The 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.”
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.
The Minnesota Supreme Court issued it’s long awaited opinion in the Tschumy case today, affirming the Court of Appeals decision that the power of a guardian to consent to necessary medical treatment for a ward under Minn. Stat. 524.5-313(c) (4)(i), inclues the power to consent to the removal of a ward from life support, without a separate court order/proceeding, if all interested parties agree that removal is in the ward’s best interest.
The Tschumy decision can be found here.
The decision, issued by Chief Justice Gildea, is 35 pages long. Justice Anderson wrote a 9 page dissent. Justice Stras wrote a 28 page dissent, which was joined in by Justice Page.
I will provide more in depth analysis of this important decision after I have the opportunity to read the opinion.
The Minnesota Court of Appeals issues a decision this week regarding whether an individual under guardianship in Minnesota has a right to marry. The case, In the Matter of the Guardianship of Michael Timothy O’Brien, can be found here.
Michael O’Brian is a 27 year old man who is under guardianship because of a “serious and persistent mental disorder”, including diagnosis of bipolar disorder and severe ADHD. His parents are his guardians, and have been since 2004. Michael has been involved with a woman who is also in a special needs program since late 2010. He and the woman want to marry. Michael’s guardians believe he does not have the capacity to marry. After an evidentiary hearing, the district court agreed and found that Michael did not have the capacity to marry.
The Minnesota Court of Appeals reversed the district court decision. However, the Court of Appeals decision was not an outright victory for the ward, Michael O’Brien. Instead, the case was remanded back to the District Court to take further testimony and make more detailed findings about whether Mr. O’Brien, in fact, has the capacity to marry. The Court of Appeals held that in order for an individual subject to a guardianship to marry, he must have the capacity to understand the meaning, rights and obligations of marriage. The Court of Appeals further held that the burden of proof is on those opposing a ward’s competence to marry.
So what does all of this mean as a practical matter if someone under guardianship in Minnesota wants to get married?
- A person under guardianship in Minnesota retains the right to marry, if he has enough capacity to understand the meaning, rights and obligations of marriage. However, the guardian would have to consent, since marriage is a contract and the ward’s contractual rights are typically restricted when a guardianship is imposed.
- If the ward wants to marry and the guardian believes that the ward does not have the capacity to understand the meaning, rights and obligations of marriage, the guardian must prove that the ward lacks that capacity. A petition should be brought by the ward (who would have a right to an attorney in this situation) asserting his right to marry, or by the guardian opposing the request of the ward to marry.
The Minnesota Court of Appeals issued an unpublished decision this week which confirms that an individual may be subject to commitment as a mentally ill person AND at the same time have a guardian. The Court cited to the broad powers that can be given to a guardian, versus the relatively narrow scope of a committment treatment order. For the full opinion (which focused on whether it was error for the district court not to restore the ward to capacity), see In the Matter of the Guardianship of Joy Bostrom, Minn. Ct. App. A13-0826.
The Minnesota Supreme Court will hear oral arguments in the Tschumy Case (In Re the Guardianship of Jeffers J. Tschumy) on Monday February 3, 2014 at 9:00 a.m. For more details about the case, see our previous blog post here.
The Minnesota Supreme Court has granted review of the case of In Re: Guardianship of Jeffers Tschumy. The question before the Court is essentially: Does a guardian have authority to remove a ward from life support without seeking the specific authority of the district court?
Factual Background: A guardian was appointed for Tschumy in 2008. He was not married and had no family. In 2012 Tschumy choked on a piece of food and as a result suffered severe brain injury and became comotose. His professional guardian, Joseph Vogel, wanted to remove him from life support. Allina hospital petitioned the district court asking the Court to amend the letters to give the guardian the specific authority to end life support or for the Court to direct the removal of life support. The guardian agreed that life support should be removed, but believed that he already had authority under the statute and court order appointing him, which allowed him to withdraw medical consent. The district court agreed with Allina and ordered the guardian to have life support removed. Tschumy died. The district court then issued a follow up order, with a more detailed explanation, reasoning that although guardians have broad power to withhold consent to medical treatment, they do not have statutory authority to end life support without a court hearing and court direction. The Court of Appeals reversed the district court order, holding that final authority on end of life decision making lies with the guardian and should not be directed by the district court.
A decision by the Minnesota Supreme Court is expected in 2014.
So can an individual under guardianship in Minnesota vote or not?
The Minnesota Statutes say “yes”, a person under guardianship can vote. Minn. Stat. 524.5-313 states, “Unless otherwise ordered by the Court, the ward retains the right to vote.” Minn. Stat. 524.5-120 states, “the ward or protected person retains all rights not restricted by court order and these rights must be enforced by the court. These rights include the right to . . . vote, unless restricted by the court.” In practice, courts very rarely, if ever, restrict a ward’s right to vote in Minnesota.
But the Minnesota Constitution says “no”, a person under guardianship cannot vote. Article VII of the Minnesota Constitution states, “The following persons shall not be entitled or permitted to vote at any election in this state . . . a person under guardianship.”
So what’s an individual under guardianship to do? Vote, or not vote?
On October 4, 2012, Hennepin County District Court Judge Jay Quam decided the issue, declaring that the Minnesota Constitutional provision which prohibits those individuals under guardianship from voting is unconstitutional under the United States Constitution. See here for a full copy of the extensive Order from Judge Quam.
Ultimately, Judge Quam found that a person’s capacity to vote must specifically be analyzed at the initial hearing on a petition for guardianship (or subsequent hearings if the issue of whether a particular ward has the capacity to vote is raised by a guardian or interested person). In Judge Quam’s words, there must be evidence at the hearing that an individual has “sufficient capacity and understanding to make an informed and intelligent vote.” What does mean? Evidence should be presented that a person understands what voting is, who some of the candidates are and that they could articulate reasons why they would like to vote for a particular candidate. I think that this analysis and presentation of evidence on this issue is no different than what was already mandated under Minnesota Statutes. The difference now is that Judges in Minnesota – Judge Quam at least, according to his Order – may begin actually affirmatively addressing the issue and making a specific finding addressing each particular individual’s capacity to vote.
For questions concerning these and other guardianship issues, contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.
The Minnesota Court of Appeals recently issued an unpublished opinion, In re the Guardianship of Christine Rose Samson (Minn. App. June 18, 2012), which serves as a good reminder that practitioners need to put as much factual detail as possible in their petitions for guardianship/conservatorship (and, more importantly, have the factual support to back up the need for a guardianship).
In Samson, the Court of Appeals affirmed the district court’s dismissal of a son’s petition seeking guardianship of his 98 year old mother. Although the facts aren’t completely set forth in the Samson opinion, it appears that the petition alleged that a doctor had prescribed some wrong medication for mom; mom had previously executed a health care directive naming her daughter as health care agent; and the daughter vacationed in Florida each year for 2 months at a time and so, allegedly, unable to act with regard to mom’s health care needs during this time.
The lesson of Samson is that although Minn. Stat. 524.5-303 indicates that the petition should include a “brief description of the nature and extent of the respondent’s alleged incapacity”, in order to avoid having the petition dismissed, it would be wise to include sufficient factual detail to survive a motion to dismiss. At a minimum, the petitioner should be prepared to submit additional factual support for the allegations set forth in the petition, if faced with a motion to dismiss. However, the obvious drawback of not including the factual details in the original petition is that then the court may decline to consider matters outside of the original pleadings.
Bottom line: if you are going to petition for guardianship and/or conservatorship of someone, you should have more than just general allegations/suspicions. You must have very specific factual examples that justify taking away someone’s civil liberties and imposing a guardianship.