If you want to be a guardian or conservator for someone in Minnesota, you have to complete a guardianship and conservatorship background study. Here are some of the most frequently asked questions that I receive from clients about guardianship and conservatorship background studies in Minnesota.
- I have to do a background study for my job, does that count? No, unfortunately not. Even if you have to do a background study for your job, you need to complete the background study that is required under Minnesota guardianship statutes.
- Once I do the background study, am I done, or do I have to do it again in the future? The current requirement is that you do the background study ever 2 years. Be sure to complete it before your 2 year anniversary of being appointed, so that the Court doesn’t issue an Order to Show Cause, requiring you to come in to Court and explain why you haven’t done another background study.
- Are there any exceptions that would exempt me from having to complete a background study? There are a few exceptions. The primary exception is if you are the parent of a developmentally disabled child who has lived with you in the family home for his entire life.
- Where do I get the form for the background study? You can get the form on the Minnesota State Court Website. The directions for completing the form and for instructions on where to send it are on the second page of the form.
- Where can I find out more information about the background study that is required for Minnesota guardianships and conservatorships? Minn. Stat. 524.5-118 governs the background study requirement and will provide you with more information on what is required.
If you are applying to be guardian or conservator for someone in Minnesota, you will need to complete a background study. You need to complete this particular study, even if you already have background checks done for a job or school or some other purpose. The statute that addresses the Minnesota guardianship background study is Minn. Stat. 524.5-118.
There are limited exceptions, for individuals who will not need a background study. Primarily this includes parents who have lived with a developmentally delayed child since birth, when they are applying to be guardian for the 18th birthday.
The best resource for questions on what the background study entails is the Minnesota Department of Human Services website regarding guardian and conservator background studies.
Guardians and Conservators in Minnesota need to have a background study completed before the Court will appoint them as guardian. The specific statute that addresses the background study is Minn. Stat. 524.5-118.
Commonly asked questions about the background study:
- I am a truck driver (or a teacher or a daycare provider . . .) and so I already had a background study for my job. Do I still need one? Yes. The background study for guardianships and conservatorships is specific and checks for certain things, so it needs to be done even if you have had a background study done through a different agency.
- How much does it cost? Currently, it costs $50.00 if you haven’t lived out of state in the last 10 years, $130 if you have lived out of state (and then you will also need fingerprints)
- How long does it take? It typically takes anywhere from 5 – 8 weeks, or longer. So you should send in the background study form as soon as you file your petition for guardianship.
- Where do I get the form to complete the background study? It is available at www.mncourts.gov – in the “Forms” section, under “Guardianship – Conservatorship”. Click here for a direct link to the Guardianship Background Study Form.
Proposed guardians or conservators in Minnesota must complete a background check in order to be appointed by the Court. The statute requiring the background check is Minnesota Statute 524.5-118. If the proposed guardian or conservator has applied for certain licenses in the State of Minnesota (or other states), that must be disclosed on the petition and those agencies will be contacted as part of the background check in order to determine the status of the license (whether it has ever been conditioned, revoked, suspended or cancelled). The types of licenses are those involving direct fiduciary responsibilities. Specifically, the following professional licenses are required to be disclosed:
(1) Lawyers Responsibility Board;
(2) State Board of Accountancy;
(3) Board of Social Work;
(4) Board of Psychology;
(5) Board of Nursing;
(6) Board of Medical Practice;
(7) Department of Education;
(8) Department of Commerce;
(9) Board of Chiropractic Examiners;
(10) Board of Dentistry;
(11) Board of Marriage and Family Therapy;
(12) Department of Human Services; and
(13) Peace Officer Standards and Training (POST) Board.
If your license with any of these agencies has been cancelled, revoked, suspended or conditioned, the background study will indicate that and the Court will use caution in considering whether to appoint you. You will likely be questioned by the Court about the circumstances surrounding your license and the Court will decide whether the circumstances justify not appointing you in the particular guardianship for which you are petitioning.
There is a hearing being held this week on Thursday February 28, 2013 at 6:00 p.m. regarding proposed legislation on the background study that proposed guardians and conservators must go through – and information they must keep updated – in order to be a guardian or conservator. The text of S.F. Bill No. 7 can be found here. Contact your legislator if you have comments regarding the proposed bill.
In general, the proposed changes require disclosure of things such as: civil lawsuits resulting in a judgment involving fraud, misrepresentation, etc; activities impacting a professional licence (suspension, denial, revocation); conviction of a crime other than a petty misdemeanor; an Order For Protection being issued against a person.
Some people are taking the position that this bill goes too far in requiring disclosure of private information that doesn’t affect the ability to serve as guardian (and which may actually prevent qualified people from otherwise serving). However, really, when someone is acting as a fiduciary over another person’s most private decisions and finances – shouldn’t all of this information about the fiduciary be disclosed and it be up to the court to decide whether to appoint, in spite of the information? True, a guardian going through a personal bankruptcy might technically have “nothing to do with his ability to serve as conservator”. However, it may be very relevant because that person may be going through personal financial pressures which impact on his or her ability to serve as fiduciary. And it seems that the information that is being requested as part of the background study IS all public data anyway – if one knows where to look for it.
If you have comments in support of or in opposition to the proposed bill, contact your representative.
Last week Attorney General Lori Swanson and Anoka County Attorney Tony Palumbo announced details of proposed legislation that would provide greater protection to vulnerable adults under guardianship and conservatorship in Minnesota. The press release from Attorney General Swanson’s office can be found here.
The proposed legislation is to be authored by Rep. Debra Hilstrom (DFL – Brooklyn Center) and Sen. Ron Latz (DFL – St. Louis Park). The major provisions are anticipated to be as follows:
- Expanding background checks on proposed guardians and conservators to require disclosure of whether they have been denied a license by the state related to the responsibilities of a fiduciary duty, or whether they have ever had a license suspended, revoked or conditioned.
- Requiring disclosure by proposed guardians of information which may reflect on their suitability to be a guardian or conservator, including: whether they have filed for bankruptcy, whether they have been found civilly liable for fraud or misrepresentation, whether they have any outstanding civil monetary judgments against them or whether they have had an order for protection or harassment restraining order issue against them.
- Requiring that background checks be done every 2 years (versus every 5 years, as currently required)
- Requiring that guardians disclose any changes in the foregoing information (and any criminal history) within 30 days.