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.
Does a person under guardianship have the right to an attorney?
Yes! A person under guardianship in Minnesota has the right to an attorney in any court proceeding and for the purpose of petitioning the court. This right is set forth in the Bill of Rights of Ward and Protected Person, Minn. Stat. 524.5-120. In most counties, an attorney will be appointed from the outset for a Respondent, once a petition for guardianship has been filed. A respondent does have a right to hire his/her own private attorney (or one can be hired for him/her by the family). Once you are appointed as guardian, it’s your responsibility to make sure the ward or protected person has an attorney, if he or she wants one (or you think it’s necessary). If there are sufficient funds, a guardian can hire an attorney privately. If there are not sufficient funds (the ward is IFP -in forma pauperis), the court will appoint an attorney to represent the ward and the fees will be paid for by the county. Each county has different policies on how much an attorney for the ward is reimbursed.
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: Does a person under guardianship in Minnesota retain any rights?
Yes. The rights that a person under guardianship or conservatorship in Minnesota retains are set forth in Minnesota Statute 524.5-120, which is known as “The Bill of Rights For Wards and Protected Persons”.
Unless restricted by Court Order, those rights include the right to:
- treatment with dignity and respect;
- due consideration of current and previously stated personal desires, medical treatment preferences, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;
- receive timely and appropriate health care and medical treatment that does not violate known conscientious, religious, or moral beliefs of the ward or protected person;
- exercise control of all aspects of life not delegated specifically by court order to the guardian or conservator;
- guardianship or conservatorship services individually suited to the ward or protected person’s conditions and needs;
- petition the court to prevent or initiate a change in abode;
- care, comfort, social and recreational needs, training, education, habilitation, and rehabilitation care and services, within available resources;
- be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the ward or protected person’s clothing, furniture, vehicles, and other personal effects, to object to the disposition of personal property and effects, and to petition the court for a review of the guardian’s or conservator’s proposed disposition;
- personal privacy;
- communication and visitation with persons of the ward or protected person’s choice, provided that if the guardian has found that certain communication or visitation may result in harm to the ward’s health, safety, or well-being, that communication or visitation may be restricted but only to the extent necessary to prevent the harm;
- marry and procreate, unless court approval is required, and to consent or object to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
- petition the court for termination or modification of the guardianship or conservatorship or for other appropriate relief;
- be represented by an attorney in any proceeding or for the purpose of petitioning the court; and
- vote, unless restricted by the court.