The District Court Show Epiosde #55: Guardianships and Conservatorships

Check out Judge Halsey’s latest episode of The District Court Show on QCTV, Episode #55 Guardianships and Conservatorships, for 30 minutes of discussion about guardianships and conservatorships in Minnesota.  The featured guests are myself (Cindi Matt, Buffalo, Minnesota Guardianship Attorney) and Daniel Lodahl (professional conservator, First Fiduciary Corporation).  If you have any follow up questions about guardianships or conservatorships in Minnesota, please contact me.

Standards for a Conservator Investing Protected Person’s Assets

What standards should a Conservator follow with regard to investing a protected person’s money?

Minn. Stat. 524.5-417 (Powers and Duties of a Conservator) gives us some guidance.  It states, in pertinent part:

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The duties and powers of a conservator include, but are not limited to:

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(3) the duty to possess and manage the estate, collect all debts and claims in favor of the protected person, or, with the approval of the court, compromise them, institute suit on behalf of the protected person and represent the protected person in any court proceedings, and invest all funds not currently needed for the debts and charges named in clauses (1) and (2) and the management of the estate, in accordance with the provisions of sections 48A.07, subdivision 6, 501B.151, and 524.5-423, or as otherwise ordered by the court. The standard of a fiduciary shall be applicable to all investments by a conservator. A conservator shall also have the power to purchase certain contracts of insurance as provided in section 50.14, subdivision 14, clause (b); 

So what is the standard of a fiduciary?  According to Brian Kompelien, an investment advisor who recently spoke at the MAGiC annual conference, a conservator or trustee should follow the Prudent Investor Rule.  This rule essentially requires a conservator to examine the protected person’s assets (both the amount and the make-up of those assets) and consider the particular circumstances of the protected person (how much cash will he need and how soon) and then determine how to best manage and invest the funds in light of the particular purposes, terms, distribution requirements and other circumstances of the protected person.

It would be easier for the Conservator if there was a bright line rule, such as “if the protected person has X dollars of assets, then invest Y percentage in stocks and Z percentage in bonds”.  No such luck.  How to invest the money will be different for each protected person.  One protected person may be 95 years old and living at a skilled nursing home which is paid for with the long term care insurance that the person had the foresight to purchase when he was younger, so other than a small amount for personal needs, this person may not need much.  Not a lot of out of pocket money needed in the immediate future in this situation.  Another protected person may be 50 years old, suffering from early onset Alzheimer’s and living in a locked Alzheimer’s facility.  Lots of money needed in the near future in this case.  The conservator in each of these  cases would invest the protected person’s money very differently.

Individual family members who are appointed as conservators and do not have financial or investment expertise, would be wise to consult with a reputable financial planner to determine different options available for their particular situation.

