5 Tips for Guardians in Minnesota

5 tips

Being a guardian for your loved one is an important responsibility.  For those individuals who aren’t “professional” guardians, the responsibilities can be confusing and overwhelming, especially during the first year when you are getting used to your new role as guardian.  Here are a few tips to help with your role as guardian:

  1. File and serve your Personal Well Being Report/Annual Notice of Right to Petition for Restoration on time.  It’s due on the anniversary of your appointment as guardian.  The forms can be found on the Minnesota District Court Website under the “Annual Reporting Forms” section. 
  2. You can’t just dispose of personal belongings of the ward.  You need to first give Notice to the ward and interested persons of your intent to do so. The forms can be found on the Minnesota District Court Website under the “Other Materials” section.
  3. Don’t forget that the ward retains rights, even when under guardianship.  The Bill of Rights for Wards and Protected Persons can be found at Minn. Stat. 524.5-120.
  4. You need to have a background study completed every two years.  The statute that sets forth the requirements for the background study is Minn. Stat. 524.5-118.  The form for the background study can be found on the Minnesota District Court website under “Establishing Guardianship/Conservatorship” section.
  5. Unless restricted by Court Order, the ward retains the right to vote.  As guardian, you should make sure that the ward has the opportunity to exercise this important right, if he/she wants to do so.

As always, if you have more specific questions about your role as guardian, you should consult with an experienced guardianship and conservatorship attorney.

FAQ Friday: Does a person under guardianship in Minnesota retain any rights?

faq brownFAQ 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:  Does a person under guardianship in Minnesota retain any rights?

Yes.  The rights that a person under guardianship or conservatorship in Minnesota retains are set forth in Minnesota Statute 524.5-120, which is known as “The Bill of Rights For Wards and Protected Persons”. 

Unless restricted by Court Order, those rights include the right to:

  1. treatment with dignity and respect;
  2. due consideration of current and previously stated personal desires, medical treatment preferences, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;
  3. receive timely and appropriate health care and medical treatment that does not violate known conscientious, religious, or moral beliefs of the ward or protected person;
  4. exercise control of all aspects of life not delegated specifically by court order to the guardian or conservator;
  5. guardianship or conservatorship services individually suited to the ward or protected person’s conditions and needs;
  6. petition the court to prevent or initiate a change in abode;
  7. care, comfort, social and recreational needs, training, education, habilitation, and rehabilitation care and services, within available resources;
  8. be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the ward or protected person’s clothing, furniture, vehicles, and other personal effects, to object to the disposition of personal property and effects, and to petition the court for a review of the guardian’s or conservator’s proposed disposition;
  9. personal privacy;
  10. communication and visitation with persons of the ward or protected person’s choice, provided that if the guardian has found that certain communication or visitation may result in harm to the ward’s health, safety, or well-being, that communication or visitation may be restricted but only to the extent necessary to prevent the harm;
  11. marry and procreate, unless court approval is required, and to consent or object to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
  12. petition the court for termination or modification of the guardianship or conservatorship or for other appropriate relief;
  13. be represented by an attorney in any proceeding or for the purpose of petitioning the court; and
  14. vote, unless restricted by the court.

FAQ Friday: Are There Any Resources That Provide An Overview of Guardianships and Conservatorships 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: I’m thinking of becoming guardian and conservator for my aging mother.  Are there any informational resources that give me an overview of the duties and responsibilities of being a guardian or conservator in Minnesota?

Yes!  The Minnesota Judicial Branch has produced a series of educational video segments on what it means to be a guardian and conservator in Minnesota.  Potential guardians and conservators are required to watch these videos in certain judicial districts in Minnesota (2nd, 4th, 6th and 7th Districts) and to note on their Acceptance of Appointment that they have watched the videos.

The topics of the video segments are as follows:

  1. Introduction to Guardianships and Conservatorships
  2. What Guardianship Is and Is Not
  3. Less Restrictive Alternatives To Guardianship and Conservatorship
  4. Duties and Responsibilities of a Guardian
  5. Duties and Responsibilities of a Conservator
  6. Annual Reporting Requirements and Oversight by the Court
  7. Common Issues and Problems

The videos are short, but filled with great information on what it means to take on the responsibility of being a guardian or conservator in Minnesota.

Guardianship and Conservatorship Video (Minnesota)

elderlyIf you are petitioning to be a guardian or a conservator in Hennepin County, you must watch this series of videos about the responsibilities of being a guardian or conservator in Minnesota.  It’s good viewing for individuals considering being a guardian or conservator in any county in Minnesota.  I have all of my clients watch it and many of them are surprised by the duties and responsibilities that come with being fiduciary for an incapacitated person.

Filing Inventory In Minnesota Conservatorships

You’ve been appointed as Conservator for the protected person.  Now what?  You must figure out what assets the protected person has and prepare an inventory.  The forms for the inventory and oath can be found on the Minnesota Court website.   Minnesota Statute 524.5-419 governs the inventory that must be filed.  It provides, in pertinent part:

524.5-419 INVENTORY; RECORDS.

