Potential clients often ask me what is involved in establishing a guardianship or conservatorship. This post should provide a general guideline of what is involved in establishing a guardianship or conservatorship. As always, you should consult with a lawyer about the specifics of your particular situation.
Documents that are filed before the hearing:
● Petition (this is all that needs to be filed to get a hearing date)
● Notice of Hearing
● Physician’s Statement (not technically required, but usually done)
● Acceptance and Oath (signed by proposed guardian/conservator)
● Informational Statement (new requirement in 2010)
● Proposed Letters of Guardianship/Conservatorship
● Proposed Order
● Visitor’s Report (filed by Court Visitor)
● Affidavit of Service of Notice of Hearing (giving at least 14 days notice of hearing to Interested Persons, as defined by statute)
Court Visitor and Court Appointed Attorney For Respondent:
● When a Petition is filed, the Court Administrator provides a copy of it to a Court Visitor who, at least 14 days before the hearing, meets with the Respondent and serves Respondent by reading him/her a copy of the Petition.
● The Court Visitor must also complete a Visitor’s Report and file it with the Court.
● The Visitor’s Report will indicate whether Respondent is requesting an attorney.
● Court must appoint an attorney, if requested by Respondent and if Respondent isn’t hiring private counsel. Respondent’s attorney has the right and duty to consult with his/her client and have adequate time to prepare for hearing. This may necessitate continuing the hearing if the attorney was only appointed a day or two before the hearing (which often happens). Attorney must disclose any conflicts to Court (involvement with the proposed guardian).
Respondent must be present at the hearing unless a Physician has signed a statement saying that Respondent cannot physically appear and/or unless the Court orders that Respondent not appear (which must be for good cause).
● Testimony should still be taken, since it is a proceeding which ultimately takes away fundamental liberties of the ward/protected person.
● Typically Petitioner will be sworn and questioned by Petitioner’s attorney to prove up the Petition.
● Court also considers physician’s statement, Visitor’s Report and any other documents Petitioner may offer.
● Respondent’s attorney will let the Court know Respondent’s position.
● Court typically issues order at the conclusion of the hearing.
● Rules of Civil Procedure and Evidence apply.
● Attorneys for other Interested Persons must ask the Court for permission to participate in the hearing. (See Minn. Stat. 524.5-408(b) and 524.5-307(b))
● Parties can conduct discovery, take depositions, bring motions (for adverse exam, to compel disclosure of medical records, etc.).
● At hearing, testimony is taken from Petition, other individuals who know and have observed Respondent, medical personnel (or perhaps just medical records), the Court Visitor, and anyone else counsel feel have information important for the Court to consider.
● Court typically takes matter under advisement. If necessary, Court could issue interim “protective order” if Court feels protection of the Respondent is necessary before Court’s Order on the guardianship/conservatorship itself will be issued.
● Court sets bond for conservator based on amount of assets.
● Guardian/Conservator must have DHS background study done before appointment, unless a limited exception applies. See Minn. Stat. 524.5-118
● Bill of Rights for Wards and Protected Persons: see Minn. Stat. 524.5-120