Yes! A person under guardianship in Minnesota has the right to an attorney in any court proceeding and for the purpose of petitioning the court. This right is set forth in the Bill of Rights of Ward and Protected Person, Minn. Stat. 524.5-120. In most counties, an attorney will be appointed from the outset for a Respondent, once a petition for guardianship has been filed. A respondent does have a right to hire his/her own private attorney (or one can be hired for him/her by the family). Once you are appointed as guardian, it’s your responsibility to make sure the ward or protected person has an attorney, if he or she wants one (or you think it’s necessary). If there are sufficient funds, a guardian can hire an attorney privately. If there are not sufficient funds (the ward is IFP -in forma pauperis), the court will appoint an attorney to represent the ward and the fees will be paid for by the county. Each county has different policies on how much an attorney for the ward is reimbursed.
One of the most frequently asked questions that I receive at my law office, Spence Legal Services, is: “Do I need an attorney to get guardianship of my ________ (parent, son, daughter, spouse, etc.)?” The answer is “It depends”. On what?
- Whether the person over whom you are trying to obtain guardianship “the Respondent”) is in agreement that a guardianship is necessary. If he/she is contesting the action, you likely need an attorney.
- Whether one of the other “Interested Persons” (i.e. a sibling, a child, a spouse) will be contesting the need for a guardianship or who the appropriate person to be guardian or conservator should be. If someone is contesting it, you likely need an attorney.
- Whether the Respondent has significant personal property or real estate. If so, you will likely want an attorney because once you are appointed conservator, there are very specific procedures that must be followed in order to dispose of the assets.
- How much time you have to spend on the paperwork. While many of the forms that are necessary for initiating a guardianship are available on line, there are very specific notice requirements that must be followed and forms that must be filed in order for the guardianship to be considered by the court. If you proceed without an attorney, you are still required to follow the rules of court. If you fail to file the correct forms, or give the correct notice, there will be delays and you may not get the guardianship. For this reason, many people choose to hire an experienced guardianship attorney.
What documents give the Guardian and/or Conservator of an individual the power to act?
- The Order Appointing Guardian and/or Conservator
- The Letters of Guardianship and/or Conservatorship (often referred to as “the Letters”)
The Order is the document where the Court makes specific Findings about the factual basis for the need for a guardianship or conservatorship. It is the Order that sets forth the specific powers and authority that the Guardian and/or Conservator has with regard to the ward or protected person. Typically the Court will “check” certain boxes on the Order, indicating which statutory provisions the Guardian or Conservator has authority under. In cases where a full guardianship is necessary, the Court will check the box indicating that all the powers under Minnesota Statute are necessary, and will then also explain why a limited guardianship is not appropriate. A form Order Appointing Guardian and Conservator can be found on the Minnesota Judicial Branch website. For further guidance on the full scope of each statutory power that is checked by the Court, one would look to the statute itself, as well as case law interpreting the statute. If help is needed understanding the full scope of a Guardian or Conservator’s powers, you should consult with an experienced guardianship and conservatorship attorney.
The Letters are the document which provide “proof” that the Guardian and/or Conservator has the authority to act. A form Letters of Guardianship and Conservatorship can be found on the Minnesota Judicial Branch website.
After being appointed, the Guardian or Conservator obtains certified copies of the Order Appointing and of the Letters. In combination, these are the documents which give the Guardian/Conservator the ability to act on behalf of the ward/protected person. The Guardian or Conservator will need to present these documents to individuals or entities that the Guardian interacts with on behalf of the ward (for example, nursing homes, medical providers, banks, etc.).
What happens if the guardian or conservator wants to, or needs to, resign? Or if the ward or some other interested person believes that the guardian or conservator should be replaced with someone different? Can the guardian just quit? Can a new guardian just take over? Does the Court need to approve the new guardian?
These scenarios are frequently encountered, particularly when the guardianship is in place for many years. Things change. Guardians often age or become ill themselves and are not able to continue with the responsibility and duties of being someone’s guardian. Wards or interested persons sometimes think that the current guardian should be replaced. If something changes and a guardian is no longer able to fulfill his/her duties, a petition must be filed with the court in order to terminate that guardian’s duties and appoint a different (successor) guardian. If the ward or an interested person wants the guardian removed, a petition must also be filed.
The statute that governs the process is Minnesota Statute 524.5-112, Termination or Change in Guardian or Conservator’s Appointment. The process itself is similar to the initial hearing to establish the guardianship, in that a petition is filed, a hearing is scheduled, notice (14 days) of the hearing must be given to all Interested Persons, and testimony must be taken at the hearing. However, it is not necessary for the Petitioner to re-establish that a guardianship is necessary. Instead, the Petitioner just testifies as to the particular circumstances justifying the change in the guardian. Any other witnesses and evidence may be offered. The Court then considers any objections of interested persons or information offered by others attending the hearing. The Court must determine what is in the best interest of the ward or protected person. The ward/protected person is also entitled to have an attorney represent him or her at this hearing, just like in the initial hearing. The new (successor) guardian that is appointed must do the same things that the initial guardian was required to do before Letters of Guardianship are issued (file an Acceptance and Oath; have a DHS background study conducted). Unless the Court modifies the powers that were contained in the original order appointing guardian or conservator, the successor guardian would have the same powers that the original guardian/conservator had.
If you have questions concerning successor guardians, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.