10 Signs Your Loved One May Need a Guardian

10 Signs Your Loved One May Need A Guardian

  1.  He lacks good judgment on how to keep himself safe.
  2.  She cannot reliably take her own medications.
  3.  He gets lost in places that were once very familiar to him.
  4.  She does things around the house that are dangerous – like leaving the burner on after cooking.
  5.  He responds to mail or calls that are obviously scams.
  6.  She insists on driving, even though it’s likely no longer safe for her to do so.
  7.  He has become very forgetful – missing appointments, forgetting events, etc.
  8.  She is frequently late – or completely misses – paying bills, taxes, etc.
  9.  He is no longer able to balance his checkbook.
  10.  She is falling and dismissing it as a one-off event.

If these sorts of things are happening to your parent, spouse or family member, he or she may be in need of a guardian to help him/her make good decisions and keep him/her safe.

Attorney for Person Under Guardianship in Minnesota

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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.

A Ward’s Right to an Attorney

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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.  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.

FAQ Friday: Who has priority to be guardian?

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:  Who has priority to be guardian for a person?

Minnesota Statute 524.5-309 sets forth the order of priority that the court’s consider when determining who should be appointed as a person’s guardian.

The statute provides the order of priority as follows:

(1) a guardian, other than a temporary or emergency guardian, currently acting for the respondent in this state or elsewhere;

(2) a health care agent appointed by the respondent in a health care directive that does not include limitations on the nomination of the health care agent as a guardian and is executed pursuant to chapter 145C;

(3) the spouse of the respondent or a person nominated by will or other signed writing executed in the same manner as a health care directive pursuant to chapter 145C of a deceased spouse;

(4) an adult child of the respondent;

(5) a parent of the respondent, or an individual nominated by will or other signed writing executed in the same manner as a health care directive pursuant to chapter 145C of a deceased parent;

(6) an adult with whom the respondent has resided for more than six months before the filing of the petition;

(7) an adult who is related to the respondent by blood, adoption, or marriage; and

(8) any other adult or a professional guardian.

However, it is important to note that the court may disregard the priority scheme and appointment someone else, if the court determines that it is in the best interest of the ward to do so.

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: 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: 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.

 

 

FAQ Friday: How does a guardian dispose of personal property?

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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’ve been appointed as guardian, so I know I’m in charge of my mom’s clothing, furniture, vehicles and other personal effects.  How do I go about disposing of them or selling them?

In Minnesota, a guardian is responsible for a ward’s clothing, furniture, vehicles and other personal effects.  A conservator, if one is appointed, would be responsible for all other property. Minnesota Statute 524.5-313(c)(3) sets forth your duties regarding the ward’s clothing, furniture, vehicles and other personal effects.  Essentially, you must do as follows:

  • Fill out a Notice of Intent to Dispose of Clothing, Furniture, Vehicles or Other Personal Effects.  The form can be found on the Minnesota Court Website. Fill it out as completely as possible with details regarding what you intend to dispose of and how you intend to do that (i.e.  private sale, donate it to Goodwill, post it on Craigslist, etc).
  • Mail the notice on the Ward (the person for whom you are Guardian) and Interested Persons (defined by Minn. Stat. 524.5-102)
  • File the Notice and an Affidavit of Service with the Court.
  • Wait 10 days.  If you have not received an objection, you can proceed with your planned distribution of the personal property.  If you have received an objection, or one has been filed with the court, you need to wait until you receive an order from the court telling you what to do with the property (a hearing will be scheduled and held).

If you have questions on this process, speak with a qualified guardianship attorney.

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.

FAQ: Personal Well Being Reports in Minnesota Guardianships

faqGuardians in Minnesota are required to file a “Personal Well Being Report” annually, pursuant to Minn. Stat. 524.5-316.  Why is this required?  What is involved?  How is this done? Who gets the report? Answers to these questions and more!

FAQ on Personal Well Being Reports:

There are co-guardians.  Do each of us need to sign the report?  YES.  Each guardian needs to sign the completed personal well being report.

Nothing has changed.  Do I still need to complete the report?  YES.  Even if nothing substantive has changed, you are required to fill out a new report each year.

The ward is mentally impaired and won’t be able to understand the report.  Do I still need to serve her with a copy?  YES.  Even though it seems futile to do so in some cases of extreme impairment, you must serve the Ward and file an affidavit of service.

What do I need to put in the Personal Well Being Report?  It doesn’t need to be super detailed.  Just answer the questions about the ward’s living situation, medical condition, any restrictions imposed, etc.  The idea behind the report is to give the Court and Interested Persons a summary of what has happened in the past year, so that if there are any changes or areas of concern, the Court and Interested Parties are aware and could act, if necessary.

Once the Personal Well Being Report is completed, what do I do with it?  Serve it on the Ward and Interested Persons (as defined in Minn. Stat. 524.5-102) and file the original with the Court (along with an Affidavit of Service).

 

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