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.
The Minnesota Judicial Branch now requires that guardians in Minnesota complete and submit a new Personal Well Being Report form. The new personal well being report form can be found on the Minnesota State Court Court website here.
Disclaimer: Many guardians, attorneys and other professionals who have looked at and used the new form have found it to be very difficult to complete. As written currently, the form does not provide guidance on its new “1 to 5 numbering system”. The form also doesn’t make clear how much detail the court wants for written answers. My understanding is that the Courts are aware of the uneasiness that people have with this new form and that the form will likely be revised in the not too distant future. (If the link above is no longer valid because the Court has changed the form, you should be able to find the form at: http://www.mncourts.gov/ and then go to “get forms” and then “guardianship/conservatorship” and scroll down to Annual Reporting Forms.
With the Fall elections approaching, I thought it would be a good time to address voting rights of people under guardianship and/or conservatorship in Minnesota.
Can a person that is under guardianship and/or conservatorship in Minnesota vote?
Yes. As long as the Court has not restricted the right to vote of someone under guardianship, that person may do so. See Minn. Stat. 524.5-313(c )(8)
Can a person that is under guardianship and/or conservatorship in Minnesota have the assistance of someone else in voting?
Yes. You can bring your guardian, a family member, a friend or neighbor to help you vote. They can go in the booth with you and help you fill out your ballot. There is even something called “Curbside Voting”, for people who can’t easily get out of their vehicle but want to vote. Here is what the Minnesota Secretary of State says about helping someone vote and curbside voting.
When does a Court restrict the right of someone under guardianship to vote?
Courts typically only restrict a person’s right to vote in extreme circumstances. Usually the person has to be severely impaired, so that if they were given information about two candidates, they could not understand the difference and pick one. In some counties (Hennepin), the Court will have the petitioner address the ability of the respondent to vote at the hearing on the petition for guardianship. If the Court determines that a person does not have the capacity to exercise his/her voting rights, the Court will remove that right. When the Court does remove the right of someone to vote, the Court sends that person’s name to the Secretary of State’s office and the person is removed from the list of eligible voters.
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.
How does a guardian dispose of personal property of a person under guardianship in Minnesota? Can the guardian just sell or donate clothing, furniture, vehicles, etc. ?
Minn. Stat. 524.5-313(c)(3) provides the procedures that a guardian must follow before disposing of personal items of a person under guardianship.
Essentially the Guardian has to fill out a form/notice (available at www.mncourts.gov) indicating what the guardian intends to sell/dispose of and to whom/how. The notice must be served on the person under guardianship and on interested persons. The guardian then needs to wait 10 days and, if no objection to the proposed disposition has been received, the guardian can then dispose of the item. If an objection is received and filed with the Court, the guardian must then wait for court direction (after a hearing) as to whether the item can be sold.
A guardian has a duty and responsibility to report to the Court annually (on the anniversary of the guardianship – which coincides with the issue date of the Letters of Guardianship) on the condition and well being of the person under guardianship. Minn. Stat. 524.5-316 addresses the contents of the annual personal well being report. It is a pretty basic report, meant to summarize for the Court both the current condition of the person under guardianship, as well as what has transpired with that person over the last year. The guardian discloses the condition of the ward (mentally, physically and socially), the living situation, whether any restrictions have been placed on the person’s right to communicate/visit with people of his/her choosing, an opinion on the adequacy of care the person has received, whether continued guardianship is necessary and whether the guardian has been reimbursed for any services to the ward (that were not reimbursed by county contract). The guardian needs to take the completion of this report seriously and get it filed with the Court and served on the person under guardianship and interested persons, within 60 days of the anniversary date. If it isn’t filed on time, the Court will call the guardian back in to court to explain why it hasn’t been filed.
Being appointed as Guardian for someone who is incapacitated – even if it is your child who you have raised his entire life – comes with significant new responsibilities. I’ve put together my “Top 5 Tips for Guardians in Minnesota” based on questions that my clients have asked me and/or things that I have observed in my 20+ years of practicing guardianship law in Minnesota.
- Always be mindful of the rights that the person under guardianship retains. They include things like: the right to personal privacy; the right to treatment with dignity and respect; the right to have their preferences regarding medical treatment and religion given due consideration; and the right to communication with persons of their choosing. They are set forth in Minn. Stat. 5245.-120, the Bill of Rights for Wards and Protected Persons
- Don’t forget to timely serve and file with the Court the annual Personal Well Being Report and Annual Notice of Right to Petition for Termination or Modification of Guardianship. This is an easy thing to do each year, but so many Guardians fail to do it, which results in the Guardian being called back in to Court to explain why the Guardian failed to do it. Courts can – and do – issue a warrant for the Guardian’s arrest if the Guardian fails to file the annual report and fails to show up in Court to explain why they didn’t timely file the report. The form report is available on the Minnesota State Court Website.
- Listen to the person under guardianship when he talks about his situation and needs. It can be frustrating to not have your life be in your own control. If a Guardian takes the time to sit down and really listen to what the person under guardianship is saying, it can go a long way in showing that the Guardian cares and is trying to be responsive and make the best decision for the situation.
- Communicate with the person under guardianship. Keep the person under guardianship informed about the actions that you are taking and the decisions that you are making on his behalf. Being kept in the dark can be scary for the person under guardianship. Remember that he is an adult and deserves to be treated with dignity and respect. Part of that is keeping him apprised of the things that you are doing for him.
- Remember that one of your responsibilities as Guardian is to assist the person under guardianship with having as much independence and freedom as possible. This will be different for each situation. For some it may mean giving the person under guardianship unlimited phone and computer, but still requiring supervision for outings in the community. For others it may be allowing them to be unsupervised in the community. Whatever the situation, be mindful of creating as much freedom and independence as is possible, while keeping the person safe.
If you have specific questions about your duties and responsibilities as Guardian in Minnesota, please feel free to reach out to me.
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).
Guardianship proceedings often deal with very personal issues – sensitive medical topics; behaviors by an elderly or disabled loved one that are often-times out of norm and somewhat embarrassing; sensitive financial information; and family in-fighting. Nonetheless, guardianship hearings in Minnesota are public proceedings, which means that members of the public can sit in on the court proceedings and read the court filings. So is there anything that can be done to preserve the privacy of the individuals involved in these sensitive hearings? Yes. If documents/court filings contain sensitive medical (or other) information, they can be filed as “confidential” through the e-filing system, which will make that particular document not accessible by the public. The hearing itself may only be closed in very limited circumstances and at the request of the attorney for the Respondent (the person over whom you are trying to seek guardianship). Minn. Stat. 524.5-408 addresses this issue. It states, in pertinent part, ” . . . the hearing may be closed upon the request of the respondent and a showing of good cause.”
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.