One of the requirements of becoming a guardian or conservator in Minnesota is that you must view a guardianship video that is produced by the 4th Judicial District. It is required viewing in all judicial districts in Minnesota. The video is about 30 minutes long and gives an overview of guardianship, conservatorship and your responsibilities as guardian and conservator. Prior to being appointed, you will be required to sign an Acceptance and Oath, in which you confirm and swear that you viewed the guardianship video. The Minnesota guardianship video can be found here.
A respondent in a guardianship or conservatorship action in Minnesota has the right to have a private attorney, rather than court appointed counsel. The attorney can be hired by the respondent (if the respondent isn’t under emergency guardianship, then he/she still retains the right to contract) or provided by family members.
Minn. Stat. 524.5-304 provides the details about the respondent’s right to counsel in guardianship actions in Minnesota. It provides, in pertinent part:
(b) A proposed ward has the right to be represented by counsel at any proceeding under this article. The court shall appoint counsel to represent the proposed ward for the initial proceeding held pursuant to section 524.5-307 if neither the proposed ward nor others provide counsel unless in a meeting with a visitor the proposed ward makes an informed decision in writing to specifically waive the right to counsel.
The statute also makes it clear that if the respondent retains private counsel, the court may then remove court-appointed counsel. It provides:
. . . the court may remove a court-appointed attorney at any time if the court finds that the proposed ward has made a knowing and intelligent waiver of the right to counsel or has obtained private counsel.
I think there is a mistaken belief that court-appointed attorneys are not “as good” as privately hired attorneys. While this may be true in isolated cases, it’s my belief that in most cases court appointed attorneys are highly qualified and vigorously represent their clients. Still, if the respondent or family want private counsel, the respondent is entitled to it under the statute.
In order for the Court to have jurisdiction over an individual for guardianship proceedings, the individual must be served with a copy of the Petition for Guardianship. See Minn. Stat. 524.5-308. This is typically served on the individual by the Court Visitor, who meets with the individual and reads (or summarizes) the petition to him/her and then reports back to the court on the status of the individual and whether he or she appears to be in need of a guardian. There are instances where a Court Visitor does not or cannot meet with the individual prior to the guardianship hearing (for a variety of reasons, including: oversight by the Court in failing to appoint a visitor, the individual refusing to meet with the visitor, the individual being out of town or it being unsafe for the visitor to meet the person, to name just a few). If the Court Visitor is unable to meet with the individual and personally serve him/her with a copy of the petition, then it’s up to the petitioner to make sure that the respondent is personally served with a copy of the petition (and that an affidavit of service is then filed with the court).
A guardian has a duty and responsibility to report to the Court annually (on the anniversary of the guardianship – which coincides with the issue date of the Letters of Guardianship) on the condition and well being of the person under guardianship. Minn. Stat. 524.5-316 addresses the contents of the annual personal well being report. It is a pretty basic report, meant to summarize for the Court both the current condition of the person under guardianship, as well as what has transpired with that person over the last year. The guardian discloses the condition of the ward (mentally, physically and socially), the living situation, whether any restrictions have been placed on the person’s right to communicate/visit with people of his/her choosing, an opinion on the adequacy of care the person has received, whether continued guardianship is necessary and whether the guardian has been reimbursed for any services to the ward (that were not reimbursed by county contract). The guardian needs to take the completion of this report seriously and get it filed with the Court and served on the person under guardianship and interested persons, within 60 days of the anniversary date. If it isn’t filed on time, the Court will call the guardian back in to court to explain why it hasn’t been filed.
I came across this FABULOUS interactive table about Minnesota’s aging population created by the folks at Face Aging MN. Very interesting to play around with it and see the expected growth/aging by county. When I look at it, it highlights the need for us to put in place more services for our aging residents, as well as for those who provide care for our residents. Kudos to Face Aging MN for this valuable resource!
Being appointed as Guardian for someone who is incapacitated – even if it is your child who you have raised his entire life – comes with significant new responsibilities. I’ve put together my “Top 5 Tips for Guardians in Minnesota” based on questions that my clients have asked me and/or things that I have observed in my 20+ years of practicing guardianship law in Minnesota.
- Always be mindful of the rights that the person under guardianship retains. They include things like: the right to personal privacy; the right to treatment with dignity and respect; the right to have their preferences regarding medical treatment and religion given due consideration; and the right to communication with persons of their choosing. They are set forth in Minn. Stat. 5245.-120, the Bill of Rights for Wards and Protected Persons
- Don’t forget to timely serve and file with the Court the annual Personal Well Being Report and Annual Notice of Right to Petition for Termination or Modification of Guardianship. This is an easy thing to do each year, but so many Guardians fail to do it, which results in the Guardian being called back in to Court to explain why the Guardian failed to do it. Courts can – and do – issue a warrant for the Guardian’s arrest if the Guardian fails to file the annual report and fails to show up in Court to explain why they didn’t timely file the report. The form report is available on the Minnesota State Court Website.
