author: ROSS, Judge.

text:
    Daniel LAMAH, Relator, v. DOHERTY EMPLOYMENT GROUP, INC., Respondent, Department of Employment and Economic Development, Respondent.
    No. A06-1680.
    Court of Appeals of Minnesota.
    Aug. 28, 2007.

      Mary Winston Marrow, Legal Aid Society of Minneapolis, Minneapolis, MN, for relator.
    Doherty Employment Group, Inc., Edi-na, MN, for respondent.
    Lee B. Nelson, Linda A. Holmes, Katrina I. Gulstad, Department of Employment and Economic Development, St. Paul, MN, for respondent Department of Employment and Economic Development.
    Considered and decided by ROSS, Presiding Judge; SHUMAKER, Judge; and PARKER, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

ROSS, Judge.

Daniel Lamah challenges an unemployment law judge’s decision that he is disqualified from receiving unemployment benefits because he quit a full-time, ongoing work assignment he obtained through Doherty Employment Group, Inc., and no statutory exceptions to the disqualification apply. Lamah contends that he worked a series of one-day assignments through the temporary-staffing agency and that the position was part time. Lamah also asserts that his substantial rights were prejudiced because the unemployment law judge did not appoint an interpreter, rejected offered evidence, and failed to require the employer’s representative to submit documentary evidence supporting her testimony. The evidence supports the unemployment law judge’s finding that Lamah’s work assignment was ongoing. We hold that a person working 32 or more hours a week for an employer is presumptively employed full time. Lamah worked an average of more than 36 hours a week and did not present facts sufficient to rebut this presumption. Because the record also does not support Lamah’s contention that his substantial rights were prejudiced, we affirm.

FACTS

Daniel Lamah began working full time as a tile setter for Grazzini Brothers & Company in 1998 or 1999. Lamah sought a second job to supplement his income. He applied for work through Doherty Employment Group, Inc., doing business as Doherty Staffing Solutions, in late August 2005. Doherty is a temporary-staffing service. On September 6, through Doherty, Lamah began a work assignment performing packaging work at Northern Star, working Monday through Friday, from 3:00 p.m. to 11:00 p.m. Lamah was instructed to call the Doherty representative at Northern Star each afternoon to ensure that he should report to work. As a newer employee who lacked seniority, Lamah was sometimes released early when Northern Star needed fewer employees. Lamah worked an average of more than 36 hours a week at Northern Star. He last worked for Grazzini Brothers in November 2005 and was formally laid off in early December because Grazzini Brothers had an insufficient amount of work for Lamah.

Near the time of the layoff, Lamah told the Doherty representative at Northern Star that he would be ending his Northern Star work assignment on December 8 because he planned to leave the country for one month. Lamah planned to take his ill child to Africa to be with his recently deported wife. Lamah did not work for Doherty after December 8 but he did not go to Africa because his son’s doctors advised against the trip.

The parties dispute the events after La-mah gave his notice and ended his assignment at Northern Star. According to Mary Huffer, Doherty’s unemployment insurance administrator, the company’s representative at Northern Star closed Lamah’s work assignment after he gave notice. Doherty mistakenly called Lamah on December 14 and offered him two new full-time assignments, which he could have started the next day. Lamah declined the work and restated that he was leaving for Africa. After his refusal, Doherty marked his file as inactive, meaning that the company would not call him with future work opportunities. Lamah contends that on December 12 or 13, he notified Doherty that he was available for work. He asserts that for a two-week period, he called daily and was told each time that the company had no work assignments for him and that he should call back the next day. Lamah maintains that after two weeks of daily calls, Doherty told him to call back the following week. After allegedly two weeks of weekly calls, he applied for unemployment benefits. Doherty has no record of Lamah calling.

The Department of Employment and Economic Development found that Lamah did not qualify for unemployment benefits because he voluntarily separated from employment with Doherty. Following a hearing, an unemployment law judge (ULJ) also concluded that Lamah quit his assignment on December 8. The ULJ affirmed her decision after Lamah requested reconsideration. By writ of certiorari, Lamah challenges the ULJ’s decision. He argues that he qualifies for unemployment benefits because he did not quit an ongoing assignment and that even if he did, a statutory exception applies because he quit only part-time employment. Lamah also asserts that he was substantially prejudiced at the hearing because the ULJ failed to appoint a necessary interpreter and made erroneous evidentiary decisions.

ISSUES

I. Did the unemployment law judge err by finding that the relator quit an ongoing work assignment?

II. Is an employee who works an average of more than 36 hours a week employed full time?

III. Did the unemployment law judge prejudice the relator’s substantial rights?

ANALYSIS

A person who quits employment is disqualified from unemployment benefits unless a statutory exception applies. Minn.Stat. § 268.095, subd. 1 (Supp.2005). This court may reverse or modify a ULJ’s decision if a petitioner’s substantial rights were prejudiced because the ULJ’s findings, inferences, conclusions, or decisions are unconstitutional, exceed the department’s statutory authority or jurisdiction, are the product of unlawful procedure, are affected by an error of law, are unsupported by substantial evidence in the record, or are arbitrary or capricious. Id. § 268.105, subd. 7(d) (Supp.2005). We review the findings in the light most favorable to the decision. Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 289 (Minn.2006). We defer to the ULJ when reviewing credibility and conflicting evidence. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.App.2006). But we review questions of law de novo. Scheeler v. Sartell Water Controls, Inc., 730 N.W.2d 285, 287 (Minn.App.2007).

I

We first consider whether Lamah quit his employment. A quit occurs when the employee makes the decision to end employment. Minn.Stat. § 268.095, subd. 2(a) (2004). Determining whether a person who had been employed through a temporary-employment agency qualifies for unemployment benefits requires us to decide first whether the person was employed at the time of the separation and therefore in a position to quit. The supreme court has recognized the unique nature of employment through a temporary-labor service. These businesses are “labor brokers engaged in the business of supplying unskilled labor to local companies for short-term assistance.” Smith v. Employers’ Overload Co., 314 N.W.2d 220, 222 (Minn.1981). Courts rely on contract principles to determine the nature of the employment relationship. Id. at 222-23. The duration of employment depends on the parties’ intent. Id. at 223.

When addressing qualification for unemployment benefits, courts have applied these principles and distinguished between persons who complete assignments but do not seek new assignments and persons who accept but refuse to complete ongoing assignments. An employee who has completed an assignment but refuses to accept further assignments is not disqualified from unemployment benefits because the employment relationship has ended and the refusal does not constitute a quit. See id. (holding that employees who completed four separate one-day assignments intended only one-day employment contracts and qualified for unemployment benefits); Mbong v. New Horizons Nursing, 608 N.W.2d 890, 895 (Minn.App.2000) (“Once each assignment is completed, the employment relationship ends because there is neither a guarantee of future assignments nor any employer obligation to provide them.”). In contrast, an employee who refuses to complete an accepted assignment quits. McDonnell v. Anytime Temps., 349 N.W.2d 339, 341 (Minn.App.1984) (affirming disqualification of woman who worked one day of two-week assignment and refused to complete it); see also Mbong, 608 N.W.2d at 895 & n. 2 (recognizing distinction between Smith and McDonnell).

The record supports the ULJ’s finding that Lamah was engaged in an ongoing assignment at Northern Star and his decision to end the assignment constituted a quit on December 8. Lamah argues on appeal that his employment at Northern Star consisted of a series of one-day assignments. But the record does not compel this characterization and instead indicates that Lamah and Northern Star intended the assignment to be ongoing. Lamah accepted a position classified as “temporary to permanent.” When asked whether he had one or many assignments through Doherty, he testified, “One.” The ULJ followed up, “And the assignment was two months?” Lamah responded, “Yes.” Lamah consistently worked from the beginning of his assignment until he quit, about three months. He was paid on alternating weeks rather than daily. See Smith, 314 N.W.2d at 222 (“A worker who is hired for a daily job is paid at the end of the workday by the temporary labor service.”). Lamah gave advance notice that he would be ending his employment on December 8. These facts all indicate that he considered the assignment to be ongoing. We recognize that Lamah had to call daily to verify his work hours. But the record indicates that the employer had a number of employees, including Lamah, whom it could call upon to work, and calling ahead to confirm the need was part of his ongoing employment duties. Lamah does not contend on appeal that he was ever turned away from work at Northern Star upon calling in before he announced his departure. We hold that Lamah quit an ongoing work assignment at Northern Star. We therefore turn to whether he was employed full time by Doherty at Northern Star.

II

Lamah argues that even if he quit employment, a statutory exception applies because he quit only part-time employment. A person who quits part-time employment when he also had full-time employment in the base period, and who separated from the full-time employment because of a nondisqualifying reason, is not disqualified from unemployment benefits. Minn.Stat. § 268.095, subd. 1(5). It is undisputed that Lamah was employed full time by Grazzini Brothers during the base period and that he separated from this employment for a nondisqualifying reason, but the parties dispute whether Lamah’s position at Northern Star was part time. See id. § 268.035, subd. 4 (2004) (defining base period).

The Minnesota Unemployment Insurance Law does not directly define part-time employment. See Id. § 268.035 (2004) (defining terms for purposes of unemployment-insurance law). It does, however, deem a person to be “unemployed” when he performs fewer than “32 hours of service in employment, covered employment, noncovered employment, self-employment, or volunteer work” and earns less in that week than his weekly unemployment benefit amount. Id. § 268.035, subd. 26 (Supp.2005). By converse implication, a person performing 32 or more hours of service is employed for the purposes of determining eligibility for benefits. And it would be incongruous to hold that a person employed and performing 32 or more hours of service is engaged only in part-time employment when at the same time he would be considered sufficiently employed to be eligible for “unemployment” benefits if he loses the job.

We also find persuasive the nature of a 1998 statutory amendment to the definition of “unemployed” in chapter 268. Previously, a person was deemed to be “unemployed” when he earns less than his weekly benefit amount “in any week of less than full-time work,” and, as we have seen, after the amendment a person was deemed to be “unemployed” when he earns less than his weekly benefit amount “in any week of less than 32 hours of service.” Compare Minn.Stat. § 268.04, subd. 23 (1996) with id. § 268.035, subd. 26 (1998). The amendment essentially replaced the unclear phrase “full time work” with the clear phrase “32 hours of service,” leading to the reasonable conclusion that the legislature intended the terms to be synonyms for the purposes of the unemployment law. For the limited purpose of applying the statutory exception of section 268.095, subdivision 1(5), we hold that an employee who performs 32 or more hours of service a week is presumptively employed full time.

