Minnesota Guardianships: The Role of the Judge

In order for a guardianship and/or conservatorship to be established in Minnesota, a Judge needs to listen to evidence and then issue an Order and Letters. The Order is the document that sets forth the factual and legal basis for finding that a guardianship or conservatorship is necessary. The Judge decides whether a guardianship or conservatorship is necessary by reviewing the documents that are submitted in advance of the hearing (usually the petition, sometimes medical documentation and a court visitor report), reviewing any documents that are submitted at the hearing, and listening to any testimony that is offered at the hearing. Based upon these documents and testimony, the Judge will decide whether the legal standard for establishing a guardianship and/or conservatorship has been met for the case. The Judge then incorporates the facts and law into the Order, which is issued in written form. The Judge also issues “Letters”, which provide the name of the guardian and/or conservator and the specific statutory authority that the guardian and/or conservator has in the particular case.

Minnesota Guardianships: The Role of a Court Visitor

When a petition for guardianship and/or conservatorship is filed in Minnesota, the usually appoints a Court Visitor. The Court Visitor is an agent of the Court, whose purpose is to serve the petition on the respondent (the person over whom guardianship or conservatorship is sought) and to meet with respondent to explain the petition and find out the respondent’s thoughts on whether a guardian or conservator is needed. The Court Visitor then issues a report, which is filed with the Court and provided to the petitioner’s attorney, which summarizes the meeting with the respondent.

Typically the Court Visitor wants to meet with the respondent alone. However, the petitioner or someone else may be present if the respondent agrees its ok and if they don’t interfere with the Court Visitor’s work. The Visitor will usually note their appearance in the report.

If the respondent wants the petition read to him/her, the Visitor will do so. Otherwise the Visitor will summarize the petition for the respondent.

The Court Visitor will usually describe the condition of the home where the meeting took place, as well as describe the general demeanor and appearance of the respondent. The Court Visitor will usually make note of any concerns or questions that the respondent raises about the guardianship proceedings during their visit.

The authority for the Court Visitor is provided in Minnesota Statute 524.5-304.

Guardianship and Conservatorship Court in Minnesota

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 to do if your elderly parent needs help making decisions

What do you do if your elderly parent needs help making decisions?

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Minnesota Guardianship and Conservatorship Background Studies

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.

Challenges to being co-guardian in Minnesota

Clients often ask me if it’s feasible for two people to be guardian for a loved one.   My answer, “It’s feasible. Whether it’s a good idea or not depends on your situation.”

What does it depend on?

  • Whether the two proposed guardians can work together. To be co-guardians you have to be able to communicate with one another AND be able to work together to arrive at decisions that are in the best interest of the person under guardianship.
  • The availability of both proposed guardians. Many times clients will tell me that they want to add a sibling or an adult child who is swamped with life right now and has no time to be guardian now, but they want the person on “just in case” the primary guardian dies.  In this situation, I recommend to the clients that the person with limited time not be guardian now. If you are co-guardians now, you are both equally responsible for acting on the person under guardianship’s behalf. You can’t just rely on a “primary” guardian and be on stand-by if something happens to that person.
  • Whether each proposed guardian can pass the background check. Minnesota law requires guardians to pass a background check initially, and then again every two years.

If it makes sense for your particular situation, given the foregoing, you certainly could consider asking the court to appoint co-guardians.

What Does a “Court Visitor” Do in Minnesota Guardianship Proceedings?

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When a guardianship petition is filed in Minnesota, someone called a “Court Visitor” is typically appointed by the Court.  The role of the Court Visitor is to serve the petition on the Respondent (the person over whom guardianship is sought) and to report to the Court about the visit. The Court Visitor will usually call the Respondent at the number in the Petition and arrange a visit to the Respondent’s home.

The statute governing the details of the Court Visitor’s work is set forth in Minn. Stat. 524.5-304.  It provides, in pertinent part:

(a) Upon receipt of a petition to establish a guardianship, the court shall set a date and time for hearing the petition and may appoint a visitor. The duties and reporting requirements of the visitor are limited to the relief requested in the petition.

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(d) The visitor shall personally serve the notice and petition upon the respondent and shall offer to read the notice and petition to the respondent, and if so requested the visitor shall read the notice and petition to such person. The visitor shall also interview the respondent in person, and to the extent that the respondent is able to understand:

(1) explain to the respondent the substance of the petition; the nature, purpose, and effect of the proceeding; the respondent’s rights at the hearing; and the general powers and duties of a guardian;

(2) determine the respondent’s views about the proposed guardian, the proposed guardian’s powers and duties, and the scope and duration of the proposed guardianship;

(3) inform the respondent of the right to employ and consult with a lawyer at the respondent’s own expense and the right to request a court-appointed lawyer; and

(4) inform the respondent that all costs and expenses of the proceeding, including respondent’s attorneys fees, will be paid from the respondent’s estate.

(e) In addition to the duties in paragraph (d), the visitor shall make any other investigation the court directs.

(f) The visitor shall promptly file a report in writing with the court, which must include:

(1) recommendations regarding the appropriateness of guardianship, including whether less restrictive means of intervention are available, the type of guardianship, and, if a limited guardianship, the powers to be granted to the limited guardian;

(2) a statement as to whether the respondent approves or disapproves of the proposed guardian, and the powers and duties proposed or the scope of the guardianship; and

(3) any other matters the court directs.

 

FAQ Friday: What is a Court Visitor in Minnesota Guardianship Proceedings?

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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:  What does a Court Visitor do in Minnesota Guardianship Proceedings?

When a guardianship or conservatorship petition is filed, the Court appoints someone called a “Court Visitor”.  (See Minn. Stat. 524.5-304).  The role of the Court Visitor is to serve the petition on the Respondent (the person for whom a guardianship is being sought),  to go over the petition with the Respondent  and to provide a written report to the Court about the visit.  The Court Visitor’s report will include an opinion as to whether guardianship/conservatorship appears to be appropriate, based upon the Visitor’s interactions with, and observations of, the Respondent.  The Court Visitor will usually call the Respondent, or the person taking care of the Respondent, in advance of the meeting to coordinate a meeting.  Sometimes the Court Visitor will make an unannounced visit to the Respondent.  The Court Visitor will make note in his/her report whether anyone else was present during the meeting with the Respondent.  The Court Visitor’s report is filed with the court and a copy is given to the Petitioner or his attorney in advance of the hearing.

FAQ Friday: How long does it take to establish a guardianship in Minnesota?

faq

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.

 

 

Professional License Searches in Minnesota Guardianships

background checkProposed 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.