The Role of the Court Visitor in Guardianship and Conservatorship Proceedings in Minnesota

What is a Court Visitor? A Court Visitor is an individual appointed by the Court to serve notice upon the Respondent and make a report to the Court about the Respondent’s condition and the appropriateness of the relief requested in the Petition.

What is the statutory authority for a Court Visitor?  Minn. Stat. 524.5-304 (guardianships) and Minn. Stat. 524.5-406 (conservatorships) governs the role and authority of the Court Visitor. 

What does a Court Visitor do?  The Court Visitor, once appointed by the Court, contacts the Respondent and schedules a time to meet with the Respondent.  When the Court Visitor meets with the Respondent, he or she personally serves the Respondent with a copy of the Notice of Hearing and Rights and the Petition.  The Court Visitor will ask the Respondent whether he/she would like the Notice and Petition read out loud. If requested, the Court Visitor will then read the entire Notice/Petition to the Respondent.

What is contained in the Court Visitor’s report?  The Court Visitor completes a report that is then filed with the Court (and provided to Petitioner’s attorney), providing the Court with information about: the Respondent’s appearance, the Respondent’s ability to answer basic questions, the Respondent’s position on the petition, whether the Respondent wants an attorney appointed, and whether and to what extent the Court Visitor believes a guardianship or conservatorship is appropriate.

Who are the Court Visitors?  Each county is different.  However, in general the Court Visitor is an individual from the county human services.

What role does the Court Visitor’s Report have in the proceedings?  It is considered by the Court in determining the appropriateness of the guardianship or conservatorship. 

If you have questions about guardianships or conservatorships, please contact Cindi Matt at Matt Legal Services.

How Do I Set Up a Guardianship or Conservatorship in Minnesota?

The biggest question that potential clients have when they call about a guardianship is “what exactly is involved establishing a guardianship or conservatorship”  (followed very closely by, “what is this going to cost me”)?  In general, the procedures involved in establishing a guardianship for your loved one (“the proposed ward”) are as follows:

  • Meeting with Attorney – During the initial meeting you will provide detailed information to your attorney about why a guardianship or conservatorship is necessary.  Many times the attorney will provide you with a questionnaire in advance of the meeting that you should complete and bring with you.  You should have a list of specific examples/behaviors that your loved one has engaged in recently that justify the guardianship.  You should have details about your loved one’s medical history and why that justifies a guardianship.  You should bring contact information (names/addressess) for your loved ones next of kin (typically spouse, children, parents, adult siblings).  Your attorney will help you decide whether an emergency guardianship is necessary, or whether a general guardianship will suffice.  Your attorney will also help you decide whether a guardianship, conservatorship or both is necessary.
  • Attorney Prepares Court Papers to Initiate Guardianship – After your initial meeting, your attorney will prepare the necessary paperwork to establish the guardianship and/or conservatorship.  Your attorney will likely be in contact with you during this time to clarify the information that will be going into the paperwork.  The attorney will typically send it out to you for review and edits, before making a final version of the paperwork.
  • Meeting with Attorney to Sign Paperwork – When the guardianship paperwork has been finalized, you will meet with your attorney to sign the Petition and other guardianship documents.
  • Attorney files Guardianship Papers with the Court – The attorney files the signed guardianship papers with the Court.  A filing fee must be paid (it varies by county, but right now in most counties in Minnesota it is $320)
  • Court processes Guardianship Papers and Assigns a Hearing Date – the Court opens a file, processes the guardianship paperwork and assigns a hearing date.  The hearing date needs to be at least 14 days out, but is typically even further out (4 – 5 weeks) depending on the Court’s schedule.
  • Attorney Provides Notice of Hearing to Interested Persons – once a hearing date is assigned, the attorney sends formal Notice of the Hearing to individuals that are required to know about the hearing under Minnesota Statutes.
  • Attorney Gathers and Files Additional Information/Documents – if a Physician’s Statement in support of the guardianship hasn’t already been obtained, the attorney will try to obtain one before the hearing.  A Physician’s Statement is not mandatory, but medical support for the guardianship is very persuasive evidence that a guardianship is necessary and appropriate.
  • Court Visitor Meets With Proposed Ward – At least 14 days before the hearing date, an individual called a Court Visitor will go to the ward’s place of residence and read the Guardianship Petition to the proposed ward.  The Visitor asks the proposed ward a series of questions about him/herself, his position on whether he/she wants a guardian appointed and who he/she would like appointed as guardian.  the Court Visitor then prepares a report (Visitor’s Report) that is filed with the Court and provided to your attorney before the hearing.  In the report, the Visitor takes a position on whether he/she believes a guardianship seems appropriate and necessary.  The Judge reads this report and considers the information in it when deciding whether a guardianship/conservatorship is appropriate.
  • Proposed Ward Meets With Own Attorney – the proposed ward is entitled to have an attorney.  He/she can hire a private attorney, have a court appointed attorney, or waive his/her right to an attorney.  If the proposed ward does have an attorney, that attorney will meet with the proposed ward to discuss and advise about the guardianship/conservatorship proceedings.  The ward’s attorney will communicate with your attorney so that everyone is aware of the proposed ward’s legal position in advance of the hearing. 
  • Attorney Prepares for Court Hearing – the attorney will prepare you (and potentially witnesses) for the Court Hearing.  The amount and extent of preparation will vary, depending on whether the case will be contested or uncontested.  The vast majority of guardianships are uncontested.  However, sometimes the proposed ward or another interested person will contest the proceeding (because he/she does not believe a guardianship is necessary or believes that someone else is better qualified to be guardian)
  • The Hearing is Held – the guardianship/conservatorship hearing is held on the date specified in the Notice.  It is held in open court.  The proposed ward must be present at the Hearing unless excused by the Court or a Physician’s Statement is filed stating the proposed ward is unable to attend because of his/her medical/mental condition.  At the hearing, testimony is taken about why the guardianship is necessary.  If it is an uncontested proceeding, it is typically just the testimony of the Petitioner.  If it is a contested proceeding, there may be multiple witnesses (including medical experts) who talk about specific behaviors, etc. that justify the imposition of a guardianship.
  • The Judge Makes a Decision – After the Hearing, the Judge will make a decision on whether a guardianship/conservatorship is necessary and who the guardian/conservator should be.  Typically the decision is made from the bench (i.e. right at the conclusion of the hearing).  In some cases the Judge will take the matter under advisement and issue a written decision after the hearing.
  • Court Administration Issues Paperwork – after the Judge has granted the petition for a guardianship, Court Administration will issue the papers that give the guardian/conservator the authority to act.
  • Meeting with Attorney Regarding Duties – you will then typically meet with your attorney to go over your obligations as guardian and/or conservator.