We recognize that the supreme court has considered more subjectively that “[p]art-time employment is usually defined as less than the usual number of hours per day for a particular job. However, sporadic or intermittent employment has also been defined as part time.” Zoet v. Benson Hotel Corp., 274 N.W.2d 120, 122 (Minn.1978) (citations omitted). But La-mah’s reliance on Zoet is misplaced for two reasons. First, he does not address the post-Zoet statutory amendment to the definition of unemployed, and, second, he does not establish that the subjective assessment directed by the Zoet court would compel a determination that he was employed only part time at Doherty while he was assigned at Northern Star.

The court decided Zoet 20 years before the legislature amended chapter 268 to deem as employed any claimant working 32 or more hours a week. 1998 Minn. Laws ch. 265, § 4, at 208. The Zoet court therefore was not aided, as we are, by the presumptive bright line established in 1998. Because the statute previously determined that an “unemployed” person is one who earns less than his weekly benefit amount while working “less than full time,” without defining “full time,” it is not surprising that the court at that time directed a more workplace-by-workplace approach to distinguishing full-time from part-time employment. This approach is also rooted in the historic direction of a departmental regulation that defined “full time” in relation to “the number of hours in the calendar week during which individuals engaged in the same or similar occupations in the same establishment usually or customarily perform such services.” Olson v. Starkey, 259 Minn. 364, 369, 107 N.W.2d 386, 390 (1961) (quoting 1945 regulation of Department of Employment Security).

Despite finding that a presumptive bright line applies, we are aware that there is still merit in the historic appreciation that different occupations may require significantly different benchmarks to determine what is full time. In Zoet, for example, several banquet servers employed under a union contract applied for unemployment benefits on the ground that they were scheduled to work too few hours. The court held that these workers were part-time employees after considering unique factors of their position. Zoet, 274 N.W.2d. at 122. It continues to be that unique employment arrangements, such as those that arise from terms in employment contracts, an unusual number of hours for the work day or work week, or sporadic or intermittent work hours, may create circumstances that are more significant than a baseline number of hours to distinguish full-time from part-time employment. See id. So although Zoet provides little substantive guidance because it includes no discussion of the number of weekly hours the servers in that case actually worked or the customary number of hours for their position, Zoet’s general definition of full time survives despite the amendment, and it provides the basis upon which the hours-based presumption of full-time employment may be overcome.

In this framework, we conclude that the record supports the ULJ’s finding that Lamah’s employment was full time. Huf-fer testified that Lamah worked an average of more than 36 hours each week at Northern Star and that only during two weeks did he work fewer than 32 hours, one of which was a partial work week when he began his employment. Lamah’s testimony differed significantly. He claimed he worked an average of 20 to 22 hours a week, working as few as 8 hours a week and never working 40 hours a week. He also asserted that he received no work some weeks. But the UL J was in the best position to assess credibility and weigh the evidence, and we will not second-guess those judgments. Skarhus, 721 N.W.2d at 344.

Additionally, evidence that Lamah submitted with his request for reconsideration supported Huffer’s testimony and contradicted his own, further supporting the ULJ’s finding. Lamah presented a table comparing his weekly averages worked at Grazzini Brothers with those he worked at Northern Star in 2005 to demonstrate that his Northern Star employment was part time. But the comparison is misleading because the data he relies on are flawed. When corrected, the table supports the department’s position. The table indicates that Lamah worked an average of 40.45 hours a week at Grazzini Brothers. But the first entry in the table reflects that Lamah worked 185 hours that week, an impossible feat because there are only 168 hours in any week. Excluding this erroneous data point, Lamah’s weekly average at Grazzini Brothers was 36.93 hours. The same table reflects a weekly average of 36.35 hours worked at Northern Star. Relying on his employment at Grazzini Brothers to establish that he worked full time during the base period, Lamah cannot persuasively argue that the reduction of approximately 35 fewer minutes per week he worked at Northern Star requires the ULJ to construe his employment there as merely part time.

Applying the Zoet factors also supports the ULJ’s findings and demonstrates that Lamah did not rebut the presumption. Lamah worked the same eight-hour shift, five days a week, for more than three months. Although he sometimes was sent home early because of relaxed workload demands, this was the exception, and testimony indicated that other workers in the position faced the same possibility, demonstrating that the customary number of hours each day for the position would generally be eight hours, subject, occasionally, to modest subtraction. Lamah’s weekly-average of 36.35 hours worked at Northern Star fits this arrangement and was not part time.

Lamah also asserts that the employment he quit was unsuitable employment because he is a skilled tile setter and the Northern Star position required unskilled labor. A person may still qualify for unemployment benefits if he quits employment within 30 days after starting the employment because the employment was unsuitable. Minn.Stat. § 268.095, subd. 1(3) (Supp.2005). This exception does not apply here. Lamah’s argument hinges on his assertion that he worked only one-day assignments. Yet, if this were valid, the exception would not be triggered because once he completed the assignment he would not have employment to quit. Because Lamah worked an ongoing assignment and quit well after 30 days of starting, whether the position was unsuitable under subdivision 1(3) is irrelevant to whether Lamah qualifies for unemployment benefits. This leaves Lamah’s due process challenges.

Ill

Lamah raises two challenges to the manner in which the ULJ conducted the hearing. He argues that the ULJ failed to provide him with an interpreter, and that the ULJ rejected evidence that he submitted while permitting Huffer to testify on behalf of Doherty without firsthand knowledge or supporting, documentary evidence. The record does not support Lamah’s demand for a reversal or remand.

Lamah asserts that he was unable to participate meaningfully at the hearing because English is not his primary language, claiming that he and the ULJ experienced significant communication difficulties. The department is required to provide an interpreter “when necessary, upon the request of a party.” Minn. R. 3310.2911 (2005). If a party does not request an interpreter, the ULJ must “continue any hearing where a witness or principal party in interest is a handicapped person so that an interpreter can be appointed.” Id.; see also MinmStat. § 546.42 (2004) (defining handicapped in communication to include person who has difficulty speaking or comprehending English and is unable to fully understand proceeding in which person is required to participate).

Lamah never requested an interpreter. He acknowledged receiving materials before the hearing, which included a document stating, “This and the accompanying documents are important. If the reader does not understand the documents, the reader should seek immediate assistance.” He told the ULJ that he had read the materials. At the outset of the hearing, the ULJ told Lamah to advise her if he lacked understanding. The hearing transcript does not reveal significant communication problems that should have caused the ULJ to continue the hearing sua sponte and appoint an interpreter for La-mah. Lamah quotes isolated sections of the transcript as evidence of communication problems. But reading the transcript as a whole indicates that Lamah understood the questions asked and that he understood the proceeding. His answers were congruent with the ULJ’s questions and he never stated that he did not understand.

Although the ULJ asked Lamah several times for clarification, the requests primarily regarded substantive matters because he frequently contradicted himself. To the extent that communication problems are reflected in the transcript, they are limited to those that are common in unemployment-benefits hearings. For example, La-mah frequently went off-topic by focusing on why he started a second job and why he needs benefits, rather than limiting his answers to the questions asked. In an affidavit accompanying his request for reconsideration, Lamah contended that partway through the hearing, he was frustrated and “stopped trying to explain things and simply answered, ‘yes’ or ‘no’ to the judge’s questions.” But these responses were given to yes-or-no questions.

Lamah’s argument that communication problems are demonstrated by the ULJ’s failure to assist him in formulating his questions to Huffer is also unsupported; Lamah asked Huffer two yes-or-no questions, both intelligible, and she answered them. The record supports the ULJ’s finding that any communication problems were immaterial and did not result in misinterpretation of Lamah’s statements or erroneous fact findings. See Ywswfv. Te-leplan Wireless Servs., Inc., 726 N.W.2d 525, 530 (Minn.App.2007) (finding relator’s substantial rights were not prejudiced when she did not request interpreter, record did not indicate she did not understand the proceedings or that ULJ did not understand her, and transcript showed she made claims and assertions clear).

Lamah’s evidentiary challenges are also without support. All competent, relevant, and material evidence offered is to be admitted as part of the hearing record. Minn. R. 3310.2922 (2005). The ULJ may receive any probative evidence, including hearsay, and may exclude evidence that is irrelevant, immaterial, unreliable, or unduly repetitious. Id. A party must provide the opposing party with a copy of any document or exhibit accepted into evidence if requested. Id. 3310.2921 (2005).

Lamah introduced to the ULJ his 2005 W-2 and a letter from his mortgage-service center. But he had not sent a copy of these documents to Doherty before the telephonic hearing. He acknowledged reading the prehearing materials directing him to send Doherty a copy of any evidence he intended to submit, but stated that he chose not to because he “do[es] not have respect for them.” The ULJ declined to admit the letter. But she admitted the W-2 because Huffer waived her right to have a copy and the ULJ noted that the document was one Doherty should have in its possession. Lamah’s argument that the ULJ erred by excluding the W-2 therefore lacks a factual basis. And he does not argue that the ULJ should have admitted the irrelevant mortgage-service-center letter.

Finally, Lamah was not prejudiced by Huffer’s testimony. He asserts that the ULJ should have required Doherty to present documentary evidence or witnesses with firsthand knowledge to support her testimony. But it is unclear what additional evidence or testimony he believes would have been necessary. La-mah’s claim for benefits involves two inquiries: whether he quit his job on December 8 and whether his assignment at Northern Star was part time. Although Huffer did not personally know Lamah, Huffer was a representative of Doherty and testified to basic facts concerning La-mah’s employment, such as his start and end dates and the number of hours he worked each week. These facts did not require presentation by any specific person at Doherty. Evidence that Lamah submitted with his request for reconsideration supported Huffer’s testimony and contradicted his testimony on these points, and Lamah does not challenge the veracity of this basic information. Although Huffer also testified about calls made by another employee to Lamah, the hearsay restrictions in the rules of evidence do not apply to unemployment-benefits hearings. Minn. R. 3310.2922 (providing that ULJ is not bound by statutory and common law rules of evidence); see also Jenkins, 721 N.W.2d at 288 n. 1. (“Reflecting the expedited nature of unemployment benefit proceedings, the applicable rules anticipate the need to consider all of the circumstances of an employee’s departure in reaching unemployment benefits qualification determinations, and specifically allow hearsay evidence in keeping with that goal.”). Additionally, this testimony related to background events occurring after Lamah quit and does not bear on the issues of whether he quit and whether his assignment was part time.

