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.

5 Tips for Guardians in Minnesota

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Being a guardian for your loved one is an important responsibility.  For those individuals who aren’t “professional” guardians, the responsibilities can be confusing and overwhelming, especially during the first year when you are getting used to your new role as guardian.  Here are a few tips to help with your role as guardian:

  1. File and serve your Personal Well Being Report/Annual Notice of Right to Petition for Restoration on time.  It’s due on the anniversary of your appointment as guardian.  The forms can be found on the Minnesota District Court Website under the “Annual Reporting Forms” section. 
  2. You can’t just dispose of personal belongings of the ward.  You need to first give Notice to the ward and interested persons of your intent to do so. The forms can be found on the Minnesota District Court Website under the “Other Materials” section.
  3. Don’t forget that the ward retains rights, even when under guardianship.  The Bill of Rights for Wards and Protected Persons can be found at Minn. Stat. 524.5-120.
  4. You need to have a background study completed every two years.  The statute that sets forth the requirements for the background study is Minn. Stat. 524.5-118.  The form for the background study can be found on the Minnesota District Court website under “Establishing Guardianship/Conservatorship” section.
  5. Unless restricted by Court Order, the ward retains the right to vote.  As guardian, you should make sure that the ward has the opportunity to exercise this important right, if he/she wants to do so.

As always, if you have more specific questions about your role as guardian, you should consult with an experienced guardianship and conservatorship attorney.

FAQ Friday: Does a person under guardianship in Minnesota retain any rights?

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:  Does a person under guardianship in Minnesota retain any rights?

Yes.  The rights that a person under guardianship or conservatorship in Minnesota retains are set forth in Minnesota Statute 524.5-120, which is known as “The Bill of Rights For Wards and Protected Persons”. 

Unless restricted by Court Order, those rights include the right to:

  1. treatment with dignity and respect;
  2. due consideration of current and previously stated personal desires, medical treatment preferences, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;
  3. receive timely and appropriate health care and medical treatment that does not violate known conscientious, religious, or moral beliefs of the ward or protected person;
  4. exercise control of all aspects of life not delegated specifically by court order to the guardian or conservator;
  5. guardianship or conservatorship services individually suited to the ward or protected person’s conditions and needs;
  6. petition the court to prevent or initiate a change in abode;
  7. care, comfort, social and recreational needs, training, education, habilitation, and rehabilitation care and services, within available resources;
  8. be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the ward or protected person’s clothing, furniture, vehicles, and other personal effects, to object to the disposition of personal property and effects, and to petition the court for a review of the guardian’s or conservator’s proposed disposition;
  9. personal privacy;
  10. communication and visitation with persons of the ward or protected person’s choice, provided that if the guardian has found that certain communication or visitation may result in harm to the ward’s health, safety, or well-being, that communication or visitation may be restricted but only to the extent necessary to prevent the harm;
  11. marry and procreate, unless court approval is required, and to consent or object to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
  12. petition the court for termination or modification of the guardianship or conservatorship or for other appropriate relief;
  13. be represented by an attorney in any proceeding or for the purpose of petitioning the court; and
  14. vote, unless restricted by the court.

FAQ Friday: How long does it take to establish a guardianship in Minnesota?

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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:  How long does it take to get guardianship over someone in Minnesota?

The answer is that it depends.  It depends on what county the case is in (typically where the individual resides).  It depends on whether the matter will be contested or uncontested.  It depends on whether you are filing for an emergency or general guardianship. It depends on the court’s calendar (when a judge is available to hear the case).

In general, if the matter is uncontested and it is a general guardianship (as opposed to an emergency), it takes between 4 – 6 weeks.  (But, again, it depends on the county and the court’s calendar).

If the matter is contested it can take many months before the guardianship is established.

If it’s an emergency, the matter is typically decided (or at least set for hearing) within a week of filing the guardianship petition.

Because there are so many variables, you should consult with an attorney about the specific facts of your situation.

 

 

FAQ Friday: How does a guardian dispose of personal property?

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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: I’ve been appointed as guardian, so I know I’m in charge of my mom’s clothing, furniture, vehicles and other personal effects.  How do I go about disposing of them or selling them?

