Court Rejects Alleged Incapacitated Person’s Preference for Guardian When Basis for Preference Was Not Provided

The Supreme Court of the State of North Dakota ruled that a lower court properly rejected a preference expressed by an incapacitated person for the appointment of a guardian when the incapacitated person could not provide the basis for the expressed preference. In the Matter of B.K.J, an Incapacitated Person, 2015 ND 191 (Docket No. 20140446, July 30, 2015)

J.W. petitioned the state court to be appointed guardian for her aunt, B.K.J.  J.W. claimed that B.K.J. suffered from mild to moderate Alzheimer’s disease and dementia and had declined in her ability to care for herself and her finances.

The court appointed a physician to examine B.K.J., and an attorney as B.K.J.’s guardian ad litem. A hearing was held on the petition. At the hearing, the parties stipulated that a guardianship was necessary for B.K.J. The court-appointed physician, B.K.J.’s guardian ad litem, and others testified about the extent of B.K.J.’s incapacity, the necessity of a guardian, and who should be appointed as B.K.J.’s guardian. B.K.J. admitted that she needed a guardian, but she testified that she did not want J.W. appointed as her guardian. Instead, B.K.J. nominated two friends to be her co-guardians. Contrary to B.K.J.’s preference, however, the district court appointed J.W. and a bank as B.K.J.’s co-guardians, concluding the evidence established they were the best qualified.

B.K.J. appealed. On appeal, B.K.J. argued that the district court abused its discretion by appointing J.W. and a bank as her co-guardians rather than the two friends she preferred. B.K.J. claimed that her preference should have taken priority under state law which provides, in pertinent part, as follows:

[T]he order of priority a district court must consider for appointing a guardian is as follows: a. A person nominated by the incapacitated person …, if the incapacitated person is fourteen or more years of age and, in the opinion of the court, acted with or has sufficient mental capacity to make an intelligent choice…. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having a lower priority.

Because the district court failed to make the specific findings she claimed were required under the law demonstrating that she was without sufficient capacity to choose her own guardians, B.K.J. argued that the district court violated state law, committing reversible error.

The Supreme Court of North Dakota affirmed the appointment of J.W. and the bank as co-guardians, concluding that, although state law requires consideration of the AIP’s “preference,” no special findings of incapacity were necessary to reject that preference:

Contrary to [the AIP’s] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian.  While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian…. Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice.  Rather, the district court’s findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why she distrusted J.W., specifically finding, “[B.K.J.] seemed confused by why she was upset with [J.W.] and [could] not provide a logical reason.” The record reflects the district court considered [B.K.J.’s preference] in making its determination. (Emphasis Added)

In sum, the Supreme Court affirmed the district court’s order appointing J.W. and the bank as B.K.J.’s co-guardians.

The case is annexed here –  In The Matter of Guardianship of B.K.J.

For additional information concerning guardianships and fiduciary services, visit: