Attorney for Person Under Guardianship in Minnesota

5 tips
Does a person under guardianship have the right to an attorney?

Yes! A person under guardianship in Minnesota has the right to an attorney in any court proceeding and for the purpose of petitioning the court.   This right is set forth in the Bill of Rights of Ward and Protected Person, Minn. Stat. 524.5-120.  In most counties, an attorney will be appointed from the outset for a Respondent, once a petition for guardianship has been filed.  A respondent does have a right to hire his/her own private attorney (or one can be hired for him/her by the family). Once you are appointed as guardian, it’s your responsibility to make sure the ward or protected person has an attorney, if he or she wants one (or you think it’s necessary).  If there are sufficient funds, a guardian can hire an attorney privately.  If there are not sufficient funds (the ward is IFP -in forma pauperis), the court will appoint an attorney to represent the ward and the fees will be paid for by the county.  Each county has different policies on how much an attorney for the ward is reimbursed.

Do I Need an Attorney in a Guardianship or Conservatorship Action in Minnesota?

One of the most frequently asked questions that I receive at my law office, Spence Legal Services, is:  “Do I need an attorney to get guardianship of my ________ (parent, son, daughter, spouse, etc.)?”  The answer is “It depends”.  On what?

  • Whether the person over whom you are trying to obtain guardianship “the Respondent”) is in agreement that a guardianship is necessary.  If he/she is contesting the action, you likely need an attorney.
  • Whether one of the other “Interested Persons” (i.e. a sibling, a child, a spouse) will be contesting the need for a guardianship or who the appropriate person to be guardian or conservator should be.  If someone is contesting it, you likely need an attorney.
  • Whether the Respondent has significant personal property or real estate.  If so, you will likely want an attorney because once you are appointed conservator, there are very specific procedures that must be followed in order to dispose of the assets.
  • How much time you have to spend on the paperwork.  While many of the forms that are necessary for initiating a guardianship are available on line, there are very specific notice requirements that must be followed and forms that must be filed in order for the guardianship to be considered by the court.  If you proceed without an attorney, you are still required to follow the rules of court.  If you fail to file the correct forms, or give the correct notice, there will be delays and you may not get the guardianship.  For this reason, many people choose to hire an experienced guardianship attorney.
To discuss whether you need an attorney to represent you in guardianship proceedings, please call Cindi Spence an experienced Minnesota Guardianship and Conservatorship Attorney,  at Spence Legal Services (763) 682-2247 for a free consultation.

The Order and Letters, a Guardian and Conservator’s Authorization to Act:

What documents give the Guardian and/or Conservator of an individual the power to act?

  • The Order Appointing Guardian and/or Conservator
  • The Letters of Guardianship and/or Conservatorship (often referred to as “the Letters”)

The Order is the document where the Court makes specific Findings about the factual basis for the need for a guardianship or conservatorship.  It is the Order that sets forth the specific powers and authority that the Guardian and/or Conservator has with regard to the ward or protected person.  Typically the Court will “check” certain boxes on the Order, indicating which statutory provisions the Guardian or Conservator has authority under.  In cases where a full guardianship is necessary, the Court will check the box indicating that all the powers under Minnesota Statute are necessary, and will then also explain why a limited guardianship is not appropriate.  A form Order Appointing Guardian and Conservator can be found on the Minnesota Judicial Branch website.  For further guidance on the full scope of each statutory power that is checked by the Court, one would look to the statute itself, as well as case law interpreting the statute.  If help is needed understanding the full scope of a Guardian or Conservator’s powers, you should consult with an experienced guardianship and conservatorship attorney.

The Letters are the document which provide “proof” that the Guardian and/or Conservator has the authority to act.  A form Letters of Guardianship and Conservatorship can be found on the Minnesota Judicial Branch website.

After being appointed, the Guardian or Conservator obtains certified copies of the Order Appointing and of the Letters.  In combination, these are the documents which give the Guardian/Conservator the ability to act on behalf of the ward/protected person.  The Guardian or Conservator will need to present these documents to individuals or entities that the Guardian interacts with on behalf of the ward (for example, nursing homes, medical providers, banks, etc.).

Appointing a Successor Guardian in Minnesota

What happens if the guardian or conservator wants to, or needs to, resign?  Or if the ward or some other interested person believes that the guardian or conservator should be replaced with someone different?  Can the guardian just quit?  Can a new guardian just take over?  Does the Court need to approve the new guardian?

These scenarios are frequently encountered, particularly when the guardianship is in place for many years.  Things change.  Guardians often age or become ill themselves and are not able to continue with the responsibility and duties of being someone’s guardian.  Wards or interested persons sometimes think that the current guardian should be replaced.  If something changes and a guardian is no longer able to fulfill his/her duties, a petition must be filed with the court in order to terminate that guardian’s duties and appoint a different (successor) guardian.  If the ward or an interested person wants the guardian removed, a petition must also be filed.  