DECISION

Lamah quit an ongoing, full-time work assignment on December 8, and the ULJ conducted a fair hearing. No statutory exception applies to Lamah’s disqualification from unemployment benefits.

Affirmed.

      . Neither party contends that the facts would support application of the definition of a quit under Minnesota Statutes section 268.095, subdivision 2(d), which concerns only temporary staffing-service employees who have been expressly notified in writing of the provision of that subdivision.

      . The reference to two months is based on Lamah’s initial testimony that his last day at Northern Star was in November.

      . In light of the varying statutory and contractual definitions of "full time," we highlight that this conclusion is not intended to reach beyond the unemployment-benefits arena. See, e.g., Minn.Stat. §§ 116J.874, subd. 1 (defining "full-time employee” as one employed "for at least 35 hours per week” as applied to affirmative-enterprise program), 16A.122, subd. 3 (defining "full-time equivalent position” to mean "2,080 working hours per year” as applied to workforce reporting obligations of state employees), 69.011, subd. 1(g) (defining "full-time” employment as "not less than 30 hours per week” as applied to peace officers qualifying for state aid) (2006).


source: Caselaw Access Project

author: PARKER, Judge.

license: Public Domain

text:
    Rickford Rehmann MUNGER, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A06-1563.
    Court of Appeals of Minnesota.
    Aug. 28, 2007.

      John M. Stuart, State Public Defender, Richard Schmitz, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Lori Swanson, Attorney General, St. Paul, MN; and Mark A. Ostrem, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Rochester, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge; LANSING, Judge; and PARKER, Judge.
   OPINION

PARKER, Judge.

Appellant challenges the district court’s summary denial of his petition for postcon-viction relief, arguing that he should have been allowed to withdraw his guilty plea because it was not supported by an adequate factual basis and was therefore not accurately made. Because Minn.Stat. § 609.582, subd. 1(a) (2004), requires a showing that appellant intended to commit a crime while within the building, a fact that was not established during appellant’s plea hearing, we conclude that it was an abuse of the district court’s discretion to deny appellant’s request to withdraw his guilty plea.

FACTS

On the night of September 21, 2004, Rochester Police Officer Lou responded to a call that originated from an apartment complex at 1533 4th Avenue Southeast in Rochester. Upon arriving, Officer Lou spoke to A.M.S., the resident of a ground-level apartment, who stated that she had seen a man walk by her window several times that evening. A.M.S. also saw the man look into her windows as well as a neighbor’s windows. A.M.S. told Officer Lou that after she had opened her bedroom window, she saw the man walk up to the bedroom window, reach inside the open window, and open the curtain with his hand.

Rochester Police Officer Thompson, who also responded to the call, saw appellant Rickford Rehmann Munger in the 1400 block of 6th Avenue Southeast. Appellant matched the description of the suspect, and Officer Thompson noticed that appellant was breathing heavily, appeared to have been running, and acted nervous. After Officer Thompson stopped appellant, A.M.S. was transported to Officer Thompson’s location and positively identified appellant as the man she saw reach into her window.

Appellant was subsequently charged with first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(a) (2004). After initially pleading not guilty, appellant later agreed to plead guilty in exchange for the state’s promise not to sentence him as a career offender and to recommend a guideline sentence of 60 months instead. During the plea hearing, the following testimony was given to establish a factual basis for appellant’s guilty plea:

BY [APPELLANT’S ATTORNEY]:

Q. [Appellant], on September 21, 2004 at approximately 10:00 in the evening you were in the city of Roch-
ester and Olmsted County, weren’t you?
A. Yes.
Q. And now, you lived on 4th Avenue Southeast, didn’t you?
A. Yes, I did.
Q. And at approximately 10:00 or sometime there before you walked down the street to some apartment building at 1533 and 1535 4th Avenue Southeast, didn’t you?
A. Yes.
Q. And you looked into a window on the first floor of the apartment building at 1533 4th Avenue Southeast, didn’t you?
A. Yes.
Q. And in the process of looking into it you realized the window was opened and you reached in and moved the curtain, is that right?
A. Yes.
Q. And you did that for the purpose of being able to look in and invade the privacy of the resident of the apartment, isn’t that true?
A. Yes.
BY [STATE’S ATTORNEY]:
Q. And you agree that the — your entry, the sticking in of your hand and moving the curtain was for the purpose of committing a crime, is that correct?
A. Yes.

On May 18, 2005, the district court sentenced appellant to 60 months in prison.

On May 26, 2006, appellant brought a petition for postconviction relief, arguing that he should be allowed to withdraw his guilty plea because it was “not supported by an adequate factual basis.” Specifically, appellant argued that he could not be guilty of first-degree burglary “because the [bjurglary statute requires the intent to commit a crime within the residence and [appellant] only admitted facts that he intended to commit the crime of [interference with [p]rivacy by window peeping outside the residence.” The district court, however, summarily denied appellant’s petition for postconviction relief, concluding that “[w]hile most burglary cases undoubtedly involve commission or an intent to commit a crime within the building, the statute makes no such geographic requirement.”

This appeal follows.

ISSUE

Does Minn.Stat. § 609.582, subd. 1(a) (2004), require as an element of the offense of first-degree burglary a showing that appellant intended to commit a crime within the building?

ANALYSIS

Appellant contends that it was an abuse of discretion for the district court to deny his request to withdraw his guilty plea, arguing that there was not an adequate factual basis for his plea of guilty to the charge of first-degree burglary because he did not admit to intending to commit a crime within the building.

Under Minn.Stat. § 590.04, subd. 8 (2004), a petitioner seeking postconviction relief has the burden of establishing by “a fair preponderance of the evidence” the facts alleged in the petition. We review “a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconvietion court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (quotation omitted).

“For a guilty plea to be valid, it must be accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).” Sykes v. State, 578 N.W.2d 807, 812 (Minn.App.1998) (quotation omitted), review denied (Minn. July 16, 1998). “Once a guilty plea has been entered, there is no absolute right to withdraw” that plea. Shorter v. State, 511 N.W.2d 743, 746 (Minn.1994). But Minn. R.Crim. P. 15.05, subd. 1, allows a defendant to withdraw a guilty plea upon a timely motion and showing of manifest injustice. The burden is on the defendant to demonstrate that the refusal to allow him to withdraw his plea is manifestly unjust. State v. Christopherson, 644 N.W.2d 507, 510 (Minn.App.2002), review denied (Minn. July 16, 2002). It is manifestly unjust to refuse to allow the defendant to withdraw a plea if that plea is not accurate, voluntary, or intelligent. Id.; see also Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998). A reviewing court will reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the determination was an abuse of the district court’s discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn.1998).

Appellant argues that his guilty plea was not accurate. For a guilty plea to be accurate, “[a] proper factual basis must be established.” State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994). To establish a factual basis, the court, with the assistance of counsel, elicits facts from the defendant that satisfy the elements of the offense to which the defendant is pleading guilty. Minn. R.Crim. P. 15.02(7). Typically, a factual basis is established by “askfing] the defendant to express in his own words what happened.” State v. Trott, 338 N.W.2d 248, 251 (Minn.1983). It is not necessary for a district court judge to interrogate the defendant personally prior to accepting the defendant’s guilty plea if defense counsel and the prosecutor have established an adequate factual basis. Ecker, 524 N.W.2d at 716 (citing State v. Nelson, 311 Minn. 109, 110, 250 N.W.2d 816, 817 (1976)). Other ways to establish a factual basis include testimony of witnesses or a summary of evidence. Trott, 338 N.W.2d at 251. The accuracy requirement is “to ensure that the defendant is guilty of a crime at least as serious as that to which he is entering his plea.” Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (1974); see also Lundin v. State, 430 N.W.2d 675, 679 (Minn.App.1988) (noting that we do not reverse if “the record supports the conclusion that the defendant committed an offense at least as serious as the crime to which he is pleading guilty”), review denied (Minn. Dec. 21, 1988). On review, we determine whether the district court could have concluded fairly that the defendant’s plea was accurate. State v. Warren, 419 N.W.2d 795, 798 (Minn.1988).

Appellant was charged with first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(a) (2004), which provides:

Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building.

Thus, in order to prove a violation of section 609.582, subdivision 1(a), the state must show that: (1) appellant entered a building without consent and with the intent to commit a crime and (2) the building is a dwelling and another person, who was not an accomplice, was present when appellant entered. See 10A Minnesota Practice, CRIMJIG 17.01 (2006).

At the plea hearing, appellant admitted that he reached his hand into an open window and moved the curtain with his hand for the purpose of committing a crime (i.e., interference with privacy). But appellant now argues that the factual basis for his guilty plea was inadequate because he did not admit to entering the building with the intent to commit a crime within the building. The state contends that section 609.582, subdivision 1(a), does not require the state to show that appellant intended to commit a crime within the building, and thus appellant’s intent to commit interference with privacy satisfies the independent crime aspect of the burglary statute.

The district court agreed with the state, consequently denying appellant’s postcon-viction petition and concluding that “[t]he statutory language does not support” appellant’s argument that the intended crime under the statute “must be one that would be committed ‘within the dwelling.’ ” Specifically, the district court concluded that “[w]hile most burglary cases undoubtedly involve commission or an intent to commit a crime within the building, the statute makes no such geographic requirement” and there is “no policy reason to distinguish between unconsented-to entries that facilitate crimes outside versus inside a residence.”