Obviously things may progress differently depending on the specific facts involved, but in general you can expect that the foregoing things will happen if you are trying to establish a guardianship or conservatorship in Minnesota.

Establishing a Guardianship in Minnesota

Potential clients often ask me what is involved in establishing a guardianship or conservatorship. This post should provide a general guideline of what is involved in establishing a guardianship or conservatorship. As always, you should consult with a lawyer about the specifics of your particular situation.

Documents that are filed before the hearing:

Petition (this is all that needs to be filed to get a hearing date)

Notice of Hearing

Physician’s Statement (not technically required, but usually done)

Acceptance and Oath (signed by proposed guardian/conservator)

Informational Statement (new requirement in 2010)

Proposed Letters of Guardianship/Conservatorship

Proposed Order

Visitor’s Report (filed by Court Visitor)

Affidavit of Service of Notice of Hearing (giving at least 14 days notice of hearing to Interested Persons, as defined by statute)

Court Visitor and Court Appointed Attorney For Respondent:

When a Petition is filed, the Court Administrator provides a copy of it to a Court Visitor who, at least 14 days before the hearing, meets with the Respondent and serves Respondent by reading him/her a copy of the Petition.

The Court Visitor must also complete a Visitor’s Report and file it with the Court.

The Visitor’s Report will indicate whether Respondent is requesting an attorney.

Court must appoint an attorney, if requested by Respondent and if Respondent isn’t hiring private counsel. Respondent’s attorney has the right and duty to consult with his/her client and have adequate time to prepare for hearing. This may necessitate continuing the hearing if the attorney was only appointed a day or two before the hearing (which often happens). Attorney must disclose any conflicts to Court (involvement with the proposed guardian).

Hearing

Respondent must be present at the hearing unless a Physician has signed a statement saying that Respondent cannot physically appear and/or unless the Court orders that Respondent not appear (which must be for good cause).

Uncontested Hearings

Testimony should still be taken, since it is a proceeding which ultimately takes away fundamental liberties of the ward/protected person.

Typically Petitioner will be sworn and questioned by Petitioner’s attorney to prove up the Petition.

Court also considers physician’s statement, Visitor’s Report and any other documents Petitioner may offer.

Respondent’s attorney will let the Court know Respondent’s position.

Court typically issues order at the conclusion of the hearing.

Contested Hearings

Rules of Civil Procedure and Evidence apply.

Attorneys for other Interested Persons must ask the Court for permission to participate in the hearing. (See Minn. Stat. 524.5-408(b) and 524.5-307(b))

Parties can conduct discovery, take depositions, bring motions (for adverse exam, to compel disclosure of medical records, etc.).

At hearing, testimony is taken from Petition, other individuals who know and have observed Respondent, medical personnel (or perhaps just medical records), the Court Visitor, and anyone else counsel feel have information important for the Court to consider.

Court typically takes matter under advisement. If necessary, Court could issue interim “protective order” if Court feels protection of the Respondent is necessary before Court’s Order on the guardianship/conservatorship itself will be issued.

Miscellaneous:

Court sets bond for conservator based on amount of assets.

