FAQ Friday: Does a person under guardianship in Minnesota retain any rights?

faq brownFAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota.  If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website).

FAQ:  Does a person under guardianship in Minnesota retain any rights?

Yes.  The rights that a person under guardianship or conservatorship in Minnesota retains are set forth in Minnesota Statute 524.5-120, which is known as “The Bill of Rights For Wards and Protected Persons”. 

Unless restricted by Court Order, those rights include the right to:

  1. treatment with dignity and respect;
  2. due consideration of current and previously stated personal desires, medical treatment preferences, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;
  3. receive timely and appropriate health care and medical treatment that does not violate known conscientious, religious, or moral beliefs of the ward or protected person;
  4. exercise control of all aspects of life not delegated specifically by court order to the guardian or conservator;
  5. guardianship or conservatorship services individually suited to the ward or protected person’s conditions and needs;
  6. petition the court to prevent or initiate a change in abode;
  7. care, comfort, social and recreational needs, training, education, habilitation, and rehabilitation care and services, within available resources;
  8. be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the ward or protected person’s clothing, furniture, vehicles, and other personal effects, to object to the disposition of personal property and effects, and to petition the court for a review of the guardian’s or conservator’s proposed disposition;
  9. personal privacy;
  10. communication and visitation with persons of the ward or protected person’s choice, provided that if the guardian has found that certain communication or visitation may result in harm to the ward’s health, safety, or well-being, that communication or visitation may be restricted but only to the extent necessary to prevent the harm;
  11. marry and procreate, unless court approval is required, and to consent or object to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
  12. petition the court for termination or modification of the guardianship or conservatorship or for other appropriate relief;
  13. be represented by an attorney in any proceeding or for the purpose of petitioning the court; and
  14. vote, unless restricted by the court.

FAQ Friday: How long does it take to establish a guardianship in Minnesota?

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FAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota.  If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website).

FAQ:  How long does it take to get guardianship over someone in Minnesota?

The answer is that it depends.  It depends on what county the case is in (typically where the individual resides).  It depends on whether the matter will be contested or uncontested.  It depends on whether you are filing for an emergency or general guardianship. It depends on the court’s calendar (when a judge is available to hear the case).

In general, if the matter is uncontested and it is a general guardianship (as opposed to an emergency), it takes between 4 – 6 weeks.  (But, again, it depends on the county and the court’s calendar).

If the matter is contested it can take many months before the guardianship is established.

If it’s an emergency, the matter is typically decided (or at least set for hearing) within a week of filing the guardianship petition.

Because there are so many variables, you should consult with an attorney about the specific facts of your situation.

 

 

FAQ Friday: How does a guardian dispose of personal property?

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FAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota.  If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website).

FAQ: I’ve been appointed as guardian, so I know I’m in charge of my mom’s clothing, furniture, vehicles and other personal effects.  How do I go about disposing of them or selling them?

In Minnesota, a guardian is responsible for a ward’s clothing, furniture, vehicles and other personal effects.  A conservator, if one is appointed, would be responsible for all other property. Minnesota Statute 524.5-313(c)(3) sets forth your duties regarding the ward’s clothing, furniture, vehicles and other personal effects.  Essentially, you must do as follows:

  • Fill out a Notice of Intent to Dispose of Clothing, Furniture, Vehicles or Other Personal Effects.  The form can be found on the Minnesota Court Website. Fill it out as completely as possible with details regarding what you intend to dispose of and how you intend to do that (i.e.  private sale, donate it to Goodwill, post it on Craigslist, etc).
  • Mail the notice on the Ward (the person for whom you are Guardian) and Interested Persons (defined by Minn. Stat. 524.5-102)
  • File the Notice and an Affidavit of Service with the Court.
  • Wait 10 days.  If you have not received an objection, you can proceed with your planned distribution of the personal property.  If you have received an objection, or one has been filed with the court, you need to wait until you receive an order from the court telling you what to do with the property (a hearing will be scheduled and held).

If you have questions on this process, speak with a qualified guardianship attorney.

FAQ Friday: Are There Any Resources That Provide An Overview of Guardianships and Conservatorships in Minnesota?

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FAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota.  If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website).

FAQ: I’m thinking of becoming guardian and conservator for my aging mother.  Are there any informational resources that give me an overview of the duties and responsibilities of being a guardian or conservator in Minnesota?

Yes!  The Minnesota Judicial Branch has produced a series of educational video segments on what it means to be a guardian and conservator in Minnesota.  Potential guardians and conservators are required to watch these videos in certain judicial districts in Minnesota (2nd, 4th, 6th and 7th Districts) and to note on their Acceptance of Appointment that they have watched the videos.

