Emergency or General Guardianship in Minnesota?

With all the budget cut-backs and increased caseloads that the Courts are facing, it may be awhile until your petition for a guardianship can be head. If your situation is extreme, you may be able to apply for the appointment of an emergency guardian. The procedures for an emergency guardian are set forth in Minnesota Statue 524.5-311. Each county does things a bit differently. For example, in Hennepin County emergency guardianships are rarely granted. In some other counties, including Wright County and Sherburne County, emergency guardianships are granted in the appropriate situation. Essentially, the Courts look at the emergency petition and decide whether the proposed ward will be substantially harmed before the court can have a full hearing on the guardianship petition. I have had emergency petitions granted when elderly individuals clearly suffering from advanced dementia are endangering themselves in their homes (cooking food and leaving the burners on all night or wandering outside of their home in sub-zero temperatures without appropriate winter clothing on, etc.). There is no hard and fast rule for whether a court will grant emergency petitions. It is very case specific – depending on the specific facts of the case and how long until the general petition will be heard. If you are contemplating bringing an emergency guardianship, consult with an attorney to have your specific case evaluated.

Statutory Authority:

Emergency: Guardianships: 524.5-311; Conservatorships/protective arrangements: 524.5-406(f) and 524.5-412

General: 524.5-301 et. seq. (guardianships); 524.5-401 et. seq. (conservatorships)

How long from time of filing petition until order?

Emergency: Can be the same day; often times within a couple of days

General
: Minimum 15 days, but typically 4 – 6 weeks.

Is notice to respondent and a hearing necessary before Order issued?


Emergency Guardianships
: Appointment without notice and preliminary hearing if Court finds from affidavit or other sworn testimony that respondent will be substantially harmed before a hearing on the appointment can be held. If granted, notice of the appointment must be given to respondent within 48 hours and the Court must hold a hearing within 5 days.
Conservatorship/protective proceeding: must have preliminary hearing, but do not need to give notice to others. See Minn. Stat. 524.5-406(f)

General:
Yes, a hearing is held after at least 14 days notice given to proposed ward (via service by Court Visitor, who files Visitor’s Report) and interested persons.

How long does Order last?


Emergency
:
60 days

Guardianship:
Indefinitely

Special filing requirements?

Emergency: A petition for a general guardianship must either be filed at the same time as emergency petition or it must indicate in petition that it will soon be filed; For an emergency conservatorship, a petition for general conservatorship must be filed at the same time.

Standard/Burden of Proof?

Emergency:
Court must find that compliance with the procedures of for a general petition “will likely result in substantial harm to the respondent’s health, safety or welfare, and that no other person appears to have authority and willingness to act in the circumstances. See Minn. Stat. 524.5-311

General:
Clear and convincing evidence that respondent is incapacitated and that respondent’s needs can’t be met by less restrictive means. See Minn. Stat. 524.5-310

Order appealable?

Emergency:
No

General: Yes

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