- Listen to the person under guardianship when he talks about his situation and needs. It can be frustrating to not have your life be in your own control. If a Guardian takes the time to sit down and really listen to what the person under guardianship is saying, it can go a long way in showing that the Guardian cares and is trying to be responsive and make the best decision for the situation.
- Communicate with the person under guardianship. Keep the person under guardianship informed about the actions that you are taking and the decisions that you are making on his behalf. Being kept in the dark can be scary for the person under guardianship. Remember that he is an adult and deserves to be treated with dignity and respect. Part of that is keeping him apprised of the things that you are doing for him.
- Remember that one of your responsibilities as Guardian is to assist the person under guardianship with having as much independence and freedom as possible. This will be different for each situation. For some it may mean giving the person under guardianship unlimited phone and computer, but still requiring supervision for outings in the community. For others it may be allowing them to be unsupervised in the community. Whatever the situation, be mindful of creating as much freedom and independence as is possible, while keeping the person safe.
If you have specific questions about your duties and responsibilities as Guardian in Minnesota, please feel free to reach out to me.
Was your child a named beneficiary on the life insurance policy of a loved one? If so, you are now probably hearing from the life insurance company that you have to establish a “minor guardianship” or “minor conservatorship” before they can release the proceeds to you. Parents are often frustrated and surprised by this – since they assumed that because they are the parents of the minor, they should just get the money and be able to hold it and use it for their child and then hand it over to the child when he/she becomes an adult. Unfortunately, that isn’t how it works. Minnesota law requires that a minor conservatorship be established (life insurance companies will often, incorrectly, refer to it as a minor guardianship).
What is involved in establishing a minor conservatorship for life insurance proceeds or an inheritance in Minnesota? The proposed conservator (usually parents of the minor) must petition the court to be appointed. The petition sets forth the details of the situation. An attorney is sometimes appointed for the minor child. The court holds a hearing on the petition. A background study may be necessary for the proposed conservator. Depending on the situation, the court may restrict the funds, meaning the conservator cannot spend them absent a court order. Sometimes the courts allow the conservator to spend the funds for the care and well-being of the child while he/she is a minor. In all cases, there are annual reporting requirements by the conservator, so that the court can monitor the account. Each minor conservatorship situation is different and most people find it helpful to have an attorney assist them with the process.
I frequently get calls from persons under guardianship, or their family members, who are concerned because the current guardian is not doing things that they are supposed to (or is doing things that they are not supposed to). If the actions of the guardian are serious enough to put the person under guardianship in jeopardy, the Court can appoint a Temporary Substitute Guardian under Minn. Stat. 524.5-312. The Court could appoint a temporary successor guardian of its own volition, or an interested person could bring a petition asking the court to do it after a hearing. It depends on the particular circumstances of the case and how urgently a new temporary guardian is needed. If you have questions about your particular case, you should seek the advice of counsel.
I am frequently asked if guardianship court hearings are public proceedings. The short answer is “Yes”. However, there is a statutory provision that allows the Court to close the proceeding (make the hearing closed to the public) in limited circumstances.
Minn. Stat. 524.5-307 provides that “the hearing . . . may be closed at the request of the respondent and a showing of good cause.”
So who can make the request to close the hearing? The request must be made by, or on behalf of, the respondent (the person for whom guardianship is sought). If the respondent isn’t in a position to ask that the hearing be closed, his attorney or an interested party speaking on his behalf should make the request to the court.
What are some things that might be “good cause” to close the hearing?
- Particularly sensitive or embarrassing information that will come out during the course of the hearing. It’s probably NOT sufficient to say that medical information will be discussed, because that happens in virtually every guardianship proceeding. But if there is medical information that is extremely sensitive, it may be enough to constitute “good cause”.
- Behaviors of the respondent that are triggered/exasperated by a crowd. Sometimes a respondent has a diagnoses that causes behaviors or extreme anxiety around crowds or strangers. In cases like these, the Court may close the hearing, so that the respondent isn’t extremely agitated during the hearing.
- Being a minor. Since other proceedings involving minors are closed (juvenile court, CHIPS proceedings), the Court often times will close minor guardianship or conservatorship hearings.
- Other situations that are extremely sensitive, embarassing or that would be detrimental to the respondent’s health, safety and well-being if open/public hearing was to proceed.
I’ve been loving Nora McInerny’s podcast, Terrible Thanks For Asking. I especially loved her most recent episode about “Baby Huey” – a 9 year old boy with Fragile X. The episode talks about the challenges of raising Huey. But it also addresses the challenges of parenting Huey. Give it a listen. And, like Nora, I challenge each and every one of you to smile at, talk to and INCLUDE disabled children and their families. Good stuff. Here’s the link to the Baby Huey episode.