Minnesota Guardianship & Conservatorship Law Blog

Selling Personal Property of Ward Under Guardianship in Minnesota

2012-01-20T04:41:00.005-06:00

What happens if a guardian decides the certain items of the ward's must be sold or otherwise disposed of? For example, the guardian might decide that funds are needed for the ward's care, so items must be sold. Or the guardian may decide that items are no longer used and are too expensive to maintain. For example, a vehicle that the ward doesn't drive anymore, but that requires insurance. Can a guardian sell some of the ward's personal property? Yes. Minn. Stat. 524.313(c)(3) sets forth the procedures that must be followed before disposing of personal property.

If the guardian wants to dispose of items such as these, notice must be given to interested persons. The form Notice of Intent to Dispose of Clothing, Furniture or Other Personal Effects is found on the State Court website. It must be completed by the guardian and served on Interested Persons at least 10 days before the items are disposed of by the guardian. Interested Persons are those listed in Minn. Stat. 524.5-102, Subd. 7. The Interested Persons then have the 10 day period in which to serve the guardian, by mail or personal service, with an objection. If the guardian receives an objection and still wants to sell or dispose of the item, the guardian must first petition the court for approval of the proposed disposition.

Finally, the last thing to be aware of, before steps are taken to sell personal property, is that it is important for the Conservator to check the Protected Person's Will and make sure the property being sold has not been specifically devised in the Will or revocable trust. If it is, then the item may still be sold, but the funds from the sale must be set aside and preserved for the intended beneficiary (or if necessary for the protected person's care, those funds should be used last). See Minn. Stat. 524.2-606

For specifics regarding a guardian selling a ward's personal property and the proper procedures to follow, see Minn. Stat. 524.5-313 or speak with an experienced Minnesota guardianship attorney.

Guardianship Video Requirement in Hennepin County

2011-12-26T05:52:00.003-06:00

Effective December 1, 2011, proposed guardians and/or conservators in the Fourth Judicial District (Hennepin County, MN), must view an educational video prior to the initial hearing.They will also be required to submit a modified version of the acceptance and oath, stating that they have viewed the video.

The purpose of the video is to educate proposed guardians and conservators on their duties prior to the initial hearing. The video has 7 segments, totaling 34 minutes in length. The segments are on the following topics: Introduction to Guardianship/Conservatorship; What Guardianship is Not; Less Restrictive Alternatives to Guardianship and Conservatorship; Roles and Responsibilities of a Guardian; Roles and Responsibilities of a Conservator; Annual Reporting Requirements; Common Issues and Problems.

The full press release, detailing the new requirements, can be found on the Minnesota State Court website here.

The video itself, along with a link to the modified Oath and Acceptance form, can be found on the Hennepin County Probate Court website here.

National Guardianship Association: Information and Resources

2011-11-22T13:03:00.005-06:00

The National Guardianship Association has redesigned its website. It continues to be a valuable resource for information relating to guardianships and conservatorships across the whole United States, including resources and information relating to current issues surrounding guardianships and conservatorships. Don't forget about this valuable resource if you are looking for information about guardianships on the national level. If you want information on guardianships or conservatorships in Minnesota, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.

New Report: Alzheimer's From The Front Lines

2011-11-09T05:37:00.003-06:00

The NAPA (National Alzheimer's Project Act) issued it's new report addressing the 10 key issues that they believe must be addressed in a National Alzheimer's Plan. The report, called: Alzheimer's From the Front Lines: Challenges a National Plan Must Address can be found on the Alzheimer's Association's website (and a link is also provided here). The report was prepared based upon the input of over 43,000 people from across the United States, who shared their insight, experiences and hardships. The 10 key issues which emerged that must be addressed by the National Alzheimer's Project include:

A lack of public awareness
Insufficient research funding
Difficulties with diagnosis
Poor dementia care
Inadequate treatments
Specific challenges facing diverse communities
Specific challenges facing those with younger-onset Alzheimer’s
Unprepared caregivers
Ill-equipped communities
Mounting Costs

To see facts and statistics about how Alzheimer's impacts Minnesotans, based upon the input they provided into the report, see here. In Minnesota in 2010, there were 94,000 people 65 years and older with Alzheimer’s. In Minnesota in 2010, there were 237,441 caregivers who provided unpaid care valued at over $3.2 billion.

For more information on the National Alzheimer's Plan, visit www.alz.org/napa

Who are "Interested Persons" in a Minnesota Guardianship?

2011-11-02T06:00:00.000-05:00

"Interested Persons" are entitled to notice of a guardianship or conservatorship petition, annual guardianship filings, and many other proceedings in Minnesota guardianships and conservatorships. But who are "Interested Persons" in a Guardianship or Conservatorship proceeding?

Minn. Stat. 524.5-102 provides definitions for the Uniform Guardianship and Protective Proceedings Act, Minn. Stat. sections 524.5-101- 524.5-502. Interested Persons are defined in subdivision 7, as follows:

Subd. 7.Interested person.

"Interested person" includes:

(i) the ward, protected person, or respondent;

(ii) a nominated guardian or conservator, or the duly appointed guardian or conservator;

(iii) legal representative;

(iv) the spouse, parent, adult children and siblings, or if none of such persons is living or can be located, the next of kin of the ward, protected person, or respondent;

(v) an adult person who has lived with a ward, protected person, or respondent for a period of more than six months;

(vi) an attorney for the ward or protected person;

(vii) a governmental agency paying or to which an application has been made for benefits for the respondent, ward, or protected person, including the county social services agency for the person's county of residence and the county where the proceeding is venued;

(viii) a representative of a state ombudsman's office or a federal protection and advocacy program that has notified the court that it has a matter regarding the ward, protected person, or respondent;

(ix) a health care agent or proxy appointed pursuant to a health care directive as defined in section 145C.01, a living will under chapter 145B, or other similar document executed in another state and enforceable under the laws of this state; and

(x) any other person designated by the court.

If you would like more information about Guardianships or Conservatorships in Minnesota, please contact experienced guardianship attorney Cindi S. Matt at Matt Legal Services.

New Guardianship/Conservatorship Educational Video Requirement in Hennepin County

2011-10-31T11:20:00.005-05:00

Beginning on December 1, 2011, proposed guardians and/or conservators in the Fourth Judicial District (Hennepin County, MN), must view an educational video prior to the initial hearing. They will also be required to submit a modified version of the acceptance and oath, stating that they have viewed the video.

The full press release, detailing the new requirements, can be found on the Minnesota State Court website here.

The video itself, along with a link to the modified Oath and Acceptance form, can be found on the Hennepin County Probate Court website here.

Co-Guardians and Co-Conservators: Is it possible?

2011-10-31T06:00:00.000-05:00

Can more than one person be guardian or conservator of an individual?

Yes. In Minnesota there is no limit on the number of people who can be guardian or conservator for an individual.

Why would co-guardians be necessary? In the case of a mentally disabled child, both parents will oftentimes want to be guardian. Sometimes an older parent will want to be guardian along with an older sibling of the ward, so that if the parent passes away a guardian will already be in place. Sometimes two siblings will want to be guardians for their elderly parent.

However, before the court appoints co-guardians or co-conservators, due consideration should be given to the particular situation and, importantly, the dynamic and relationship between the proposed co-guardians. It is imperative that they be able to communicate with each other and work well together, since they will need to jointly arrive a mutual decision on every aspect of the ward's care. They should be prepared to demonstrate to the court how they will work together and how they propose resolving any differences of opinion that may arise.

Although it is possible to have more than 2 guardians or conservators, it is rare. The more guardians a person has, the greater the possibility that differences of opinion will arise.

If the court does appoint more than one guardian or conservator, it is important to remember that each guardian and conservator is individually accountable to the court for every decision that was made on the ward's behalf. It won't be acceptable to point to a co-guardian and say "she did it, not me". So carefully consider your ability to work with a proposed co-guardian before agreeing to serve with someone else.

If you want more information on guardianships and conservatorships in Minnesota, please contact experienced guardianship attorney Cindi S. Matt at Matt Legal Services.

Annual Reports Required By Minnesota Guardians

2011-10-29T19:56:00.003-05:00

What forms does a Guardian in Minnesota have to file annually?

A Guardian in Minnesota must file a Personal Well Being Report (Annual Report of Guardian) (required by Minn. Stat. 524.5-316) and an Annual Notice of Right to Petition for Restoration to Capacity or Other Relief (required by Minn. Stat. 524.5-310(g)) . These forms are available on the Minnesota State Court website, under Court Forms/Guardianship/Annual Forms.

These forms are due annually within 30 days of the anniversary of the appointment as Guardian. They must be: 1) Filed with the Court; 2) Served upon Interested Persons (as defined in the Guardianship statute); 3) Served upon the Ward. If an Interested Person does not want to receive these annual reports, he/she can notify the Court and Guardian in writing and opt out of service.

The purpose of the Personal Well Being Report is to notify the Court of what has happened to the Ward within the past year. The Court reads the reports and if anything seems out of ordinary, the Court could set it for hearing or further inquire of the Ward.

The purpose of the Annual Notice of Right to Petition for Restoration to Capacity is to remind the ward (and Interested Persons) of the statutory options/rights that the ward could pursue if he/she believes that a guardianship is no longer necessary or appropriate (or if the ward wants other relief).

If you have questions about the Annual Reports required to be filed by Guardians in Minnesota, or other guardianship or conservatorship questions, please contact experienced Minnesota Guardianship Attorney Cindi Matt at Matt Legal Services.

Venue in Guardianships and Conservatorships in Minnesota

2011-09-26T05:19:00.003-05:00

Where should a Minnesota guardianship or conservatorship action be venued?

