What to do if your elderly parent needs help making decisions

What do you do if your elderly parent needs help making decisions?

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Minnesota Guardianship and Conservatorship Background Studies

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.

Challenges to being co-guardian in Minnesota

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.

What Does a “Court Visitor” Do in Minnesota Guardianship Proceedings?

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When a guardianship petition is filed in Minnesota, someone called a “Court Visitor” is typically appointed by the Court.  The role of the Court Visitor is to serve the petition on the Respondent (the person over whom guardianship is sought) and to report to the Court about the visit. The Court Visitor will usually call the Respondent at the number in the Petition and arrange a visit to the Respondent’s home.

The statute governing the details of the Court Visitor’s work is set forth in Minn. Stat. 524.5-304.  It provides, in pertinent part:

(a) Upon receipt of a petition to establish a guardianship, the court shall set a date and time for hearing the petition and may appoint a visitor. The duties and reporting requirements of the visitor are limited to the relief requested in the petition.

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(d) The visitor shall personally serve the notice and petition upon the respondent and shall offer to read the notice and petition to the respondent, and if so requested the visitor shall read the notice and petition to such person. The visitor shall also interview the respondent in person, and to the extent that the respondent is able to understand:

(1) explain to the respondent the substance of the petition; the nature, purpose, and effect of the proceeding; the respondent’s rights at the hearing; and the general powers and duties of a guardian;

(2) determine the respondent’s views about the proposed guardian, the proposed guardian’s powers and duties, and the scope and duration of the proposed guardianship;

(3) inform the respondent of the right to employ and consult with a lawyer at the respondent’s own expense and the right to request a court-appointed lawyer; and

(4) inform the respondent that all costs and expenses of the proceeding, including respondent’s attorneys fees, will be paid from the respondent’s estate.

(e) In addition to the duties in paragraph (d), the visitor shall make any other investigation the court directs.

(f) The visitor shall promptly file a report in writing with the court, which must include:

(1) recommendations regarding the appropriateness of guardianship, including whether less restrictive means of intervention are available, the type of guardianship, and, if a limited guardianship, the powers to be granted to the limited guardian;

(2) a statement as to whether the respondent approves or disapproves of the proposed guardian, and the powers and duties proposed or the scope of the guardianship; and

(3) any other matters the court directs.

 

FAQ Friday: What is a Court Visitor in Minnesota Guardianship Proceedings?

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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:  What does a Court Visitor do in Minnesota Guardianship Proceedings?

When a guardianship or conservatorship petition is filed, the Court appoints someone called a “Court Visitor”.  (See Minn. Stat. 524.5-304).  The role of the Court Visitor is to serve the petition on the Respondent (the person for whom a guardianship is being sought),  to go over the petition with the Respondent  and to provide a written report to the Court about the visit.  The Court Visitor’s report will include an opinion as to whether guardianship/conservatorship appears to be appropriate, based upon the Visitor’s interactions with, and observations of, the Respondent.  The Court Visitor will usually call the Respondent, or the person taking care of the Respondent, in advance of the meeting to coordinate a meeting.  Sometimes the Court Visitor will make an unannounced visit to the Respondent.  The Court Visitor will make note in his/her report whether anyone else was present during the meeting with the Respondent.  The Court Visitor’s report is filed with the court and a copy is given to the Petitioner or his attorney in advance of the hearing.

FAQ Friday: How long does it take to establish a guardianship in Minnesota?

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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 does it take to get guardianship over someone in Minnesota?

The answer is that it depends.  It depends on what county the case is in (typically where the individual resides).  It depends on whether the matter will be contested or uncontested.  It depends on whether you are filing for an emergency or general guardianship. It depends on the court’s calendar (when a judge is available to hear the case).

In general, if the matter is uncontested and it is a general guardianship (as opposed to an emergency), it takes between 4 – 6 weeks.  (But, again, it depends on the county and the court’s calendar).

