In re the Emergency Guardianship and/or Conservatorship of: Gary Burke.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1894

In re the Emergency Guardianship and/or
Conservatorship of: Gary Burke.

Filed July 22, 2019
Affirmed
Halbrooks, Judge

Chisago County District Court
File No. 13-PR-18-54

Jessica Buberl, J. Buberl Law, Osceola, Wisconsin (for appellant Gary Burke)

Janet Reiter, Chisago County Attorney, Aimee S. Cupelli, Assistant County Attorney,
Center City, Minnesota (for respondent Chisago County Health & Human Services)

Lutheran Social Service of Minnesota, St. Paul, Minnesota (respondent)

Considered and decided by Slieter, Presiding Judge; Halbrooks, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
On appeal from the grant of guardianship, appellant-ward argues that (1) the record
does not support the appointment of a guardian, (2) the district court granted the guardian
more powers than are necessary, and (3) the district court im properly admitted hearsay
evidence. We affirm.

2
FACTS
On April 18, 2018, law enforcement was dispatched to the home of appellant Gary
Michael Burke to conduct a welfare check. At the time, Burke was 69 years old and lived
alone. They discovered Burke on the couch in his apartment , moaning and unable to
complete sentences. Law enforcement asked Burke to turn down the volume on the
television. But he was unable to , despite the remote being right next to him. Law
enforcement placed Burke on a 72-hour hold and transported him to the VA Hospital. The
following day, Trent Struck, an adult -protection investigator with respondent Chisago
County Health and Human Services (the county), was notified of the welfare check and
subsequent police report. He attempted to identify which hospital Burke was taken to, but
was unable to make contact with medical staff until April 23. A nurse told Struck that
Burke was likely to be discharged later that afternoon. At that time, Struck attempted to
contact Burke to set up a meeting at his home, but did not hear back from him.
Burke was discharged from the VA Hospital on April 26. On April 28, law
enforcement responded to a possible medical call at Burke’s apartment. It was suspected
that Burke had suffered a stroke. When law enforcement arrived, Burke was able to talk
but had bruising and scabs on his face. His apartment was cluttered with garbage and there
was a sticky substance on the floor. Burke was transported to Fairview Hospital in
Wyoming, Minnesota. On April 30, Struck met with Burke at Fairview. Burke indicated
that he had fallen at his home. He also stated that the VA Hospital had arranged for home-
health services, but the services did not show up following his discharge from the hospital.
The medical staff at Fairview recommended that Burke be transferred to a transitional-care

3
unit for ongoing therapy and services. Burke declined and was discharged against medical
advice on May 3.
Shortly after Burke was discharged from Fairview, Struck met w ith Burke at his
apartment. Burke was in a wheelchair. Struck observed that the garbage was overflowing,
there was a sticky substance on the floor, and that the apartment was generally cluttered.
Burke authorized Struck to contact his primary -care physi cian, Viorel Guter, M.D., to
inquire about the home-health services being set up for Burke. Dr. Guter’s nurse informed
Struck that Burke received several home services, including medical services and
assistance with cleaning and bathing. On May 10, Burke had a follow-up visit at the VA
Hospital. He indicated that he was no longer receiving services because his home -health
aide and visiting nurse quit, and he fired his housekeeper. On May 22, Burke had an
appointment with Dr. Guter to refill his medicati on. Dr. Guter’s notes from that visit
indicate that Burke was continuing to live independently in spite of Dr. Guter’s advice that
he needed to enter a nursing home and that Burke “needs a nursing home, he is a vulnerable
adult and living independently could be catastrophic for him.”
On June 8, law enforcement was again dispatched to Burke’s residence to conduct
a welfare check after a neighbor reported seeing Burke lying in the hallway partially out of
his apartment and moaning. After law enforcement helped Burke back into his wheelchair
and brought him inside his apartment, Burke started kicking the couch and saying that
someone was sitting on the couch and speaking to him. No one was there. Burke was
placed on 72 -hour hold and admitted to the VA Hospital. Struck spoke with staff at the
VA Hospital and learned that Burke had been diagnosed with unspecified depressive

4
disorder, post-traumatic stress disorder (PTSD), unspecified personality disorder, alcohol-
use disorder, mild cognitive impairme nt, cerebellar ataxia, ischemic stroke, and failure to
thrive. He was also diagnosed with lithium toxicity, likely due to inadequate food intake.
His physician at the VA Hospital recommended a higher level of care—at minimum an
assisted-living facility. Burke did not believe that he needed to enter assisted living and
expressed his desire to continue living in his apartment.
On June 21, Patricia Dickmann, M.D., Burke’s attending physician at the VA
Hospital, signed a Physician’s Statement in Support of Guardianship/Conservatorship. The
statement indicated that , based on assessments performed on June 12 and June 19,
Dr. Dickmann was of the opinion that Burke lacked the capacity to make decisions
regarding his place of abode, that his prognosis was poor , and that he was in need of a
guardian. On June 29, the county filed a petition for emergency appointment of a guardian
for Burke. The district court issued an order appointing respondent Lutheran Social
Service of Minnesota (LSS) as emergency guardian of Burke.
On August 16, the county petition ed for the appointment of a guardian for Burke.
The district court held a hearing on the petition on August 28. Struck, Burke, and Katie
Jenson, a guardian with LSS, testifi ed. T he county moved to admit into evidence
Dr. Dickmann’s statement in support of guardianship and Burke’s medical records.
Burke’s counsel objected on the ground that the documents contained hearsay. The district
court overruled the objection. Following the hearing, the district court left the record open
for one week for the parties to submit additional evidence. On September 20, the district
court issued an order appointing LSS as guardian of Burke. This appeal follows.

