Must Courts Honor Alleged Incapacitated Person’s Nominee for Guardian?

In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering “mild to moderate Alzheimer’s disease and dementia,” did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians.  The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator. 

On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians.  In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, 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 . . . .

Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the “better” appointed guardian.