Venue is the place where a court action is filed (which District Court the action is filed in). In Minnesota, venue for guardianships and conservatorships is governed by Minn. Stat. 524.5-108. It provides, in pertinent part:

***

(b) Venue for a guardianship proceeding for an incapacitated person is in the county of this state in which the respondent resides and, if the respondent has been admitted to an institution by order of a court of competent jurisdiction, in the county in which that court is located. Venue for the appointment of an emergency or a temporary guardian of an incapacitated person is also in the county in which the respondent is present.

(c) Venue for a protective proceeding is in the county of this state in which the respondent resides, whether or not a guardian has been appointed in another place or, if the respondent does not reside in this state, in any county of this state in which property of the respondent is located.

***

(e) If it is in the best interest of the ward or protected person, the venue may be transferred to another county. Upon the filing of a petition by any interested person, or upon the court's own motion, the court shall fix a time and place for the hearing on the transfer. Notice must be given to interested persons, the district court of the county to which venue is proposed to be transferred, and any other party the court designates. Upon proof that a transfer of venue is in the best interest of the ward or protected person or the ward or protected person's estate, and upon settlement and allowance of the conservator's accounts, if any, to the time of the hearing, the court shall transmit the entire file to the court of the other county, where all subsequent proceedings must be held.

So for guardianships or conservatorships, determine where the ward/protected person resides. This is where the case will be venued originally. If this is an emergency proceeding, it can either be venued in the county where the person resides OR in the county in which the person is present.

The venue can be changed, by motion or the court's own initiative, if it is in the best interest of the ward or protected person. An example of when this would be appropriate would be if the action is originally filed in one county because the ward resides there, but during the course of the proceeding the ward moves to a different county.

As always, if you have specific questions about venue or guardianships and conservatorships in general, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.

What Happens to a Conservatorship When the Protected Person Dies?

2011-09-07T06:20:00.004-05:00

What happens when a protected person dies? Is the conservatorship proceeding automatically over? Does the conservator need to do anything else?

Minnesota Statute 524.5-431 addresses these questions. It provides, in pertinent part:

(a) A conservatorship terminates upon the death of the protected person or upon order of the court. Unless created for reasons other than that the protected person is a minor, a conservatorship created for a minor also terminates when the protected person attains majority or is emancipated.

(b) Upon the death of a protected person, the conservator shall conclude the administration of the estate by distribution of probate property to the personal representative of the protected person's estate. The conservator shall distribute nonprobate property to the successor in interest. The conservator shall file a final report and petition for discharge no later than 30 days after distribution, and notice of hearing for allowance of said report shall be given to interested persons and to the personal representative of the protected person's estate.

Therefore, what the conservator must do is: Distribute the protected person's property to the appropriate person. Probate property goes to the personal representative (probate proceedings should be commenced by a family member or other appropriate person in order to get the PR appointed) and nonprobate property goes to the appropriate successor in interest. The conservator then prepares a final account/report and files it with the Court along with a Petition for Discharge. The Court then sets a hearing date on the Petition and the Conservator provides notice of the hearing to all Interested Persons. After the hearing the Court issues an Order discharging the Conservator.

If you have questions about this issues, or conservatorships in general, please contact experienced conservatorship attorney Cindi Spence Matt.

If there is also a guardianship in place, the guardianship terminates upon death as set forth in Minnesota Statute 524.5-317.

What Happens to A Guardianship When the Ward Dies?

2011-09-07T05:58:00.004-05:00

What happens when a ward dies? Is the guardianship proceeding automatically over? Does the guardian need to do anything else?

Minnesota Statute 524.5-317 addresses these issues. It provides:

(a) A guardianship terminates upon the death of the ward or upon order of the court.

(b) On petition of any person interested in the ward's welfare the court may terminate a guardianship if the ward no longer needs the assistance or protection of a guardian. The court may modify the type of appointment or powers granted to the guardian if the extent of protection or assistance previously granted is currently excessive or insufficient or the ward's capacity to provide for support, care, education, health, and welfare has so changed as to warrant that action. The court may make any other order that is in the best interests of the ward or may grant other appropriate relief.

(c) Except as otherwise ordered by the court for good cause, the court, before terminating a guardianship, shall follow the same procedures to safeguard the rights of the ward as apply to a petition for guardianship. Upon presentation by the petitioner of evidence establishing a prima facie case for termination, the court shall order the termination and discharge the guardian unless it is proven that continuation of the guardianship is in the best interest of the ward.

Therefore, when the ward dies, if there is only a guardianship, the guardianship automatically terminates. However, it is obviously necessary to inform the Court of the same, so that the Court can document and close its file. Accordingly, the guardian should file a sworn/notarized Affidavit with the Court, stating that the ward has died, what date the ward died on, (perhaps) attaching a copy of the death certificate, and asking the court to issue any order the Court believes is necessary/appropriate (though technically, upon death of the ward, no order is necessary; if for some reason there was a bond in place - though it would be unusual in a guardianship - the Court should order the bond to be discharged) and asking the Court to close its file.

If there was also a conservatorship in place, additional steps need to be taken, as set forth in Minnesota Statute 524.5-431.

If you have specific questions about this or other guardianship issues, please contact experienced guardianship attorney Cindi Spence Matt.

Out-of-State Witnesses Testifying in Guardianship Proceedings

2011-08-30T07:00:00.001-05:00

How does a witness who is located in another state testify in a Minnesota guardianship or conservatorship proceeding? Minn. Stat. 524.5-606 is instructive.

Under that section, the court has the authority to allow the testimony of out-of-state witnesses in guardianship proceedings by:

deposition
"other means allowable in this state for testimony taken in another state" or by
telephone or other electronic means (although the statute doesn't specifically state, presumably this would mean via things like Skype)

The statute goes on to state that the courts of this state and the other state should cooperate in designating appropriate location for the deposition or testimony. It would probably be wise to check with the trial court and find out if the out-of-state witness could testify "live" from his/her own home by himself, or whether he/she needs to be in the presence of someone who could swear him/her in. Counsel should also consider the logistics of telephone testimony in terms of having the witness look at, and testify about, exhibits. If the witness is going to be testifying about documents, counsel should coordinate with the Court and premark the exhibits and have a set messengered to the out-of-state witness for use during the proceedings.

In deciding how to offer the testimony of out-of-state witnesses, the parties to a guardianship action should consider things like:

cost (depositions are costly);
how important the witnesses testimony is (if it is important, usually "live" testimony, even if it is via telephone, would generally be preferable, in case the Court has questions for the witness);
how effective/compelling the witness is (if the witness would make a compelling witness, "live" telephone testimony may be more convincing than the court reading a deposition transcript.

How long does it take to establish a Minnesota guardianship or conservatorship?

2011-08-29T04:51:00.004-05:00

How long does it take to get a guardian or conservator appointed in Minnesota?

As with most anything, the answer is: It depends. It depends on the county that you are filing the petition in. It depends on whether the petition will be contested or uncontested.

Typically, a routine uncontested guardianship or conservatorship can be in place about 4 - 6 weeks from the time the petition is filed with the court. Why so long? There is a 14 day notice requirement, whereby all Interested Persons (as defined under Minnesota Statute) must receive notice of the hearing. Therefore, when you file a guardianship petition, the very earliest that you will be heard by the court would be about 16 - 18 days later. More commonly, the court will set the hearing for 4 - 5 weeks out from the time the petition is filed. At the hearing, if it is uncontested, the court will often times rule from the bench, granting the petition. However, even then, work must sometimes be done before the guardianship Letters (the document that gives the guardian or conservator authority to act) will be issued. For example, the background study may still need to be completed or a bond may need to be obtained.

A contested guardianship or conservatorship hearing can take much longer. It may be many months before the contested process is complete. Why so long? In contested proceedings, parties often conduct discovery (formal information gathering) and the respondent sometimes needs a medical or psychological examination (to support or oppose the proceeding).

If you can't wait the 4 - 6 weeks that it may take (minimum) to get a guardianship or conservatorship in place, you may need to consider proceeding with an emergency guardianship or emergency conservatorship. As always, if you have questions about the guardianship or conservatorship process in Minnesota, please contact experienced Minnesota guardianship attorney Cindi Spence Matt.

Who can petition for guardianship or conservatorship?

2011-08-11T19:45:00.004-05:00

Who can petition for the appointment of a guardian or conservator for someone? Do you have to be related to the ward/protected person (the person for whom you are seeking a guardian)?

The statute that provides guidance is Minn. Stat. 524.5-303. As set forth therein: An individual or a person interested in the individual's welfare may petition for a determination of incapacity, in whole or in part, and for the appointment of a limited or unlimited guardian for the individual.

So who exactly does this mean? "The individual" means the person over whom the guardianship would be imposed can petition for the guardianship itself. (Although the paradox appears to be that if the individual needs a guardian, how can he have the capacity to petition for one? I think the answer here may be that there are some situations where limited guardianships appropriate. Or perhaps the individual has mental capacity, but recognizes that he or she is vulnerable and subject to influence and so they want to be proactive.) "A person interested in the individual's welfare" would be anyone ranging from immediate family, to extended family, to county social workers, to medical personnel, to neighbors or friends. Essentially anyone who is concerned and has a legitimate basis to be concerned.

The statute does go on to state the the petitioner has to list their relationship to the respondent and a great deal of personal information about the respondent and interested persons (essentially respondent's next of kin). Implied in the statute, as with any legal paper that is filed, is that the individual has to have a good faith basis for the petition. Therefore, a person couldn't just file a petition for guardianship against a politician because the person disagreed with his political views and thought he must lack capacity to think the way he does (you laugh, but I have received a call from someone wanting to do just that!)