Top 10 Things To Consider When Hiring An Attorney

Finding an attorney can be a daunting task. Most people who are in need of an attorney are stressed out, nervous, scared and overwhelmed by the legal issue that they face.  Add to that the job of figuring out who to actually hire as an attorney, and a person will very quickly be confused and overwhelmed.  
What to do?  Take a deep breath.  Read through the Top 10 Things to Consider When Hiring an Attorney.  Call a few attorneys and arrange meetings or phone conferences with them to discuss your situation.  During the meeting ask the questions and make observations about the Top 10 Things to Consider When Hiring an Attorney.  Take notes if you need to.  Then take a day or two to process the information you have gathered and make your decision about who to hire.  
Top 10 Things to Consider When Hiring an Attorney
1) Experience.  How many years of legal experience does your attorney have?  Is he or she right out of law school, where the learning curve is still going to be pretty steep (and on your dime)?  Or is she a veteran with many years of lawyering under her belt?  Has she ever actually stepped foot in a court room?  How many trials has she actually done?  In Minnesota, most district court records are public and a search can easily be done on the Minnesota Trial Court Public Access Page  by inputting the attorney’s name, so you can see the number and type of cases he or she has been involved in (though this will only tell you cases that have actually been filed).  Does the attorney have experience in the particular area of law that you need help with?
2) Results.  All the years of experience in the world don’t mean much if an attorney rarely gets good results.  Has she won motions or cases?  Is she effective at taking depositions?  Has she helped her clients reach settlements that they have been satisfied with?  Ask the attorney!
3) Rates/Retainer.  How much does the attorney charge?  Is it per hour or flat fee?  How much is the attorney requiring up front for a retainer?  How do the rates/retainer compare to other attorneys in the area?  If the attorney is significantly less expensive than others in the area, ask yourself why that is.  You may be able to find an attorney that is $50 cheaper per hour than any other attorney in the area, but ask yourself whether the old adage “you get what you pay for” may come into play.  An attorney who charges $50 less than everyone else may be so inexperienced that they take twice as long to accomplish the necessary work.  So don’t just look at rates/retainer alone, consider them along with the experience and results that you may also be getting.
4) Do you like him/her?  You don’t need to become best friends with your attorney, but you should like and trust your attorney.  Like it or not, you will be working with him or her for week, months or even years.  If you think the attorney is a jerk at your first meeting, he or she isn’t likely to change during the course of your case.  
5) What are others saying about him/her?  Check out what online sites like avvo.com (which provides ratings and reviews for all attorneys in the United States) are saying about the attorney.  Have any former clients provided reviews or testimonials about the attorney?  Were they positive or negative?  Ask your peers and people in the community who they would recommend as an attorney.  If you know a lawyer in a different city, call him and see which attorneys he recommends in your area that might be able to help you with your legal needs. 
6) Office atmosphere.  The atmosphere of an attorney’s office can tell you a lot about him/her and the type of firm the attorney practices at.  Is it a dive that smells stale and smoky with outdated furnishings?  Or is it a clean and comfortable office?  While these things in themselves aren’t reflective of an attorneys’ legal skills, they certainly give you a clue about how the type of person you are hiring to help you with your legal matter.
7) Professionalism/Courtesy.  Are you the attorney’s focus during the first meeting? Does he make you wait long?  Is he looking at his watch, trying to move on to a paying client?  Your first meeting is likely a short, free consultation.  But it is still your time with the attorney and you deserve to have the full attention and respect of the attorney during your 30 minutes.  
8)  Appearance.  Does your attorney look clean and professional?  Or does he look like an unprofessional slob?  If you are having him draft a contract, maybe it doesn’t matter.  But if you will end up in court, you need to think about how the attorney will look and present herself to a judge or jury.
9)  What would the attorney’s opponents say about her?  Ask the attorney this question.  You will probably catch them off guard and you will, hopefully, get an answer that tells you quite a bit about what the attorney is really like.  It’s easy for an attorney to have a rehearsed answer about his/her qualities. 
10)  Go with your gut.  If something is telling you not to hire a certain attorney, trust your instinct.  Choose the attorney that your gut is telling you to hire.

Can a Guardian Sell or Dispose of Ward’s Personal Property?

Minn. Stat. 524.5-313(c)(3) provides the guardian with “the duty to take reasonable care of the ward’s clothing, furniture, vehicles and other personal effects, and, if other property requires protection, the power to seek appointment of a conservator of the estate.”

So what happens if a guardian decides the certain items of the ward’s must be sold or otherwise disposed of?  For example, the guardian might decide that funds are needed for the ward’s care, so items must be sold.  Or the guardian may decide that items are no longer used and are too expensive to maintain.  For example, a vehicle that the ward doesn’t drive anymore, but that requires insurance.  Can a guardian sell some of the ward’s personal property?  Yes.   Minn. Stat. 524.313(c)(3) sets forth the procedures that must be followed before disposing of personal property. 

If the guardian wants to dispose of items such as these, notice must be given to interested persons.  The form Notice of Intent to Dispose of Clothing, Vehicles, Furniture or Other Personal Effects is found on the State Court website.  It must be completed by the guardian and served on Interested Persons at least 10 days before the items are disposed of by the guardian.  Interested Persons are those listed in Minn. Stat. 524.5-102, Subd. 7.  The Interested Persons then have the 10 day period in which to serve the guardian, by mail or personal service, with an objection.  If the guardian receives an objection and still wants to sell or dispose of the item, the guardian must first petition the court for approval of the proposed disposition.

For specifics regarding a guardian selling a ward’s personal property and the proper procedures to follow, see Minn. Stat. 524.5-313 or speak with an experienced Minnesota guardianship attorney.