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 am frequently asked if guardianship court hearings are public proceedings. The short answer is “Yes”. However, there is a statutory provision that allows the Court to close the proceeding (make the hearing closed to the public) in limited circumstances.
Minn. Stat. 524.5-307 provides that “the hearing . . . may be closed at the request of the respondent and a showing of good cause.”
So who can make the request to close the hearing? The request must be made by, or on behalf of, the respondent (the person for whom guardianship is sought). If the respondent isn’t in a position to ask that the hearing be closed, his attorney or an interested party speaking on his behalf should make the request to the court.
What are some things that might be “good cause” to close the hearing?
- Particularly sensitive or embarrassing information that will come out during the course of the hearing. It’s probably NOT sufficient to say that medical information will be discussed, because that happens in virtually every guardianship proceeding. But if there is medical information that is extremely sensitive, it may be enough to constitute “good cause”.
- Behaviors of the respondent that are triggered/exasperated by a crowd. Sometimes a respondent has a diagnoses that causes behaviors or extreme anxiety around crowds or strangers. In cases like these, the Court may close the hearing, so that the respondent isn’t extremely agitated during the hearing.
- Being a minor. Since other proceedings involving minors are closed (juvenile court, CHIPS proceedings), the Court often times will close minor guardianship or conservatorship hearings.
- Other situations that are extremely sensitive, embarassing or that would be detrimental to the respondent’s health, safety and well-being if open/public hearing was to proceed.
The Minnesota Judicial Branch recently released an awesome new interactive dashboard using Tableau software, which allows the user to track case data for the years 2012 – 2016. The source for the underlying information is the Annual Reports of the Judicial Branch (2012-2016). The user can sort by major case type, judicial district, county and dates. The Minnesota Judicial Branch interactive data dashboard can be found here.
It provides some interesting insight into guardianship and conservatorship case filings, in terms of numbers and in terms of the counties and judicial districts that are seeing more (or less) guardianship filings. With the coming “silver tsunami”, I anticipate that the number of annula guardianship and conservatorship filings will increase. Although, this could be tempered a bit with the push toward person-centered alternatives to guardianship.
The number of guardianship/conservatorship cases filed in Minnesota for 2012 – 2016 was 13,570, broken down as follows:
- 2012: 2,718
- 2013: 2,704
- 2014: 2,620
- 2015: 2,797
- 2016: 2,731
The number of guardianship/conservatorship cases filed in Hennepin County for 2012 – 2016 was 2,664, broken down as follows:
- 2012: 550
- 2013: 590
- 2014: 525
- 2015: 503
- 2016: 496
The number of guardianship/conservatorship cases filed in Ramsey County for 2012 – 2016 was 1,041, broken down as follows:
- 2012: 220
- 2013: 203
- 2014: 196
- 2015: 228
- 2016: 194
The number of guardianship/conservatorship cases filed in Dakota County for 2012 – 2016 was 1,078, broken down as follows:
- 2012: 192
- 2013: 208
- 2014: 246
- 2015: 214
- 2016: 218
This is great information to have. Let’s hope the Minnesota Judicial Branch continues to keep this dashboard currrent.
What do you do if your elderly parent needs help making decisions?
- Determine what level of help that they need. This is often easier said than done. You should look at their physical, mental and emotional health and try to determine whether they are still in a position to make their own decisions. Sometimes the elderly can still come to their own decision about their medical care, where they live, etc., but they simply need help implementing their decisions. Sometimes the elderly have become so cognitively impaired, or are so vulnerable, that they can no longer even make their own decision, let alone implement it. Most times, the elderly lie somewhere in between these two extremes. Figuring out what level of help they need often requires the input of the elderly person’s physician. Sometimes you can tell what level of assistance is needed just based upon your own interactions with mom or dad.
- If mom or dad can still make their own decisions, but just need help implementing their decisions, you should take them to an estate planning attorney who can meet with them and get legal documents or other things in place that will allow someone else to help them implement their decisions. These things range from joint accounts to a health care directive to a power of attorney. The estate planning attorney could even put them in touch with resources to help them develop a care plan for if their health takes a turn for the worse.
- If mom or dad can no longer make their own decisions to keep themselves safe, then you should determine whether they have in place legal documents that allow someone else to make decisions for them. These documents are a health care directive (for medical decisions) and a power of attorney (for financial decisions). Depending on the details of the documents and the particular circumstances that mom or dad face, these might be sufficient to allow someone else to act on mom or dad’s behalf.
- If mom or dad can no longer make their own decisions to keep themselves safe and they do not have any legal documents or other measures in place, then you likely need to pursue the appointment of a guardian and/or conservator for mom or dad. Most people find that they need the assistance of an attorney to do this.
If you have questions about how you can help your elderly parents with decision-making, please contact Cindi Spence of Spence Legal Services at (763) 682-2247.
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.
10 Signs Your Loved One May Need A Guardian
- He lacks good judgment on how to keep himself safe.
- She cannot reliably take her own medications.
- He gets lost in places that were once very familiar to him.
- She does things around the house that are dangerous – like leaving the burner on after cooking.
- He responds to mail or calls that are obviously scams.
- She insists on driving, even though it’s likely no longer safe for her to do so.
- He has become very forgetful – missing appointments, forgetting events, etc.
- She is frequently late – or completely misses – paying bills, taxes, etc.
- He is no longer able to balance his checkbook.
- She is falling and dismissing it as a one-off event.
If these sorts of things are happening to your parent, spouse or family member, he or she may be in need of a guardian to help him/her make good decisions and keep him/her safe.
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. 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.
Guardians and Conservators in Minnesota need to have a background study completed before the Court will appoint them as guardian. The specific statute that addresses the background study is Minn. Stat. 524.5-118.
Commonly asked questions about the background study:
- I am a truck driver (or a teacher or a daycare provider . . .) and so I already had a background study for my job. Do I still need one? Yes. The background study for guardianships and conservatorships is specific and checks for certain things, so it needs to be done even if you have had a background study done through a different agency.
- How much does it cost? Currently, it costs $50.00 if you haven’t lived out of state in the last 10 years, $130 if you have lived out of state (and then you will also need fingerprints)
- How long does it take? It typically takes anywhere from 5 – 8 weeks, or longer. So you should send in the background study form as soon as you file your petition for guardianship.
- Where do I get the form to complete the background study? It is available at www.mncourts.gov – in the “Forms” section, under “Guardianship – Conservatorship”. Click here for a direct link to the Guardianship Background Study Form.
Wondering what is involved in being a Guardian and/or Conservator for someone in Minnesota? Check out the Guardianship and Conservatorship video created for the 4th Judicial District (this is required viewing to be a guardian or conservator in Hennepin County):
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.