5
D E C I S I O N
“The appointment of a guardian is a matter within the discretion of the district court
and will not be disturbed absent a clear abuse of that discretion.” In re Guardianship of
Autio, 747 N.W.2d 600, 603 (Minn. App. 2008). We do not stand in a position to retry the
case and assess the evidence as the district court did. See Grant v. Malkerson Sales, Inc. ,
108 N.W.2d 347, 351 (Minn. 1961) (explaining that even when there is conflicting
evidence and the appellate court “might find the facts to be different ” if it were the fact -
finder, that is not its role). “A reviewing court is limited to determining whether the district
court’s findings are clearly erroneous, giving due regard to the district court’s
determinations regarding witness credibility.” In re Guardianship of Wells, 733 N.W.2d
506, 510 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007). If there is reasonable
evidence to support the findings of fact, we will not disturb those findings. Fletcher v.
St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).
I.
The district court may appoint a limited or unlimited guardian if it finds, by clear
and convincing evidence, that an individual is incapacitated and that the individual’s needs
cannot be met by less -restrictive means. Minn. Stat. § 524.5-310(a) (2018). The term
“incapacitated person” is defined as “an individual who . . . is impaired to the extent of
lacking sufficient understanding or capacity to make or communicate responsible personal
decisions, and who has demonstrated deficits in behavior which evidence an inability to
meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with
appropriate technological assistance.” Minn. Stat. § 524.5-102, subd. 6 (2018).

6
The district court determined that Burke is incapacitated because, despite the risks
posed to his health and safety by living alone, he had failed to set up the necessary services
to addres s those concerns. The district court noted that Burke had been hospitaliz ed
multiple times due to falls, welfare concerns, a possible stroke, and other health problems
and that he appeared to have an inability to care for himself as evidenced by body odor,
stained clothing, cigarette burns, and his falling asleep with a lit cig arette in his hand.
Additionally, he had lost 40 pounds in the past year and been diagnosed with lithium
toxicity based on inadequate “oral intake” or eating. Despite these concerns, Burke refused
to follow the doctors’ recommendations for his medical care. And when the home-health
services that the VA Hospital arranged for ended after his home-health aide and nurse quit
and Burke fired his housekeeper, he failed to take the necessary steps to secure new
services.
Burke argues that there is not clear a nd convincing evidence to support the district
court’s determination that he meets the definition of an “incapacitated person.” He argues
that he is not incapacitated because he arranges for his own medical care, handles his own
finances, and based his decision not to enter assisted living on financial reasons. He argues
that this conduct shows that he makes responsible personal decisions. He also argues that
the evidence does not show that he has demonstrated an inability to meet his personal needs
for medical care, nutrition, clothing, shelter, or safety. But the district court’s findings
plainly reflect that the district court rejected these arguments. And there is record support
for the district court’s findings. The county presented evidence regar ding Burke’s history
of hospitalizations and medical issues, that Burke repeatedly refused to follow the

7
recommendations of medical staff, that the condition of his apartment was both unsanitary
and made it difficult for him to maneuver in his wheelchair, and that after his home-health
services ended, he did not arrange for new services. Because there is reasonable evidence
to support the district court’s findings, we will not disturb those findings. Fletcher, 589
N.W.2d at 101. Accordingly, the district court did not abuse its discretion in determining
that Burke is unable to meet his own health and safety needs.
Burke also argues that he is not incapacitated because his needs could be met by
less-restrictive means. He argues that in-home services could meet his needs in a less -
restrictive manner and that the record shows that when such services were in place his
safety needs were met. The district court rejected this argument, reasoning that “[a]t most
the services would be similar to what [Burke] had in place when his hospitalizations began
in the spring of 2018.” Again, the record supports the district court’s determination. Burke
had services in place prior to the petition for guardianship, but those services failed to
mitigate the risks to his hea lth and safety. Several agencies stopped working with Burke
and refused to work with him in the future because he failed to follow the recommendations
of his doctors and exhibited behavior that co ncerned the staff. And after Burke’s nurse
quit and he fir ed his housekeeper, he did not arrange for new service s. Moreover, the
services available to Burke only included a nurse one day a week and a home -health aide
twice per week, far less than the level of supervision and care recommended by the medical
staff. On this record, the district court did not abuse its discretion in determining that
Burke’s needs could not be met by less-restrictive means.

