The legislature has new legislation regarding emergency and temporary conservators. It can be found at: https://www.revisor.mn.gov/laws/?id=334&year=2010&type=0
Previously, there was not specific statutory authority for an emergency conservator. Instead, if there was a financial emergency for a vulnerable person, one would either have the option of applying for an emergency guardian and hope that the emergency guardian could head off any sort of financial wrongdoings, or apply for a protective order and hope that the court crafted the protective order in such a manner that it would take care of the financial emergency. Now, with the new legislation, there is specific statutory authority for the appointment of an emergency and temporary conservator. The statutory procedures appear to closely mirror those necessary for an emergency guardian.
With the back log in the Courts, and the apparent increase in financial exploitation of vulnerable adults (as evidenced by what seems to be an increasing number of newspaper articles regarding the same), it will be interesting to see whether this new statutory provision for an emergency conservator is utilized. As with general guardianships and conservatorships, I think petitioners need to be selective in what they apply for and only apply for those powers which are necessary (and don’t just check the “all powers” box).
With all the budget cut-backs and increased caseloads that the Courts are facing, it may be awhile until your petition for a guardianship can be head. If your situation is extreme, you may be able to apply for the appointment of an emergency guardian. The procedures for an emergency guardian are set forth in Minnesota Statue 524.5-311. Each county does things a bit differently. For example, in Hennepin County emergency guardianships are rarely granted. In some other counties, including Wright County and Sherburne County, emergency guardianships are granted in the appropriate situation. Essentially, the Courts look at the emergency petition and decide whether the proposed ward will be substantially harmed before the court can have a full hearing on the guardianship petition. I have had emergency petitions granted when elderly individuals clearly suffering from advanced dementia are endangering themselves in their homes (cooking food and leaving the burners on all night or wandering outside of their home in sub-zero temperatures without appropriate winter clothing on, etc.). There is no hard and fast rule for whether a court will grant emergency petitions. It is very case specific – depending on the specific facts of the case and how long until the general petition will be heard. If you are contemplating bringing an emergency guardianship, consult with an attorney to have your specific case evaluated.
Emergency: Guardianships: 524.5-311; Conservatorships/protective arrangements: 524.5-406(f) and 524.5-412
General: 524.5-301 et. seq. (guardianships); 524.5-401 et. seq. (conservatorships)
How long from time of filing petition until order?
Emergency: Can be the same day; often times within a couple of days
General: Minimum 15 days, but typically 4 – 6 weeks.
Is notice to respondent and a hearing necessary before Order issued?
Emergency Guardianships: Appointment without notice and preliminary hearing if Court finds from affidavit or other sworn testimony that respondent will be substantially harmed before a hearing on the appointment can be held. If granted, notice of the appointment must be given to respondent within 48 hours and the Court must hold a hearing within 5 days.
Conservatorship/protective proceeding: must have preliminary hearing, but do not need to give notice to others. See Minn. Stat. 524.5-406(f)
General: Yes, a hearing is held after at least 14 days notice given to proposed ward (via service by Court Visitor, who files Visitor’s Report) and interested persons.
How long does Order last?
Emergency: 60 days
Special filing requirements?
Emergency: A petition for a general guardianship must either be filed at the same time as emergency petition or it must indicate in petition that it will soon be filed; For an emergency conservatorship, a petition for general conservatorship must be filed at the same time.
Standard/Burden of Proof?
Emergency: Court must find that compliance with the procedures of for a general petition “will likely result in substantial harm to the respondent’s health, safety or welfare, and that no other person appears to have authority and willingness to act in the circumstances. See Minn. Stat. 524.5-311
General: Clear and convincing evidence that respondent is incapacitated and that respondent’s needs can’t be met by less restrictive means. See Minn. Stat. 524.5-310