Clients often ask me what they can expect at the court hearing on the petition for guardianship and conservatorship. Caveat – this applies to uncontested hearings. Contested hearings are completely different – and are typically like a trial where the rules of evidence apply. Even with uncontested hearings, there is a caveat. And that is that each county and indeed, each judge, does things differently. But in general, for an uncontested hearing on a petition for guardianship and/or conservatorship, you can expect the following:
- Once your case is called the hearing itself is very short. Typically less than 10 minutes.
- The petitioner and the respondent (person for whom guardianship is being sought) and their attorneys are present.
- Testimony is taken from the Petitioner to “prove up” the guardianship petition. This is usually a series of leading questions that establish the contents of the petition – including who the parties are and why a guardianship and/or conservatorship is necessary.
- The Physician’s Statement (if there is one) and the Court Visitor’s report are made part of the record
- The Court asks the Respondent’s attorney for the Respondent’s position on the matter. Typically the Respondent’s attorney will give a statement about the contact that was made with the Respondent, the preferences the Respondent expressed and any other due diligence that the attorney did to ensure that guardianship is necessary and appropriate.
- The Court will then order guardianship/conservatorship and sign the Order and Letters. There is sometimes a delay with signing these if the background study is not back, or if bond needs to be put in place (for conservatorships).
If you have specific questions about guardianship and conservatorship court in Minnesota, please feel free to reach out to me.
What do you do if your elderly parent needs help making decisions?
- Determine what level of help that they need. This is often easier said than done. You should look at their physical, mental and emotional health and try to determine whether they are still in a position to make their own decisions. Sometimes the elderly can still come to their own decision about their medical care, where they live, etc., but they simply need help implementing their decisions. Sometimes the elderly have become so cognitively impaired, or are so vulnerable, that they can no longer even make their own decision, let alone implement it. Most times, the elderly lie somewhere in between these two extremes. Figuring out what level of help they need often requires the input of the elderly person’s physician. Sometimes you can tell what level of assistance is needed just based upon your own interactions with mom or dad.
- If mom or dad can still make their own decisions, but just need help implementing their decisions, you should take them to an estate planning attorney who can meet with them and get legal documents or other things in place that will allow someone else to help them implement their decisions. These things range from joint accounts to a health care directive to a power of attorney. The estate planning attorney could even put them in touch with resources to help them develop a care plan for if their health takes a turn for the worse.
- If mom or dad can no longer make their own decisions to keep themselves safe, then you should determine whether they have in place legal documents that allow someone else to make decisions for them. These documents are a health care directive (for medical decisions) and a power of attorney (for financial decisions). Depending on the details of the documents and the particular circumstances that mom or dad face, these might be sufficient to allow someone else to act on mom or dad’s behalf.
- If mom or dad can no longer make their own decisions to keep themselves safe and they do not have any legal documents or other measures in place, then you likely need to pursue the appointment of a guardian and/or conservator for mom or dad. Most people find that they need the assistance of an attorney to do this.
If you have questions about how you can help your elderly parents with decision-making, please contact Cindi Spence of Spence Legal Services at (763) 682-2247.
What happens when a child that is under the age of 18 inherits money, either through an estate or directly as a named beneficiary on a life insurance policy or account? Typically, the minor is required to have a conservator appointed to accept and manage the inheritance. Parents of the minor are usually surprised to learn that this is necessary and that they can’t just receive and manage the money on the minor’s behalf, since they are the parents. The process of having a conservator appointed for a minor who is named to receive an inheritance is usually uncontested. However, because of the procedural requirements that must be followed in order to have a conservator appointed, many people find it necessary and useful to have an attorney represent them. If you choose not to have an attorney, the Court will still hold you to all of the Court rules and require that the statutes be followed. Time and again I have seen well meaning parents attempt the paperwork on their own, only to have the process delayed because they didn’t follow all of the Court rules to establish a conservatorship for their minor child. If you have questions about the process to establish a minor conservatorship, please reach out to Cindi Spence at Spence Legal Services (763) 682-2247.
