Are Adult Guardianship Hearings Public?

Guardianship proceedings often deal with very personal issues – sensitive medical topics;  behaviors by an elderly or disabled loved one that are often-times out of norm and somewhat embarrassing; sensitive financial information; and family in-fighting.  Nonetheless, guardianship hearings in Minnesota are public proceedings, which means that members of the public can sit in on the court proceedings and read the court filings. So is there anything that can be done to preserve the privacy of the individuals involved in these sensitive hearings? Yes. If documents/court filings contain sensitive medical (or other) information, they can be filed as “confidential” through the e-filing system, which will make that particular document not accessible by the public. The hearing itself may only be closed in very limited circumstances and at the request of the attorney for the Respondent (the person over whom you are trying to seek guardianship).  Minn. Stat. 524.5-408 addresses this issue. It states, in pertinent part, ” . . . the hearing may be closed upon the request of the respondent and a showing of good cause.”

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.

 

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.

Information on Guardianships and Conservatorships in Minnesota

If you are wondering what a guardianship or conservatorship is, and how I can help you with issues relating to guardianships and conservatorships in Minnesota, take a look at this short video clip about Cindi Spence and Spence Legal Services. Feel free to give me a call if you want to talk about your situation.

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.

Confusion abounds with Vizuete (II) decision of Minnesota Court of Appeals

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On February 2, 2015, the Minnesota Court of Appeals issued a decision which should be of interest to both family law attorneys and guardianship/conservatorship law attorneys.  In re the Guardianship and/or Conservatorship of Heidi Anne Vizuete and In re the Marriage of Miriam Rose Vizuete vs. Edison Marcello Vizuete, (Unpublished Minn. Ct. App. A14-0474)   (“Vizuete (II)”) 

Although the Minnesota Court of Appeals affirmed the district court’s ruling in Vizuete (II), confusion abounds for guardianship/conservatorship law practitioners and courts in Minnesota in cases where an incapacitated “child” turns 18, both parents have some sort of custodial rights to the child (in their family law custody/divorce case) and  guardianship and/or conservatorship over the newly turned adult is sought by someone.

Facts of Vizuete (I): Mom and dad divorced, with divorce decree giving them joint legal custody of autistic child and giving mom sole physical custody, with dad having parenting time. Autistic daughter turns 18.  Mom files petition for guardianship.  Dad files petition for limited guardianship and conservatorship (not seeking full powers because he thought daughter could do some things on her own). Court appoints mom as sole, unlimited guardian and denies dad’s petition.  Dad appeals arguing guardianship order reduced his parental rights established under the custody order. Court of Appeals agrees and remands for district court to consider the “competing guardianship petitions in light of the custodial arrangement between the parties and the requirements for modification of appellant’s legal custody under chapter 518” (Vizuete I – Unpublished Mn. Ct. App. filed July 3, 2013, 2013 WL 3368334)

Facts of Vizuete (II):  Mom filed motion in family court file to modify her legal custody from joint legal to sole legal custody.  District court denies this motion, saying she has not presented prima facie case of significant change in circumstances that show endangerment to daughter’s physical or emotional well being.  Guardianship court issues new order, explaining that because there was not a basis to modify the parties’ current custody arrangement, it would evaluate their guardianship petitions in light of their respective custodial rights and under the best interest of the child standard.  Guardianship court appoints mom as guardian with unlimited powers and dad as guardian with limited powers “with respect to any major decisions affecting Heidi”.  The Court of Appeals affirmed, noting that “the district court did not abuse its discretion by appointing a guardianship for Heidi that was in her best interest and that does not abrogate either party’s custodial rights under their preexisting and current arrangement.”

Takeaways from Vizuete (II):

  • Guardianship/conservatorship attorneys will need to ask their client for a copy of divorce/custody decree and carefully analyze the custodial rights granted to each parent therein.
  • In deciding guardianship matters involving incapacitated individuals who are turning 18, if there is a divorce decree or custody order involving that “child”, the district court in the guardianship action should  make inquiry into the underlying divorce decree and make specific findings and an order that takes into consideration the competing guardianship petitions of divorced parents in light of their respective custodial rights under their divorce decree and the modification standards applicable to their custodial arrangement  in their family law file.
  • Family law practitioners who are representing someone with an incapacitated, or potentially incapacitated, child, will want to be mindful of the “labels”, as well as the substantive rights, that are assigned to their client in divorce/custody situation.  A custody label may not just be a “label” when it comes to potentially incapacitated individuals, as it may now affect the outcome of guardianship proceedings that will occur after the child reaches the age of majority

More questions than answers are raised by this decision.  Does this decision mean that a court can no longer appoint a third party professional guardian in cases of “feuding parents”, because doing so would abrogate both feuding parents’ custodial rights?  Does the Court need to take the custodial arrangement in the divorce decree into account if only one parent files a petition, and the other parent doesn’t object?  Confusion abounds. We will need to wait and see how Vizuete (II) impacts guardianship actions of incapacitated adults when their parents disagree.

FAQ Friday: What Paperwork Must a Guardian File Annually?

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:  What paperwork is a guardian required to file with the Court each year?

A guardian must complete and file with the Court an “Annual Well Being Report” and a “Notice of Right to Petition For Restoration to Capacity” within 30 days of the anniversary of their appointment as guardian.   These documents are simple forms that are available through the Minnesota State Court Website.   These forms must be completed by the guardian (by EACH guardian if there is more than one guardian), a copy served on the Ward and Interested Persons and filed with the Court (along with an Affidavit of Service).  The statute governing these reports is Minn. Stat. 524.5-316

Although most guardians are able to complete these forms on their own, some guardians find it helpful to have an attorney assist them with it the first year that they do it.

 

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

faq brown

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.

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