Restoration of a Ward to Capacity in Minnesota

Once a person is determined to be in need of a guardian, is that the end of the person’s freedom as they know it?  Does the guardianship last forever?  No.  A guardianship can be terminated by restoration of the ward to capacity.   Restoration means that all of the rights which had been removed from the ward pursuant to the court’s guardianship order are given back to the individual and the individual is no longer considered to be incapacitated.

How does a ward go about being restored to capacity?  Like most things relating to the guardianship, a petition is filed, a hearing is held and the judge makes a decision.

Who petitions for restoration to capacity?  Oftentimes it is the ward him or herself who decides to petition the Court because he or she is able to function on their own and is no longer in need of a guardian.  But the petition can be filed by the guardian or any other interested person who believes the ward should be restored to capacity. 

What paperwork must be filed for the hearing?  The forms necessary for restoration are available on the Minnesota Court website here  (under Restoration to Capacity Forms).   You should, of course, consult the statute or an attorney to make sure that the proper notice is given to the appropriate persons.

Is the ward entitled to an attorney?  Yes, just like in the initial petition to establish a guardianship, the ward is entitled to be represented by an attorney.  If the ward can’t afford one of his or her own, the Court will appoint an attorney.

What happens at the hearing?  At the hearing itself, evidence is given to show that the ward now has the functional ability to handle their personal care and/or manage property.  The ward typically testifies about his or her day to day routine, and gives examples of how they are functionally able to do things on their own and why the guardian is no longer necessary.   It is not necessary to show that the ward has gained total control of all functions.  But evidence must show that the ward can now handle their own personal cares and/or manage property.   If a person is able to provide for his/her own self care in spite of a mental impairment, restoration should be granted.

As with any guardianship issues, you should be sure to consult with a qualified attorney to determine whether restoration is appropriate in your particular situation and to be sure all procedures and statutes are followed correctly.

Tips for Guardians and Conservators Billing the Ward for Their Fees and Expenses

Seems like a lot of negative press lately for guardians and conservators.  This recent Star Tribune article on guardians in Aitkin county is the latest.  One of the guardianships referred to in the article was recently addressed in a published Court of Appeals of Minnesota opinion, In the Matter of the Guardianship and Conservatorship of Harold F. Doyle.  In Doyle, the Court of Appeals examined the issues of:  1) whether a district court can sua sponte (on its own initiative) examine and disallow fees and expenses of guardians/conservators in an annual account (the Court held that it could); 2) whether the court can rely on documents that are not part of the record (the Court held that the district court could rely on the County’s Service Fee Policy in deciding the appropriateness of a guardian’s fees, since that policy was referred to in the guardianship statute.  However the Court held that the district court erred in relying on MAGIC Standards of Practice in it’s decision, when those Standards had not been introduced by a party as evidence or authority, and the parties did not have an opportunity to review and/or comment on the Standards); 3) whether the district court properly rejected accounts and disallowed certain fees and expenses (the Court remanded, but gave guidance on what the district court should consider).

After reading the Doyle case, I’ve put together some tips for Guardians and/or Conservators billing for their services:

1)  Determine whether there are Service Fee Policies or similar policies governing payment of guardians in the county in which you were appointed.  Even if the policy applies for indigent wards, you should still review the policy as it may be instructive on what you should be charging.  If you are going to charge something different, be prepared to explain why you charge more (i.e. you have greater expertise; this particular ward has more extensive needs based on his/her more extensive assets; the going-rate for private guardians/conservators in the area for non-indigent wards is X – and your rate is in line with that; etc.)

2) Review and be familiar with the MAGIC Standards of Practice.  While they aren’t guidelines that courts can take judicial notice of, they are instructive and are put out by a reputable non-profit organization that addresses guardianships and conservatorships in Minnesota.

3) Always bear in mind that your fees and expenses need to have been rendered for necessary services or necessary expenses for the benefit of the ward.

4) Always keep detailed, meticulous and organized records of your fees and expenses.  You are acting as a fiduciary for the ward/protected person.  It isn’t your money.  You need to account for every penny that you spend of the wards and be ready to tell the Court why you spent/charged what you did.

5) Save receipts for every expense.

6) Keep detailed time records.  Not “worked on ward’s case”, but instead “Made telephone calls to social security to straighten out mix up with monthly social security check.”  Etc.

7) Your hourly fee should be in line with what other guardians with your experience are charging for similar cases.  Make calls to other local guardians, to the courts, to the county, etc. in order to determine what others are charging.  Do a memo to the file documenting your findings so that if you are ever called upon to justify your fee, you can point to the research that you did to support your fee (and don’t charge the ward for this legwork that you did to figure out what fee to charge the ward; your research in this regard isn’t a benefit to the ward, rather it’s a part of your cost of doing business as a guardian and it’s a benefit to YOU to know that you have done the leg work to ensure you are charging the ward a fair fee).

Remember, in the end, it boils down to this:  You are a fiduciary for the ward/protected person.  It is the ward’s money, not yours.  At the end of the day you should feel comfortable explaining to the Court why you charged for every penny that you did, and you should have the documentation to support it.

New Minnesota Conservatorship Account Filing Requirements (CAMPER)

Minnesota Courts have implemented a new online filing system for annual (and final) accounts for conservatorships.  Check with your local court to see if they are requiring it yet.  Apparently it is mandatory statewide by January 1, 2011.  Here is a link to the Court’s website regarding the training that needs to be completed to use the online system, which is called CAMPER (Conservator Account Monitoring and Preparation and Electronic Reporting):    CAMPER link

While I typically favor automating things, because I think it makes life easier in the long run, I have very mixed feelings about this new requirement.  The majority of my conservator clients are individual family members, many of whom aren’t technologically sophisticated.  While many of them use our firm’s services for preparation of an annual account, many of them also do the account on their own (and I have witnessed many pro se conservators in court who do the filing on their own – “the old fashioned way”, with pen and paper).  I fear that this new electronic filing requirement will force them to hire attorneys or other professionals to do the filing and that will increase fees (and decrease funds available to the protected person).  Time will tell.

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.