FAQ 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: How long does it take to get guardianship over someone in Minnesota?
The answer is that it depends. It depends on what county the case is in (typically where the individual resides). It depends on whether the matter will be contested or uncontested. It depends on whether you are filing for an emergency or general guardianship. It depends on the court’s calendar (when a judge is available to hear the case).
In general, if the matter is uncontested and it is a general guardianship (as opposed to an emergency), it takes between 4 – 6 weeks. (But, again, it depends on the county and the court’s calendar).
If the matter is contested it can take many months before the guardianship is established.
If it’s an emergency, the matter is typically decided (or at least set for hearing) within a week of filing the guardianship petition.
Because there are so many variables, you should consult with an attorney about the specific facts of your situation.
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.
If you want to be a guardian or conservator in Minnesota, you must submit to a background check. Minnesota Statute 524.5-118 sets for the statutory requirements for the background check. In general, the background check consists of completing a form with information about yourself and submitting it, along with a check for $50 (and, if you have lived outside of the State of Minnesota within the past 10 years, a fingerprint card and a check for $130) to the Department of Human Services.
Some common questions:
- How long does the background study take to complete? It seems to be taking 4 – 6 weeks, sometimes longer if the applicant has lived out of state.
- When should I submit my background check application? As soon as you have filed the case and have a court file number! Since the background checks are taking so long to complete, it is important that you submit your background check application to DHS right away, so that it is completed before the general guardianship hearing.
- What should I do if the background check results are not back from DHS before the guardianship hearing? Some courts are allowing the proposed guardian to testify as to his/her lack of criminal convictions, lack of maltreatment reports, etc. and then the Court will appoint them pending the results of the actual background study coming back ok. Some courts are taking testimony on the general guardianship petition and then just not issuing an Order/Letters until the DHS results are in. It really depends on the particular judge and the particulars of the guardianship and/or conservatorship.
If you have questions about guardianship and conservatorship background studies, please call experienced guardianship attorney Cindi Spence at Spence Legal Services.
Beginning on December 1, 2011, proposed guardians and/or conservators in the Fourth Judicial District (Hennepin County, MN), must view an educational video prior to the initial hearing. They will also be required to submit a modified version of the acceptance and oath, stating that they have viewed the video.
The purpose of the video is to educate proposed guardians and conservators on their duties prior to the initial hearing. The video has 7 segments, totaling 34 minutes in length. The segments are on the following topics: Introduction to Guardianship/Conservatorship; What Guardianship is Not; Less Restrictive Alternatives to Guardianship and Conservatorship; Roles and Responsibilities of a Guardian; Roles and Responsibilities of a Conservator; Annual Reporting Requirements; Common Issues and Problems.
The guardianship and conservatorship statutes (Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413) require that the consider individuals or entities that have priority to serve as guardian or conservator. But, when a court is considering the qualifications of the proposed guardian or conservator herself, what exactly do Judges consider?
According to the Minnesota Guardianship and Conservatorship Manual published by the Conference of Chief Judges, the following should be considered by Minnesota Judges when determining who should serve as guardian and conservator:
- Is the proposed guardian or conservator herself competent? (over 18, not under guardianship or conservatorship himself, have sufficient mental capacity himself to handle the duties)
- Has the proposed guardian or conservator submitted to, and passed, a background study?
- What are the incapacitated person’s wishes for the choice of his or her guardian or conservator (if the person has sufficient mental capacity and understanding to reasonably express a preference; or there is evidence of what the person’s wishes were before he became incapacitated)?
- Is there regular and appropriate interaction between the person and the proposed guardian or conservator?
- Is there interest and commitment of the proposed guardian or conservator in advocating for the welfare and rights of the person?
- Does the proposed guardian or conservator maintain a current understanding of the person’s needs in all areas of the person’s life?
The standard that the Courts need to ultimately use in deciding who to appoint as guardian or conservator is a best interest standard: what is in the best interest of the proposed ward or protected person.
For information about appointment of a guardian or conservator, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.