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In re: Guardianship/Conservatorship of Wallace Berge. MN guardianship
Wallace Berge was born in 1925 and lived with his wife on a farm in rural Milan, Minnesota. The couple had three children, a son who lives about 4.5 miles from the farm, and a son and daughter who live in the Twin Cities.
In February, 2012, Berge arrived at a convenience store in Montevideo. The clerks called Montevideo Police because he was confused. He said that he didn't remember where the car was, and incorrectly thought that his wife was in the car. The responding officer contacted Berg's family. He was taken by ambulance to the hospital, where he was found to be likely suffering from dimentia. He went home with one of his children and was then voluntarily admitted to Luther Haven nursing home with his wife.
The couple later moved to an assisted-living facility in Montevideo. In April, his daughter filed an emergency appointment of a guardian, and this petition was granted by the Chippewa County District Court.
A hearing was later held. Dr. Maureen Winger, a staff neuropsychologist at the St. Cloud Veterans Administration Medical Center, testified about her evaluation. She testified that Berge would do well in his own home if he received services, but that she was concerned that he would refuse those services. The son and daugther testified that they had visited the farm house in February 2012. There was no running water or bathroom facilities, and the furnace was not working properly. There were also blown fuses and evidence that Berge had fixed the wiring in an unsafe manner. The laundry was not being done, and the daughter believed that here parents were not eating nutritiously. She also found tax returns that hadn't been filed and checks that hadn't been cashed. The also testified about his difficulty driving, and inability to do farm work.
The trial court made an order naming the daughter as a limited guardian of the person and limited conservator. Dissatisfied with this turn of events, Berge, through Montevideo attorney Douglas D. Kluver, appealed to the Minnesota Court of Appeals. On appeal, he argued that the trial court should not have considered the report of the February emergency room visit, since this document was hearsay and not properly authenticated. His lawyer argued that he should have had the right to cross-examine the doctor who wrote the report, since he believed this cross examination would have revealed that the confusion was the result of hearing loss and not dimentia. But the Court of Appeals concluded that even if the report had been excluded, this error was harmless, since the other evidence was consistent with the report's findings.
The Court of Appeals then examinned the evidence and concluded that the trial court had not committed any error. There was reasonable evidence to support the finding of incapacity, and the evidence also supported the findings that less restrictive alternatives were not appropriate. Therefore, the Court of Appeals affirmed.
No. A13-0585 (Minn. Ct. App. Feb. 18, 2014).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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