The statute that governs the process is Minnesota Statute 524.5-112, Termination or Change in Guardian or Conservator’s Appointment.  The process itself is similar to the initial hearing to establish the guardianship, in that a petition is filed, a hearing is scheduled, notice (14 days) of the hearing must be given to all Interested Persons, and testimony must be taken at the hearing.  However, it is not necessary for the Petitioner to re-establish that a guardianship is necessary.  Instead, the Petitioner just testifies as to the particular circumstances justifying the change in the guardian.  Any other witnesses and evidence may be offered.  The Court then considers any objections of interested persons or information offered by others attending the hearing.  The Court must determine what is in the best interest of the ward or protected person.  The ward/protected person is also entitled to have an attorney represent him or her at this hearing, just like in the initial hearing.  The new (successor) guardian that is appointed must do the same things that the initial guardian was required to do before Letters of Guardianship are issued (file an Acceptance and Oath; have a DHS background study conducted).  Unless the Court modifies the powers that were contained in the original order appointing guardian or conservator, the successor guardian would have the same powers that the original guardian/conservator had.

If you have questions concerning successor guardians, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.

Top 10 Things To Consider When Hiring An Attorney

Finding an attorney can be a daunting task. Most people who are in need of an attorney are stressed out, nervous, scared and overwhelmed by the legal issue that they face.  Add to that the job of figuring out who to actually hire as an attorney, and a person will very quickly be confused and overwhelmed.  
What to do?  Take a deep breath.  Read through the Top 10 Things to Consider When Hiring an Attorney.  Call a few attorneys and arrange meetings or phone conferences with them to discuss your situation.  During the meeting ask the questions and make observations about the Top 10 Things to Consider When Hiring an Attorney.  Take notes if you need to.  Then take a day or two to process the information you have gathered and make your decision about who to hire.  
Top 10 Things to Consider When Hiring an Attorney
1) Experience.  How many years of legal experience does your attorney have?  Is he or she right out of law school, where the learning curve is still going to be pretty steep (and on your dime)?  Or is she a veteran with many years of lawyering under her belt?  Has she ever actually stepped foot in a court room?  How many trials has she actually done?  In Minnesota, most district court records are public and a search can easily be done on the Minnesota Trial Court Public Access Page  by inputting the attorney’s name, so you can see the number and type of cases he or she has been involved in (though this will only tell you cases that have actually been filed).  Does the attorney have experience in the particular area of law that you need help with?
2) Results.  All the years of experience in the world don’t mean much if an attorney rarely gets good results.  Has she won motions or cases?  Is she effective at taking depositions?  Has she helped her clients reach settlements that they have been satisfied with?  Ask the attorney!
3) Rates/Retainer.  How much does the attorney charge?  Is it per hour or flat fee?  How much is the attorney requiring up front for a retainer?  How do the rates/retainer compare to other attorneys in the area?  If the attorney is significantly less expensive than others in the area, ask yourself why that is.  You may be able to find an attorney that is $50 cheaper per hour than any other attorney in the area, but ask yourself whether the old adage “you get what you pay for” may come into play.  An attorney who charges $50 less than everyone else may be so inexperienced that they take twice as long to accomplish the necessary work.  So don’t just look at rates/retainer alone, consider them along with the experience and results that you may also be getting.
4) Do you like him/her?  You don’t need to become best friends with your attorney, but you should like and trust your attorney.  Like it or not, you will be working with him or her for week, months or even years.  If you think the attorney is a jerk at your first meeting, he or she isn’t likely to change during the course of your case.  
5) What are others saying about him/her?  Check out what online sites like avvo.com (which provides ratings and reviews for all attorneys in the United States) are saying about the attorney.  Have any former clients provided reviews or testimonials about the attorney?  Were they positive or negative?  Ask your peers and people in the community who they would recommend as an attorney.  If you know a lawyer in a different city, call him and see which attorneys he recommends in your area that might be able to help you with your legal needs. 
6) Office atmosphere.  The atmosphere of an attorney’s office can tell you a lot about him/her and the type of firm the attorney practices at.  Is it a dive that smells stale and smoky with outdated furnishings?  Or is it a clean and comfortable office?  While these things in themselves aren’t reflective of an attorneys’ legal skills, they certainly give you a clue about how the type of person you are hiring to help you with your legal matter.
7) Professionalism/Courtesy.  Are you the attorney’s focus during the first meeting? Does he make you wait long?  Is he looking at his watch, trying to move on to a paying client?  Your first meeting is likely a short, free consultation.  But it is still your time with the attorney and you deserve to have the full attention and respect of the attorney during your 30 minutes.  
8)  Appearance.  Does your attorney look clean and professional?  Or does he look like an unprofessional slob?  If you are having him draft a contract, maybe it doesn’t matter.  But if you will end up in court, you need to think about how the attorney will look and present herself to a judge or jury.
9)  What would the attorney’s opponents say about her?  Ask the attorney this question.  You will probably catch them off guard and you will, hopefully, get an answer that tells you quite a bit about what the attorney is really like.  It’s easy for an attorney to have a rehearsed answer about his/her qualities. 
10)  Go with your gut.  If something is telling you not to hire a certain attorney, trust your instinct.  Choose the attorney that your gut is telling you to hire.

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