A guardian has a duty and responsibility to report to the Court annually (on the anniversary of the guardianship – which coincides with the issue date of the Letters of Guardianship) on the condition and well being of the person under guardianship. Minn. Stat. 524.5-316 addresses the contents of the annual personal well being report. It is a pretty basic report, meant to summarize for the Court both the current condition of the person under guardianship, as well as what has transpired with that person over the last year. The guardian discloses the condition of the ward (mentally, physically and socially), the living situation, whether any restrictions have been placed on the person’s right to communicate/visit with people of his/her choosing, an opinion on the adequacy of care the person has received, whether continued guardianship is necessary and whether the guardian has been reimbursed for any services to the ward (that were not reimbursed by county contract). The guardian needs to take the completion of this report seriously and get it filed with the Court and served on the person under guardianship and interested persons, within 60 days of the anniversary date. If it isn’t filed on time, the Court will call the guardian back in to court to explain why it hasn’t been filed.
Being appointed as Guardian for someone who is incapacitated – even if it is your child who you have raised his entire life – comes with significant new responsibilities. I’ve put together my “Top 5 Tips for Guardians in Minnesota” based on questions that my clients have asked me and/or things that I have observed in my 20+ years of practicing guardianship law in Minnesota.
- Always be mindful of the rights that the person under guardianship retains. They include things like: the right to personal privacy; the right to treatment with dignity and respect; the right to have their preferences regarding medical treatment and religion given due consideration; and the right to communication with persons of their choosing. They are set forth in Minn. Stat. 5245.-120, the Bill of Rights for Wards and Protected Persons
- Don’t forget to timely serve and file with the Court the annual Personal Well Being Report and Annual Notice of Right to Petition for Termination or Modification of Guardianship. This is an easy thing to do each year, but so many Guardians fail to do it, which results in the Guardian being called back in to Court to explain why the Guardian failed to do it. Courts can – and do – issue a warrant for the Guardian’s arrest if the Guardian fails to file the annual report and fails to show up in Court to explain why they didn’t timely file the report. The form report is available on the Minnesota State Court Website.
- Listen to the person under guardianship when he talks about his situation and needs. It can be frustrating to not have your life be in your own control. If a Guardian takes the time to sit down and really listen to what the person under guardianship is saying, it can go a long way in showing that the Guardian cares and is trying to be responsive and make the best decision for the situation.
- Communicate with the person under guardianship. Keep the person under guardianship informed about the actions that you are taking and the decisions that you are making on his behalf. Being kept in the dark can be scary for the person under guardianship. Remember that he is an adult and deserves to be treated with dignity and respect. Part of that is keeping him apprised of the things that you are doing for him.
- Remember that one of your responsibilities as Guardian is to assist the person under guardianship with having as much independence and freedom as possible. This will be different for each situation. For some it may mean giving the person under guardianship unlimited phone and computer, but still requiring supervision for outings in the community. For others it may be allowing them to be unsupervised in the community. Whatever the situation, be mindful of creating as much freedom and independence as is possible, while keeping the person safe.
If you have specific questions about your duties and responsibilities as Guardian in Minnesota, please feel free to reach out to me.
I represent a lot of people who are put under guardianship and one of the things that I always talk about with them is that a guardianship does NOT always last forever. This is particularly true in the case of young adults, who are put under guardianship when they turn 18 because of disabilities like ADHD, Oppositional Defiant Disorder or Anxiety Disorder.* With any individual, but particularly with “children” when they turn 18, they simply need more time, more transitional schooling, more life experience, before they are able to function in society without a guardian.
How is a guardianship ended in Minnesota? By convincing the Court that a person is no longer in need of the assistance or protection of a guardian. The court will have a hearing to determine whether a guardianship should be terminated. At the hearing, evidence is presented to show that the individual is now able to make and communicate his/her own responsible decisions regarding medical care, shelter, nutrition, clothing and safety. Although statute doesn’t technically require it, it is usually very helpful to have a Physician’s Statement that there is no longer a continuing need for a guardian. Once a prima facie case is established that a guardian is no longer needed, if no one comes forward objecting to the termination and showing that in fact guardianship is still needed, then the Court must terminate the guardianship. The statute that governs termination of guardianships is Minn. Stat. 524.5-317. During this process the Ward (person under guardianship) is entitled to have an attorney represent him/her.
* (This list is meant to be illustrative, not exhaustive).
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.”
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.
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.
(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.
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.
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.
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 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.