Out-of-State Witnesses Testifying in Guardianship Proceedings

How does a witness who is located in another state testify in a Minnesota guardianship or conservatorship proceeding? Minn. Stat. 524.5-606 is instructive.

Under that section, the court has the authority to allow the testimony of out-of-state witnesses in guardianship proceedings by:

  • deposition
  • “other means allowable in this state for testimony taken in another state” or by
  • telephone or other electronic means (although the statute doesn’t specifically state, presumably this would mean via things like Skype)
The statute goes on to state that the courts of this state and the other state should cooperate in designating appropriate location for the deposition or testimony. It would probably be wise to check with the trial court and find out if the out-of-state witness could testify “live” from his/her own home by himself, or whether he/she needs to be in the presence of someone who could swear him/her in. Counsel should also consider the logistics of telephone testimony in terms of having the witness look at, and testify about, exhibits. If the witness is going to be testifying about documents, counsel should coordinate with the Court and premark the exhibits and have a set messengered to the out-of-state witness for use during the proceedings.
In deciding how to offer the testimony of out-of-state witnesses, the parties to a guardianship action should consider things like:
  • cost (depositions are costly);
  • how important the witnesses testimony is (if it is important, usually “live” testimony, even if it is via telephone, would generally be preferable, in case the Court has questions for the witness);
  • how effective/compelling the witness is (if the witness would make a compelling witness, “live” telephone testimony may be more convincing than the court reading a deposition transcript.

How long does it take to establish a Minnesota guardianship or conservatorship?

How long does it take to get a guardian or conservator appointed in Minnesota?

As with most anything, the answer is: It depends. It depends on the county that you are filing the petition in. It depends on whether the petition will be contested or uncontested.
Typically, a routine uncontested guardianship or conservatorship can be in place about 4 – 6 weeks from the time the petition is filed with the court. Why so long? There is a 14 day notice requirement, whereby all Interested Persons (as defined under Minnesota Statute) must receive notice of the hearing. Therefore, when you file a guardianship petition, the very earliest that you will be heard by the court would be about 16 – 18 days later. More commonly, the court will set the hearing for 4 – 5 weeks out from the time the petition is filed. At the hearing, if it is uncontested, the court will often times rule from the bench, granting the petition. However, even then, work must sometimes be done before the guardianship Letters (the document that gives the guardian or conservator authority to act) will be issued. For example, the background study may still need to be completed or a bond may need to be obtained.
A contested guardianship or conservatorship hearing can take much longer. It may be many months before the contested process is complete. Why so long? In contested proceedings, parties often conduct discovery (formal information gathering) and the respondent sometimes needs a medical or psychological examination (to support or oppose the proceeding).
If you can’t wait the 4 – 6 weeks that it may take (minimum) to get a guardianship or conservatorship in place, you may need to consider proceeding with an emergency guardianship or emergency conservatorship. As always, if you have questions about the guardianship or conservatorship process in Minnesota, please contact experienced Minnesota guardianship attorney Cindi Spence Matt.

Who can petition for guardianship or conservatorship?

Who can petition for the appointment of a guardian or conservator for someone? Do you have to be related to the ward/protected person (the person for whom you are seeking a guardian)?

The statute that provides guidance is Minn. Stat. 524.5-303. As set forth therein: An individual or a person interested in the individual’s welfare may petition for a determination of incapacity, in whole or in part, and for the appointment of a limited or unlimited guardian for the individual.

So who exactly does this mean? “The individual” means the person over whom the guardianship would be imposed can petition for the guardianship itself. (Although the paradox appears to be that if the individual needs a guardian, how can he have the capacity to petition for one? I think the answer here may be that there are some situations where limited guardianships appropriate. Or perhaps the individual has mental capacity, but recognizes that he or she is vulnerable and subject to influence and so they want to be proactive.) “A person interested in the individual’s welfare” would be anyone ranging from immediate family, to extended family, to county social workers, to medical personnel, to neighbors or friends. Essentially anyone who is concerned and has a legitimate basis to be concerned.

The statute does go on to state the the petitioner has to list their relationship to the respondent and a great deal of personal information about the respondent and interested persons (essentially respondent’s next of kin). Implied in the statute, as with any legal paper that is filed, is that the individual has to have a good faith basis for the petition. Therefore, a person couldn’t just file a petition for guardianship against a politician because the person disagreed with his political views and thought he must lack capacity to think the way he does (you laugh, but I have received a call from someone wanting to do just that!)

If you have specific questions about who can file a petition for guardianship or conservatorship in Minnesota, please call an experienced guardianship attorney at Matt Legal Services.