In Minnesota, a guardian is responsible for a ward’s clothing, furniture, vehicles and other personal effects.  A conservator, if one is appointed, would be responsible for all other property. Minnesota Statute 524.5-313(c)(3) sets forth your duties regarding the ward’s clothing, furniture, vehicles and other personal effects.  Essentially, you must do as follows:

  • Fill out a Notice of Intent to Dispose of Clothing, Furniture, Vehicles or Other Personal Effects.  The form can be found on the Minnesota Court Website. Fill it out as completely as possible with details regarding what you intend to dispose of and how you intend to do that (i.e.  private sale, donate it to Goodwill, post it on Craigslist, etc).
  • Mail the notice on the Ward (the person for whom you are Guardian) and Interested Persons (defined by Minn. Stat. 524.5-102)
  • File the Notice and an Affidavit of Service with the Court.
  • Wait 10 days.  If you have not received an objection, you can proceed with your planned distribution of the personal property.  If you have received an objection, or one has been filed with the court, you need to wait until you receive an order from the court telling you what to do with the property (a hearing will be scheduled and held).

If you have questions on this process, speak with a qualified guardianship attorney.

FAQ Friday: Are There Any Resources That Provide An Overview of Guardianships and Conservatorships in Minnesota?

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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: I’m thinking of becoming guardian and conservator for my aging mother.  Are there any informational resources that give me an overview of the duties and responsibilities of being a guardian or conservator in Minnesota?

Yes!  The Minnesota Judicial Branch has produced a series of educational video segments on what it means to be a guardian and conservator in Minnesota.  Potential guardians and conservators are required to watch these videos in certain judicial districts in Minnesota (2nd, 4th, 6th and 7th Districts) and to note on their Acceptance of Appointment that they have watched the videos.

The topics of the video segments are as follows:

  1. Introduction to Guardianships and Conservatorships
  2. What Guardianship Is and Is Not
  3. Less Restrictive Alternatives To Guardianship and Conservatorship
  4. Duties and Responsibilities of a Guardian
  5. Duties and Responsibilities of a Conservator
  6. Annual Reporting Requirements and Oversight by the Court
  7. Common Issues and Problems

The videos are short, but filled with great information on what it means to take on the responsibility of being a guardian or conservator in Minnesota.

FAQ: Personal Well Being Reports in Minnesota Guardianships

faqGuardians 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).

 

FAQ on Termination of Guardianship in Minnesota

termination guardianshipWhat is the statute governing restoration to capacity in Minnesota?  Minnesota Statute 524.5-317

Once a guardianship is established, is it forever?  Or can it be terminated?  A guardianship does not always last forever.  Although many times with elderly individuals who have progressive diseases, they do last for the duration of the individual’s life, there are circumstances where guardianships don’t last forever.  For example, when a person is injured in a car accident but eventually recovers sufficiently to direct his/her own activities, a guardianship may no longer be necessary.  Sometimes a person will have a stroke that is dibilitating, but then gradually recover.  Sometimes a person will be put under guardianship because of mental illness, but when medication is regularly taken, the need for a guardianship may end.

Who may ask the court to end a guardianship? Anyone interested in the ward’s welfare may petition the court to end the guardianship.  This would mean the ward him/her self, a family member, a social worker, a doctor, even the current guardian.

How do you terminate a guardianship?  A petition is filed with the court and a hearing date is set.  Notice of the hearing must be given to the interested persons (as defined by Minnesota statute).  At the hearing, testimony will be taken and evidence presented in order to establish that the ward no longer needs a guardian.  Typically this will be done through testimony from the ward him/her self, testimony of others who have the opportunity to interact with and observe the ward (including the guardian), and physician support (testimony or a written statement).

What is the standard to terminate a guardianship?  In order to terminate a guardianship, it must be established by prima facie evidence that a guardianship is no longer necessary, because the ward no longer needs the assistance or protection of a guardian.  If this is established, the burden then shifts to anyone opposing the guardianship to prove that it is in the best interest of the ward to keep the guardianship in place.

