.D.Ct.App.1988). N.W.2d Mere way ter to assure maximum self-reliance conclusory observations and statements independence partially incapacitat- court, supporting the trial without evi 30.1-28-13(1). ed ward. See NDCC dence, are insufficient to establish the need impos- We reverse trial court’s order conservatorship. conservatorship In view of the evidence that Diane’s fi- general powers. remand We to the currently nancial affairs are order and appro- trial court with instructions make partially living controlled ar- conclusions, priate findings, and an order rangement Workshop, with the the evi- guardianship, for a limited consistent with dence not clear that she opinion, imposes the least restric- general needs a If conservator. a limited tive form of intervention consistent with conservatorship parallel capabilities for self-care. implement the limited purposes, conservatorship law LEVINE, NEUMANN and directs that the court “shall exercise the SANDSTROM, JJ., concur. chapter conferred in this consis- WALLE, Justice, VANDE Chief concur- tent with the maximum self-reliance and ring specially. independence protected person protective make orders to the I extent concur the result reached protected person’s necessitated majority opinion. separately actu- I write to rec- *12 expectations we of families. in the of the certain tension is a ognize there expect advocates as also to be informed which But families philosophy current independence possi- enough being to avoid called on to early freedom much setting” family restrictive only when their member is ble intercede [“least 25-01.2-01(3)] person with NDCC desperate circumstances. § function of the “alter- incapacities, family’s Diane’s need and the Because to agencies native resource” [“alternative primarily health re- appears concern to be 30.1-26-01(1)] guardianship” § lated, agree I that a limited that free- which, required to foster while attempted purpose should be be- for that person to independence of dom imposed. guardianship is general fore a services, are also providing they are whom “health, safety, person’s safeguard the 30.1-28-04(2)(b). or habilitation”. § hand, between, on the one This tension indepen- freedom and
allowing person hand, safeguard- dence, and, on the other safety, requires person’s health agencies. per- It balancing by the
delicate deterio- Diane’s health
haps explains how while, intervened at parents
rated until time, Minot a client of same Workshop and Adjustment
Vocational It Dakota Central Human Services. why agencies and the explains these
also protection and ad- involved with
advocates report, reluc-
vocacy do not or are services report, the of the client to condition tant UNION, LAKE REGION CREDIT parents family of the Appellee, Plaintiff and might indicate the To do so disabilities. v. family inability to function without client’s assistance, thereby compromising the WATER, INC.; PURE Russell CRYSTAL independence freedom and client’s Gilliss; Gilliss, Sr.; D. Renae L. Bruce required to foster. agencies Gilliss; Community A. Credit Union family, if recognize I the concern of ND, Rockford; County Eddy, New independent guardian, for the well not an corporation; CBC Credit Services family being of the member with disabili- ND, Inc., Bureau of Devils Credit d/b/a family Because it ties. when unknown, Lake; claim and all great- health has deteriorated so member’s ing any lien estate or interest contacted, family it is ly that the upon the real estate de encumbrance surprising family apply that the would Defendants, Complaint, in the scribed general guardianship attempt pre- health-threatening epi- repeat vent a Gilliss, M. Defendant Franzella sodes. Appellant. agree exposition I Meschke’s Justice purpose of the No. 920276. philosophy law. Civ. application philosophy pur- of that Supreme Court of North Dakota. case is more pose to the facts of this diffi- clear me from the record that cult. It is July Diane is “down and out” when aid, expected rally to her family that is only by Diane but
expected not
agencies providing and advo- is, course,
cacy services. That aid one