The topics of the video segments are as follows:

  1. Introduction to Guardianships and Conservatorships
  2. What Guardianship Is and Is Not
  3. Less Restrictive Alternatives To Guardianship and Conservatorship
  4. Duties and Responsibilities of a Guardian
  5. Duties and Responsibilities of a Conservator
  6. Annual Reporting Requirements and Oversight by the Court
  7. Common Issues and Problems

The videos are short, but filled with great information on what it means to take on the responsibility of being a guardian or conservator in Minnesota.

FAQ: Personal Well Being Reports in Minnesota Guardianships

faqGuardians in Minnesota are required to file a “Personal Well Being Report” annually, pursuant to Minn. Stat. 524.5-316.  Why is this required?  What is involved?  How is this done? Who gets the report? Answers to these questions and more!

FAQ on Personal Well Being Reports:

There are co-guardians.  Do each of us need to sign the report?  YES.  Each guardian needs to sign the completed personal well being report.

Nothing has changed.  Do I still need to complete the report?  YES.  Even if nothing substantive has changed, you are required to fill out a new report each year.

The ward is mentally impaired and won’t be able to understand the report.  Do I still need to serve her with a copy?  YES.  Even though it seems futile to do so in some cases of extreme impairment, you must serve the Ward and file an affidavit of service.

What do I need to put in the Personal Well Being Report?  It doesn’t need to be super detailed.  Just answer the questions about the ward’s living situation, medical condition, any restrictions imposed, etc.  The idea behind the report is to give the Court and Interested Persons a summary of what has happened in the past year, so that if there are any changes or areas of concern, the Court and Interested Parties are aware and could act, if necessary.

Once the Personal Well Being Report is completed, what do I do with it?  Serve it on the Ward and Interested Persons (as defined in Minn. Stat. 524.5-102) and file the original with the Court (along with an Affidavit of Service).

 

Your Minor Child Inherited Some Money. Now What?

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What happens when a minor child receives an inheritance?  Can life insurance proceeds just be given to a minor child’s parent for safekeeping, or is court action necessary? What if a minor is a payable on death beneficiary of an account?

I am frequently contacted by parents with questions such as these.  My answer is usually “it depends”.  Typically, it depends on the amount of money the minor child is expected to receive.

If it $5,000.00 or less, then a parent or guardian of the child can typically just receive the payment directly and manage it on behalf of the child.  The details can be found in Minn. Stat. 524.5-104.  Note that the person receiving the money must use it for the care, support, education and health of the minor.

If it is more than $5,000.00, typically a “conservator” must be appointed for the minor.  This involves going to court.  It is usually a routine matter, but it is important that the court rules regarding the petition, notice to interested persons and background checks be followed.  Depending on the county that you are filing your papers in, the process can take as long as 8 weeks.  Many people find it beneficial to have a lawyer involved in the process.  If you do not have a lawyer, you will still be expected to follow all of the rules of court that the lawyers need to follow.

 

Managing Someone Else’s Money Under a POA

POAOne of the ways to avoid having a guardianship imposed is to have an effectively working “lesser restrictive alternative” in place.   A power of attorney is an example of a lesser restrictive alternative.  Although, it is important to note, that the power of attorney does NOT automatically mean that a guardianship will be avoided.  It can be misused or not used at all.  It can be revoked.

If there is a power of attorney in place, it is important that the person acting under the authority given by it, follow some basic rules/guidelines.  The  Consumer Financial Protection Bureau has released a guide called “Managing Someone Else’s Money: Help For Agents Under a Power of Attorney”.  It is a great resource.  It sets forth, in very basic, understandable language, what a power of attorney is, what a person’s duties are under the power of attorney, how to recognize financial exploitation, and contact information for varioius agencies that deal with exploitation.

The 4 basic duties of an agent acting under a power of attorney for a principal (the person granting the power):

  1. Act only in the Principal’s best interest.
  2. Manage the Principal’s money carefully
  3. Keep the Principal’s money and property separate from your own
  4. Keep good records

Check out this great resource for more details!

Tschumy: Guardian Can Consent to Remove Life Support

court opinionThe Minnesota Supreme Court issued it’s long awaited opinion in the Tschumy case today, affirming the Court of Appeals decision that the power of a guardian to consent to necessary medical treatment for a ward under Minn. Stat. 524.5-313(c) (4)(i), inclues the power to consent to the removal of a ward from life support, without a separate court order/proceeding, if all interested parties agree that removal is in the ward’s best interest.

The Tschumy decision can be found here.

The decision, issued by Chief Justice Gildea, is 35 pages long.  Justice Anderson wrote a 9 page dissent.  Justice Stras wrote a 28 page dissent, which was joined in by Justice Page.

I will provide more in depth analysis of this important decision after I have the opportunity to read the opinion.

