FAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota. If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website)
FAQ: How long can an emergency guardianship last in Minnesota?
An emergency guardian may be appointed for 60 days, unless the County was the petitioner, in which case an emergency guardian may be appointed for 90 days. See Minn. Stat. 524.5-311.
The statute governing emergency guardianships in Minnesota is Minn. Stat. 524.5-311. It requires the court to make a finding that following the normal guardianship procedures (which would typically mean that the guardianship petition wouldn’t be heard for 4 – 6 weeks) would likely result in substantial harm to the health, safety or welfare of an individual.
So as a practical matter, what sorts of things constitute an emergency, which would support an emergency guardianship in Minnesota?
- An individual is refusing to follow medical advice about a necessary surgery
- An individual has stopped taking his medication, feeding himself properly and/or is otherwise putting himself at risk
- An individual is in a nursing home and needs that level of care but is now saying that he will check himself out of the nursing home
- An individual was in a car accident and is now hospitalized and in critical condition and unable to make medical decisions and does not have a health care directive in place
These are examples of some of the most common times that an emergency guardianship is appropriate. There can be many other cases where an emergency guardianship makes sense. The general rule of thumb: if someone is in danger of harm and can’t wait until the full guardianship hearing, file emergency guardianship papers.
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.
In my work with guardianships and conservatorship in Minnesota, I’ve had experience with people who are subject to guardianships for a variety of different reasons: Down’s Syndrome, dementia, alzheimers, traumatic brain injury, physicial and sexual abuse so severe that it was debilitating, etc. Really, there are no two guardianship situations that are exactly alike. People need guardians for different reasons. People need different levels of guardianship. When a guardianship is imposed, it takes away a lot of individual freedoms and rights. Persons under guardianship can no longer do many of the things they used to be able to do themselves. They can’t contract (for the most part). They can’t make their own decision about medical care. They can’t make their own decision on where to live.
But one thing they can still do is tell their stories. Whether I’ve been representing the ward, the petitioner or the guardian, I’ve found it to be true that most of the people under guardianship love to talk about their past. About their family. About growing up. About their former jobs. About what their life was like. What is perhaps a bit surprising is that oftentimes they tell their stories quite accurately, despite having impairments that cause their short term or day-to-day functioning to be impaired. Hearing the stories of these people is one of my favorite things about my job. It is a joy to see the faces of individuals that are under a guardianship light up when they talk about their past.
I encourage friends and family members of individuals under a guardianship to sit down with their loved one and get them to share their stories. You will not only make their day, but I guarantee you will also learn something new about your loved one. And if you are lucky you will walk away from your conversation having learned a valuable life lesson as well. As a ward once told me, “The most important thing my grandfather taught me was to listen and pay attention, because you are never too old to learn.”
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