Guardian/Conservator must have DHS background study done before appointment, unless a limited exception applies. See Minn. Stat. 524.5-118

Bill of Rights for Wards and Protected Persons: see Minn. Stat. 524.5-120


FAQ About Guardianships and Conservatorships in Minnesota

What is a guardianship?

A court proceeding where the court appoints a person (the guardian) to act as a substitute decision maker for someone (the ward) who is determined to be incapacitated.

What is incapacitated?

“Incapacitated Person” means an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance. See Minn. Stat. 524.5-102, subd 6.

What is the standard of proof?

Clear and convincing evidence that:

1) respondent is an incapacitated person; AND

2) that respondent’s needs cannot be met by less restrictive alternative, including use of appropriate technological assistance. see Minn. Stat. 524.5-310

Who may be guardian?

There are statutory priorities for order of appointment (current guardian, health care agent, spouse, adult child, parent, adult with whom respondent has resided for more than 6 months). Court, acting in best interest of respondent, can decline to appoint someone with priority. As between 2 people with equal priority, court determines who is best qualified. See Minn. Stat. 524.5-309

Can there be a limited guardianship?

Yes. Court shall only grant those powers necessitated by wards’s limitations and demonstrated needs and, whenever feasible, should make other orders that will encourage development of ward’s maximum self-reliance and independence. See 524.5-310(c) and 524.5-313(b) and (c).

What about Guardianships for minors?

There are also guardianship proceedings for the appointment of a guardian of a minor (for example, when a minor’s parents die). There are essentially two avenues for appointment of a guardian of a minor. One, the court confirms a nomination in a parent’s will. Two, the court appoints a guardian. These materials do not address those proceedings specifically. For more information see Minn. Stat. 524.5-201 et. seq.

What is a conservatorship?

A court proceeding where the court appoints a person (the conservator) to manage the estate/assets of someone (the protected person) because that person is determined by the court to be unable to receive and evaluate information to such an extent that the person’s assets are at risk of being wasted or lost. The protected person is not declared incapacitated like in a guardianship.

Do guardianships and conservatorships go hand in hand?

Not always, but typically. There are scenarios where a person would only need a guardian or a conservator. For example, if a person only has minimal assets and no real income, a conservatorship would not be necessary. Similarly, a person may have significant assets that need managing, but that person may be able to make and communicate their own decisions about healthcare, living arrangements, etc., so only a conservatorship would be necessary.

Are there alternatives to guardianships and conservatorships?

Yes! And those alternatives should be fully explored by the petitioner before filing a petition. Some alternatives include: a health care directive, power of attorney joint bank accounts, and systems/procedures that help the respondent accomplish activities of daily living. A guardianship can only be imposed by the court if there are no less restrictive alternatives available for the proposed ward/protected person.

How is a guardianship and/or conservatorship established?

A person (typically a family member) files a petition and other documents with the court setting forth the reason why a guardianship and/or conservatorship is appropriate, and asking the court to appoint someone as a guardian and/or conservator.

The court sets the matter for a hearing and notice of the hearing is provided to “interested persons”, who are defined by statute but who generally include family members. At the hearing, the petitioner presents evidence showing the court why a guardianship and/or conservatorship is necessary. If the court determines that there is appropriate evidence to support the petition, it will appoint a guardian or conservator.

What does a guardian do?

A guardian makes sure that the ward’s medical, care, comfort, living, food and social requirements are being met. A guardian does not have to personally take care of the ward. More often than not a guardian will hire providers to see that these needs are met for the ward.

Full guardianship powers include (but are not limited to):

To have custody of ward and to establish the place of abode within or without the State;

To provide for the Respondent’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements;

To take reasonable care of the Respondent’s clothing, furniture, vehicles and other personal effects and, if property requires protection, apply for a conservator;

To give any necessary consent to enable, or to withhold consent for, the necessary medical or other professional care, counsel, treatment or service;

Exercise supervisory authority over the ward, in a manner which limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services;

To approve or withhold approval of any contract, except for necessities, which the Respondent may make or wish to make (if there is no conservator); and

To apply on behalf of the Respondent for any assistance, services, or benefits available to the Respondent through any unit of government (if there is no conservator).

See Minn. Stat. 524.5-313.

What does a conservator do?

A conservator makes sure the protected person’s finances are tended to. The conservator figures out what assets the protected person has and files an inventory listing those assets with the court. The conservator then pays the protected person’s bills and manages their money and other assets. Each year the conservator must file an accounting with the court showing what the conservator has used the protected person’s money for over the past year.

A conservator’s powers include (but are not limited to):

To pay reasonable charges for the support, maintenance, and education of the Respondent in a manner suitable to the Respondent’s station in life and the value of Respondent’s estate;

To pay out of the Respondent’s estate all just and lawful debts of the Respondent;

To possess and manage the estate of the Respondent, collect all debts and claims in favor of the Respondent, or to compromise them, institute suit on behalf of the Respondent, or invest Respondent’s assets not currently needed for debts, charges, and management of the estate; and

Exchange or sell an undivided interest in real property.

See Minn. Stat. 524.5-417

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