8
II.
When appointing a guardian, the district court “shall grant to a guardian only those
powers necessitated by the ward’s limitations and demonstrated needs.” Minn. Stat.
§ 524.5-310(c) (2018). “[T]he powers of the guardian should be kept to the bare minimum
necessary to care for t he ward’s needs.” In re Guardianship of Mikulanec , 356 N.W.2d
683, 687 (Minn. 1984).
Burke argues that the district court abused its discretion in appointing a guardian
because it granted LSS more powers than the bare minimum necessary to provide for his
needs. He argues that the district court could have granted LSS the limited power of
coordinating and ensuring that he is receiving in -home services “such as cleaning, home
making, bathing, nursing, and the power and duty to ensure such services are bei ng
appropriately provided” and that “granting anything more was an abuse of discretion.” We
disagree. Burke’s argument is premised on his assertion that his health and safety needs
could be adequately addressed through home -health services. As discussed above, the
district court determined that the in -home services available to Burke were insufficient to
meet his needs. Even when such services were in place, they failed to prevent Burke from
falling and being hospitalized. And the services available we re far less intensive and
frequent than the level recommended by his doctors.
Moreover, the district court left the record open after the hearing for the parties to
present additional evidence on services that “could be put in place to meet [Burke’s] daily
needs to live independently.” The parties did not identify any such services. Accordingly,
there is no record evidence to support Burke’s contention that there are in-home services

9
available that could adequately address his needs. The only services identified were those
that failed to mitigate the risks to Burke’s health and safety prior to the petition and were
deemed inadequate in light of the recommendations made by medical staff . We conclude
that the district court did not abuse its discretion in granting additional supervisory powers
to LSS.
III.
Burke argues that the district court abused its discretion by admitting into evidence
Dr. Dickmann’s statement in support of guardianship and his medical records because they
contained hearsay statement s. Hearsay is an out -of-court statement “ offered in evidence
to prove the truth of the matter asserted.” Minn. R. Evid. 801. Generally, hearsay is not
admissible. Minn. R. Evid. 802. However, the rules provide express exceptions for
statements that are sufficiently trustworthy. See Minn. R. Evid. 803, 804.
The district court determined that Dr. Dickmann’s statement in support of
guardianship and Burke’s medical records were admissible under Minn. R. Evid. 803(4)
and 803(6). Rule 803(4) creates an exception for “[s]tatements made for purposes of
medical diagnosis or treatment.” Minn. R. Evid. 803(4). Rule 803(6) creates an exception
for records “kept in the course of a regularly cond ucted business activity,” including
opinions and diagnoses. Minn. R. Evid. 803(6) . But the exception does not apply to
records “prepared for litigation.” Id. Burke concedes that the statement in support of
guardianship and medical records were admissib le to the extent they were being admitted
to show his diagnoses. But he argues that the documents are inadmissible to the extent that
they contain statements other than those made for the purpose of seeking medical diagnoses

10
or treatment. He asserts that the documents are not admissible under rule 803(6) because
the record does not establish that th e records were kept in the course of a regularly
conducted business activity and were not introduced through a custodian or qualified
witness.
The county contends that any error in admitting the records was harmless and
therefore does not entitle Burke to relief. On appeal, Burke must show both error and that
he was prejudiced by the error. Kallio v. Ford Motor Co. , 407 N.W.2d 92, 98 (Minn.
1987). Harmless error is to be disregarded. Minn. R. Civ. P. 61. We agree with the county
that any error in admitting the documents was harmless. Our review of the record reflects
that the evidence relied on by the district court in making its determination was properl y
admitted. While the medical records were not admitted through a qualified witness as
required by Minn. R. Evid. 803(6), the evidence relied on by the district court is admissible
under Minn. R. Evid. 803(4). Statements made for the purpose of seeking a diagnosis or
treatment include descriptions of “medical history, or past or present symptoms, pain, or
sensations.” Minn. R. Evid. 803(4). The majority of the information contained in the
medical records is therefore admissible under rule 803(4). Additionally, Struck provided
extensive testimony regarding the incidents that led to Burke being hospitalized and the
petition for guardianship, as well as Burke’s refusal to follow the recommendations of his
doctors. Burke himself testified that he refused to consider moving to an assisted -living
facility.
The district court’s determination that Burke is in need of a guardian was based on
his history of medical issues and hospitalizations, the failure of in-home services to prevent

11
those incidents, and Burke’s refusal to follow the recommendations of his doctors .
Accordingly, the district court’s determination that Burke is in need of a guardian wa s
based on properly admitted evidence. Any error in admitting the relatively small portion
of the statement in support of guardianship and medical records that constitutes hearsay is
therefore harmless.
Affirmed.