If you have specific questions about who can file a petition for guardianship or conservatorship in Minnesota, please call an experienced guardianship attorney at Matt Legal Services.

New Guardianship Resource: The Guardianship Summit

2011-08-10T11:22:00.004-05:00

If you are looking for national guardianship information and resources, check out the Guardianship Summit, a new blog that contains great information and resources. If you need help with guardianships or conservatorships in Minnesota, please call Matt Legal Services.

How Will DeYoung Impact Guardians?

2011-07-14T04:19:00.006-05:00

The Court of Appeals of Minnesota issued a published opinion on Friday, July 11, 2011, which will impact Guardians and the way they do their job. The case is In re: Guardianship of Jeffrey DeYoung (Minn. App. 2011).

Case summary: Mom challenges the Hennepin County District Court's denial of her petition to remove the guardian of her 26 year old son and of her to be appointed as successor guardian. The basis for mom's petition was that the guardian permitted Pathways (a group home where her son resided) to restrict her visitation and exclude her from the group home and that the guardian failed to ensure that the group home was obtaining necessary medical care for her son. The specific facts are set forth in detail in the DeYoung opinion. The District Court had found that although the guardian could have been a bit more responsive, her conduct did not justify removal and mom had not proven that she was best qualified and most suitable to serve as successor guardian. Mom appealed the District Court's decision, alleging that the guardian improperly delegated her duties and powers to her son's group home.

The Court of Appeals held that a guardian may not delegate his duties to a third party, especially a group home. It remanded for the district court to make findings as to whether the guardian improperly delegated her powers and duties as guardian.

Based on the facts set forth in the Court's decision, I disagree with the Court's characterization of the group home as a guardian. It seems to me the group home was merely a third party service provider. Guardians place their clients in group homes and nursing homes and other facilities all the time. A private group home or other facility does have the authority to create their own rules/parameters the govern their residents and things that impact upon their residents. So, in this case, the group home could certainly make the decision that the mom be excluded from visiting her son in the group home, based upon what they perceived to be a disruption to him and to the other residents. But, in my opinion, the group home making this restriction is not akin to the group home acting as guardian. Ultimately it is the guardian who must make visitation restriction decisions [see Minn. Stat. 524.5-120 (10) ]. The guardian has to do their due diligence in order to restrict visitation (or act with respect to any of the other powers/duties granted to the guardian). In determining whether to restrict visitation, the guardian must consider things like: what is in the best interest of the ward? What do the ward's doctors and other medical professionals say about the restriction? What does the ward prefer? Are there less restrictive alternatives that are available?

On the facts of this case, I do not believe it appears that guardian improperly delegated her powers/duties to a third party (there certainly appear to have been issues about how she carried out those powers/duties, but those appear to have already been addressed by the District Court). I think remanding on the question "whether Kuhnley improperly delegated her powers and duties as a guardian to Chowen House" can only be answered with a finding that she did not improperly delegate (because she was still involved in the decisions regarding visitation and medical care, it seems clear she was not solely relying on Chowen house to make these types of decisions. Her involvement may have only been very cursory, maybe even rubber stamping, but that goes to the issue of whether she improperly performed her duties, not the issue of whether she improperly delegated her duties).

Another thing that struck me when I was reading the case that goes against the Court of Appeals' decision that a guardian cannot delegate it's duties to a third party is Minn. Stat. 524.5-211, which provides: (a) A parent, legal custodian, or guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding one year, any powers regarding care, custody, or property of the minor or ward, except the power to consent to marriage or adoption of a minor ward. I have never seen this statute put into practice by a guardian (and in the majority of cases, I would strongly recommend to guardians that they NOT execute a Power of Attorney giving someone else the authority to act on their behalf, simply because the Guardian is the one that ultimately has to answer to the Court, and if they delegate their powers to someone and that someone makes a mistake, the Guardian is the one who will ultimately be in trouble with the Court). Nonetheless, it appears that this statute does, in fact, allow delegation of duties by a guardian and it is at odds with the Court of Appeals' decision in this case.

So how does the DeYoung case impact what a guardian does? I think even though the Court of Appeals said, "we do not read the guardianship statute to prohibit a guardian from relying on third parties to satisfy the ward's daily needs and to make routine decisions in meeting those needs", the DeYoung decision has the potential to scare guardians into becoming ultra involved in every decision concerning the ward. Even those decisions that really are the day-to-day type decisions that group homes or facilities normally make. Certainly, in light of DeYoung, guardians will now start doing even more independent verification and documentation of "decisions" or recommendations made by third parties, as they relate to the ward. While this may not be a bad thing, it will likely lead to an increase in the guardian's fees, which ultimately comes out of the ward's pocket book (or the County, in the case of indigent wards).

Delegation of Powers by a Parent

2011-07-11T15:18:00.000-05:00

If a parent is temporarily unable to care for their minor child, is a guardianship necessary? No.

Under Minnesota Statute 524.5-211, a parent, legal custodian or guardian may delegate to another adult person, their powers regarding care, custody or property. This is done by the parent (legal custodian or guardian) executing a form called a Delegation of Powers by Parent under Minn. Stat. 524.5-211. This form is only good for a maximum of one year. A copy of the completed form must be served upon any non-custodial parent within 30 days of its' execution, unless the non-custodial parent doesn't have any parenting time or has supervised parenting time, or unless there is an Order For Protection against the non-custodial parent.

In some cases, a full blown guardianship may be necessary. For example, if the time period that it will be needed is likely to be greater than one year, or if additional powers are necessary (i.e. the power to consent to marriage). Usually the Delegation of Powers by Parent is meant for temporary situations, like when the parents of a minor are going to be absent for an extended period of time (in jail, in rehab treatment, etc.).

The Order and Letters, a Guardian and Conservator's Authorization to Act:

2011-06-17T06:02:00.000-05:00

What documents give the Guardian and/or Conservator of an individual the power to act?

The Order Appointing Guardian and/or Conservator
The Letters of Guardianship and/or Conservatorship (often referred to as "the Letters")

The Order is the document where the Court makes specific Findings about the factual basis for the need for a guardianship or conservatorship. It is the Order that sets forth the specific powers and authority that the Guardian and/or Conservator has with regard to the ward or protected person. Typically the Court will "check" certain boxes on the Order, indicating which statutory provisions the Guardian or Conservator has authority under. In cases where a full guardianship is necessary, the Court will check the box indicating that all the powers under Minnesota Statute are necessary, and will then also explain why a limited guardianship is not appropriate. A form Order Appointing Guardian and Conservator can be found on the Minnesota Judicial Branch website. For further guidance on the full scope of each statutory power that is checked by the Court, one would look to the statute itself, as well as case law interpreting the statute. If help is needed understanding the full scope of a Guardian or Conservator's powers, you should consult with an experienced guardianship and conservatorship attorney.

The Letters are the document which provide "proof" that the Guardian and/or Conservator has the authority to act. A form Letters of Guardianship and Conservatorship can be found on the Minnesota Judicial Branch website.

After being appointed, the Guardian or Conservator obtains certified copies of the Order Appointing and of the Letters. In combination, these are the documents which give the Guardian/Conservator the ability to act on behalf of the ward/protected person. The Guardian or Conservator will need to present these documents to individuals or entities that the Guardian interacts with on behalf of the ward (for example, nursing homes, medical providers, banks, etc.).

What Do Courts Consider When Deciding Who To Appoint As Guardian or Conservator?

2011-06-02T06:02:00.000-05:00

The guardianship and conservatorship statutes (Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413) require that the consider individuals or entities that have priority to serve as guardian or conservator. But, when a court is considering the qualifications of the proposed guardian or conservator herself, what exactly do Judges consider?

According to the Minnesota Guardianship and Conservatorship Manual published by the Conference of Chief Judges, the following should be considered by Minnesota Judges when determining who should serve as guardian and conservator:

Is the proposed guardian or conservator herself competent? (over 18, not under guardianship or conservatorship himself, have sufficient mental capacity himself to handle the duties)
Has the proposed guardian or conservator submitted to, and passed, a background study?
What are the incapacitated person's wishes for the choice of his or her guardian or conservator (if the person has sufficient mental capacity and understanding to reasonably express a preference; or there is evidence of what the person's wishes were before he became incapacitated)?
Is there regular and appropriate interaction between the person and the proposed guardian or conservator?
Is there interest and commitment of the proposed guardian or conservator in advocating for the welfare and rights of the person?
Does the proposed guardian or conservator maintain a current understanding of the person's needs in all areas of the person's life?

The standard that the Courts need to ultimately use in deciding who to appoint as guardian or conservator is a best interest standard: what is in the best interest of the proposed ward or protected person.

For information about appointment of a guardian or conservator, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.

Protective Arrangements and Single Transactions under Minn. Stat. 524.5-412

2011-05-17T06:01:00.000-05:00

What if your loved one needs some help, but for some reason a full blown guardianship or conservatorship isn't appropriate? This scenario may come into play in any number of situations. Perhaps your loved one only has one main asset, and he or she was in the process of transferring it to a trust or annuity when disaster struck, living him or her without the ability to complete the transaction on his own. Perhaps your loved one put some planning in place by creating a health care directive (a less restrictive alternative to guardianship), but is in need of someone to assist her with the sale of her home, so she can use the funds to stay in a nursing home.

If you only need a very narrowly defined area of help for your loved one, and want to avoid a full blown guardianship or conservatorship, Minnesota Statute 524.5-412 allows the court to issue a protective order, which creates a protective arrangement or single transaction.