“Construction of a criminal statute is a question of law subject to de novo review.” State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002). “A statute must be construed according to its plain language.” Id.; see also Minn.Stat. § 645.16 (2006) (stating that “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit”). But when a statute is ambiguous, the, intent of the legislature controls. Minn.Stat. § 645.16. “A rule of strict construction applies to penal statutes, and all reasonable doubt concerning legislative intent should be resolved in favor of the defendant.” Colvin, 645 N.W.2d at 452. In addition, “[i]f construction of a statute is uncertain, a statute may not be interpreted to create criminal offenses that the legislature did not contemplate.” Id. “The rule of strict construction of criminal statutes is essential to guard against the creation of criminal offenses outside the contemplation of the legislature, under the guise of judicial construction.” State v. Soto, 378 N.W.2d 625, 628 (Minn.1985).

In support of his position, appellant relies on the Minnesota Supreme Court’s decisions in State v. Larson, 358 N.W.2d 668 (Minn.1984), and Colvin. But these cases have little relevance here.

In Larson, the supreme court held that “the state has to do more than establish an intent to commit the crime of trespass in order to obtain a burglary conviction or a conviction of possessing burglary tools.” 358 N.W.2d at 670. Rather, “[t]he intent must be to commit some independent crime after entering the building illegally.” Id. The supreme court reasoned that “[t]o allow an intent to commit a trespass to satisfy the requirement of intent to commit a crime would mean that a mere trespasser who had no intent other than to enter or remain in a building without the consent of the owner could be convicted of burglary.” Id.

Similarly, in Colvin, the supreme court held that a defendant’s violation of a no-entry provision of an order for protection was insufficient to establish the independent crime element of burglary. 645 N.W.2d at 453-54. Specifically, the supreme court reasoned that the “violation of a no-entry provision of an OFP, like trespass, is excluded from the crimes that can be the bases for the independent crime element of burglary,” as “[b]oth offenses are designed to protect the interests that are invaded by the unauthorized entry that the burglar makes” and are both “complete upon entry.” Id. at 454. Therefore, both offenses “satisfy the illegal entry element of burglary” but cannot also satisfy the “independent-crime requirement.” Id.

The district court determined that Larson and Colvin were not entirely relevant because they did “not address where the ‘independent crime’ required for burglary occurs,” and instead, “deal[t] with whether there has been an independent crime at all.” We agree. The real issue here is whether section 609.582, subdivision 1(a), requires, as an element of the offense of first-degree burglary, a showing that appellant intended to commit a crime within the building. Appellant argues that it does, while the state disagrees. Nevertheless, we construe section 609.582 as imposing a requirement that, to be convicted of first-degree burglary under the first part of the statute, a person must be shown to have intended to commit a crime within the building.

Our interpretation of the statute is initially supported by a reasonable reading of its plain language. For instance, the initial language of the statute, “[w]hoever enters a building,” suggests that the crime intended must occur within the building. In addition, our interpretation of the first phrase of the statute is consistent with the second phrase of the statute and therefore avoids conflicting interpretations. The first phrase of section 609 .582 states “[w]hoever enters a building without consent and with intent to commit a crime ... commits burglary in the first degree,” while the second phrase states “[whoever] enters a building without consent and commits a crime while in the building ... commits first-degree burglary.” But it would be inconsistent to conclude that a person who has committed a crime is guilty of first-degree burglary only if they committed the crime while within the building yet a person who intends to commit a crime can be found guilty of first-degree burglary even if they did not intend to commit the crime within the building.

Furthermore, our interpretation of the statute is supported by the common-law definition of burglary, which generally provided that a person charged with burglary must have intended to commit a crime withal the dwelling place of another. See Black’s Law Dictionary 191 (7th ed.1999) (defining “burglary” as “[t]he common-law offense of breaking and entering another’s dwelling at night with the intent to commit a felony”). LaFave confirms that at common law “[t]he intent must be to commit a felony within the dwelling house.” 3 Wayne R. LaFave, Substantive Criminal Law § 21.1(e), at 219 (2d ed.2003); see also 9A Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 52.11, at 182 (2001) (stating that “[f]irst degree burglary, a felony, is the non-consensual entry of a building by one who intends to commit or actually commits a crime in the building ” (emphasis added)).

Because we conclude that section 609.582 is most properly interpreted to require that a person must enter a building with the intent to commit a crime while in the building in order to be convicted of first-degree burglary, and because appellant did not indicate at the plea hearing that he entered the building (i.e., stuck his hand through the window) with the intent to commit a crime while in the building, but instead admitted only that he entered the building to facilitate the commission of a crime outside the building (i.e., interference with privacy), we conclude that the factual basis did not adequately support appellant’s guilty plea. Accordingly, it was an abuse of discretion for the district court to deny appellant’s postconviction petition to withdraw his guilty plea, when the plea was not accurate and the district court’s refusal therefore manifestly unjust.

DECISION

Because we conclude that in order to be convicted of first-degree burglary under Minn.Stat. § 609.582, subd. 1(a) (2004), a person must enter a building with the intent to commit a crime within the building, and because appellant did not admit to entering a building with the intent to commit a crime other than interference with privacy, a crime that occurred outside the building, it was an abuse of discretion for the district court to deny appellant’s petition to withdraw his guilty plea.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . As a preliminary matter, the state argues that "by entering a plea of guilty, rather than proceeding to either a trial or complying with the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), [appellant] waived any and all nonjurisdictional defects including challenging either the district court’s ruling regarding probable cause or the sufficiency of the evidence." Indeed, the Minnesota Supreme Court has recognized that the Lothenbach procedure may be used to preserve pretrial decisions for appellate review. State v. Busse, 644 N.W.2d 79, 88-89 (Minn.2002). But appellant does not directly challenge the district court's pretrial probable cause ruling or the sufficiency of the evidence. Instead, appellant challenges the district court’s denial of his postconviction petition to withdraw his guilty plea, arguing that it lacked an adequate factual basis. We therefore conclude that appellant did not waive his right to challenge the factual basis for his guilty plea.

      . There is no question that, under Minnesota case law, appellant's act of reaching his hand into the open window constitutes an "entry” for purposes of section 609.582. See, e.g., State v. Nelson, 363 N.W.2d 81, 83 (Minn.App.1985) (stating "[e]ntry is almost universally defined as the intrusion of any part of the offender's body into the premises,” and therefore denying claim that evidence was insufficient to show "entry” where record indicated that defendant stepped through window with one leg and placed foot on top of a desk).

      . Because we reverse on the accuracy of appellant’s guilty plea, we do not address appellant’s pro se argument that his guilty plea was also involuntarily and unintelligently made.


author: VANDE WALLE, Chief Justice. KAPSNER, Justice, CROTHERS, Justice,

text:
    2007 ND 130
    In the Matter of the ESTATE OF Margaret ALLMARAS, Deceased Anthony Allmaras, Daniel Allmaras, David Allmaras, Geri Allmaras, Russell Allmaras, Shelly Schullum, Timothy Allmaras and Todd Allmaras, Petitioners and Appellants, v. Robert E. Manly, Personal Representative of the Estate of Margaret Allmaras, and Linda Allmaras, Respondents and Appellees.
    No. 20060380.
    Supreme Court of North Dakota.
    Aug. 22, 2007.
    David R. Bliss, David R. Bliss, P.C., Bismarck, ND, for petitioners and appellants.
    Daniel J. Frisk (argued) and Don R. Grande (appeared), Don R. Grande, P.C., Fargo, ND, for respondents and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Anthony Allmaras, Daniel Allmar-as, David Allmaras, Geri Allmaras, Russell Allmaras, Shelly Schullum, Timothy All-maras, and Todd Allmaras (“the petitioners”) appealed from a district court order denying their petition for allowance of a claim in Margaret Allmaras’s estate. We conclude the record contains insufficient evidence about whether the conservator properly deposited the funds at issue into a general guardianship account. In particular, we cannot determine from the record whether the conservator appropriately considered any known estate plan of Margaret Allmaras as required by statute. Therefore, we reverse and remand for further proceedings.

I

[¶ 2] At the time of the events relevant to this dispute, Margaret Allmaras was an elderly woman in her early 80s. Although Margaret Allmaras never had any children, she had twenty-one nieces and nephews who were the children of her three brothers, Jerome Allmaras, Gerard Allmaras, and John Allmaras. Jerome Allmaras had thirteen children. Gerard Allmaras and John Allmaras had eight children between them, and these eight nieces and nephews of Margaret Allmaras are the petitioners in this case.

[¶ 3] On August 7, 2000, Margaret All-maras executed a general durable power of attorney appointing her brother, Gerard Allmaras, and her sister-in-law, Lorraine Allmaras, as her agents. Lorraine Allmar-as was the wife of Margaret’s brother John Allmaras. In the appointment document, Margaret Allmaras granted her agents “full power and authority to act on [her] behalf,” including the power to “[c]onduct any business with any banking or financial institution with respect to any of [her] accounts.” Each agent was granted the power to act independently of the other.

[¶ 4] About a month later, on September 15, 2000, Margaret Allmaras executed a will. In the will, she acknowledged the existence of nonprobate cash accounts and investments. Her will gave “all of my cash accounts, insurance proceeds or investments which are not co-owned or jointly owned, in equal shares to the children of my deceased brother, Jerome Allmaras.”

[¶ 5] In the twenty years before her death, Margaret Allmaras accumulated a large number of certificates of deposit (“CDs”) at three different banks, Western State Bank in Devils Lake, Security State Bank in New Rockford, and Bremer Bank in Carrington. On December 12, 2000, she consolidated some of these CDs into a large CD account at Bremer Bank in Car-rington. The CD was a single-party account worth $83,531.11, payable on death (“P.O.D.”) to all twenty-one of Margaret Allmaras’s nieces and nephews.

[¶ 6] Margaret Allmaras was admitted to a nursing home in early 2001. About six months later, Lorraine Allmaras began exercising her power of attorney to take funds from Margaret Allmaras’s financial accounts, including the CD account at Bremer Bank. Between about June 2001 and June 2002, Lorraine Allmaras wrongfully withdrew the entire $83,531.11 in the Bremer Bank CD account for her own use. In early 2003, Gerard Allmaras, the other attorney-in-fact, discovered this misappropriation and reported it to Robert E. Manly, Margaret Allmaras’s attorney. Later that year, in December 2003, a guardianship and conservatorship was established for Margaret Allmaras, and Guardian and Protective Services of Bismarck (“GAPS”) was named her guardian and conservator. Lorraine Allmaras was criminally prosecuted for the theft, and in October 2004 she pled guilty and was ordered to pay $105,665.33 in restitution “to the Margaret Allmaras Guardianship/Conservatorship.”

