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In re Guardianship and Conservatorship of Onstad9/26/2005
REVERSED AND REMANDED.
[ ] Elizabeth Onstad appealed from an order denying her petition to remove John Onstad and Mary Onstad as guardians and conservators of Doris Onstad, and an order for restitution of property to the guardians and conservators, which was conditionally stayed pending appeal. We reverse and remand for further proceedings.
I.
[ ] John and Mary Onstad filed a petition seeking their appointment as co-guardians and co-conservators for their mother, Doris Onstad. The district court appointed a visitor to interview Doris, an attorney to represent her as guardian ad litem, and a physician to examine her. Their reports were available at the hearing held on August 27, 2002. Elizabeth Onstad objected to the proposed guardians and conservators and to proceeding without the presence of Doris.
[ ] Based on the physician's and visitor's reports, Judge Dawson ruled there was good cause for Doris Onstad's absence from the hearing and that the reports showed by clear and convincing evidence she "is an incapacitated person who is in need of a guardian." Judge Dawson found John and Mary Onstad "are appropriate persons, and the Court will appoint them as the guardians." She also determined a conservatorship was necessary and Doris' house needed to be sold. On September 6, 2002, Judge Dawson issued an order finding it was necessary to appoint a guardian and a conservator for Doris Onstad, finding John and Mary Onstad have the highest priority and no other person with equal priority has petitioned the court, and appointing John and Mary Onstad as guardians of the person and conservators of the estate of Doris Onstad.
[ ] In a letter of September 10, 2002, the attorney for John and Mary Onstad advised Elizabeth Onstad's attorney, in part: "You have expressed concerns over Doris' absence from the August 27 hearing. In light of the concerns, my clients would consider a re-hearing on the guardianship issue." On November 26, 2002, Elizabeth Onstad filed a motion seeking vacation of the order appointing John and Mary Onstad as Doris' guardians and conservators and an order re-opening the proceeding alleging in essence a violation of due process, and asserting she "has priority superior to all other persons to be appointed guardian of her mother," requesting that she be appointed as the guardian for Doris Onstad, and requesting that Northern Capital Trust be appointed as the conservator of the estate of Doris Onstad. On that same day, Elizabeth also filed a petition for removal of John and Mary Onstad as the guardians and conservators, appointment of herself as guardian, and appointment of Northern Capital Trust as conservator of the estate of Doris Onstad. Elizabeth supported her motion and petition with affidavits of herself and several other individuals. In his response to the motion for reconsideration, counsel for John and Mary Onstad asserted that the issues raised in the motion should have been raised in an appeal.
[ ] At the outset of a December 19, 2002, hearing on the motion and petition, Judge Dawson stated "it probably would have been better . . . to have had an opportunity to explore more fully both sides of the issue" and that she appreciated the "opportunity to hear more fully both sides." Judge Dawson said she was adhering to her "decision that it wasn't in the best interests of the ward to be here," and she liked "the idea of having North Capital Trust be the conservator." Judge Dawson said "this will be scheduled for a hearing in my next hearing week and we'll block a significant amount of time, enough time for everybody to be heard." Judge Dawson directed the attorneys to address the sale of Doris' house "at that next hearing," d
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