If the matter is contested it can take many months before the guardianship is established.

If it’s an emergency, the matter is typically decided (or at least set for hearing) within a week of filing the guardianship petition.

Because there are so many variables, you should consult with an attorney about the specific facts of your situation.

 

 

Professional License Searches in Minnesota Guardianships

background checkProposed guardians or conservators in Minnesota must complete a background check in order to be appointed by the Court.  The statute requiring the background check is Minnesota Statute 524.5-118.  If the proposed guardian or conservator has applied for certain licenses in the State of Minnesota (or other states), that must be disclosed on the petition and those agencies will be contacted as part of the background check in order to determine the status of the license (whether it has ever been conditioned, revoked, suspended or cancelled).  The types of licenses are those involving direct fiduciary responsibilities.  Specifically, the following professional licenses are required to be disclosed:

(1) Lawyers Responsibility Board;

(2) State Board of Accountancy;

(3) Board of Social Work;

(4) Board of Psychology;

(5) Board of Nursing;

(6) Board of Medical Practice;

(7) Department of Education;

(8) Department of Commerce;

(9) Board of Chiropractic Examiners;

(10) Board of Dentistry;

(11) Board of Marriage and Family Therapy;

(12) Department of Human Services; and

(13) Peace Officer Standards and Training (POST) Board.

If your license with any of these agencies has been cancelled, revoked, suspended or conditioned, the background study will indicate that and the Court will use caution in considering whether to appoint you.  You will likely be questioned by the Court about the circumstances surrounding your license and the Court will decide whether the circumstances justify not appointing you in the particular guardianship for which you are petitioning.

 

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.

Guardianship Background Study in Minnesota

If you want to be a guardian or conservator in Minnesota, you must submit to a background check.  Minnesota Statute 524.5-118 sets for the statutory requirements for the background check.  In general, the background check consists of completing a form with information about yourself and submitting it, along with a check for $50 (and, if you have lived outside of the State of Minnesota within the past 10 years, a fingerprint card and a check for $130) to the Department of Human Services.

Some common questions:

  • How long does the background study take to complete?  It seems to be taking 4 – 6 weeks, sometimes longer if the applicant has lived out of state.
  • When should I submit my background check application?  As soon as you have filed the case and have a court file number!  Since the background checks are taking so long to complete, it is important that you submit your background check application to DHS right away, so that it is completed before the general guardianship hearing.
  • What should I do if the background check results are not back from DHS before the guardianship hearing?  Some courts are allowing the proposed guardian to testify as to his/her lack of criminal convictions, lack of maltreatment reports, etc. and then the Court will appoint them pending the results of the actual background study coming back ok.  Some courts are taking testimony on the general guardianship petition and then just not issuing an Order/Letters until the DHS results are in.  It really depends on the particular judge and the particulars of the guardianship and/or conservatorship.

If you have questions about guardianship and conservatorship background studies, please call experienced guardianship attorney Cindi Spence at Spence Legal Services.

New Guardianship/Conservatorship Educational Video Requirement in Hennepin County

Beginning on December 1, 2011, proposed guardians and/or conservators in the Fourth Judicial District (Hennepin County, MN), must view an educational video prior to the initial hearing. They will also be required to submit a modified version of the acceptance and oath, stating that they have viewed the video.

The purpose of the video is to educate proposed guardians and conservators on their duties prior to the initial hearing. The video has 7 segments, totaling 34 minutes in length. The segments are on the following topics: Introduction to Guardianship/Conservatorship; What Guardianship is Not; Less Restrictive Alternatives to Guardianship and Conservatorship; Roles and Responsibilities of a Guardian; Roles and Responsibilities of a Conservator; Annual Reporting Requirements; Common Issues and Problems.

The full press release, detailing the new requirements, can be found on the Minnesota State Court website here.
The video itself, along with a link to the modified Oath and Acceptance form, can be found on the Hennepin County Probate Court website here.

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