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.
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.
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.
Proposed 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.