[¶ 7] On April 21, 2005, about one week prior to Margaret Allmaras’s death, Lorraine Allmaras repaid the stolen funds. GAPS received the restitution and deposited it into Margaret Allmaras’s guardianship account. GAPS did not return the money to the form it had been in before the theft, a CD account with Margaret Allmaras’s twenty-one nieces and nephews as P.O.D. beneficiaries. Margaret Allmar-as died on April 28, 2005, at the age of 84. Shortly thereafter, her will was admitted to probate, and attorney Robert Manly was appointed as personal representative of the estate.

[¶ 8] The eight petitioners filed a claim against the estate, seeking a share of the $83,531.11 which was stolen by Lorraine Allmaras. The petitioners claimed that the guardian and conservator should have returned the funds to their original form as a CD account with all twenty-one nieces and nephews named as P.O.D. beneficiaries, rather than allowing the funds to pass to only the thirteen nieces and nephews under Margaret Allmaras’s will. The personal representative denied the claim.

[¶ 9] The petitioners requested a hearing before the district court on the matter. At the hearing, Robert Manly was the only witness. Manly was Margaret Allmaras’s longtime attorney, and he drafted her power of attorney and her will. He testified that Margaret Allmaras was a very intelligent person who was in declining health by the year 2000. He stated that she was mentally competent at the time she executed her power of attorney and her will, but that she didn’t have “quite as much fire and spunk.” With regard to her estate plan, Manly explained that he only knew about Margaret Allmaras’s will and not her other jointly owned accounts. In her will, Margaret Allmaras favored the thirteen children of her brother Jerome All-maras because “[t]hey were a large family” and “[s]he felt that she should do something for them.”

[¶ 10] When he was questioned about the CD accounts, Manly testified that Margaret Allmaras never consulted him about them, but that he knew some joint accounts existed. However, he did not know how much money she had in her nonpro-bate accounts or exactly whose names were on them. Manly explained that his clients usually discuss nonprobate property with him as part of their estate plan, but that Margaret Allmaras never did. He stated, “I didn’t know what she was doing with her joint accounts, she never volunteered, I just felt it wasn’t my business to ask.” Petitioners’ counsel asked Manly whether he ever notified the criminal court or GAPS that the restitution paid by Lorraine Allmaras came from a P.O.D. account. Manly gave the following response:

A. I didn’t know, no, when it was paid. Although they knew that, I’m not sure if they would have had knowledge that the money they were getting back was, you know — They were more concerned I think with getting the money back in Margaret’s account than worrying about, you know, where it came from. There was other funds that came in that were repaid. There was 110,000, approximately, and there was about 85,000 out of this certificate, so I don’t know what they were thinking. They simply put it into Margaret’s guardianship account without taking any action on it.

There was no testimony from any representative of GAPS about the manner in which the restitution funds were handled prior to Margaret Allmaras’s death.

[¶ 11] After considering the evidence, the district court held that the personal representative properly denied the petitioners’ claim to a share in Margaret All-maras’s estate. The district court found that the CD account, along with its P.O.D. provision, was destroyed when Lorraine Allmaras withdrew the money, and that GAPS properly deposited the restitution into an account for the benefit of Margaret Allmaras. The district court stated, “The conservators and guardians, once that agency became appointed those moneys easily could have been used to care for Margaret and they would have lost — they may have even been used in total for her care had she lived longer.... ” The district court concluded that because the funds were properly held in the guardianship account, they passed under Margaret All-maras’s will to the thirteen children of her brother Jerome Allmaras.

II

[¶ 12] The district court has discretionary authority regarding the management of a protected person’s estate, and the court’s decisions on those matters will only be reversed on appeal for an abuse of discretion. Guardianship of Thomas, 2006 ND 219, ¶ 13, 723 N.W.2d 384; Conservatorship of Stensland, 526 N.W.2d 485, 486 (N.D.1995). A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. Thomas, at ¶ 7.

[¶ 13] The interpretation and application of a statute is a question of law which is fully reviewable on appeal. Estate of Gleeson, 2002 ND 211, ¶ 7, 655 N.W.2d 69. We interpret uniform laws in a uniform manner, and we may seek guidance from decisions in other states which have interpreted similar provisions in a uniform law. N.D.C.C. § 1-02-13; see, e.g., Estate of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594.

[¶ 14] Petitioners argue that they should receive a share of the $83,531.11 which Lorraine Allmaras repaid as restitution because they were P.O.D. beneficiaries on the CD account bearing those funds prior to the theft. Essentially, petitioners claim that either the conservator or the supervising court should have returned the restitution money to its pre-theft form. The respondents, Linda Allmaras and Robert Manly, contend that the conservator acted properly when it deposited the restitution into the guardianship account for the benefit and care of Margaret All-maras, and that petitioners are not entitled to a share of the money under Margaret’s will.

[¶ 15] This case involves the intersection of two major statutory schemes, the statutes governing conservatorships and the statutes governing payable-on-death accounts.

[¶ 16] Chapter 30.1-29, N.D.C.C, governs the appointment and operation of conservatorships, which are designed to protect the property of persons under disability. Chapter 30.1-29 is part of our enactment of the Uniform Probate Code. Conservatorship of Kinney, 495 N.W.2d 69, 70-71 (N.D.1993).

[¶ 17] A conservator is a fiduciary and therefore owes a high degree of good faith to the ward, the estate of the ward, and other persons interested in the estate. See N.D.C.C. § 30.1-29-17; Stensland, 526 N.W.2d at 486. In administering the protected person’s estate, the conservator has the discretion to exercise a broad range of powers. See N.D.C.C. § 30.1-29-24; Kinney, 495 N.W.2d at 71. Section 30.1-29-24, which delineates the powers of the conservator, provides in relevant part:

2. A conservator has power, without court authorization or confirmation, to invest and reinvest funds of the estate as would a trustee.
3. A conservator, acting reasonably in efforts to accomplish the purpose for which the conservator was appointed, may act without court authorization or confirmation, to:
a. Collect, hold, and retain assets of the estate including land in another state, until, in the conservator’s judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which the conservator is personally interested.
e. Invest and reinvest estate assets in accordance with subsection 2.
f. Deposit estate funds in a bank including a bank operated by the conservator.
g. Acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale, and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset.

See also Kinney, 495 N.W.2d at 71 (noting that N.D.C.C. § 30.1 — 29—08(2)(c) gives the supervising court similarly broad powers over a protected person’s estate); Kopperud v. Reilly, 453 N.W.2d 598, 600-01 (N.D.1990) (holding probate court has authority to consider action to rescind a conservator’s deed after death of the protected person because issues are incidental to court’s jurisdiction over decedent’s estate). The conservator is to expend or distribute funds “reasonably necessary for the support, education, care, or benefit of the protected person,” taking into account various factors including the size of the estate, the probable duration of the conservator-ship, and the protected person’s accustomed standard of living. N.D.C.C. § 30.1-29-25(1)(b).

[¶ 18] However, although conservators are vested with broad discretionary powers, they cannot invest and distribute assets of the estate without regard for the protected person’s estate plan. Section 30.1-29-27 provides:

In investing the estate, and in selecting assets of the estate for distribution under subsections 1 and 2 of section 30.1-29-25, in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account any known estate plan of the protected person, including the protected person’s will, any revocable trust of which the protected person is settlor, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at the protected person’s death to another or others which the protected person may have originated. The conservator may examine the will of the protected person.

Thus, a conservator has discretionary authority to manage the protected person’s property and finances, subject to the conservator’s fiduciary responsibilities and taking into account any known estate plan of the protected person. See Kinney, 495 N.W.2d at 71-72. The language of § 30.1-29-27 specifically includes P.O.D. accounts which were originated by the protected person as part of an estate plan.

[¶ 19] Chapter 30.1-31, N.D.C.C., governs nonprobate transfers on death, including P.O.D. accounts. See Estate of Leier, 524 N.W.2d 106, 107-109 (N.D.1994) (discussing generally our statutory provisions governing nonprobate transfers at death). The statutes dealing with P.O.D. accounts contain some fairly straightforward principles which are applicable in this case. Under N.D.C.C. § 30.1-31-08(3), “[a] beneficiary in an account having a P.O.D. designation has no right to sums on deposit during the lifetime of any party.” See also N.D.C.C. § 30.1-31-02(6) (defining “party” as a person who has a present right to payment from the account other than as a beneficiary or agent). The P.O.D. account funds belong to any surviving beneficiaries only upon death of the sole party or the last survivor of two or more parties. N.D.C.C. § 30.1-31-09(2)(b); see also Lexer, 524 N.W.2d at 110. “Rights at death under section 30.1-31-09 are determined by the terms of the account at the death of a party.” N.D.C.C. § 30.1-31-10(1).

[¶ 20] In Estate of Lahren, 268 Mont. 284, 886 P.2d 412, 414 (1994) (citations omitted), the Montana Supreme Court explained the effect of these uniform act provisions in the context of a certifícate of deposit account with P.O.D. beneficiaries:

A P.O.D. designation provides that the beneficiary receives an interest in the CD only at the death of the depositor. The P.O.D. certificate of deposit is akin to an insurance policy — the proceeds cannot be claimed by the beneficiary until death. At any time before the depositor’s death, the depositor can change the beneficiary or withdraw the account and use the funds. However, the P.O.D. beneficiary has no such right.

Therefore, a P.O.D. beneficiary has no present interest in the account, no right to prevent the depositor from removing the account funds and effectively destroying the beneficiary designation, and no right to preclude the depositor from changing or removing the beneficiaries on the account.

[¶ 21] Petitioners argue that under N.D.C.C. § 30.1-31-12, the conservator may withdraw funds from a nonprobate account with a P.O.D. designation only if there is a necessity for the funds and the other assets of the estate are insufficient. Section 30.1-31-12(1) provides:

If other assets of the estate are insufficient, a transfer resulting from a right of survivorship or P.O.D. designation under sections 30.1-31-02 through 30.1-31-20 is not effective against the estate of a deceased party to the extent needed to pay claims against the estate and statutory allowances to the surviving spouse and children.