Some highlights of Minnesota Statute 524.5-412:

It is a less restrictive alternative to a guardianship or conservatorship, so if a narrowly fashioned protective arrangement or single transaction will work, the Court must implement it.
It is a court fashioned remedy, so the court must have a basis for issuing the order, typically by having listened to testimony at a hearing.
Notice of the petition and hearing still needs to be given to Interested Persons.

The full text of Minn. Stat 524.5-412 provides:

(a) If a basis is established for a protective order with respect to an individual, the court, without appointing a conservator, may:

(1) authorize, direct, or ratify any transaction necessary or desirable to achieve any arrangement for security, service, or care meeting the foreseeable needs of the protected person, including:
(i) subject to the procedural and notice requirements of section 524.5-418, the sale, mortgage, lease, or other transfer of property;
(ii) purchase of an annuity;
(iii) making a contract for lifetime care, a deposit contract, or a contract for training and education; or
(iv) addition to or establishment of a suitable trust, including a trust created under the Uniform Custodial Trust Act; and
(2) authorize, direct, or ratify any other contract, trust, will, or transaction relating to the protected person's property and business affairs, including a settlement of a claim, upon determining that it is in the best interest of the protected person.
(b) In deciding whether to approve a protective arrangement or other transaction under this section, the court shall consider the factors listed in section 524.5-411, paragraph (e).
(c) The court may appoint an agent to assist in the accomplishment of any protective arrangement or other transaction authorized under this section. The agent has the authority conferred by the order and shall serve until discharged by order after report to the court; provided, however, that if a conservator is appointed, only the conservator has the power to sign all real estate deeds.

With the stringent reporting requirements for a full blown conservatorship, having the Court consider and implement a protective arrangement or single transaction, in order to protect your loved one may be the best way to go. If you have questions about protective arrangements, guardianships or conservatorships, contact Cindi Spence Matt, an experienced guardianship attorney.

Generation Alzheimer's: The Defining Disease of the Baby Boomers

2011-05-04T13:33:00.000-05:00

Looking for quick facts and information regarding the latest breakthroughs in Alzheimer's Disease and the effects on the Baby Boomer generation? Read the latest at the Alzheimer's Association's micro-site, which includes access to it's full report: Generation Alzheimer's: The Defining Disease of the Baby Boomers.

Personal Well Being Reports for Minnesota Guardianships

2011-04-14T06:12:00.000-05:00

What is the Personal Well Being Report? When does a guardian have to complete and file it? Who else receives the report? Does the Court really look at them? What if someone disagrees with what is contained in the report? What if the guardian fails to file the Personal Well Being Report?

What is a Personal Well Being Report?

A Personal Well Being Report is required each year for guardianships, pursuant to Minnesota Statute 524.5-316.
A Personal Well Being Report is a form that is available through the Minnesota Court Website.
It is a Report that provides basic information about the Ward's current mental, physical and emotional condition; where the Ward is currently living; whether any restrictions have been placed upon who can visit with the Ward (and if so, why); what medical services have been rendered to the Ward in the past year; how often the Guardian has seen the Ward in the past year; the Guardian's opinion on whether the guardianship should continue; whether there have been any changes in the criminal background of the Guardian; and how much compensation the Guardian has received for services in the past year.

When must it be completed?

It must be completed by the guardian each year within 30 days after the anniversary date of the appointment as guardian.

What needs to be done with it after it is completed each year?

It must be served on the Ward and Interested Persons.
It must also then be filed with the Court (along with an affidavit of service, indicating that the Ward and Interested Persons were served).

Do Courts really read the Personal Well Being Report?

Yes, court staff and Judges review the reports that are filed.
If something in the report raises a red flag or looks like it would necessitate further hearing or investigation, the Court could take action, including appointing a Visitor to interview the Ward or investigate something, issuing an Order to Show Cause, or other action that the Court deems appropriate and necessary.

What if a Ward or Interested Person disagrees with what is written in the Personal Well Being Report?

Under Minn. Stat. 524.5-316(b), "A ward or interested person of record with the court may submit to the court a written statement disputing statements or conclusions regarding the condition of the ward that are contained in the report and may petition the court for an order that is in the best interests of the ward or for other appropriate relief."

What if the guardian fails to file the Personal Well Being Report?

If the Personal Well Being Report is not filed within 60 days of the anniversary date, the Court will issue an Order to Show Cause, requiring the Guardian to come before the Court and explain why it hasn't been filed.
Many counties will first send a Reminder Notice to the Guardian, giving the Guardian a certain limited amount of time to file the report before an Order to Show Cause issues.

Less Restrictive Alternatives to Guardianship

2011-04-07T05:46:00.001-05:00

The guardianship and conservatorship statutes require that the court only impose a guardianship or conservatorship if less restrictive alternatives are not available and working. See Minn. Stat. 524.5-409(a) and 524.5-102, subdivision 6. The rationale behind this requirement is that a guardianship takes away very basic rights of the respondent and should, therefore, only be imposed as a last resort. If there are other options that will preserve the autonomy of the proposed ward, while still ensuring his/her safety, then those options must first be used.

So what are less restrictive alternatives that should be explored first?

Power of Attorney
Health Care Directive
Joint bank accounts
Representative payee for certain government benefitss
Establishing a trust
Involving the family in care conferences and care teams

The less restrictive alternatives that may work for one individual may not work for another. And, of course, by the time a guardianship is being considered, it may be too late for the respondent to put some of these items in place (because for the POA or HCD or creating a trust, a certain level of capacity is required in the first instance).

If you have questions about less restrictive alternatives to guardianship or conservatorship, contact experienced Minnesota Guardianship Attorney Cindi Spence Matt of Matt Legal Services.

Physician's Statement for Guardianship and Conservatorship: The Basics

2011-04-05T05:34:00.001-05:00

What is a Physician's Statement and do you need one to establish a guardianship or conservatorship?

A Physician's Statement in Support of Guardianship/Conservatorship is a form that is completed by the ward's treating physician (or a doctor who has recently seen the ward). The doctor fills in details about when he/she last saw the proposed ward, the diagnostic impression, what behavioral evidence exists to support the guardianship/conservatorship, the diagnosis and the prognosis. The doctor also checks a box saying whether he/she supports or opposes the guardianship.

Finally, the doctor also checks a box about whether he is aware of the existence of a health care directive and, if so, what the health care directive says. Why is this important and of concern to the court? Because a health care directive is a less restrictive alternative than a guardianship, and a court will consider the fact that this is already in place when it decides whether to impose a guardianship.

You should try to obtain the Physician's Statement before filing the guardianship petition. Sometimes the situation is pressing enough that guardianship papers are filed before a Physician's Statement is obtained (doctors are often busy and it takes them awhile to complete the form). If you can't get the Physician's Statement before the petition is filed, get it completed and filed as far in advance of the hearing as you can.

A Physician's Statement is very helpful for the court in deciding whether to grant a guardianship or conservatorship. However, it is not absolutely necessary every time. There are difficulties which sometimes make it impossible to obtain a Physician's Statement (i.e. HIPPA; if the proposed ward did not ever sign an authorization for others to obtain information about their medical history, most doctors will refuse to fill out the form). If you can't obtain a Physician's Statement, you do have some options. One, if you have a medical chart note available, you could attach that to the Petition. Two, you can simply testify about your own personal observations of the proposed ward's medical condition and behavior that supports the petition. Three, you can subpoena the doctor to testify.

Practical Tip: As we all know, the handwriting of doctors is often very difficult to read. When you get a completed Physician's Statement from the proposed ward's treating physician, if you can't read some of the words, call the doctor's nurse and ask for a translation of what has been written. That way, when you are at the court hearing, you are prepared to decipher the writing for the Court.

If you have questions about Physician's Statements for guardianships or conservatorships, contact experienced Minnesota Guardianship Attorney Cindi Spence Matt of Matt Legal Services.

Who has statutory priority to be a guardian or conservator in Minnesota?

2011-03-24T16:02:00.000-05:00

What if more than one person petitions the court to be guardian and/or conservator for a ward in Minnesota? Does one person have priority over another? How does the Court decide who should be guardian?

Minnesota Statute 524.5-309 (for guardians) and Minnesota Statute 524.5-413 (for conservators) provide guidance on these questions and sets forth the statutory priority scheme. They provides that, as long as a person is otherwise qualified to serve as guardian or conservator, there is priority in the following order:

a current guardian or conservator (other than emergency or temporary guardian)
a person named under a current health care directive (as long as there are no restrictions contained therein) or durable power of attorney
a spouse or the written nominee of a deceased spouse
an adult child
a parent or the written nominee of a deceased parent
an adult who has lived with the proposed ward for at least six months before the filing of the petition
an adult who is related to the proposed ward by blood, adoption or marriage
any other adult or professional guardian.

So if you are low down on the priority scale (say for example, if you are a brother-in-law or a friend of the proposed ward and an adult child of the proposed ward wants to be guardian) does that mean you don't have a chance of being appointed as guardian? No. Minn. Stat 524.5-309 and Minn. Stat. 524.5-413 require the court to appoint the best qualified in that case.

What about if tow individuals with differing priority levels want to be guardian? Does the court automatically pick the one with higher priority? No. Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413 allow the court to appoint someone with lower (or no) priority, if the Court finds it is in the best interest of the Respondent.

If you have questions about priority for appointment as guardian or conservator in Minnesota, or any other guardianship questions, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services, LLC.

