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In re Conservatorship of Smith

January 21, 2003


Hennepin County District Court File No. P4010119

Considered and decided by Anderson , Presiding Judge, Stoneburner , Judge, and Wright, Judge.


Conservatorship proceedings under Minn. Stat. §§ 525.539-.6199 (2000) are governed by the Minnesota Rules of Civil Procedure, except where the application of the rules is inconsistent with specific statutory provisions.

The opinion of the court was delivered by: Wright, Judge



On appeal from a judgment in a conservatorship proceeding, appellant argues that the district court's order appointing a conservator should be reversed, or, in the alternative, that a new trial should be granted, because the district court (1) erred by applying the Minnesota Rules of Civil Procedure and permitting pretrial discovery and (2) abused its discretion by excluding appellant's witnesses from testifying as a sanction for untimely disclosing their identity. We affirm.


Appellant-conservatee Mary Larkin Smith (conservatee), who was 89 years old when this action commenced, had experienced a gradual decline in cognitive abilities for approximately ten years. Diagnosed with Alzheimer's disease, conservatee resided in her home with 24-hour care.

Conservatee has two adult children, Mary Elizabeth Riley (Riley) and Bill Smith (Smith). Riley and Smith have an acrimonious sibling relationship and disagree on matters regarding conservatee. In her health-care directive prepared in November 1999, conservatee nominated her treating physician, Dr. David B. Plimpton, to be her health-care agent because naming one of her children was "not a workable option."

Since 1999, Smith has been actively involved in overseeing conservatee's health and living arrangements. With respect to conservatee's health, he maintained that she possessed "full mental capacity." From January through April 2000, Smith repeatedly prevented conservatee from attending appointments with a neurologist to evaluate her deteriorating cognitive status. When conservatee was hospitalized in July 2000, Smith had her discharged against medical advice. After advising conservatee's doctors that he wanted to discontinue all of her medication, Smith refused to give conservatee medication in direct contravention of her prescribed medical regimen. He opposed 24-hour care for conservatee at her home and prevented family members from participating with conservatee in making medical decisions.

At the same time, Smith became actively involved in conservatee's financial affairs. He hired an attorney in April 2000 to make changes to conservatee's will, trust agreement, and health-care directive. As a result, Smith obtained power of attorney over conservatee's affairs. After firing Dr. Plimpton, Smith also became conservatee's health- care agent and conservator, should the need ever arise.

Concerned about conservatee's health and the state of her assets, Riley filed a petition for the appointment of an independent, non-family conservator on January 19, 2001. The parties agreed on a schedule, which the district court incorporated in its scheduling order, directing the discovery process and setting a deadline for witness disclosure. Riley served conservatee with interrogatories and a request to identify conservatee's witnesses. Conservatee objected to the discovery process by filing a number of motions with the district court. Conservatee specifically argued that, because she was not a defendant in a lawsuit, the civil discovery rules were inapplicable to her. The district court rejected conservatee's argument, and, on December 13, 2001, issued an order compelling discovery. Well after the original court-ordered deadline and two weeks before the hearing, conservatee served responses to the written discovery requests and identified eight witnesses for the hearing.

On the third day of the hearing, conservatee filed her formal witness list. The list included three witnesses not previously disclosed by conservatee during discovery. Conservatee stated that, because the period between the district court's discovery order and the discovery deadline was so short, she inadvertently omitted the three witnesses from the list. The newly identified witnesses were both conservatee's former and current estate attorneys and her corporate trustee, who were expected to testify regarding conservatee's mental capacity at the time she executed amendments to her will and trust agreements in April 2000. Riley objected to the testimony of the previously undisclosed witnesses. The district court sustained the objection and allowed ...

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