Spence Legal Services has moved!

Spence Legal Services has moved to a new location in Minnetonka.

Our new mailing address is:

12800 Whitewater Drive, Suite 100

Minnetonka, Minnesota 55343

Our phone number and email addresses remain the same:

cindi@spencelegalservices.com

(763) 682-2247

Cindi continues to provide representation to individuals and families throughout Minnesota in the area of guardianships and conservatorships.  If you or your loved one need information on establishing a guardianship or conservatorship for a vulnerable adult, a “child” turning 18 or a minor who is the recipient of an inheritance or settlement, please reach out to Cindi to discuss your situation.

Cindi A. Spence – Solo Practitioner of the Month

Cindi_Proofs-036I am honored to be featured in the June 2015 issue of Attorney at Law Magazine article “Cindi A. Spence: Solo Practitioner of the Month“.  For those of you interested in reading about how I became interested in the area of guardianship and conservatorship law, and why I do what I do, take a look at the article. 

New Procedures in Hennepin County Probate Court

Court Opinions

For those of you practicing in Hennepin County Probate/Mental Health Court, please note the following announcement, which was released yesterday:

Effective June 2, 2015, the Probate/Mental Health Division will change how probate cases are scheduled on commencing and account hearing calendars. When commencing or account hearing petitions are filed, they will be scheduled on the following days:

 Formal Estates (Commencing) – Monday mornings

 Guardian/Conservator (Commencing & Accounts)– Tuesday, Wednesday or Thursday mornings

 Trusts(Commencing & Accounts) – Wednesday afternoons

The filing party must include either a cover letter with the petition or must add a comment in the EFS envelope when documents are efiled specifying dates that will not work for his/her schedule, if conflicts exist. If no dates are specified, court administration will assume the matter may be scheduled on any date. The filing party will be notified of the date on which the petition is scheduled as soon as possible. Court hearings are typically scheduled to be heard within 45 to 60 days of receipt of the petition.

Effective immediately, all attorneys are required to file Certificates of Representation pursuant to Gen. R. of Prac. 104.

Questions may be referred to Court Administration at 612-348-3244.

No Equal Protection Violation in Durand Case

Court OpinionsThe Minnesota Supreme Court issued a decision today in the case of In re Guardianship and Conservatorship of Helen Louise Durand,  A13-1415 (Minn. February 18, 2015).  It affirmed the Minnesota Court of Appeals, holding that Minn. Stat. 524.2-212 (2014), which treates protected and non-protected persons differently in probate proceedings, has a rational basis and therefore does not violate the right to equal protection under the Minnesota Constitution.

The case has a lengthy procedural history.  Essentially it involved the Conservator for a Spouse petitioning the District Court to allow an elective share petition to be filed with the probate court, so that the spouse could elect against the estate of her deceased spouse.  The personal representative of the estate of the deceased spouse disagreed that the petition was properly brought.  At the District Court level the court granted the conservator’s motion for summary judgment, on the basis that requiring the conservator to petition for approval to bring an elective share petition violated the constitution’s equal protection law.  The Court of Appeals disagreed that the equal protection laws were violated and reversed.  In the opinion today, the Minnesota Supreme Court affirmed.

Minn. Stat. 524.2-212 is the statute that declares the elective share to be personal to the surviving spouse.  It differentiates between surviving spouses who are “protected” (under conservatorship) and those who are not.  As to those under conservatorship, a petition must be filed with the probate court and a showing made as to why the election is necessary and appropriate. The Minnesota Supreme Court applied the rational basis test and determined that this statute is constitutional because there is a rational basis for treating surviving spouses who are under conservatorship differently from those who are not.  The Court reasoned that because individuals under conservatorship are impaired in their ability to manage property and business affairs, this is a substantial and genuine basis for the legislature to justify a distinction focused on the protected persons’ needs. The Court stated, “the Legislature  rationally determined that a conservator, whose duty is to manage the pecuniary affairs of a protected person, should not have the unilateral power to make a decision that should be based on both pecuniary and non-pecuniary interests.  The Legislature rationally provided that the process should include judicial oversight by findings and an order.”