Mickey Rooney Pleas With Senate to End Elder Abuse

2011-03-04T05:38:00.001-06:00

On March 2, 2011, 90 year old entertainer Mickey Rooney testified before the Senate Committee on Aging, urging them to pass bills to end elder abuse. Mr. Rooney alleges that he has been abused by his step son for years. Mr. Rooney described being scared, disappointed, angry and overwhelmed. He testified that he couldn't believe it was happening to him. He described being in control one minute and the next minute having lost control. Mr. Rooney said that the abuse came out of no where. At first it was small and he felt he could control it, but then " it became something sinister". He testified that he knew his money had been taken and when he asked for information, he was yelled at and told he couldn't have any, that it was none of his business. Mr. Rooney said that eventually he was stripped of the ability to make even most basic decisions and that his "daily life became unbearable".

His testimony is very emotional and powerful and can be viewed in it's entirety on the Senate Special Committee's webpage.

Appointing a Successor Guardian in Minnesota

2011-02-21T16:40:00.001-06:00

What happens if the guardian or conservator wants to, or needs to, resign? Or if the ward or some other interested person believes that the guardian or conservator should be replaced with someone different? Can the guardian just quit? Can a new guardian just take over? Does the Court need to approve the new guardian?

These scenarios are frequently encountered, particularly when the guardianship is in place for many years. Things change. Guardians often age or become ill themselves and are not able to continue with the responsibility and duties of being someone's guardian. Wards or interested persons sometimes think that the current guardian should be replaced. If something changes and a guardian is no longer able to fulfill his/her duties, a petition must be filed with the court in order to terminate that guardian's duties and appoint a different (successor) guardian. If the ward or an interested person wants the guardian removed, a petition must also be filed.

The statute that governs the process is Minnesota Statute 524.5-112, Termination or Change in Guardian or Conservator's Appointment. The process itself is similar to the initial hearing to establish the guardianship, in that a petition is filed, a hearing is scheduled, notice (14 days) of the hearing must be given to all Interested Persons, and testimony must be taken at the hearing. However, it is not necessary for the Petitioner to re-establish that a guardianship is necessary. Instead, the Petitioner just testifies as to the particular circumstances justifying the change in the guardian. Any other witnesses and evidence may be offered. The Court then considers any objections of interested persons or information offered by others attending the hearing. The Court must determine what is in the best interest of the ward or protected person. The ward/protected person is also entitled to have an attorney represent him or her at this hearing, just like in the initial hearing. The new (successor) guardian that is appointed must do the same things that the initial guardian was required to do before Letters of Guardianship are issued (file an Acceptance and Oath; have a DHS background study conducted). Unless the Court modifies the powers that were contained in the original order appointing guardian or conservator, the successor guardian would have the same powers that the original guardian/conservator had.

If you have questions concerning successor guardians, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.

The Role of the Court Visitor in Guardianship and Conservatorship Proceedings in Minnesota

2011-02-16T06:59:00.001-06:00

What is a Court Visitor? A Court Visitor is an individual appointed by the Court to serve notice upon the Respondent and make a report to the Court about the Respondent's condition and the appropriateness of the relief requested in the Petition.

What is the statutory authority for a Court Visitor? Minn. Stat. 524.5-304 (guardianships) and Minn. Stat. 524.5-406 (conservatorships) governs the role and authority of the Court Visitor.

What does a Court Visitor do? The Court Visitor, once appointed by the Court, contacts the Respondent and schedules a time to meet with the Respondent. When the Court Visitor meets with the Respondent, he or she personally serves the Respondent with a copy of the Notice of Hearing and Rights and the Petition. The Court Visitor will ask the Respondent whether he/she would like the Notice and Petition read out loud. If requested, the Court Visitor will then read the entire Notice/Petition to the Respondent.

What is contained in the Court Visitor's report? The Court Visitor completes a report that is then filed with the Court (and provided to Petitioner's attorney), providing the Court with information about: the Respondent's appearance, the Respondent's ability to answer basic questions, the Respondent's position on the petition, whether the Respondent wants an attorney appointed, and whether and to what extent the Court Visitor believes a guardianship or conservatorship is appropriate.

Who are the Court Visitors? Each county is different. However, in general the Court Visitor is an individual from the county human services.

What role does the Court Visitor's Report have in the proceedings? It is considered by the Court in determining the appropriateness of the guardianship or conservatorship.

If you have questions about guardianships or conservatorships, please contact Cindi Matt at Matt Legal Services.

When Do You Need a Background Study for a Guardianship in Minnesota?

2011-01-31T16:00:00.000-06:00

Minnesota Statute 524.5-118 sets forth the requirements for a background study on guardians. There are certain people who are exempt. The statute provides the details. However, in general, you are exempt if:

You have had a background study done within the previous 5 years;
You are a State or County Agency
You are a parent or guardian of a ward who has a developmental disability and you have raised the ward in your home until the time the petition was filed.
You are a a bank with trust powers, bank and trust company, or trust company, organized under the laws of any state or of the United States and which is regulated by the commissioner of commerce or a federal regulator.

The form for the background study is available on the State Court website. If you have petitioned to be a guardian or conservator, you should complete the form and turn it to DHS prior to the first court hearing, because it typically takes a few weeks for DHS to complete the study and notify the Court of the results.

The study involves the following: criminal history data from the Bureau of Criminal Apprehension, other criminal history data held by the commissioner of human services, and data regarding whether the person has been a perpetrator of substantiated maltreatment of a vulnerable adult and a minor. In the even the proposed guardian hasn't lived in Minnesota for the previous five years, then additionally the court "shall request a search of the National Criminal Records Repository if the proposed guardian or conservator has not resided in Minnesota for the previous five years or if the Bureau of Criminal Apprehension information received from the commissioner of human services under subdivision 2, paragraph (b), indicates that the subject is a multistate offender or that the individual's multistate offender status is undetermined."

Prepare Minnesota for Alzheimer's 2020

2011-01-25T06:18:00.001-06:00

Wow. The Minnesota Board of Aging, on behalf of the Alzheimer's Disease Working Group, prepared an extremely thorough and thought-provoking report for the Minnesota Legislature, addressing the impact that Alzheimer's Disease will have on Minnesota over the next 40 years. Why the next 40 years? Because Alzheimer's is a disease that affects people as they age and the babyboomers are now turning 65. The report addresses budgetary, social and personal impacts on Minnesota, family members and caregivers, and those afflicted by Alzheimer's. You can find a full copy of the report here: Preparing Minnesota for Alzheimer's: The Budgetary, Social and Personal Impacts. You can also take a pledge to help prepare Minnesota for Alzheimer's 2020.

The impact that this disease will have on the need for guardianships and conservatorships, if appropriate advance planning is not done, is huge. If you have questions about the need for a guardianship for your loved one afflicted by Alzheimer's, please contact Cindi Matt, an experienced Minnesota guardianship attorney.

Doctor or Wife: Who should make decisions for gravely ill elderly man?

2011-01-19T19:42:00.004-06:00

Ethical Dilemma In Hennepin County Court « CBS Minnesota – News, Sports, Weather, Traffic, and the Best of Minnesota

In the news today was a case in Hennepin County Probate court involving a request by an elderly man's doctor to have a professional guardian appointed for the elderly man (Al Barnes), even though the man's wife apparently has decision making authority (through a health care directive and power of attorney, most likely). The doctor/hospital believe that the man is at the end of his life and that his wife is not making capable, rational decisions about medical procedures to sustain his life. A hearing was held in Hennepin County today and was apparently continued until February 2nd, in order to give the court appointed attorney (for the elderly man) time to gather information and adequately prepare for a hearing.

Alzheimer's Rally at the Minnesota Capitol

2011-01-13T07:17:00.001-06:00

A rally will be held today, January 13, 2011, at the Minnesota Capitol to educated and inform legislators and Minnesotans about what needs to be done now to prepare Minnesota for what appears to be an impending crisis with a huge increase in the number of Minnesotan's suffering from Alzheimer's Disease in the next 30 years. For more information, see the Alzheimer's Association - Minnesota/North Dakota Chapter website.

Greer v. Professional Fiduciary, Inc., Wells Fargo Bank, N.A., et. al.

2011-01-11T06:17:00.001-06:00

The Minnesota Court of Appeals released its opinion in Peggy Greer v. Professional Fiduciary, Inc., Wells Fargo Bank, N.A., et. al.. The Court held that a formerly incapacitated person's claims against her former conservator and former guardian constitute an improper collateral attack on the probate court's final orders when the claims challenge actions taken during the course of the conservatorship and guardianship that addressed in those final orders.

Lessons to be learned from Greer:

If you are a guardian or conservator, make sure that your annual accounts set forth every asset and expense specifically, so that when the Court issues it's order approving the accounts, each asset and expense is encompassed in its final order.
If you are an incapacitated person, and you question the actions of your guardian or conservator (whether it is an expenditure that has been made, an investment that has been made, or the keeping of you in a facility that you don't think you belong, etc.), you need to act in a timely manner to address the issue with the probate court or an appellate court. Wait to long to act, and you will be prohibited from doing so on the grounds that you are bringing an improper collateral attack on a final probate order.

As someone who represents guardians and conservators, I would say the Court of Appeals got it right. To leave them subject to potential liability for their actions, years after the probate court issued an order approving the same would be unfair and would likely send many a guardian and conservator running to look for a different career with less liability associated with it (or for a higher errors and omissions policy).