When can someone petition to terminate a guardianship? Any time.  You don’t have to wait until the annual notice of right to petition for restoration is served upon the ward.  If the ward no longer needs a guardian at any point throughout the year, a petition may be filed.

If a petition to terminate a guardianship is denied, does that mean the guardianship is forever?  No, not necessarily.  If the person’s circumstances change (i.e. his medical condition improves, he is able to do activities of daily living on own, etc.), he may petition for restoration again.

Do you need physician support to end a guardianship?  Although the statute doesn’t technically require it, unless the ward is very clearly able to demonstrate to the court that he/she is able to function independently and make and communicate decisions which would keep him/her safe, provide for nutrition and understand own medical situation, the support of a physician is imperative.

5 Things to Consider Before Filing For Guardianship of Your Elderly Parent

mother and daughterSo you think that your elderly parent is no longer able to make sound personal and medical decisions, and might be in need of a guardian?  Before filing  a petition for guardianship, here are some of the main things you should consider:

  1. Does your elderly parent already have a health care directive in place?  If so, this may be a “lesser restrictive alternative” to guardianship.
  2. Do you have physician support for the guardianship?  Although not technically required, in order to be successful on your guardianship petition, physician’s support is recommended.  If you can’t get it (because of HIPPA), you may need to rely on behavioral evidence alone.  If you are the current health care agent under a health care directive, you should try to get physician’s support.
  3. If you are thinking of being the guardian, you need to consider the impact that being guardian will have on your relationship with the parent.  Often times the elderly individual resents the guardian and is hostile.  Sometimes children may want to petition, but ask that a neutral individual (or professional) be appointed as guardian.
  4. Are you prepared to make tough choices?  A guardian makes tough choices – medical decisions, where to live, supervisory decisions.  The decisions aren’t always easy, black and white decisions.  Before taking on this important role, you need to make sure you are prepared for the challenges that it will present.
  5. Will filing for guardianship of your elderly parent cause friction among you and your siblings?  Oftentimes siblings feud over whether mom or dad even need a guardian, or who the is best person to be guardian.  Before filing the petition, you should ascertain whether you have the support of your siblings and, to the extent that you don’t have their support, you must be prepared to forge ahead for what you believe is right for your parent.

MyMNConservator (MMC) Replaces CAMPER

ready_set_goTomorrow is the big day for My Minnesota Conservator (MyMNConservator or MMC) to launch and replace the CAMPER electronic reporting system.   The system promises to be much more user friendly.  Patience will be required at the outset, as I am sure there will be some glitches and a learning curve.  If you require the assistance of an attorney, please feel free to call Cindi A. Spence at Spence Legal Services at (763)682-2247.

 

What do you need to know to use MMC?**

  • There will be tutorial videos for MMC available on You Tube.
  • In order to use MMC you must first create an account.  You need an email address to do this.  This will be your log in for MyCourtMN, which will have additional features in the future.
  • In order to register a case (a conservatorship file), you must enter the file number EXACTLY as it appears in MNCIS, with dashes included.  If it is an older case, the last digits have to be six.
  • You will need to then enter the anniversary reporting date.  If you have already previously filed an annual account, your date will be the period end date on the last filed account.  If you have not yet filed an inventory, it will be the date of the Letters of Conservatorship (which will be the date that the Letters are filed).
  • You will have to manually fill out an Inventory – you cannot use a CSV.
  • The assets from CAMPER were not able to transfer to MMC, so the first time you enter information about a case you will need to create a conversion inventory.  You do this by using the assets and numbers from the last annual account.
  • For personal property do not enter a value less than $500.
  • If you want an attorney or other agent to help you with your accounting, you will need to designate her as a Designated Agent.  This process is simpler in MMC – you do not need to fill out a form and send it in and wait for the Court to allow access anymore.  Instead, there is a clickable area (a pencil) where you are able to add someone as your designated agent.  The Designated Agent has  a separate log in.
  • Personal Well Being Reports must be filed with the court via paper (or e-file if that is available in your district), NOT through MMC.

Stay tuned for additional blog posts with tips and tricks for using MMC.

**MMC is a work in progress.  The information in this blog post may change.  If you have questions, consult with MMC at (763)279-0176

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