Changes at Spence Legal Services

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Photo Credit:  Thomas J. Spence Images

“Sometimes in the winds of change, we find our true direction.” – Anonymous

When I started to share with clients, friends and colleagues the news about my move from Buffalo to Minnetonka, I was met with numerous questions:  I thought you loved Buffalo, why are you leaving?  Will you still practice law in Wright County?  Why Minnetonka? Will you continue to do contested guardianships and conservatorships throughout the State of Minnesota?

Here is a little bit more insight into why I decided to move the physical office of Spence Legal Services to Minnetonka.  If anyone has further questions, please feel free to give me a call or shoot me an email.

Why I Moved to Minnetonka (and Why I Still Love Buffalo!)

I originally started practicing law in Buffalo because I obtained a judicial clerkship with the Honorable Bruce Douglas in Buffalo.  I enjoyed working in Buffalo so applied for an opening as an associate with a local firm and have remained in Buffalo ever since.  I love Buffalo and Wright County.  I plan to continue to remain active in Buffalo and Wright County.  I will still be a member of the Rotary Club of Buffalo and attend their weekly meetings, as well as mentor a high school student through the Rotary STRIVE program.  I have made arrangements with a couple of local businesses to use conference room space and will schedule appointments with clients in Buffalo by request.

I decided to move Spence Legal Services’ office to Minnetonka because it will allow me to focus my practice on conservatorship and guardianship work, and to expand the reach of my guardianship practice to  serve clients throughout the metro area (as well as continue to represent individuals in Wright County and greater Minnesota).

New Office to Better Serve Clients

The location of the office – in the Carlson Towers in Minnetonka – is central and convenient for most individuals in the West and North metro areas, as well as many of the people that I serve in the outlying communities, who work in the metro area.  In addition, I will be able to better serve my clients because my office has meeting locations throughout the Twin Cities metro, allowing me to meet with clients at locations and times that are convenient for them.  I will continue to have appointments available in Buffalo, upon request, for those clients who are not able to meet in my Minnetonka office.  I will also have meeting rooms available in the following cities, to serve clients throughout the entire metro area:  Bloomington, Eagan, Eden Prairie, Lake Elmo, Maple Grove, Minneapolis, Roseville, St. Louis Park, St. Paul.

The office itself will allow me to serve clients better because I have access to more complete services, including staffing and conference facilities.

As always, I will continue to take on cases, particularly contested guardianship litigation, throughout the state of Minnesota, as most of my clients are able to meet and provide the requested information electronically and, when in person meetings are necessary, I charge a reduced hourly rate for travel time.

Some pictures of my new office space.

Some pictures of my new office space.

Greater Focus on Guardianship and Conservatorship Law

With this move to the new Minnetonka location, my intent is to focus more on guardianship and conservatorship law.   Although I currently do some family law (dissolutions), my hope is that within the next couple of years 100% of my practice will be doing guardianship and conservatorship work.

I am passionate about helping individuals and families in this area.  I became interested in this area as a result of a contested guardianship case that I had when I was only a few years out of law school.  I represented a man who was trying to obtain guardianship and conservatorship for his 90+ year old father, who was being financially and emotionally exploited by his 50-something “care giver”.  I successfully obtained a guardianship and conservatorship and the Attorney General’s office, which had been monitoring the status of my case, then prosecuted the “care giver” for financial exploitation of a vulnerable adult.  It felt good to have helped the elderly gentleman, as well as his family, by having a role in removing someone who was financially exploiting this man.  Since that case, my passion for this area of law – and helping individuals and families in need – has grown.

Since then I have represented individuals in guardianship and conservatorship cases, contested and uncontested, throughout the state of Minnesota.  Given the location of my office in Buffalo, my practice in this area has been limited to some extent.  With the move of Spence Legal Services to Minnetonka, and the opportunity to meet clients through the entire metro area, I believe that I will be in a better position to help families throughout the metro.  I will also continue to participate in contested guardianship litigation throughout Minnesota (I offer reduced hourly fee for travel time).

Guardianship proceedings often start out fairly routine and then become contested. For attorneys who find themselves involved in guardianship proceedings that have become contested, I offer consulting and/or contract attorney services, which allows local counsel to continue to represent their client, with my assistance at whatever level they, or their clients, desire.

Thank You

A big “Thank You” to my clients, friends and colleagues who have supported my work in this area over the years.  As always, I appreciate your confidence in my legal abilities and appreciate the opportunity to represent and educate people about guardianships and conservatorships and the rights of incapacitated individuals.

Guardianship and Conservatorship Video (Minnesota)

elderlyIf you are petitioning to be a guardian or a conservator in Hennepin County, you must watch this series of videos about the responsibilities of being a guardian or conservator in Minnesota.  It’s good viewing for individuals considering being a guardian or conservator in any county in Minnesota.  I have all of my clients watch it and many of them are surprised by the duties and responsibilities that come with being fiduciary for an incapacitated person.

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