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.
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 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.
Guardians 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).
What is the Personal Well Being Report? When does a guardian have to complete and file it? Who else receives the report? Does the Court really look at them? What if someone disagrees with what is contained in the report? What if the guardian fails to file the Personal Well Being Report?
What is a Personal Well Being Report?
- A Personal Well Being Report is required each year for guardianships, pursuant to Minnesota Statute 524.5-316.
- A Personal Well Being Report is a form that is available through the Minnesota Court Website.
- It is a Report that provides basic information about the Ward’s current mental, physical and emotional condition; where the Ward is currently living; whether any restrictions have been placed upon who can visit with the Ward (and if so, why); what medical services have been rendered to the Ward in the past year; how often the Guardian has seen the Ward in the past year; the Guardian’s opinion on whether the guardianship should continue; whether there have been any changes in the criminal background of the Guardian; and how much compensation the Guardian has received for services in the past year.
When must it be completed?
- It must be completed by the guardian each year within 30 days after the anniversary date of the appointment as guardian.
What needs to be done with it after it is completed each year?
- It must be served on the Ward and Interested Persons.
- It must also then be filed with the Court (along with an affidavit of service, indicating that the Ward and Interested Persons were served).
Do Courts really read the Personal Well Being Report?
- Yes, court staff and Judges review the reports that are filed.
- If something in the report raises a red flag or looks like it would necessitate further hearing or investigation, the Court could take action, including appointing a Visitor to interview the Ward or investigate something, issuing an Order to Show Cause, or other action that the Court deems appropriate and necessary.
What if a Ward or Interested Person disagrees with what is written in the Personal Well Being Report?
- Under Minn. Stat. 524.5-316(b), “A ward or interested person of record with the court may submit to the court a written statement disputing statements or conclusions regarding the condition of the ward that are contained in the report and may petition the court for an order that is in the best interests of the ward or for other appropriate relief.”
What if the guardian fails to file the Personal Well Being Report?
- If the Personal Well Being Report is not filed within 60 days of the anniversary date, the Court will issue an Order to Show Cause, requiring the Guardian to come before the Court and explain why it hasn’t been filed.
- Many counties will first send a Reminder Notice to the Guardian, giving the Guardian a certain limited amount of time to file the report before an Order to Show Cause issues.