What is the Personal Well Being Report? When does a guardian have to complete and file it? Who else receives the report? Does the Court really look at them? What if someone disagrees with what is contained in the report? What if the guardian fails to file the Personal Well Being Report?
What is a Personal Well Being Report?
- A Personal Well Being Report is required each year for guardianships, pursuant to Minnesota Statute 524.5-316.
- A Personal Well Being Report is a form that is available through the Minnesota Court Website.
- It is a Report that provides basic information about the Ward’s current mental, physical and emotional condition; where the Ward is currently living; whether any restrictions have been placed upon who can visit with the Ward (and if so, why); what medical services have been rendered to the Ward in the past year; how often the Guardian has seen the Ward in the past year; the Guardian’s opinion on whether the guardianship should continue; whether there have been any changes in the criminal background of the Guardian; and how much compensation the Guardian has received for services in the past year.
When must it be completed?
- It must be completed by the guardian each year within 30 days after the anniversary date of the appointment as guardian.
What needs to be done with it after it is completed each year?
- It must be served on the Ward and Interested Persons.
- It must also then be filed with the Court (along with an affidavit of service, indicating that the Ward and Interested Persons were served).
Do Courts really read the Personal Well Being Report?
- Yes, court staff and Judges review the reports that are filed.
- If something in the report raises a red flag or looks like it would necessitate further hearing or investigation, the Court could take action, including appointing a Visitor to interview the Ward or investigate something, issuing an Order to Show Cause, or other action that the Court deems appropriate and necessary.
What if a Ward or Interested Person disagrees with what is written in the Personal Well Being Report?
- Under Minn. Stat. 524.5-316(b), “A ward or interested person of record with the court may submit to the court a written statement disputing statements or conclusions regarding the condition of the ward that are contained in the report and may petition the court for an order that is in the best interests of the ward or for other appropriate relief.”
What if the guardian fails to file the Personal Well Being Report?
- If the Personal Well Being Report is not filed within 60 days of the anniversary date, the Court will issue an Order to Show Cause, requiring the Guardian to come before the Court and explain why it hasn’t been filed.
- Many counties will first send a Reminder Notice to the Guardian, giving the Guardian a certain limited amount of time to file the report before an Order to Show Cause issues.
The guardianship and conservatorship statutes require that the court only impose a guardianship or conservatorship if less restrictive alternatives are not available and working. See Minn. Stat. 524.5-409(a) and 524.5-102, subdivision 6. The rationale behind this requirement is that a guardianship takes away very basic rights of the respondent and should, therefore, only be imposed as a last resort. If there are other options that will preserve the autonomy of the proposed ward, while still ensuring his/her safety, then those options must first be used.
So what are less restrictive alternatives that should be explored first?
- Power of Attorney
- Health Care Directive
- Joint bank accounts
- Representative payee for certain government benefitss
- Establishing a trust
- Involving the family in care conferences and care teams
The less restrictive alternatives that may work for one individual may not work for another. And, of course, by the time a guardianship is being considered, it may be too late for the respondent to put some of these items in place (because for the POA or HCD or creating a trust, a certain level of capacity is required in the first instance).
If you have questions about less restrictive alternatives to guardianship or conservatorship, contact experienced Minnesota Guardianship Attorney Cindi Spence Matt of Matt Legal Services.
What is a Physician’s Statement and do you need one to establish a guardianship or conservatorship?
A Physician’s Statement in Support of Guardianship/Conservatorship is a form that is completed by the ward’s treating physician (or a doctor who has recently seen the ward). The doctor fills in details about when he/she last saw the proposed ward, the diagnostic impression, what behavioral evidence exists to support the guardianship/conservatorship, the diagnosis and the prognosis. The doctor also checks a box saying whether he/she supports or opposes the guardianship.
Finally, the doctor also checks a box about whether he is aware of the existence of a health care directive and, if so, what the health care directive says. Why is this important and of concern to the court? Because a health care directive is a less restrictive alternative than a guardianship, and a court will consider the fact that this is already in place when it decides whether to impose a guardianship.
You should try to obtain the Physician’s Statement before filing the guardianship petition. Sometimes the situation is pressing enough that guardianship papers are filed before a Physician’s Statement is obtained (doctors are often busy and it takes them awhile to complete the form). If you can’t get the Physician’s Statement before the petition is filed, get it completed and filed as far in advance of the hearing as you can.
A Physician’s Statement is very helpful for the court in deciding whether to grant a guardianship or conservatorship. However, it is not absolutely necessary every time. There are difficulties which sometimes make it impossible to obtain a Physician’s Statement (i.e. HIPPA; if the proposed ward did not ever sign an authorization for others to obtain information about their medical history, most doctors will refuse to fill out the form). If you can’t obtain a Physician’s Statement, you do have some options. One, if you have a medical chart note available, you could attach that to the Petition. Two, you can simply testify about your own personal observations of the proposed ward’s medical condition and behavior that supports the petition. Three, you can subpoena the doctor to testify.
Practical Tip: As we all know, the handwriting of doctors is often very difficult to read. When you get a completed Physician’s Statement from the proposed ward’s treating physician, if you can’t read some of the words, call the doctor’s nurse and ask for a translation of what has been written. That way, when you are at the court hearing, you are prepared to decipher the writing for the Court.
If you have questions about Physician’s Statements for guardianships or conservatorships, contact experienced Minnesota Guardianship Attorney Cindi Spence Matt of Matt Legal Services.