 

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

court opinion

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.

Tschumy: Guardian Can Consent to Remove Life Support

court opinionThe Minnesota Supreme Court issued it’s long awaited opinion in the Tschumy case today, affirming the Court of Appeals decision that the power of a guardian to consent to necessary medical treatment for a ward under Minn. Stat. 524.5-313(c) (4)(i), inclues the power to consent to the removal of a ward from life support, without a separate court order/proceeding, if all interested parties agree that removal is in the ward’s best interest.

The Tschumy decision can be found here.

The decision, issued by Chief Justice Gildea, is 35 pages long.  Justice Anderson wrote a 9 page dissent.  Justice Stras wrote a 28 page dissent, which was joined in by Justice Page.

I will provide more in depth analysis of this important decision after I have the opportunity to read the opinion.

The Cost of Theft in Conservatorships

theftFor those of you following the case of former ADMI leader Steve Grisham, you will find an update in a recent Star Tribune article by James Schiffer.  One of the latest issues is who should pay the attorneys fees incurred by ADMI’s lawyers in investigating all of the ADMI client files to determine whether any other thefts occurred.  The Hennepin County Probate Court is expected to issue a decision later this summer on whether the company that provided a bond for ADMI should now have to pay $90,000 of ADMI’s legal fees, which were expended in the investigation surrounding the theft of $100,000 from and ADMI client.

First Comes Love. Then Comes Marriage? Maybe.

preapringforwedding1The Minnesota Court of Appeals issues a decision this week regarding whether an individual under guardianship in Minnesota has a right to marry.  The case, In the Matter of the Guardianship of Michael Timothy O’Brien, can be found here.

Michael O’Brian is a 27 year old man who is under guardianship because of a “serious and persistent mental disorder”, including diagnosis of bipolar disorder and severe ADHD.  His parents are his guardians, and have been since  2004.   Michael has been involved with a woman who is also in a special needs program since late 2010.  He and the woman want to marry.  Michael’s guardians believe he does not have the capacity to marry.  After an evidentiary hearing, the district court agreed and found that Michael did not have the capacity to marry.

The Minnesota Court of Appeals reversed the district court decision.  However, the Court of Appeals decision was not an outright victory for the ward, Michael O’Brien.  Instead, the case was remanded back to the District Court to take further testimony and make more detailed findings about whether Mr. O’Brien, in fact, has the capacity to marry. The Court of Appeals held that in order for an individual subject to a guardianship to marry, he must have the capacity to understand the meaning, rights and obligations of marriage.  The Court of Appeals further held that the burden of proof is on those opposing a ward’s competence to marry.

So what does all of this mean as a practical matter if someone under guardianship in Minnesota wants to get married?

  1. A person under guardianship in Minnesota retains the right to marry, if he has enough capacity to understand the meaning, rights and obligations of marriage.  However, the guardian would have to consent, since marriage is a contract and the ward’s contractual rights are typically restricted when a guardianship is imposed.
  2. If the ward wants to marry and the guardian believes that the ward does not have the capacity to understand the meaning, rights and obligations of marriage, the guardian must prove that the ward lacks that capacity.  A petition should be brought by the ward (who would have a right to an attorney in this situation) asserting his right to marry, or by the guardian opposing the request of the ward to marry.

Ward Can Be Committed AND Under Guardianship

court opinionThe Minnesota Court of Appeals issued an unpublished decision this week which confirms that an individual may be subject to commitment as a mentally ill person AND at the same time have a guardian.  The Court cited to the broad powers that can be given to a guardian, versus the relatively narrow scope of a committment treatment order.  For the full opinion (which focused on whether it was error for the district court not to restore the ward to capacity), see In the Matter of the Guardianship of Joy Bostrom, Minn. Ct. App. A13-0826.

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