However, as someone who also represents wards, I would say there is a fundamental fallacy in the Court's opinion, which is that someone who is under a guardianship or conservatorship, often times does not have the capacity to even understand the documents that they are served with each year (the annual account, the personal well being report and annual notice, orders of the court regarding the same, etc.) and that they are expected to promptly bring any objections to or appeal. The Court of Appeals pointed to a ward/protected person's right to counsel, as if that is the saving grace of the incapacitated person. The very practical problem is that the incapacitated person likely does not have the ability (mental or financial) to hire their own counsel to address any issues that may exist, and the courts do not routinely or automatically appoint counsel to represent incapacitated persons on annual accounts. So what is the solution? Perhaps the probate court needs to be extra vigilant in reviewing the submissions of guardians and conservators and, if anything looks at all questionable (and perhaps on high dollar cases automatically), appoint an attorney to represent the ward/protected person. Perhaps family members of incapacitated persons need to be more assertive in finding separate representation for their loved one, if there is any question at all about the propriety of the submissions to the court.

Resource: Adult Guardianship Court Data and Issues

2010-12-17T05:44:00.000-06:00

Looking for a great resource on the current issues facing adult guardianships in the Courts around the United States? The results of an online survey are compiled in the Adult Guardianship Court Data and Issues report, which was put together by the Conference of Chief Judges, the Conference of State Court Administrators and the Center for Elders in the Courts. It highlights the increased need for adult guardianships, as well as the demand for individuals to act as professional guardians. Both of these are issues that I know we do see in Minnesota, Wright County (where my office, Matt Legal Services, is located). I don't see the issue of lack of professional guardians being resolved any time soon, with the budget crisis our Minnesota Court System is facing. Instead, I think more family members (i.e. unpaid guardians) will need to step up to the plate and take on the responsibility of becoming guardian for their aging loved one.

The District Court Show Epiosde #55: Guardianships and Conservatorships

2010-11-22T13:55:00.000-06:00

Check out Judge Halsey's latest episode of The District Court Show on QCTV, Episode #55 Guardianships and Conservatorships, for 30 minutes of discussion about guardianships and conservatorships in Minnesota. The featured guests are myself (Cindi Matt, Buffalo, Minnesota Guardianship Attorney) and Daniel Lodahl (professional conservator, First Fiduciary Corporation). If you have any follow up questions about guardianships or conservatorships in Minnesota, please contact me.

Standards for a Conservator Investing Protected Person's Assets

2010-11-18T05:45:00.001-06:00

What standards should a Conservator follow with regard to investing a protected person's money?

Minn. Stat. 524.5-417 (Powers and Duties of a Conservator) gives us some guidance. It states, in pertinent part:

* * *

The duties and powers of a conservator include, but are not limited to:

* * *

(3) the duty to possess and manage the estate, collect all debts and claims in favor of the protected person, or, with the approval of the court, compromise them, institute suit on behalf of the protected person and represent the protected person in any court proceedings, and invest all funds not currently needed for the debts and charges named in clauses (1) and (2) and the management of the estate, in accordance with the provisions of sections 48A.07, subdivision 6, 501B.151, and 524.5-423, or as otherwise ordered by the court. The standard of a fiduciary shall be applicable to all investments by a conservator. A conservator shall also have the power to purchase certain contracts of insurance as provided in section 50.14, subdivision 14, clause (b);

So what is the standard of a fiduciary? According to Brian Kompelien, an investment advisor who recently spoke at the MAGiC annual conference, a conservator or trustee should follow the Prudent Investor Rule. This rule essentially requires a conservator to examine the protected person's assets (both the amount and the make-up of those assets) and consider the particular circumstances of the protected person (how much cash will he need and how soon) and then determine how to best manage and invest the funds in light of the particular purposes, terms, distribution requirements and other circumstances of the protected person.

It would be easier for the Conservator if there was a bright line rule, such as "if the protected person has X dollars of assets, then invest Y percentage in stocks and Z percentage in bonds". No such luck. How to invest the money will be different for each protected person. One protected person may be 95 years old and living at a skilled nursing home which is paid for with the long term care insurance that the person had the foresight to purchase when he was younger, so other than a small amount for personal needs, this person may not need much. Not a lot of out of pocket money needed in the immediate future in this situation. Another protected person may be 50 years old, suffering from early onset Alzheimer's and living in a locked Alzheimer's facility. Lots of money needed in the near future in this case. The conservator in each of these cases would invest the protected person's money very differently.

Individual family members who are appointed as conservators and do not have financial or investment expertise, would be wise to consult with a reputable financial planner to determine different options available for their particular situation.

Top 10 Things To Consider When Hiring An Attorney

2010-11-10T21:45:00.001-06:00

Finding an attorney can be a daunting task. Most people who are in need of an attorney are stressed out, nervous, scared and overwhelmed by the legal issue that they face. Add to that the job of figuring out who to actually hire as an attorney, and a person will very quickly be confused and overwhelmed.

What to do? Take a deep breath. Read through the Top 10 Things to Consider When Hiring an Attorney. Call a few attorneys and arrange meetings or phone conferences with them to discuss your situation. During the meeting ask the questions and make observations about the Top 10 Things to Consider When Hiring an Attorney. Take notes if you need to. Then take a day or two to process the information you have gathered and make your decision about who to hire.

Top 10 Things to Consider When Hiring an Attorney

1) Experience. How many years of legal experience does your attorney have? Is he or she right out of law school, where the learning curve is still going to be pretty steep (and on your dime)? Or is she a veteran with many years of lawyering under her belt? Has she ever actually stepped foot in a court room? How many trials has she actually done? In Minnesota, most district court records are public and a search can easily be done on the Minnesota Trial Court Public Access Page by inputting the attorney's name, so you can see the number and type of cases he or she has been involved in (though this will only tell you cases that have actually been filed). Does the attorney have experience in the particular area of law that you need help with?

2) Results. All the years of experience in the world don’t mean much if an attorney rarely gets good results. Has she won motions or cases? Is she effective at taking depositions? Has she helped her clients reach settlements that they have been satisfied with? Ask the attorney!

3) Rates/Retainer. How much does the attorney charge? Is it per hour or flat fee? How much is the attorney requiring up front for a retainer? How do the rates/retainer compare to other attorneys in the area? If the attorney is significantly less expensive than others in the area, ask yourself why that is. You may be able to find an attorney that is $50 cheaper per hour than any other attorney in the area, but ask yourself whether the old adage “you get what you pay for” may come into play. An attorney who charges $50 less than everyone else may be so inexperienced that they take twice as long to accomplish the necessary work. So don’t just look at rates/retainer alone, consider them along with the experience and results that you may also be getting.

4) Do you like him/her? You don’t need to become best friends with your attorney, but you should like and trust your attorney. Like it or not, you will be working with him or her for week, months or even years. If you think the attorney is a jerk at your first meeting, he or she isn’t likely to change during the course of your case.

5) What are others saying about him/her? Check out what online sites like avvo.com (which provides ratings and reviews for all attorneys in the United States) are saying about the attorney. Have any former clients provided reviews or testimonials about the attorney? Were they positive or negative? Ask your peers and people in the community who they would recommend as an attorney. If you know a lawyer in a different city, call him and see which attorneys he recommends in your area that might be able to help you with your legal needs.

6) Office atmosphere. The atmosphere of an attorney’s office can tell you a lot about him/her and the type of firm the attorney practices at. Is it a dive that smells stale and smoky with outdated furnishings? Or is it a clean and comfortable office? While these things in themselves aren’t reflective of an attorneys’ legal skills, they certainly give you a clue about how the type of person you are hiring to help you with your legal matter.

7) Professionalism/Courtesy. Are you the attorney’s focus during the first meeting? Does he make you wait long? Is he looking at his watch, trying to move on to a paying client? Your first meeting is likely a short, free consultation. But it is still your time with the attorney and you deserve to have the full attention and respect of the attorney during your 30 minutes.

8) Appearance. Does your attorney look clean and professional? Or does he look like an unprofessional slob? If you are having him draft a contract, maybe it doesn’t matter. But if you will end up in court, you need to think about how the attorney will look and present herself to a judge or jury.

9) What would the attorney’s opponents say about her? Ask the attorney this question. You will probably catch them off guard and you will, hopefully, get an answer that tells you quite a bit about what the attorney is really like. It’s easy for an attorney to have a rehearsed answer about his/her qualities.

10) Go with your gut. If something is telling you not to hire a certain attorney, trust your instinct. Choose the attorney that your gut is telling you to hire.

Can a Guardian Sell or Dispose of Ward's Personal Property?

2010-11-04T20:31:00.002-05:00

Minn. Stat. 524.5-313(c)(3) provides the guardian with "the duty to take reasonable care of the ward's clothing, furniture, vehicles and other personal effects, and, if other property requires protection, the power to seek appointment of a conservator of the estate."

So what happens if a guardian decides the certain items of the ward's must be sold or otherwise disposed of? For example, the guardian might decide that funds are needed for the ward's care, so items must be sold. Or the guardian may decide that items are no longer used and are too expensive to maintain. For example, a vehicle that the ward doesn't drive anymore, but that requires insurance. Can a guardian sell some of the ward's personal property? Yes. Minn. Stat. 524.313(c)(3) sets forth the procedures that must be followed before disposing of personal property.

If the guardian wants to dispose of items such as these, notice must be given to interested persons. The form Notice of Intent to Dispose of Clothing, Vehicles, Furniture or Other Personal Effects is found on the State Court website. It must be completed by the guardian and served on Interested Persons at least 10 days before the items are disposed of by the guardian. Interested Persons are those listed in Minn. Stat. 524.5-102, Subd. 7. The Interested Persons then have the 10 day period in which to serve the guardian, by mail or personal service, with an objection. If the guardian receives an objection and still wants to sell or dispose of the item, the guardian must first petition the court for approval of the proposed disposition.

