New opinions: October 10, 2024
Guardianship and Conservatorship of K.H.P. 2024 ND 189
Docket No.: 20240021
Filing Date: 10/10/2024
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair
Highlight: Unless a statute imposing a time limit declares the time limit is jurisdictional, we will not treat the time limit as affecting the jurisdiction of a court or administrative agency.
An issue is not justiciable if it is moot or not ripe for review, a party lacks standing, or resolving it would be advisory.
When petitioning for termination of a guardianship, the ward has the burden of establishing a prima facie case that he is no longer incapacitated. If the ward presents evidence strong enough, if uncontradicted, to support a finding in his favor, he has made a prima facie case.
The review process under N.D.C.C. § 30.1-28-04(5) does not provide the court statutory authority to reappoint an expert examiner. At the time of petitioning for termination in this case, N.D.C.C. § 30.1-28-07(3) (2022) did not give the court statutory authority to reappoint an expert examiner in the termination proceedings, or request an evaluative report and testimony.
After the ward establishes a prima facie case, the guardian has the burden of proving by clear and convincing evidence that the ward remains an incapacitated person.
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