Guardianship proceedings often deal with very personal issues – sensitive medical topics; behaviors by an elderly or disabled loved one that are often-times out of norm and somewhat embarrassing; sensitive financial information; and family in-fighting. Nonetheless, guardianship hearings in Minnesota are public proceedings, which means that members of the public can sit in on the court proceedings and read the court filings. So is there anything that can be done to preserve the privacy of the individuals involved in these sensitive hearings? Yes. If documents/court filings contain sensitive medical (or other) information, they can be filed as “confidential” through the e-filing system, which will make that particular document not accessible by the public. The hearing itself may only be closed in very limited circumstances and at the request of the attorney for the Respondent (the person over whom you are trying to seek guardianship). Minn. Stat. 524.5-408 addresses this issue. It states, in pertinent part, ” . . . the hearing may be closed upon the request of the respondent and a showing of good cause.”
It wasn’t so long ago that my daughter Meghan was turning 18 and I wrote the blog post “#Legal”. Fast forward 21 months and here I am again with a child, this time my son, turning 18. In a less than 3 month time span, Carter will: graduate from high school, turn 18 and start college in a different state. (Yes, I’m emotional and tearing up when I think about all of this and when I’m writing this).
When Carter turns 18 he is a legal adult in Minnesota. This means he can make his own health care decisions. He can vote. He can enter into contracts. He can get married. He can enter the military. The mom in me is proud (even if a bit weepy), that my son has grown into a young man who is headed in a good direction.
But the mom in me is also sad and scared that my parenting role is done (though I know it will never be over) and that my son won’t necessarily be able to handle all of these adult things yet, on his own. (He DID just call me from school today to tell me his tooth hurts and see if I can schedule a dentist appointment. Would he know how to do this on his own? Would he even do this on his own? It’s so hard for moms to let go of taking care of their babies – even if they are 18).
The lawyer in me knows what I need to do in order to make sure that I still have a role in his life, in terms of medical decision making and financial/transacational things. I want to able to help him with medical decision making and appointments, if he needs/wants me to. I want to be able to help out with his accounts and financial transactions, if he needs me to (which is NOT the same as him needing me to send him pizza money on a Friday night at college!). So how do I ensure that I can do this? Have him sign a Health Care Directive and Power of Attorney. These are two documents in Minnesota that an adult signs that names someone else to make medical decisions/access medical information (for the Health Care Directive) and make financial decisions/access financial records – among other things – (for the Power of Attorney). Every adult should have these two documents in place – not just “kids” turning 18.
So, just as I did for Meghan when she turned 18, wrapped up with Carter’s birthday presents next month will be a Power of Attorney and a Health Care Directive from me. I hope he will fill them out and give me the legal authority to help him, if he needs it. If he chooses to fill it out, it’s really him who will be giving me a gift on his 18th birthday – the gift of peace of mind, knowing that I’ll be able to legally help him if he needs it.
The Minnesota Judicial Branch recently released an awesome new interactive dashboard using Tableau software, which allows the user to track case data for the years 2012 – 2016. The source for the underlying information is the Annual Reports of the Judicial Branch (2012-2016). The user can sort by major case type, judicial district, county and dates. The Minnesota Judicial Branch interactive data dashboard can be found here.
It provides some interesting insight into guardianship and conservatorship case filings, in terms of numbers and in terms of the counties and judicial districts that are seeing more (or less) guardianship filings. With the coming “silver tsunami”, I anticipate that the number of annula guardianship and conservatorship filings will increase. Although, this could be tempered a bit with the push toward person-centered alternatives to guardianship.
The number of guardianship/conservatorship cases filed in Minnesota for 2012 – 2016 was 13,570, broken down as follows:
- 2012: 2,718
- 2013: 2,704
- 2014: 2,620
- 2015: 2,797
- 2016: 2,731
The number of guardianship/conservatorship cases filed in Hennepin County for 2012 – 2016 was 2,664, broken down as follows:
- 2012: 550
- 2013: 590
- 2014: 525
- 2015: 503
- 2016: 496
The number of guardianship/conservatorship cases filed in Ramsey County for 2012 – 2016 was 1,041, broken down as follows:
- 2012: 220
- 2013: 203
- 2014: 196
- 2015: 228
- 2016: 194
The number of guardianship/conservatorship cases filed in Dakota County for 2012 – 2016 was 1,078, broken down as follows:
- 2012: 192
- 2013: 208
- 2014: 246
- 2015: 214
- 2016: 218
This is great information to have. Let’s hope the Minnesota Judicial Branch continues to keep this dashboard currrent.
What do you do if your elderly parent needs help making decisions?
- Determine what level of help that they need. This is often easier said than done. You should look at their physical, mental and emotional health and try to determine whether they are still in a position to make their own decisions. Sometimes the elderly can still come to their own decision about their medical care, where they live, etc., but they simply need help implementing their decisions. Sometimes the elderly have become so cognitively impaired, or are so vulnerable, that they can no longer even make their own decision, let alone implement it. Most times, the elderly lie somewhere in between these two extremes. Figuring out what level of help they need often requires the input of the elderly person’s physician. Sometimes you can tell what level of assistance is needed just based upon your own interactions with mom or dad.
- If mom or dad can still make their own decisions, but just need help implementing their decisions, you should take them to an estate planning attorney who can meet with them and get legal documents or other things in place that will allow someone else to help them implement their decisions. These things range from joint accounts to a health care directive to a power of attorney. The estate planning attorney could even put them in touch with resources to help them develop a care plan for if their health takes a turn for the worse.