For specifics regarding a guardian selling a ward's personal property and the proper procedures to follow, see Minn. Stat. 524.5-313 or speak with an experienced Minnesota guardianship attorney.

Do Wards in Minnesota Retain the Right to Vote?

2010-10-28T06:06:00.001-05:00

With election day soon approaching, you may be wondering if your loved one that is under guardianship or conservatorship in Minnesota retains the right to vote. The answer is yes, they mostly likely do still have the right to vote. Minnesota Statute 524.5-313, which sets forth the powers and duties of a guardian, states "unless otherwise ordered by the court, the ward retains the right to vote." Further, the Bill of Rights For Wards and Protected Persons, Minnesota Statute 524.5-120, also delineates: "The ward or protected person retains all rights not restricted by court order and these rights must be enforced by the court. These rights include the right to . . . (14) vote, unless restricted by the court."

So, it is necessary for you to look at the Order that was issued by the Court initially appointing the guardian (and any Orders subsequently issued by the Court) and see whether that somehow restricts the right to vote. If it doesn't, then the ward may still vote. Despite the guardianship, the ward is still an individual whose voice still matters, so encourage him or her to have their voice heard and get out and vote!

As always, if you have specific questions about the rights of individuals under guardianship in Minnesota, please contact Buffalo, Minnesota Attorney Cindi Spence Matt.

MAGiC 2010 Annual Fall Conference

2010-10-25T06:00:00.029-05:00

The Annual MAGiC (Minnesota Association for Guardianship and Conservatorship) Fall conference is rapidly approaching (November 4, 2010). Information and registration details on the MAGiC website. This year's theme is "Navigating Sensitive Issues with Competence and Compassion".

Presentations Include:

The Problem of Medical Futility Phebe Saunders Haugen, Professor, William Mitchell College of Law The problem of medical futility complicates decision-making for families and other surrogates. This session will consider the important legal and ethical aspects of such dilemmas. Animal Hoarding and Techniques for Working with Hoarders Keith Streff, Investigator, Animal Humane Society Explore characteristics, motivations and strategies for interventions with animal hoarders, which have broader application for other hoarders, from experienced investigator who walks the lines between empathy and enforcement. To Lie or Not to Lie: The Ethical Dilemma of Whether to Employ White Lies and Therapeutic Fibs in Working with Clients who have Cognitive Impairment Anita Raymond, LISW, Volunteers of America of MN; Mary McGurran, LSW, NCG, Volunteers of America of MN Is it ever permissible to lie when working with clients with dementia and other cognitive impairments? This session reviews the statutory requirements for professionals, defines ethical principles and identifies ethical conflicts to provide practical techniques to use in working with clients. The Prudent Investor Rule Brian Kompelien, ChFC, Ensemble Planning, LLC Understand the principles of this fiduciary standard and its application in investment decisions and asset management. Protecting the Vulnerables: A Practical Approach to Identifying and Addressing Issues of Capacity and Undue Influence Luther Amundson, Attorney, Maser & Amundson, P.A. Learn the legal standard for capacity, diminished capacity and undue influence and how to recognize when interventions and legal remedies are indicated. Check back here for detailed blog posts about these topics after the conference!

Employment Opportunity for Minnesota Attorneys

2010-10-24T06:12:00.002-05:00

Looking for an opportunity to do some service, earn a bit of money (the pay is low: $50 an hour), and help indigent individuals? From the Hennepin County Court website:

The Probate/Mental Health Division is now accepting applications for the Guardianship/Conservatorship Court-appointed Attorney Panel. Applicants must meet the following criteria: Minimum of 5 yrs experience as an attorney; some experience with guardianship/conservatorship cases; current malpractice insurance; be willing to authorize Court to check with the Lawyers Professional Responsibility Board, and devote three CLE credits to guardianships/conservatorships annually. Interested candidates should contact Steve Bittick at (612) 348-4107 for an application. Application deadline is November 5, 2010.

CAMPER agent designee

2010-10-07T06:18:00.001-05:00

I got an answer to my question "Will an attorney be able to file electronically through CAMPER for a conservator client?" The short answer: "Yes". This was mentioned briefly in an article on CAMPER in the October 4, 2010 issue of Minnesota Lawyer, where Michael Moriarity, District Court Administrator for the 10th Judicial District, indicated that the statewide CAMPER system (unlike the pilot program in Ramsey County) would accept filings from a bookkeeper or attorney on behalf of a conservator. The article did not explain procedurally how this would be accomplished, so I called Mr. Moriarity to find out. According to him, there will be an Agent Designation form that will be available online for attorneys to complete and submit the paperwork. An attorney will do the CAMPER training once, and then will complete the Agent Designation form, apply for a CAMPER user name/password and will be able to submit accountings online for their clients. I believe the Agent designation form gets filed with each case. Since it is the conservator that is ultimately accountable to the court, an attorney would essentially prepare the electronic accounting, save it, call their conservator client in for a meeting and review it with the client to make sure it is accurate, have the conservator sign a hard copy of what will be submitted (mostly for the attorney's own liability reasons), and then the attorney will submit it electronically (along with the agent designation). Mr. Moriarity indicated that the Agent Designation forms would be available online this week (hopefully) and that the FAQ section of the CAMPERS information would explain this process.

I also discussed with Mr. Moriarity whether there would be a uniform way to "opt out" of CAMPERS electronic filing, for those conservators who simply are not computer savvy and who do not want to hire an attorney to file electronically. There will not be a uniform way to opt out. However, as with most things, the judges have discretion to issue an Order making an exception. In fact, I was recently in court in Sherburne County and observed one of the judges making such an exception. I think making exceptions like this is important and should be done on a case by case basis if the circumstances warrant it. I know that there are many conservatorships where there aren't a whole lot of assets involved, and it is a parent or an elderly spouse who is the conservator for a family member and the conservator simply doesn't have the computer skills, time or resources to figure out how to file through CAMPERS. In cases like this, I hope judges will make an exception and allow the conservator to file "the old fashioned way".

I also found out more about how the CAMPERS system works for the Courts. Apparently there is computer code built in that flags certain aspects of the account if certain things happen. For example, if a particular expense is too large (I don't know what the threshold is), it will be flagged for examination. If an expense category is too large compared to previous years accountings in that file, it will be flagged for examination. Once they are flagged for examination, some things will be readily apparent and won't warrant a hearing. (i.e. if the rent expense category is huge this year, and it is because the protected person went from living at home to living in a nursing home, that is easily explainable and would not require a hearing). But if there is no clear explanation for an item that is flagged, the Court would likely set the matter for hearing and have the conservator explain the flagged item. With the recent headlines about conservators stealing money from their clients, I think a system like this is a good thing and will more easily catch the bad guys.

CAMPER training

2010-09-24T06:38:00.001-05:00

As I said in an earlier post, Minnesota is moving to a mandatory e-filing type system for Conservatorship accounts, effective January 1, 2011. The system is called CAMPER (Conservator Account Monitoring Preparation and Electronic Reporting). In order to use it, you need a log-in ID and password, which are only given to you after completing on-line training. The on-line training is a series of 7 tutorials which you have to view and which is supposed to take about 37 minutes (however, when i did it, there were issues with the uploading of the tutorials, so it took longer). The tutorials, in my opinion, were painfully slow. They went through each item on the screen very thoroughly and in lots of detail. This would probably be helpful for a user who is not familiar with how the completion of on-line forms work, but for someone who has basic knowledge of/experience with completing on-line forms, the tutorials are tedious. Nonetheless, the program itself (CAMPER) looks very cool. It is essentially a system of online forms, like a form wizard program. The conservator enters all the basics: property on hand, income, expenses, etc. After doing so, the program compiles the appropriate forms (Inventory, Annual Account, Final Account) and they are submitted electronically to the Court. It looks like it will simplify things for both the conservators and the courts (once the conservators get used to entering/submitting info this way; I'm sure there will be an adjustment period where it will cause headaches for all.)

I think the CAMPER program will be good in that it will force the conservator to be organized and more accountable (as they should be). It will be great for professional conservators who have multiple protected persons as clients. However, for many of the individuals that I represent who are conservators of just their spouse, or parent or child, I think they will have a hard time with the program. Many of my clients are already overwhelmed with the work and details of being a guardian and conservator for their loved one, and they aren't particularly computer savvy. So to add a requirement that they learn how to do all these forms on-line, may seem even more overwhelming to them. Many of them currently just bring all the information to an attorney, have the attorney complete the appropriate forms and then meet with the attorney to sign off on the forms. Now it appears they will have to do it all themselves. I haven't seen an option in the training tutorial that would allow an attorney to prepare all of the on-line forms for a conservator client and then just have the conservator review it before electronic submission. (There is a part that asks the user if they have an attorney and they fill in the attorney information; The user can also save the information before submitting it, so perhaps an attorney could simply get the log in information from their client and prepare the documents for the client, save them, then have the client review them before they are submitted? I plan on emailing the CAMPER people and asking them if this is an option. I'll post what I find here later.)

Restoration of a Ward to Capacity in Minnesota

2010-08-20T10:31:00.001-05:00

Once a person is determined to be in need of a guardian, is that the end of the person's freedom as they know it? Does the guardianship last forever? No. A guardianship can be terminated by restoration of the ward to capacity.   Restoration means that all of the rights which had been removed from the ward pursuant to the court's guardianship order are given back to the individual and the individual is no longer considered to be incapacitated.

How does a ward go about being restored to capacity? Like most things relating to the guardianship, a petition is filed, a hearing is held and the judge makes a decision.