In Estate of Leier, 524 N.W.2d 106, 109 (N.D.1994), we explained the purpose and effect of this statutory provision:

Relief from the nontestamentary transfers authorized by NDCC Chapter 30.1-31 is enabled by NDCC 30.1-31-12, if the assets of the estate are insufficient to pay the claims against the estate and the statutory allowances for the surviving spouse and children. According to the Editorial Board Comment, that section gives a remedy to creditors, the surviving spouse, and minor children to assure them that effective nonprobate transfers at death cannot reduce their essential protections if those transfers would have been testamentary.

Section 30.1-31-12, by its plain language, does not require a conservator to exhaust all other assets of a protected person’s estate before withdrawing the funds from a nonprobate financial account with P.O.D. beneficiaries. Petitioners’ argument regarding the operation of this statute is without merit.

[¶ 22] Applying these principles to the case at hand, the petitioners, as P.O.D. beneficiaries, had no present interest in Margaret Allmaras’s CD account when it was still intact prior to the theft. Margaret Allmaras could have withdrawn the funds at any time or removed the petitioners as beneficiaries, and the petitioners would have had no cause for complaint. However, this case is complicated by Lorraine Allmaras’s theft of the CD account funds, which destroyed the P.O.D. designation on the account without any action on the part of Margaret Allmaras. When Lorraine Allmaras repaid the money as restitution, it was paid to the Margaret Allmaras Guardianship/Conservatorship.

[¶ 23] At this point, the actions of GAPS, Margaret Allmaras’s guardian and conservator, become relevant. Under the provisions of N.D.C.C. eh. 30.1-29, the conservator had broad discretionary powers to administer Margaret Allmaras’s estate, including the power to invest or deposit the restitution funds. However, the conservator did not have completely unfettered discretion to act on her behalf. Section 30.1-29-27 provides that the conservator should take into account any known estate plan of the protected person when investing and distributing estate assets.

[¶ 24] The issue in this case is whether the conservator appropriately considered any known estate plan of Margaret All-maras. If Margaret Allmaras needed the restitution funds in order to provide for her care and support, the conservator likely acted in a proper manner when it simply deposited the funds into a general account. However, the record contains little evidence about the actions or the rationale of the conservator. Robert Manly testified that he did not know what the conservator was thinking when it deposited the restitution funds. Neither the petitioners nor the respondents called a representative of GAPS to testify about the manner in which the restitution was handled. The district court speculated that the conservator needed the money to care for Margaret Allmaras, but the record does not reveal whether the funds were actually needed for Margaret Allmaras’s care and support, whether other readily accessible funds were available, and, significantly, whether the conservator took her estate plan into account as required by statute.

[¶ 25] Although the conservator clearly had broad discretion to act on behalf of Margaret Allmaras, we cannot determine from the record the manner in which the conservator exercised its discretion in this case. We do not know whether the conservator was aware that the twenty-one nieces and nephews had been beneficiaries on a P.O.D. account and ever considered returning the assets to that form, or even whether the conservator knew it had the power to do so. Therefore, we reverse the district court’s order and remand for an evidentiary hearing to determine whether Margaret Allmaras’s conservator properly exercised its powers under N.D.C.C. ch. 30.1-29.

[¶ 26] DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

KAPSNER, Justice,

dissenting.

[¶ 27] I respectfully dissent.

[¶ 28] The petitioners appealed from a district court order denying their claim in Margaret Allmaras’s estate. I would conclude the petitioners failed to meet their burden of proof and to take the appropriate procedural steps to pursue their claim. I find no North Dakota law permitting the personal representative or district court to recreate nonprobate property when such a recreation would be contrary to an express provision in Margaret Allmaras’s valid will. Therefore, I would affirm the decision of the district court.

I.

[¶ 29] A district court has discretionary authority with regard to the management of a protected person’s estate; the decision of the district court will be reversed only if there has been an abuse of discretion. See Guardianship of Thomas, 2006 ND 219, ¶ 7, 723 N.W.2d 384 (applying the abuse of discretion standard and explaining the non-applicability of the clearly erroneous standard provided under N.D.R.Civ.P. 52(a)); Conservatorship of Kinney, 495 N.W.2d 69, 71 (N.D.1993). An abuse of discretion occurs when the district court acts in an arbitrary, unreasonable, or unconscionable manner. Kinney, at 71.

[¶ 30] The interpretation or application of a statute is a question of law and is fully reviewable on appeal. Estate of Gleeson, 2002 ND 211, ¶ 7, 655 N.W.2d 69. When interpreting uniform laws in a uniform manner, we may consider decisions from other states that have interpreted similar provisions of uniform law. Id. (quoting Estate of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594). When interpreting and applying provisions in the Uniform Probate Code (“Code”), we may look to the Code’s Editorial Board Comments. Gleeson, 2002 ND 211, at ¶ 7, 655 N.W.2d 69 (citing Zimmerman, at ¶ 14).

[¶ 31] The petitioners argue they should receive a share of the $83,531.11, which was once in the form of a CD account in which the petitioners were all P.O.D. beneficiaries. But for the theft committed by Lorraine Allmaras, the petitioners claim they would have received shares of the CD account funds, rather than the funds passing to only thirteen of the twenty-one original P.O.D. beneficiaries under the residuary clause in Margaret Allmaras’s will. In essence, the petitioners argue the supervising court or, perhaps the conservator, who is not a named party in this case, should have converted the restitution money back into CD accounts, bearing the names of all twenty-one original P.O.D. beneficiaries. The respondents, Linda Allmaras and Robert Manly, contend the conservator properly deposited the restitution money for the benefit and care of Margaret Allmaras. The respondents further argue the restitution money passed properly under the residuary clause in Margaret Allmaras’s will to only thirteen, rather than twenty-one, of her nieces and nephews because the CD account naming all twenty-one nieces and nephews no longer existed at the time of Margaret Allmaras’s death.

[¶ 32] This case presents two major issues: (1) whether the petitioners met their burden of proof and took the necessary procedural steps to obtain relief from the district court; and (2) whether North Dakota law permits an estate’s personal representative or court to recreate non-probate property on behalf of a deceased person and to distribute that property contrary to an express provision in the testator’s will.

A. Failure of Proof

[¶33] The petitioners allege GAPS’s failure to restore the restitution funds to their pre-theft CD account form, naming all twenty-one nieces and nephews as P.O.D. beneficiaries, thwarts Margaret All-maras’s true donative intent. Section 30.1-29-27, N.D.C.C, speaks, in part, to the petitioners’ claim:

[I]n selecting assets of the estate for distribution ... the conservator and the court should take into account any known estate plan of the protected person, including the protected person’s will, ... and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at the protected person’s death to another or others which the protected person may have originated. The conservator may examine the will of the protected person.

N.D.C.C. § 30.1-29-27 (emphasis added).

[¶ 34] Assuming N.D.C.C. § 30.1-29-27 carries with it a requirement, and not a discretionary power, that a conservator consider any known estate plan of a protected person, the petitioners have the burden to prove that GAPS knew of the CD account and its beneficiaries. Contra N.D.C.C. § 30.1-29-27 & cmt. (citing Conservatorship of Kinney, 495 N.W.2d 69, 72 (N.D.1993) (explaining a court’s or conservator’s consideration of the known estate plan of the protected person is “permissible,” rather than mandatory, under N.D.C.C. § 30.1-29-27)). The petitioners have the burden of proving GAPS, in its broad discretion to act for the benefit of Margaret Allmaras, violated its fiduciary duties when it failed to recreate the CD account. Finally, the petitioners also have the burden to prove the CD account was indeed part of the estate plan at the time the conservator received the funds.

[¶ 35] Section 30.1-29-17, N.D.C.C., provides that a conservator’s exercise of power and its fiduciary relationship shall be governed by the same standard of care as a trustee. N.D.C.C. § 30.1-29-17. A trustee, and therefore a conservator, is held to a prudent person standard. N.D.C.C. § 30.1-34-02 & cmt. (citing Estate of Cook, 20 Del.Ch. 123, 171 A. 730, 731 (1934)). The prudent conservator is one who exercises care in a manner consistent with that of the ordinarily prudent person who feels “morally bound” to act for the benefit of the protected person and the estate’s beneficiaries. E.g., Cook, 171 A. at 731. A conservator acts under a duty to exercise the same level of skill and care as a person of ordinary prudence who deals with his or her own property. Id. A conservator also has a duty to act in good faith. E.g., N.D.C.C. § 30.1-29-17; Matter of Adams Trust, 1997 ND 19, ¶ 11, 559 N.W.2d 221. A conservator meets his fiduciary duties when he acts in good faith and with prudent care, caution, and diligence in light of the contemporaneous circumstances, and not in light of subsequent events. E.g., Cook, 171 A. at 730-31.

[¶ 36] Reviewing the evidence submitted by the petitioners at the hearing under the above standards, it is clear the petitioners failed to establish a violation of those standards and the district court properly denied the claim. The petitioners’ sole witness was Robert Manly, Margaret Allmaras’s attorney and the personal representative of her estate. Manly testified to Margaret Allmaras’s capacity in creating her will and power of attorney, her preferences regarding heirs and prospective beneficiaries, and, to a far more limited extent, the creation and existence of other nonprobate accounts.

[¶ 37] Manly testified Margaret All-maras was mentally competent at the time she executed both her will and the general durable powers of attorney for Gerard and Lorraine Allmaras. Manly testified he knew Margaret Allmaras had nonprobate accounts, but she never volunteered to divulge any details of those accounts and he never pursued the topic. Manly explained that while he did not have knowledge of particular details regarding the nonpro-bate accounts at the time Margaret All-maras drafted her will, she did acknowledge the existence of nonprobate accounts and directed that her will give “all of my cash accounts, insurance proceeds or investments which are not eo-owned or jointly owned, in equal shares to the children of my deceased brother, Jerome Allmaras.” Manly explained Margaret Allmaras tended to favor the thirteen children of her brother Jerome Allmaras in her bequests and, at least in her will, did not attempt to equalize the amount of inheritance between all twenty-one nieces and nephews.