(a) Within 60 days after appointment, a conservator shall prepare and file with the appointing court a detailed inventory of the estate subject to the conservatorship, together with an oath or affirmation that the inventory is believed to be complete and accurate as far as information permits.

 

Minnesota Statute 524.5-419 also governs records retention for the conservator.  It provides, in pertinent part:

524.5-419 INVENTORY; RECORDS.

***
 
(b) A conservator shall keep records of the administration of the estate and make them available for examination on reasonable request of the court, ward, protected person, or any attorney representing such persons.

If you have specific questions about the requirements of filing an inventory or keeping records, contact experienced guardianship attorney Cindi Spence Matt.

 

How long does it take to establish a Minnesota guardianship or conservatorship?

How long does it take to get a guardian or conservator appointed in Minnesota?

As with most anything, the answer is: It depends. It depends on the county that you are filing the petition in. It depends on whether the petition will be contested or uncontested.
Typically, a routine uncontested guardianship or conservatorship can be in place about 4 – 6 weeks from the time the petition is filed with the court. Why so long? There is a 14 day notice requirement, whereby all Interested Persons (as defined under Minnesota Statute) must receive notice of the hearing. Therefore, when you file a guardianship petition, the very earliest that you will be heard by the court would be about 16 – 18 days later. More commonly, the court will set the hearing for 4 – 5 weeks out from the time the petition is filed. At the hearing, if it is uncontested, the court will often times rule from the bench, granting the petition. However, even then, work must sometimes be done before the guardianship Letters (the document that gives the guardian or conservator authority to act) will be issued. For example, the background study may still need to be completed or a bond may need to be obtained.
A contested guardianship or conservatorship hearing can take much longer. It may be many months before the contested process is complete. Why so long? In contested proceedings, parties often conduct discovery (formal information gathering) and the respondent sometimes needs a medical or psychological examination (to support or oppose the proceeding).
If you can’t wait the 4 – 6 weeks that it may take (minimum) to get a guardianship or conservatorship in place, you may need to consider proceeding with an emergency guardianship or emergency conservatorship. As always, if you have questions about the guardianship or conservatorship process in Minnesota, please contact experienced Minnesota guardianship attorney Cindi Spence Matt.

What Do Courts Consider When Deciding Who To Appoint As Guardian or Conservator?

The guardianship and conservatorship statutes (Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413) require that the consider individuals or entities that have priority to serve as guardian or conservator.   But, when a court is considering the qualifications of the proposed guardian or conservator herself, what exactly do Judges consider?

According to the Minnesota Guardianship and Conservatorship Manual  published by the Conference of Chief Judges, the following should be considered by Minnesota Judges when determining who should serve as guardian and conservator:

  • Is the proposed guardian or conservator herself competent? (over 18, not under guardianship or conservatorship himself, have sufficient mental capacity himself to handle the duties)
  • Has the proposed guardian or conservator submitted to, and passed,  a background study?
  • What are the incapacitated person’s wishes for the choice of his or her guardian or conservator (if the person has sufficient mental capacity and understanding to reasonably express a preference; or there is evidence of what the person’s wishes were before he became incapacitated)?
  • Is there regular and appropriate interaction between the person and the proposed guardian or conservator?
  • Is there interest and commitment of the proposed guardian or conservator in advocating for the welfare and rights of the person?
  •   Does the proposed guardian or conservator maintain a current understanding of the person’s needs in all areas of the person’s life?

The standard that the Courts need to ultimately use in deciding who to appoint as guardian or conservator is a best interest standard:  what is in the best interest of the proposed ward or protected person.

For information about appointment of a guardian or conservator, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.

Who has statutory priority to be a guardian or conservator in Minnesota?

What if more than one person petitions the court to be guardian and/or conservator for a ward in Minnesota?    Does one person have priority over another?  How does the Court decide who should be guardian?

Minnesota Statute 524.5-309 (for guardians) and Minnesota Statute 524.5-413 (for conservators) provide guidance on these questions and sets forth the statutory priority scheme.  They  provides that, as long as a person is otherwise qualified to serve as guardian or conservator, there is priority in the following order:

  • a current guardian or conservator (other than emergency or temporary guardian)
  • a person named under a current health care directive (as long as there are no restrictions contained therein) or durable power of attorney
  • a spouse or the written nominee of a deceased spouse
  • an adult child
  • a parent or the written nominee of a deceased parent
  • an adult who has lived with the proposed ward for at least six months before the filing of the petition
  • an adult who is related to the proposed ward by blood, adoption or marriage
  • any other adult or professional guardian.

So if you are low down on the priority scale (say for example, if you are a brother-in-law or a friend of the proposed ward and an adult child of the proposed ward wants to be guardian) does that mean you don’t have a chance of being appointed as guardian?  No.  Minn. Stat 524.5-309 and Minn. Stat. 524.5-413 require  the court to appoint the best qualified in that case.

What about if tow individuals with differing priority levels want to be guardian?  Does the court automatically pick the one with higher priority?  No.  Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413 allow the court to appoint someone with lower (or no) priority, if the Court finds it is in the best interest of the Respondent.

If you have questions about priority for appointment as guardian or conservator in Minnesota, or any other guardianship questions, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services, LLC. 

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