- If mom or dad can no longer make their own decisions to keep themselves safe, then you should determine whether they have in place legal documents that allow someone else to make decisions for them. These documents are a health care directive (for medical decisions) and a power of attorney (for financial decisions). Depending on the details of the documents and the particular circumstances that mom or dad face, these might be sufficient to allow someone else to act on mom or dad’s behalf.
- If mom or dad can no longer make their own decisions to keep themselves safe and they do not have any legal documents or other measures in place, then you likely need to pursue the appointment of a guardian and/or conservator for mom or dad. Most people find that they need the assistance of an attorney to do this.
If you have questions about how you can help your elderly parents with decision-making, please contact Cindi Spence of Spence Legal Services at (763) 682-2247.
What happens when a child that is under the age of 18 inherits money, either through an estate or directly as a named beneficiary on a life insurance policy or account? Typically, the minor is required to have a conservator appointed to accept and manage the inheritance. Parents of the minor are usually surprised to learn that this is necessary and that they can’t just receive and manage the money on the minor’s behalf, since they are the parents. The process of having a conservator appointed for a minor who is named to receive an inheritance is usually uncontested. However, because of the procedural requirements that must be followed in order to have a conservator appointed, many people find it necessary and useful to have an attorney represent them. If you choose not to have an attorney, the Court will still hold you to all of the Court rules and require that the statutes be followed. Time and again I have seen well meaning parents attempt the paperwork on their own, only to have the process delayed because they didn’t follow all of the Court rules to establish a conservatorship for their minor child. If you have questions about the process to establish a minor conservatorship, please reach out to Cindi Spence at Spence Legal Services (763) 682-2247.
“Help! My Minnesota Conservator is confusing!”
I hear this often from callers to Spence Legal.
MyMNConservator is Minnesota’s online conservatorship accounting program that allows (requires) conservators to file their inventory and annual accountings, which are required, electronically. While the MyMNConservator system has received national recognition, it is not free from complaints.
For the family (non-professional) conservator, MyMNConservator (“MMC”) is confusing. Heck, even for professional conservators (conservators for several non-family member clients), MyMNConservator can be challenging. I think part of what makes it so challenging is that each conservatorship is unique – in terms of assets, income and expenses. The categories offered by MMC don’t always cover the situation. Gathering and entering the appropriate data can be a challenge, particularly during the first year of the conservatorship, when the conservator is just getting used to the assets and expenses of the protected person. Many family conservators are “old school” themselves and do not have the knowledge or sophistication to use an online accounting program, even when there are tutorials, guides and a help line available. I often see family conservators in court explaining to the judge that they don’t even own a computer (really!) and they just want to file their accounting with pencil and paper. Unfortunately, Courts only grant requests to file conservatorship accountings on paper in extraordinary circumstances.
Spence Legal assists conservators with MyMNConservator (and its’ predecessor – CAMPER). If you need help with MyMNConservator, whether it’s creating an account, naming a designated agent, preparing an Inventory, entering accounting data or completing an annual or final account, please feel free to reach out to Cindi Spence at Spence Legal Services, (763) 682-2247.
The Minnesota Department of Human Services’ website has a very cool new tool that provides demographic and service data for regional, statewide and county levels.
The profiles include the following demographic and service data points. Each point is a separate tab on the dashboard:
- AGE – total population by age
- DIVERSITY – total population by race and ethnicity
- LIVING ALONE – persons age 65+ living alone
- POVERTY – persons age 65+ in poverty
- DEPENDENCY – old-age dependency ratio
- CAREGIVER – family caregiver ratio
- SPENDING – long-term services and supports expenditures
- HIGHER NEEDS – persons served with higher needs
- UTILIZATION – nursing home bed utilization
Here’s the link to the Minnesota Department of Human Services Aging Data Profiles dashboard.
If you are applying to be guardian or conservator for someone in Minnesota, you will need to complete a background study. You need to complete this particular study, even if you already have background checks done for a job or school or some other purpose. The statute that addresses the Minnesota guardianship background study is Minn. Stat. 524.5-118.
There are limited exceptions, for individuals who will not need a background study. Primarily this includes parents who have lived with a developmentally delayed child since birth, when they are applying to be guardian for the 18th birthday.
The best resource for questions on what the background study entails is the Minnesota Department of Human Services website regarding guardian and conservator background studies.
Clients often ask me if it’s feasible for two people to be guardian for a loved one. My answer, “It’s feasible. Whether it’s a good idea or not depends on your situation.”
What does it depend on?
- Whether the two proposed guardians can work together. To be co-guardians you have to be able to communicate with one another AND be able to work together to arrive at decisions that are in the best interest of the person under guardianship.
- The availability of both proposed guardians. Many times clients will tell me that they want to add a sibling or an adult child who is swamped with life right now and has no time to be guardian now, but they want the person on “just in case” the primary guardian dies. In this situation, I recommend to the clients that the person with limited time not be guardian now. If you are co-guardians now, you are both equally responsible for acting on the person under guardianship’s behalf. You can’t just rely on a “primary” guardian and be on stand-by if something happens to that person.
- Whether each proposed guardian can pass the background check. Minnesota law requires guardians to pass a background check initially, and then again every two years.
If it makes sense for your particular situation, given the foregoing, you certainly could consider asking the court to appoint co-guardians.
Spence Legal Services has moved to a new location in Minnetonka.
Our new mailing address is:
12800 Whitewater Drive, Suite 100
Minnetonka, Minnesota 55343
Our phone number and email addresses remain the same:
Cindi continues to provide representation to individuals and families throughout Minnesota in the area of guardianships and conservatorships. If you or your loved one need information on establishing a guardianship or conservatorship for a vulnerable adult, a “child” turning 18 or a minor who is the recipient of an inheritance or settlement, please reach out to Cindi to discuss your situation.