[¶ 38] Manly could not testify as to the knowledge, if any, GAPS had regarding the nature or origin of the restitution money it received. When petitioners’ counsel specifically asked Manly whether he had ever notified GAPS that the restitution money had once been held in the form of a CD account, Manly responded

A. I don’t know, no, when it was paid. Although they knew that, I’m not sure if they would have had knowledge that the money they were getting back was, you know — They were more concerned I think with getting the money back in Margaret’s account than worrying about, you know, where it came from. There was other funds that came in that were repaid. There was [$]110,000, approximately, and there was about [$]85,000 out of this certificate, so I don’t know what they were thinking. They simply put it into Margaret’s guardianship account without taking any action on it.

[¶ 39] Robert Manly’s testimony does not demonstrate GAPS had any knowledge that the restitution money was once in the form of a CD account, nor does his testimony shed light on GAPS’s knowledge, or lack thereof, as to the original twenty-one P.O.D. beneficiaries on that account.

[¶ 40] Petitioners did not call a witness representing GAPS to testify regarding whether GAPS had any knowledge of the named beneficiaries on the P.O.D. account from which the funds had been stolen. Petitioners were not able to establish whether GAPS ever spoke with or made attempts to speak with Margaret Allmaras about her wishes regarding the recovered funds. In relying only on the testimony of Robert Manly, the petitioners did not show GAPS failed to consider “any known estate plan” of Margaret Allmaras under N.D.C.C. § 30.1-29-27, because they did not put forth any evidence that GAPS had any knowledge of the CD account or its intended P.O.D. beneficiaries.

[¶ 41] To determine whether a conservator has met his fiduciary duties, his actions are considered in light of the contemporaneous circumstances, and not in light of subsequent events. Cook, 171 A. at 731. A conservator .also has broad discretion with regard to the management of estate assets in his capacity as a fiduciary. See N.D.C.C. § 30.1-29-24 (providing that a conservator has numerous powers with regard to the maintenance, collection, acquisition, disposal, and distribution of a protected person’s estate funds); N.D.C.C. § 30.1-29-25 (providing, among other powers, the authority to expend and distribute for the support and needs of the protected parties, so long as the conservator gives “due regard” to certain balancing factors). Section 30.1-29-25, N.D.C.C, allows a conservator to consider items such as a protected person’s medical needs, support, and standard of living when the conservator expends, or chooses not to expend, estate assets. See Kinney, 495 N.W.2d at 71-72 (applying N.D.C.C. § 30.1-29-25 and upholding a district court’s decision to sell real property for the support and needs of the protected person, despite the fact that the sale would preclude the protected person’s son from purchasing or inheriting the property).

[¶ 42] There was no evidence presented by petitioners at the hearing to show GAPS acted in an unreasonable or impermissible manner when it did not recreate the CD account. Again, the testimony of Robert Manly did not provide any facts regarding what GAPS considered when it made its decision how to deposit the money for the benefit of Margaret Aimaras. Manly testified, “I don’t know what they were thinking,” when asked about GAPS’s actions on the restitution funds. GAPS was never called as a witness and therefore could not testify to its decision-making process, such as balancing the needs for support of Margaret Aimaras against the size of the estate. For these reasons, the petitioners failed to prove that GAPS violated any duties it may have owed to them as once-prospective beneficiaries because they proffered no evidence of the reasoning underlying GAPS’s placement of the restitution funds. The failure to procure and question GAPS at the hearing led to a complete failure of proof with respect to the allegation that GAPS acted improperly as a fiduciary to Margaret Aimaras.

[¶ 43] Finally, because of the requirement that the conservator’s actions are not judged in hindsight, it is worth noting that GAPS would have had a period of only one week to recreate the CD account, if it had knowledge of the CD account and the P.O.D. beneficiaries. The restitution funds were paid to GAPS on April 21, 2005, and Margaret Allmaras died on April 28, 2005. The CD account had been nonexistent for a period of almost three years when GAPS received the restitution funds.

[¶ 44] The CD account funds had been exhausted since June 2002. GAPS was not appointed as a conservator and guardian until 2003. Petitioners did not present any evidence that Margaret Allmaras attempted to recreate the funds or to amend her will between the time the funds were stolen and the appointment of GAPS. No evidence presented demonstrates it was Margaret Allmaras’s continued donative intent to allot the CD account funds to the petitioners in direct contradiction with her valid will during this period of competency. Nor was evidence presented demonstrating GAPS had knowledge of such a continued donative intent during the seven-day period between the receipt of the cash funds and Margaret Allmaras’s death.

[¶ 45] The short period between receipt of the restitution and Margaret All-maras’s death would have given GAPS very little time to establish the original form of the funds, the P.O.D. beneficiaries, and to weigh and balance the needs of Margaret Allmaras against other factors. Because the petitioners did not provide evidence of other contemporaneous circumstances that would have allowed GAPS to recreate the funds, they fail in their burden of proof here as well. Therefore, when the district court denied the petitioners’ claim to shares in the restitution money, it did not abuse its discretion.

B. Failure in Procedure

[¶ 46] In addition to the petitioners’ failure to prove, there is a procedural issue that plagues the petitioners’ claim; the petitioners allege the conservator improperly failed to convert the restitution funds to their pre-theft CD account form, but the petitioners did not join the conservator, GAPS, in their claim. Instead, the petitioners named only Robert Manly and Linda Allmaras, although they complain of the action or inaction on the part of GAPS.

[II47] Chapter 30.1-18, N.D.C.C., governs the duties and powers of personal representatives. Section 30.1-18-03(1), N.D.C.C, discusses the general duties governing personal representatives. The relevant portion of this statute reads:

A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the tei°ms of any probated and effective will and this title, and as expeditiously and efficiently as is consistent with the best interests of the estate.

N.D.C.C. § 30.1-18-03(1) (emphasis added). Section 30.1-18-15, N.D.C.C., which outlines specific transactions a personal representative may engage in, does not allow a personal representative to convert probate property into nonprobate property for the purposes of changing the distribution of the residuary estate. Rather, the personal representative is required to collect, inventory, settle, and distribute the property in accordance with the decedent’s will, unless a statute provides an exception.

[¶ 48] Robert Manly was the wrong party to sue under petitioners’ theory of their cause of action. He received probate property, in the form of a cash account, from GAPS. He had an effective will from Margaret Allmaras, which unambiguously gave “all of [her] cash accounts, insurance proceeds or investments which are not co-owned or jointly owned, in equal shares to the children of [her] deceased brother, Jerome Allmaras.” Manly had no statutory authority to convert the funds when such an act would have been in direct contradiction to Margaret Allmaras’s will.

[¶ 49] Under petitioners’ alleged claim, the conservator, GAPS, is the party against whom suit should have been brought. In Conservatorship of Kinney, James Kinney, the son of protected person Almira Kinney, appealed a county court order permitting the protected person’s conservator to sell her automobile, homestead, and other personal property. 495 N.W.2d at 69. This Court noted that the conservator, First National Bank, had the power to sell Almira Kinney’s real property without court approval, but First National Bank sought the court order under N.D.C.C. § 30.1-29-16(2), requesting instructions regarding its fiduciary responsibilities. Id. at 71. After the county court allowed the sale, James Kinney appealed, arguing the county court erred in granting First National Bank’s request. Id. at 69-70. This Court upheld the decision of the county court. Id. at 69, 72. Similarly, in Conservatorship of Stensland, the personal representatives of an estate sued a conservator, alleging the conservator violated her affirmative statutory fiduciary duty to account. 526 N.W.2d 485, 486-87 (N.D. 1995).

[¶ 50] In Kinney, the petitioner relied upon the same “any known estate” language under N.D.C.C. § 30.1-29-27 as the petitioners urge in this case. Kinney, 495 N.W.2d at 72. The statute expressly explains that the “conservator and the court” are the parties who may consider all components of an estate plan, including P.O.D. accounts, before expending estate assets; the statute does not apply to personal representatives. N.D.C.C. § 30.1-29-27. In Stensland, the plaintiffs sued the conservator because the conservator failed to comply with the affirmative statutory duty to account. Stensland, 526 N.W.2d at 486-87.

[¶ 51] In Kopperud v. Reilly, an estate’s personal representative sued the decedent’s conservator, alleging breach of fiduciary duty and requesting rescission of a contract for deed, after the conservator sold a portion of the estate to her son well below fair market value. 453 N.W.2d 598, 599 (N.D.1990). The conservator was properly sued in this case because it was the conservator who sold land in a transaction where she had a conflict of interest and where the land was assigned intended beneficiaries under a protected person’s will. Id. at 600 & n. 3. The Kopperud holding provides that a personal representative has the statutory power to sue to recover land that had been wrongfully removed from a probatable estate and that a court may affirm such an action. Id. at 600-01. Kopperud does not, however, stand for the proposition that it is within a personal representative’s statutory powers to convert probate property into nonpro-bate property in direct contraction to a decedent’s valid will, nor does the case give a court such powers. Id. Kopperud does not present the issues of agency discussed below. In Kopperud, there was also an express statutory provision allowing the court to void any sale, encumbrance, or transaction involving the conservator who engages in the transaction when he has a conflict of interest. Id. at 600 n. 3 (citing N.D.C.C. § 30.1-29-22). Finally, Kopperud is distinguishable from the instant case because the personal representative plaintiff, unlike the petitioners, was suing the conservator to enforce the provisions of a valid will, rather than to defeat them. Id. at 602.

[¶ 52] Unlike the petitioners in Stens-land, the petitioners in the present case do not point to an affirmative statutory duty breached by the personal representative, the party against whom the suit is brought. The petitioners allege the conservator erred when it did not recreate the CD accounts, but they did not join the conservator in the suit, unlike the petitioners in Kinney. Finally, the petitioners are suing in an attempt to circumvent an express provision in Margaret Allmaras’s valid will, rather than to enforce a will, unlike the plaintiff in Kopperud. Therefore, in addition to the failure of proof regarding the conservator’s conduct, the petitioners failed to name the conservator, the party against whom the claim could have been enforced, if they had proven their case. For these reasons, the district court did not abuse its discretion when it denied the petitioners’ claim.

II.

