No Equal Protection Violation in Durand Case

Court OpinionsThe Minnesota Supreme Court issued a decision today in the case of In re Guardianship and Conservatorship of Helen Louise Durand,  A13-1415 (Minn. February 18, 2015).  It affirmed the Minnesota Court of Appeals, holding that Minn. Stat. 524.2-212 (2014), which treates protected and non-protected persons differently in probate proceedings, has a rational basis and therefore does not violate the right to equal protection under the Minnesota Constitution.

The case has a lengthy procedural history.  Essentially it involved the Conservator for a Spouse petitioning the District Court to allow an elective share petition to be filed with the probate court, so that the spouse could elect against the estate of her deceased spouse.  The personal representative of the estate of the deceased spouse disagreed that the petition was properly brought.  At the District Court level the court granted the conservator’s motion for summary judgment, on the basis that requiring the conservator to petition for approval to bring an elective share petition violated the constitution’s equal protection law.  The Court of Appeals disagreed that the equal protection laws were violated and reversed.  In the opinion today, the Minnesota Supreme Court affirmed.

Minn. Stat. 524.2-212 is the statute that declares the elective share to be personal to the surviving spouse.  It differentiates between surviving spouses who are “protected” (under conservatorship) and those who are not.  As to those under conservatorship, a petition must be filed with the probate court and a showing made as to why the election is necessary and appropriate. The Minnesota Supreme Court applied the rational basis test and determined that this statute is constitutional because there is a rational basis for treating surviving spouses who are under conservatorship differently from those who are not.  The Court reasoned that because individuals under conservatorship are impaired in their ability to manage property and business affairs, this is a substantial and genuine basis for the legislature to justify a distinction focused on the protected persons’ needs. The Court stated, “the Legislature  rationally determined that a conservator, whose duty is to manage the pecuniary affairs of a protected person, should not have the unilateral power to make a decision that should be based on both pecuniary and non-pecuniary interests.  The Legislature rationally provided that the process should include judicial oversight by findings and an order.”


FAQ Friday: Who has priority to be guardian?

faq brownFAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota.  If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website)


FAQ:  Who has priority to be guardian for a person?

Minnesota Statute 524.5-309 sets forth the order of priority that the court’s consider when determining who should be appointed as a person’s guardian.

The statute provides the order of priority as follows:

(1) a guardian, other than a temporary or emergency guardian, currently acting for the respondent in this state or elsewhere;

(2) a health care agent appointed by the respondent in a health care directive that does not include limitations on the nomination of the health care agent as a guardian and is executed pursuant to chapter 145C;

(3) the spouse of the respondent or a person nominated by will or other signed writing executed in the same manner as a health care directive pursuant to chapter 145C of a deceased spouse;

(4) an adult child of the respondent;

(5) a parent of the respondent, or an individual nominated by will or other signed writing executed in the same manner as a health care directive pursuant to chapter 145C of a deceased parent;

(6) an adult with whom the respondent has resided for more than six months before the filing of the petition;

(7) an adult who is related to the respondent by blood, adoption, or marriage; and

(8) any other adult or a professional guardian.

However, it is important to note that the court may disregard the priority scheme and appointment someone else, if the court determines that it is in the best interest of the ward to do so.

Still Alice Movie Review – Live in the Moment


still alice quote


For those that aren’t familiar with “Still Alice”, the plot summary (taken from Amazon):

Still Alice is a compelling debut novel about a 50-year-old woman’s sudden descent into early onset Alzheimer’s disease, written by first-time author Lisa Genova, who holds a Ph. D in neuroscience from Harvard University.

Alice Howland, happily married with three grown children and a house on the Cape, is a celebrated Harvard professor at the height of her career when she notices a forgetfulness creeping into her life. As confusion starts to cloud her thinking and her memory begins to fail her, she receives a devastating diagnosis: early onset Alzheimer’s disease. Fiercely independent, Alice struggles to maintain her lifestyle and live in the moment, even as her sense of self is being stripped away. In turns heartbreaking, inspiring and terrifying, Still Alice captures in remarkable detail what’s it’s like to literally lose your mind…

“Still Alice” is one of my all time favorite books.  It’s exceptionally well written.  It’s thought provoking.  It touches on a topic that is near and dear to my heart, because so many of my clients, or my clients’ loved ones, have Alzheimer’s disease. It made me laugh.  It made me cry.  It made me think.  So going into the movie, I set myself up to be disappointed with it.  Most movies that follow books just aren’t as good.

I’m happy to report that the movie version of Still Alice was every bit as good as the book.  If not better. Julianne Moore did an exceptional job of portraying Alice.  The supporting family members – particularly Lydia – gave us a realistic impression of the feelings and frustrations that family members dealing with a parent/spouse having memory loss must feel. For the viewer, it wasn’t just like watching a movie about someone diagnosed with Alzheimer’s.  It was so much more.  It was like we – the audience – were experiencing the things that Alice – and her family members – were feeling.  Sadness. Embarrassment.  Fear. Dismay. Anger. Even happiness. The viewer truly experienced it all.  I knew that I would get emotional and cry during the movie.  What I wasn’t prepared for was the whole theater to be in tears, one person so overwhelmed she was choked up and sobbing.

