I frequently get calls from persons under guardianship, or their family members, who are concerned because the current guardian is not doing things that they are supposed to (or is doing things that they are not supposed to). If the actions of the guardian are serious enough to put the person under guardianship in jeopardy, the Court can appoint a Temporary Substitute Guardian under Minn. Stat. 524.5-312. The Court could appoint a temporary successor guardian of its own volition, or an interested person could bring a petition asking the court to do it after a hearing. It depends on the particular circumstances of the case and how urgently a new temporary guardian is needed. If you have questions about your particular case, you should seek the advice of counsel.
I represent a lot of people who are put under guardianship and one of the things that I always talk about with them is that a guardianship does NOT always last forever. This is particularly true in the case of young adults, who are put under guardianship when they turn 18 because of disabilities like ADHD, Oppositional Defiant Disorder or Anxiety Disorder.* With any individual, but particularly with “children” when they turn 18, they simply need more time, more transitional schooling, more life experience, before they are able to function in society without a guardian.
How is a guardianship ended in Minnesota? By convincing the Court that a person is no longer in need of the assistance or protection of a guardian. The court will have a hearing to determine whether a guardianship should be terminated. At the hearing, evidence is presented to show that the individual is now able to make and communicate his/her own responsible decisions regarding medical care, shelter, nutrition, clothing and safety. Although statute doesn’t technically require it, it is usually very helpful to have a Physician’s Statement that there is no longer a continuing need for a guardian. Once a prima facie case is established that a guardian is no longer needed, if no one comes forward objecting to the termination and showing that in fact guardianship is still needed, then the Court must terminate the guardianship. The statute that governs termination of guardianships is Minn. Stat. 524.5-317. During this process the Ward (person under guardianship) is entitled to have an attorney represent him/her.
* (This list is meant to be illustrative, not exhaustive).
When a guardianship petition is filed in Minnesota, someone called a “Court Visitor” is typically appointed by the Court. The role of the Court Visitor is to serve the petition on the Respondent (the person over whom guardianship is sought) and to report to the Court about the visit. The Court Visitor will usually call the Respondent at the number in the Petition and arrange a visit to the Respondent’s home.
The statute governing the details of the Court Visitor’s work is set forth in Minn. Stat. 524.5-304. It provides, in pertinent part:
(a) Upon receipt of a petition to establish a guardianship, the court shall set a date and time for hearing the petition and may appoint a visitor. The duties and reporting requirements of the visitor are limited to the relief requested in the petition.
(d) The visitor shall personally serve the notice and petition upon the respondent and shall offer to read the notice and petition to the respondent, and if so requested the visitor shall read the notice and petition to such person. The visitor shall also interview the respondent in person, and to the extent that the respondent is able to understand:
(1) explain to the respondent the substance of the petition; the nature, purpose, and effect of the proceeding; the respondent’s rights at the hearing; and the general powers and duties of a guardian;
(2) determine the respondent’s views about the proposed guardian, the proposed guardian’s powers and duties, and the scope and duration of the proposed guardianship;
(3) inform the respondent of the right to employ and consult with a lawyer at the respondent’s own expense and the right to request a court-appointed lawyer; and
(4) inform the respondent that all costs and expenses of the proceeding, including respondent’s attorneys fees, will be paid from the respondent’s estate.
(e) In addition to the duties in paragraph (d), the visitor shall make any other investigation the court directs.
(f) The visitor shall promptly file a report in writing with the court, which must include:
(1) recommendations regarding the appropriateness of guardianship, including whether less restrictive means of intervention are available, the type of guardianship, and, if a limited guardianship, the powers to be granted to the limited guardian;
(2) a statement as to whether the respondent approves or disapproves of the proposed guardian, and the powers and duties proposed or the scope of the guardianship; and
(3) any other matters the court directs.
If you are wondering what a guardianship or conservatorship is, and how I can help you with issues relating to guardianships and conservatorships in Minnesota, take a look at this short video clip about Cindi Spence and Spence Legal Services. Feel free to give me a call if you want to talk about your situation.
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.
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 does a Court Visitor do in Minnesota Guardianship Proceedings?
When a guardianship or conservatorship petition is filed, the Court appoints someone called a “Court Visitor”. (See Minn. Stat. 524.5-304). The role of the Court Visitor is to serve the petition on the Respondent (the person for whom a guardianship is being sought), to go over the petition with the Respondent and to provide a written report to the Court about the visit. The Court Visitor’s report will include an opinion as to whether guardianship/conservatorship appears to be appropriate, based upon the Visitor’s interactions with, and observations of, the Respondent. The Court Visitor will usually call the Respondent, or the person taking care of the Respondent, in advance of the meeting to coordinate a meeting. Sometimes the Court Visitor will make an unannounced visit to the Respondent. The Court Visitor will make note in his/her report whether anyone else was present during the meeting with the Respondent. The Court Visitor’s report is filed with the court and a copy is given to the Petitioner or his attorney in advance of the hearing.
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).
If you are petitioning to be a guardian or a conservator in Hennepin County, you must watch this series of videos about the responsibilities of being a guardian or conservator in Minnesota. It’s good viewing for individuals considering being a guardian or conservator in any county in Minnesota. I have all of my clients watch it and many of them are surprised by the duties and responsibilities that come with being fiduciary for an incapacitated person.
So 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:
- Does your elderly parent already have a health care directive in place? If so, this may be a “lesser restrictive alternative” to guardianship.
- 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.
- 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.
- 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.
- 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.