[¶ 53] The next issue is whether the restitution money GAPS received could be considered part of Margaret Allmaras’s larger “estate plan” under N.D.C.C. § 30.1-29-27. While the statute does recognize P.O.D. accounts as possible components of an estate plan, the circumstances in this case, combined with the rules on P.O.D. accounts and powers of attorney, lead to the conclusion that Lorraine All-maras’s theft completely destroyed the CD account and any potential right to the P.O.D. beneficiaries’ shares. Lorraine All-maras had depleted the balance of the CD account by June 2002. GAPS was appointed as Margaret Allmaras’s guardian and conservator in 2003. There is no evidence Margaret Allmaras made any attempt to alter her valid will created September 15, 2000, at any point after the theft and before the guardian was appointed. As a result, the restitution money was properly repaid in cash form into the guardianship of Margaret Allmaras and those funds passed properly under her will. There is no statutory provision allowing a court or personal representative to pass portions of a decedent’s estate in plain contradiction to an express provision of the decedent’s will.

[¶ 54] A general durable power of attorney is a written legal instrument, which creates an agency relationship in which the agent has the authority to do anything the principal could do, unless the principal specifically limits the acts of the agent or attorney-in-fact. N.D.C.C. ch. 30.1-30; Estate of Littlejohn, 2005 ND 113, ¶¶ 7-9, 698 N.W.2d 923 (finding that even where a general durable power of attorney did not specifically or expressly provide the authority to convey land, the attorney-in-fact did have the authority to make such a conveyance because the wording of the power of attorney was broad and without limitation). Attorneys-in-fact owe their principals fiduciary duties such as loyalty, confidentiality, and good faith. E.g., Allard v. Johnson, 2006 ND 243, ¶ 6, 724 N.W.2d 331.

[¶ 55] There is also a distinction between the validity of an agent’s act (i.e., whether the agent had the power to do the act) and the propriety of the agent’s act (i.e., whether the agent acted in good faith or in accordance with fiduciary duties). See, e.g., Wabner v. Black, 7 S.W.3d 379, 381 (Ky.1999) (explaining there was no question whether the defendant had the “full power” to redesignate the ownership of her uncle’s accounts, even to herself, through a general durable power of attorney; rather, the question was whether the redesignation was “attended by the utmost good faith” and propriety). Thus, an act could be completely valid and binding upon third parties, but the act could, at the same time, be wrongful, and the attorney-in-fact would be liable to the principal for any damages caused. E.g., Gay & Taylor, Inc. v. Am. Cas. Co., 53 Tenn.App. 120, 381 S.W.2d 304, 305-06 (1963) (citations omitted) (“It is universally recognized that an agent stands in a fiduciary relationship to his principal ... and [ ] for a failure [ ] to act [in accordance with fiduciary duties] he subjects himself to liability to his principal”).

[¶ 56] Margaret Allmaras gave Lorraine Allmaras a general durable power of attorney. The power of attorney did not have limiting language. The power of attorney gave Lorraine Allmaras the authority to do any act that Margaret Allmaras could have done herself — including the withdrawal of money from the CD account. While Lorraine Allmaras certainly acted wrongfully, even criminally, when she withdrew funds from the CD accounts, her acts were valid because she held a general durable power of attorney for Margaret Allmaras.

[¶ 57] In addition to the general agency principle allowing agents to act on behalf of and bind their principals, section 30.1-31-17, N.D.C.C., explicitly provides the rule for agents and P.O.D. account withdrawals:

A financial institution, on request of an agent under an agency designation for an account, may pay to the agent sums on deposit in the account, whether or not a party is disabled, incapacitated, or deceased when the request is made or received, and whether or not the authority of the agent terminates on the disability or incapacity of a party.

Lorraine Allmaras was an “agent” under N.D.C.C. 30.1-31-02 because she was a “person authorized to make account transactions for a party” under the general durable power of attorney she was given by Margaret Allmaras, which authorized her to “[c]onduct any business with any banking or financial institution with respect to any of [Margaret Allmaras’s] accounts, including but not limited to, making deposits and withdrawals.... ”

[¶ 58] Therefore, Lorraine Allmaras validly, but wrongfully, withdrew funds from the CD account at issue between June 2001 and June 2002, completely exhausting the balance in the CD account. Lorraine Allmaras’s actions bound the third-party potential beneficiaries, and she was liable as an agent to Margaret Allmar-as. Lorraine Allmaras’s liability to Margaret Allmaras was satisfied when she paid the restitution.

[¶ 59] Chapter 30.1-31, N.D.C.C., controls nonprobate transfers on death, including P.O.D. accounts. See Estate of Leier, 524 N.W.2d 106, 107-09 (N.D.1994) (providing a general discussion of the Uniform Probate Code’s treatment of nonpro-bate assets as adopted in North Dakota). A P.O.D. account beneficiary has no interest in or right to the funds in the account until the death of the depositor. See N.D.C.C. §§ 30.1-31-08(3) (“A beneficiary in an account having a P.O.D. designation has no right to sums on deposit during the lifetime of any party.”); 30.1-31-02(6) (defining a “party” as a person who has the right to the account funds upon request, but who is not a beneficiary or agent). The depositor may, at any time before his death, change the beneficiary or withdraw the funds from the account. Estate of Lahren, 268 Mont. 284, 886 P.2d 412, 414 (1994) (explaining the Uniform Probate Code provisions on P.O.D. accounts).

[¶ 60] Since a P.O.D. beneficiary has no present interest in the account, the depositor could name new beneficiaries or withdraw all account funds, which effectively destroys the original beneficiary designation and the once-existing beneficiary has no recourse or power to stop the depositor. Under the rules of agency, the depositor’s authorized agent, including her attorney-in-fact, could withdraw all funds from the P.O.D. account, effectively destroying the P.O.D. designation. In this instance, the attorney-in-fact would be liable to the principal for any loss incurred, but because the beneficiaries had no present interest, they are without recourse against Margaret All-maras or her estate.

[¶ 61] Because Lorraine Allmaras was Margaret Allmaras’s attorney-in-fact, when she exhausted the account funds between June 2001 and June 2002, she, like a depositor, destroyed the P.O.D. beneficiaries. After the CD account was depleted, Margaret Allmaras’s conservatorship received the restitution money and Margaret died, these cash funds could only pass under the terms of her will, which spoke specifically to various types of cash accounts.

[¶ 62] Petitioners claim that passing the funds at issue under the residuary clause in Margaret Allmaras’s will violates N.D.C.C. §§ 30.1-31-09(2) and 30.1-31-10(2). Based on the above rules regarding P.O.D. accounts and agency, it is clear petitioners’ reliance on N.D.C.C. §§ 30.1-31-09(2) and 30.1-31-10(2) is misplaced; for these statutes to be applicable, there must be an existing P.O.D. account at the time of the depositor’s death. See, e.g., Estate of Peterson, 1997 ND 48, ¶ 11, 561 N.W.2d 618 (distributing existing P.O.D. accounts in accordance with the beneficiaries named on the accounts, rather than distributing the P.O.D. accounts in accordance with a decedent’s will, which provided a different distribution scheme). Section 30.1-31-09(2), N.D.C.C., requires payment of sums on deposit to surviving P.O.D. beneficiaries on the death of the depositor. Section 30.1-31-10(2), N.D.C.C., provides that a will may not alter a P.O.D. designation on an account existing at the time of the depositor’s death. Because the CD account ceased to exist in June 2002 and Margaret Allmaras did not die until April 2005, N.D.C.C. §§ 30.1-31-09(2) and 30.1-31-10(2) are not applicable to facts in this case.

[¶ 63] “[U]nder the [Uniform Probate Code’s] statutory scheme, a court and a conservator are not empowered to effectively defeat a protected person’s estate plan and intentions set forth in a valid will.... ” Conservatorship of Sickles, 518 N.W.2d 673, 679 (N.D.1994) (discussing the prohibition against conservator or court created revocable trusts that would alter the way property passes under valid will); see also N.D.C.C. § 30.1-29-08(2) (giving numerous powers and great discretion to a court managing a protected person’s estate, but expressly stating courts may not make a protected person’s will). If the court had recreated the P.O.D. funds at the behest of the petitioners, it would have defeated the residuary clause in Margaret Allmaras’s will.

[¶ 64] At the time the petition was filed, Margaret Allmaras had died and the P.O.D. accounts had been nonexistent for almost three years. The petitioners presented no evidence that Margaret Allmar-as was incompetent and could not have recreated the CD accounts between June 2002, the time at which the CD account was completely exhausted, and 2003, when GAPS was appointed as guardian and conservator, if she had so desired. During the intervening period between the theft of the funds and the appointment of GAPS, Margaret Allmaras did not change her will to accommodate all twenty-one original P.O.D. beneficiaries. There was no evidence presented to suggest that Margaret Allmaras was incompetent when she drafted and executed her will in September 2000, which spoke to the distribution of her residuary estate. Therefore, the will establishes her donative intent and was the controlling instrument for the distribution of her estate. See Estate of Thomas, 290 N.W.2d 223, 224-26 (N.D.1980) (affirming a district court order to probate a will and codicil even though the testatrix executed the will at a time when some of the property in the will was no longer part of the estate; the decedent’s attorney testified that at the time the will was executed the testatrix was competent and “knew what the value of her property was, where her property was, and where she wanted it to go”); Boone v. Nelson, 264 N.W.2d 881, 888 (N.D.1978) (affirming a summary judgment dismissal of plaintiffs’ will contest and explaining that a will is valid and controlling when, at the time the document was executed, the testatrix knew the nature of her act, the nature and situation of her property, and her relation to parties that may have claims on her estate).

[¶ 65] There is no provision under title 30.1, N.D.C.C., that permits a court or personal representative to recreate P.O.D. accounts after the death of a protected person, when doing so would result in a distribution of an estate that is contrary to that person’s valid will.

[¶ 66] Therefore, I would affirm the order of the district court.

[¶ 67] CAROL RONNING KAPSNER, J.

CROTHERS, Justice,

dissenting.

[¶ 68] I respectfully dissent for the reason stated in Part I A of Justice Kapsner’s dissent.

[¶ 69] DANIEL J. CROTHERS, J.