As I sit here now and think about why the movie evoked such strong emotions from all the viewers, I think it’s because all of us see ourselves in the movie.  We worry that one day we might be Alice .  We worry that one day it will be our spouse or parents or sister that get the disease. And with the prevalence of Alzheimer’s – an estimated 5.1 million Americans having the disease, and more people expected to get it with the aging population, and no cure* – we are right to worry. Many, if not most, of us already know someone who had or has Alzheimer’s.  And it is a horrible, terrifying disease to watch a loved one deal with.

My favorite quote from Still Alice, because it is a reminder that today matters – whether we are the lucky ones who are healthy or the ones who aren’t so lucky:

“And I have no control over which yesterdays I keep and which ones get deleted. This disease will not be bargained with…My yesterdays are disappearing, and my tomorrows are uncertain, so what do I live for? I live for each day. I live in the moment. Some tomorrow soon, I’ll forget that I stood before you and gave this speech. But just because I’ll forget it some tomorrow doesn’t mean that I didn’t live every second of it today. I will forget today, but that doesn’t mean that today doesn’t matter.”

Live in the moment.  Make today matter.

*Statistics from



FAQ Friday: Can a Guardian “Quit”?

faqFAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota.  If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website)
FAQ:  Can a guardian just quit, or is court approval required.

A guardian who is appointed by the Court may not just “quit” or resign.  Court approval is required.  See Minn. Stat. 524.5-112  The Guardian, or an interested person, should file a petition with the court asking for approval of resignation and the appointment of a successor guardian.  A successor guardian should be selected in advance and named in the petition, or the court is likely to not approve the resignation request.

Confusion abounds with Vizuete (II) decision of Minnesota Court of Appeals

court opinion

On February 2, 2015, the Minnesota Court of Appeals issued a decision which should be of interest to both family law attorneys and guardianship/conservatorship law attorneys.  In re the Guardianship and/or Conservatorship of Heidi Anne Vizuete and In re the Marriage of Miriam Rose Vizuete vs. Edison Marcello Vizuete, (Unpublished Minn. Ct. App. A14-0474)   (“Vizuete (II)”) 

Although the Minnesota Court of Appeals affirmed the district court’s ruling in Vizuete (II), confusion abounds for guardianship/conservatorship law practitioners and courts in Minnesota in cases where an incapacitated “child” turns 18, both parents have some sort of custodial rights to the child (in their family law custody/divorce case) and  guardianship and/or conservatorship over the newly turned adult is sought by someone.

Facts of Vizuete (I): Mom and dad divorced, with divorce decree giving them joint legal custody of autistic child and giving mom sole physical custody, with dad having parenting time. Autistic daughter turns 18.  Mom files petition for guardianship.  Dad files petition for limited guardianship and conservatorship (not seeking full powers because he thought daughter could do some things on her own). Court appoints mom as sole, unlimited guardian and denies dad’s petition.  Dad appeals arguing guardianship order reduced his parental rights established under the custody order. Court of Appeals agrees and remands for district court to consider the “competing guardianship petitions in light of the custodial arrangement between the parties and the requirements for modification of appellant’s legal custody under chapter 518” (Vizuete I – Unpublished Mn. Ct. App. filed July 3, 2013, 2013 WL 3368334)

Facts of Vizuete (II):  Mom filed motion in family court file to modify her legal custody from joint legal to sole legal custody.  District court denies this motion, saying she has not presented prima facie case of significant change in circumstances that show endangerment to daughter’s physical or emotional well being.  Guardianship court issues new order, explaining that because there was not a basis to modify the parties’ current custody arrangement, it would evaluate their guardianship petitions in light of their respective custodial rights and under the best interest of the child standard.  Guardianship court appoints mom as guardian with unlimited powers and dad as guardian with limited powers “with respect to any major decisions affecting Heidi”.  The Court of Appeals affirmed, noting that “the district court did not abuse its discretion by appointing a guardianship for Heidi that was in her best interest and that does not abrogate either party’s custodial rights under their preexisting and current arrangement.”

Takeaways from Vizuete (II):

  • Guardianship/conservatorship attorneys will need to ask their client for a copy of divorce/custody decree and carefully analyze the custodial rights granted to each parent therein.
  • In deciding guardianship matters involving incapacitated individuals who are turning 18, if there is a divorce decree or custody order involving that “child”, the district court in the guardianship action should  make inquiry into the underlying divorce decree and make specific findings and an order that takes into consideration the competing guardianship petitions of divorced parents in light of their respective custodial rights under their divorce decree and the modification standards applicable to their custodial arrangement  in their family law file.
  • Family law practitioners who are representing someone with an incapacitated, or potentially incapacitated, child, will want to be mindful of the “labels”, as well as the substantive rights, that are assigned to their client in divorce/custody situation.  A custody label may not just be a “label” when it comes to potentially incapacitated individuals, as it may now affect the outcome of guardianship proceedings that will occur after the child reaches the age of majority

More questions than answers are raised by this decision.  Does this decision mean that a court can no longer appoint a third party professional guardian in cases of “feuding parents”, because doing so would abrogate both feuding parents’ custodial rights?  Does the Court need to take the custodial arrangement in the divorce decree into account if only one parent files a petition, and the other parent doesn’t object?  Confusion abounds. We will need to wait and see how Vizuete (II) impacts guardianship actions of incapacitated adults when their parents disagree.