Minnesota Statute 524.5-118 sets forth the requirements for a background study on guardians. There are certain people who are exempt. The statute provides the details. However, in general, you are exempt if:
- You have had a background study done within the previous 5 years;
- You are a State or County Agency
- You are a parent or guardian of a ward who has a developmental disability and you have raised the ward in your home until the time the petition was filed.
- You are a a bank with trust powers, bank and trust company, or trust company, organized under the laws of any state or of the United States and which is regulated by the commissioner of commerce or a federal regulator.
The form for the background study is available on the State Court website. If you have petitioned to be a guardian or conservator, you should complete the form and turn it to DHS prior to the first court hearing, because it typically takes a few weeks for DHS to complete the study and notify the Court of the results.
The study involves the following: criminal history data from the Bureau of Criminal Apprehension, other criminal history data held by the commissioner of human services, and data regarding whether the person has been a perpetrator of substantiated maltreatment of a vulnerable adult and a minor. In the even the proposed guardian hasn’t lived in Minnesota for the previous five years, then additionally the court “shall request a search of the National Criminal Records Repository if the proposed guardian or conservator has not resided in Minnesota for the previous five years or if the Bureau of Criminal Apprehension information received from the commissioner of human services under subdivision 2, paragraph (b), indicates that the subject is a multistate offender or that the individual’s multistate offender status is undetermined.”
Wow. The Minnesota Board of Aging, on behalf of the Alzheimer’s Disease Working Group, prepared an extremely thorough and thought-provoking report for the Minnesota Legislature, addressing the impact that Alzheimer’s Disease will have on Minnesota over the next 40 years. Why the next 40 years? Because Alzheimer’s is a disease that affects people as they age and the babyboomers are now turning 65. The report addresses budgetary, social and personal impacts on Minnesota, family members and caregivers, and those afflicted by Alzheimer’s. You can find a full copy of the report here: Preparing Minnesota for Alzheimer’s: The Budgetary, Social and Personal Impacts. You can also take a pledge to help prepare Minnesota for Alzheimer’s 2020.
The impact that this disease will have on the need for guardianships and conservatorships, if appropriate advance planning is not done, is huge. If you have questions about the need for a guardianship for your loved one afflicted by Alzheimer’s, please contact Cindi Matt, an experienced Minnesota guardianship attorney.
Ethical Dilemma In Hennepin County Court « CBS Minnesota – News, Sports, Weather, Traffic, and the Best of Minnesota
In the news today was a case in Hennepin County Probate court involving a request by an elderly man’s doctor to have a professional guardian appointed for the elderly man (Al Barnes), even though the man’s wife apparently has decision making authority (through a health care directive and power of attorney, most likely). The doctor/hospital believe that the man is at the end of his life and that his wife is not making capable, rational decisions about medical procedures to sustain his life. A hearing was held in Hennepin County today and was apparently continued until February 2nd, in order to give the court appointed attorney (for the elderly man) time to gather information and adequately prepare for a hearing.
A rally will be held today, January 13, 2011, at the Minnesota Capitol to educated and inform legislators and Minnesotans about what needs to be done now to prepare Minnesota for what appears to be an impending crisis with a huge increase in the number of Minnesotan’s suffering from Alzheimer’s Disease in the next 30 years. For more information, see the Alzheimer’s Association – Minnesota/North Dakota Chapter website.
The Minnesota Court of Appeals released its opinion in Peggy Greer v. Professional Fiduciary, Inc., Wells Fargo Bank, N.A., et. al.. The Court held that a formerly incapacitated person’s claims against her former conservator and former guardian constitute an improper collateral attack on the probate court’s final orders when the claims challenge actions taken during the course of the conservatorship and guardianship that addressed in those final orders.
Lessons to be learned from Greer:
- If you are a guardian or conservator, make sure that your annual accounts set forth every asset and expense specifically, so that when the Court issues it’s order approving the accounts, each asset and expense is encompassed in its final order.
- If you are an incapacitated person, and you question the actions of your guardian or conservator (whether it is an expenditure that has been made, an investment that has been made, or the keeping of you in a facility that you don’t think you belong, etc.), you need to act in a timely manner to address the issue with the probate court or an appellate court. Wait to long to act, and you will be prohibited from doing so on the grounds that you are bringing an improper collateral attack on a final probate order.
As someone who represents guardians and conservators, I would say the Court of Appeals got it right. To leave them subject to potential liability for their actions, years after the probate court issued an order approving the same would be unfair and would likely send many a guardian and conservator running to look for a different career with less liability associated with it (or for a higher errors and omissions policy).
However, as someone who also represents wards, I would say there is a fundamental fallacy in the Court’s opinion, which is that someone who is under a guardianship or conservatorship, often times does not have the capacity to even understand the documents that they are served with each year (the annual account, the personal well being report and annual notice, orders of the court regarding the same, etc.) and that they are expected to promptly bring any objections to or appeal. The Court of Appeals pointed to a ward/protected person’s right to counsel, as if that is the saving grace of the incapacitated person. The very practical problem is that the incapacitated person likely does not have the ability (mental or financial) to hire their own counsel to address any issues that may exist, and the courts do not routinely or automatically appoint counsel to represent incapacitated persons on annual accounts. So what is the solution? Perhaps the probate court needs to be extra vigilant in reviewing the submissions of guardians and conservators and, if anything looks at all questionable (and perhaps on high dollar cases automatically), appoint an attorney to represent the ward/protected person. Perhaps family members of incapacitated persons need to be more assertive in finding separate representation for their loved one, if there is any question at all about the propriety of the submissions to the court.