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 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!
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.
I represent a lot of people who are put under guardianship and one of the things that I always talk about with them is that a guardianship does NOT always last forever. This is particularly true in the case of young adults, who are put under guardianship when they turn 18 because of disabilities like ADHD, Oppositional Defiant Disorder or Anxiety Disorder.* With any individual, but particularly with “children” when they turn 18, they simply need more time, more transitional schooling, more life experience, before they are able to function in society without a guardian.
How is a guardianship ended in Minnesota? By convincing the Court that a person is no longer in need of the assistance or protection of a guardian. The court will have a hearing to determine whether a guardianship should be terminated. At the hearing, evidence is presented to show that the individual is now able to make and communicate his/her own responsible decisions regarding medical care, shelter, nutrition, clothing and safety. Although statute doesn’t technically require it, it is usually very helpful to have a Physician’s Statement that there is no longer a continuing need for a guardian. Once a prima facie case is established that a guardian is no longer needed, if no one comes forward objecting to the termination and showing that in fact guardianship is still needed, then the Court must terminate the guardianship. The statute that governs termination of guardianships is Minn. Stat. 524.5-317. During this process the Ward (person under guardianship) is entitled to have an attorney represent him/her.
* (This list is meant to be illustrative, not exhaustive).
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.