A respondent in a guardianship or conservatorship action in Minnesota has the right to have a private attorney, rather than court appointed counsel. The attorney can be hired by the respondent (if the respondent isn’t under emergency guardianship, then he/she still retains the right to contract) or provided by family members.
Minn. Stat. 524.5-304 provides the details about the respondent’s right to counsel in guardianship actions in Minnesota. It provides, in pertinent part:
(b) A proposed ward has the right to be represented by counsel at any proceeding under this article. The court shall appoint counsel to represent the proposed ward for the initial proceeding held pursuant to section 524.5-307 if neither the proposed ward nor others provide counsel unless in a meeting with a visitor the proposed ward makes an informed decision in writing to specifically waive the right to counsel.
The statute also makes it clear that if the respondent retains private counsel, the court may then remove court-appointed counsel. It provides:
. . . the court may remove a court-appointed attorney at any time if the court finds that the proposed ward has made a knowing and intelligent waiver of the right to counsel or has obtained private counsel.
I think there is a mistaken belief that court-appointed attorneys are not “as good” as privately hired attorneys. While this may be true in isolated cases, it’s my belief that in most cases court appointed attorneys are highly qualified and vigorously represent their clients. Still, if the respondent or family want private counsel, the respondent is entitled to it under the statute.
In order for the Court to have jurisdiction over an individual for guardianship proceedings, the individual must be served with a copy of the Petition for Guardianship. See Minn. Stat. 524.5-308. This is typically served on the individual by the Court Visitor, who meets with the individual and reads (or summarizes) the petition to him/her and then reports back to the court on the status of the individual and whether he or she appears to be in need of a guardian. There are instances where a Court Visitor does not or cannot meet with the individual prior to the guardianship hearing (for a variety of reasons, including: oversight by the Court in failing to appoint a visitor, the individual refusing to meet with the visitor, the individual being out of town or it being unsafe for the visitor to meet the person, to name just a few). If the Court Visitor is unable to meet with the individual and personally serve him/her with a copy of the petition, then it’s up to the petitioner to make sure that the respondent is personally served with a copy of the petition (and that an affidavit of service is then filed with the court).
I frequently get calls from persons under guardianship, or their family members, who are concerned because the current guardian is not doing things that they are supposed to (or is doing things that they are not supposed to). If the actions of the guardian are serious enough to put the person under guardianship in jeopardy, the Court can appoint a Temporary Substitute Guardian under Minn. Stat. 524.5-312. The Court could appoint a temporary successor guardian of its own volition, or an interested person could bring a petition asking the court to do it after a hearing. It depends on the particular circumstances of the case and how urgently a new temporary guardian is needed. If you have questions about your particular case, you should seek the advice of counsel.
I am frequently asked if guardianship court hearings are public proceedings. The short answer is “Yes”. However, there is a statutory provision that allows the Court to close the proceeding (make the hearing closed to the public) in limited circumstances.
Minn. Stat. 524.5-307 provides that “the hearing . . . may be closed at the request of the respondent and a showing of good cause.”
So who can make the request to close the hearing? The request must be made by, or on behalf of, the respondent (the person for whom guardianship is sought). If the respondent isn’t in a position to ask that the hearing be closed, his attorney or an interested party speaking on his behalf should make the request to the court.
What are some things that might be “good cause” to close the hearing?
Particularly sensitive or embarrassing information that will come out during the course of the hearing. It’s probably NOT sufficient to say that medical information will be discussed, because that happens in virtually every guardianship proceeding. But if there is medical information that is extremely sensitive, it may be enough to constitute “good cause”.
Behaviors of the respondent that are triggered/exasperated by a crowd. Sometimes a respondent has a diagnoses that causes behaviors or extreme anxiety around crowds or strangers. In cases like these, the Court may close the hearing, so that the respondent isn’t extremely agitated during the hearing.
Being a minor. Since other proceedings involving minors are closed (juvenile court, CHIPS proceedings), the Court often times will close minor guardianship or conservatorship hearings.
Other situations that are extremely sensitive, embarassing or that would be detrimental to the respondent’s health, safety and well-being if open/public hearing was to proceed.
I represent a lot of people who are put under guardianship and one of the things that I always talk about with them is that a guardianship does NOT always last forever. This is particularly true in the case of young adults, who are put under guardianship when they turn 18 because of disabilities like ADHD, Oppositional Defiant Disorder or Anxiety Disorder.* With any individual, but particularly with “children” when they turn 18, they simply need more time, more transitional schooling, more life experience, before they are able to function in society without a guardian.
How is a guardianship ended in Minnesota? By convincing the Court that a person is no longer in need of the assistance or protection of a guardian. The court will have a hearing to determine whether a guardianship should be terminated. At the hearing, evidence is presented to show that the individual is now able to make and communicate his/her own responsible decisions regarding medical care, shelter, nutrition, clothing and safety. Although statute doesn’t technically require it, it is usually very helpful to have a Physician’s Statement that there is no longer a continuing need for a guardian. Once a prima facie case is established that a guardian is no longer needed, if no one comes forward objecting to the termination and showing that in fact guardianship is still needed, then the Court must terminate the guardianship. The statute that governs termination of guardianships is Minn. Stat. 524.5-317. During this process the Ward (person under guardianship) is entitled to have an attorney represent him/her.
* (This list is meant to be illustrative, not exhaustive).
The Minnesota Judicial Branch recently released an awesome new interactive dashboard using Tableau software, which allows the user to track case data for the years 2012 – 2016. The source for the underlying information is the Annual Reports of the Judicial Branch (2012-2016). The user can sort by major case type, judicial district, county and dates. The Minnesota Judicial Branch interactive data dashboard can be found here.
It provides some interesting insight into guardianship and conservatorship case filings, in terms of numbers and in terms of the counties and judicial districts that are seeing more (or less) guardianship filings. With the coming “silver tsunami”, I anticipate that the number of annula guardianship and conservatorship filings will increase. Although, this could be tempered a bit with the push toward person-centered alternatives to guardianship.
The number of guardianship/conservatorship cases filed in Minnesota for 2012 – 2016 was 13,570, broken down as follows:
The number of guardianship/conservatorship cases filed in Hennepin County for 2012 – 2016 was 2,664, broken down as follows:
The number of guardianship/conservatorship cases filed in Ramsey County for 2012 – 2016 was 1,041, broken down as follows:
The number of guardianship/conservatorship cases filed in Dakota County for 2012 – 2016 was 1,078, broken down as follows:
This is great information to have. Let’s hope the Minnesota Judicial Branch continues to keep this dashboard currrent.
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.
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.
Wondering what is involved in being a Guardian and/or Conservator for someone in Minnesota? Check out the Guardianship and Conservatorship video created for the 4th Judicial District (this is required viewing to be a guardian or conservator in Hennepin County):