Who petitions for restoration to capacity? Oftentimes it is the ward him or herself who decides to petition the Court because he or she is able to function on their own and is no longer in need of a guardian. But the petition can be filed by the guardian or any other interested person who believes the ward should be restored to capacity.

What paperwork must be filed for the hearing? The forms necessary for restoration are available on the Minnesota Court website here (under Restoration to Capacity Forms).   You should, of course, consult the statute or an attorney to make sure that the proper notice is given to the appropriate persons.

Is the ward entitled to an attorney? Yes, just like in the initial petition to establish a guardianship, the ward is entitled to be represented by an attorney. If the ward can't afford one of his or her own, the Court will appoint an attorney.

What happens at the hearing? At the hearing itself, evidence is given to show that the ward now has the functional ability to handle their personal care and/or manage property. The ward typically testifies about his or her day to day routine, and gives examples of how they are functionally able to do things on their own and why the guardian is no longer necessary.   It is not necessary to show that the ward has gained total control of all functions. But evidence must show that the ward can now handle their own personal cares and/or manage property.   If a person is able to provide for his/her own self care in spite of a mental impairment, restoration should be granted.

As with any guardianship issues, you should be sure to consult with a qualified attorney to determine whether restoration is appropriate in your particular situation and to be sure all procedures and statutes are followed correctly.

Tips for Guardians and Conservators Billing the Ward for Their Fees and Expenses

2010-08-18T15:48:00.001-05:00

Seems like a lot of negative press lately for guardians and conservators. This recent Star Tribune article on guardians in Aitkin county is the latest. One of the guardianships referred to in the article was recently addressed in a published Court of Appeals of Minnesota opinion, In the Matter of the Guardianship and Conservatorship of Harold F. Doyle. In Doyle, the Court of Appeals examined the issues of: 1) whether a district court can sua sponte (on its own initiative) examine and disallow fees and expenses of guardians/conservators in an annual account (the Court held that it could); 2) whether the court can rely on documents that are not part of the record (the Court held that the district court could rely on the County's Service Fee Policy in deciding the appropriateness of a guardian's fees, since that policy was referred to in the guardianship statute. However the Court held that the district court erred in relying on MAGIC Standards of Practice in it's decision, when those Standards had not been introduced by a party as evidence or authority, and the parties did not have an opportunity to review and/or comment on the Standards); 3) whether the district court properly rejected accounts and disallowed certain fees and expenses (the Court remanded, but gave guidance on what the district court should consider).

After reading the Doyle case, I've put together some tips for Guardians and/or Conservators billing for their services:

1) Determine whether there are Service Fee Policies or similar policies governing payment of guardians in the county in which you were appointed. Even if the policy applies for indigent wards, you should still review the policy as it may be instructive on what you should be charging. If you are going to charge something different, be prepared to explain why you charge more (i.e. you have greater expertise; this particular ward has more extensive needs based on his/her more extensive assets; the going-rate for private guardians/conservators in the area for non-indigent wards is X - and your rate is in line with that; etc.)

2) Review and be familiar with the MAGIC Standards of Practice. While they aren't guidelines that courts can take judicial notice of, they are instructive and are put out by a reputable non-profit organization that addresses guardianships and conservatorships in Minnesota.

3) Always bear in mind that your fees and expenses need to have been rendered for necessary services or necessary expenses for the benefit of the ward.

4) Always keep detailed, meticulous and organized records of your fees and expenses. You are acting as a fiduciary for the ward/protected person. It isn't your money. You need to account for every penny that you spend of the wards and be ready to tell the Court why you spent/charged what you did.

5) Save receipts for every expense.

6) Keep detailed time records. Not "worked on ward's case", but instead "Made telephone calls to social security to straighten out mix up with monthly social security check." Etc.

7) Your hourly fee should be in line with what other guardians with your experience are charging for similar cases. Make calls to other local guardians, to the courts, to the county, etc. in order to determine what others are charging. Do a memo to the file documenting your findings so that if you are ever called upon to justify your fee, you can point to the research that you did to support your fee (and don't charge the ward for this legwork that you did to figure out what fee to charge the ward; your research in this regard isn't a benefit to the ward, rather it's a part of your cost of doing business as a guardian and it's a benefit to YOU to know that you have done the leg work to ensure you are charging the ward a fair fee).

Remember, in the end, it boils down to this: You are a fiduciary for the ward/protected person. It is the ward's money, not yours. At the end of the day you should feel comfortable explaining to the Court why you charged for every penny that you did, and you should have the documentation to support it.

New Minnesota Conservatorship Account Filing Requirements (CAMPER)

2010-08-09T06:00:00.012-05:00

Minnesota Courts have implemented a new online filing system for annual (and final) accounts for conservatorships. Check with your local court to see if they are requiring it yet. Apparently it is mandatory statewide by January 1, 2011. Here is a link to the Court's website regarding the training that needs to be completed to use the online system, which is called CAMPER (Conservator Account Monitoring and Preparation and Electronic Reporting): CAMPER link

While I typically favor automating things, because I think it makes life easier in the long run, I have very mixed feelings about this new requirement. The majority of my conservator clients are individual family members, many of whom aren't technologically sophisticated. While many of them use our firm's services for preparation of an annual account, many of them also do the account on their own (and I have witnessed many pro se conservators in court who do the filing on their own - "the old fashioned way", with pen and paper). I fear that this new electronic filing requirement will force them to hire attorneys or other professionals to do the filing and that will increase fees (and decrease funds available to the protected person). Time will tell.

Edina Woman Restored to Capacity

2010-08-07T18:35:00.002-05:00

There's always two sides to a story - wonder what the full story here is?

Isabelle Jessich guardian, but not conservator, removed

How Do I Set Up a Guardianship or Conservatorship in Minnesota?

2010-08-06T10:30:00.005-05:00

The biggest question that potential clients have when they call about a guardianship is "what exactly is involved establishing a guardianship or conservatorship" (followed very closely by, "what is this going to cost me")? In general, the procedures involved in establishing a guardianship for your loved one ("the proposed ward") are as follows:

Meeting with Attorney - During the initial meeting you will provide detailed information to your attorney about why a guardianship or conservatorship is necessary. Many times the attorney will provide you with a questionnaire in advance of the meeting that you should complete and bring with you. You should have a list of specific examples/behaviors that your loved one has engaged in recently that justify the guardianship. You should have details about your loved one's medical history and why that justifies a guardianship. You should bring contact information (names/addressess) for your loved ones next of kin (typically spouse, children, parents, adult siblings). Your attorney will help you decide whether an emergency guardianship is necessary, or whether a general guardianship will suffice. Your attorney will also help you decide whether a guardianship, conservatorship or both is necessary.
Attorney Prepares Court Papers to Initiate Guardianship - After your initial meeting, your attorney will prepare the necessary paperwork to establish the guardianship and/or conservatorship. Your attorney will likely be in contact with you during this time to clarify the information that will be going into the paperwork. The attorney will typically send it out to you for review and edits, before making a final version of the paperwork.
Meeting with Attorney to Sign Paperwork - When the guardianship paperwork has been finalized, you will meet with your attorney to sign the Petition and other guardianship documents.
Attorney files Guardianship Papers with the Court - The attorney files the signed guardianship papers with the Court. A filing fee must be paid (it varies by county, but right now in most counties in Minnesota it is $320)
Court processes Guardianship Papers and Assigns a Hearing Date - the Court opens a file, processes the guardianship paperwork and assigns a hearing date. The hearing date needs to be at least 14 days out, but is typically even further out (4 - 5 weeks) depending on the Court's schedule.
Attorney Provides Notice of Hearing to Interested Persons - once a hearing date is assigned, the attorney sends formal Notice of the Hearing to individuals that are required to know about the hearing under Minnesota Statutes.
Attorney Gathers and Files Additional Information/Documents - if a Physician's Statement in support of the guardianship hasn't already been obtained, the attorney will try to obtain one before the hearing. A Physician's Statement is not mandatory, but medical support for the guardianship is very persuasive evidence that a guardianship is necessary and appropriate.
Court Visitor Meets With Proposed Ward - At least 14 days before the hearing date, an individual called a Court Visitor will go to the ward's place of residence and read the Guardianship Petition to the proposed ward. The Visitor asks the proposed ward a series of questions about him/herself, his position on whether he/she wants a guardian appointed and who he/she would like appointed as guardian. the Court Visitor then prepares a report (Visitor's Report) that is filed with the Court and provided to your attorney before the hearing. In the report, the Visitor takes a position on whether he/she believes a guardianship seems appropriate and necessary. The Judge reads this report and considers the information in it when deciding whether a guardianship/conservatorship is appropriate.
Proposed Ward Meets With Own Attorney - the proposed ward is entitled to have an attorney. He/she can hire a private attorney, have a court appointed attorney, or waive his/her right to an attorney. If the proposed ward does have an attorney, that attorney will meet with the proposed ward to discuss and advise about the guardianship/conservatorship proceedings. The ward's attorney will communicate with your attorney so that everyone is aware of the proposed ward's legal position in advance of the hearing.
Attorney Prepares for Court Hearing - the attorney will prepare you (and potentially witnesses) for the Court Hearing. The amount and extent of preparation will vary, depending on whether the case will be contested or uncontested. The vast majority of guardianships are uncontested. However, sometimes the proposed ward or another interested person will contest the proceeding (because he/she does not believe a guardianship is necessary or believes that someone else is better qualified to be guardian)
The Hearing is Held - the guardianship/conservatorship hearing is held on the date specified in the Notice. It is held in open court. The proposed ward must be present at the Hearing unless excused by the Court or a Physician's Statement is filed stating the proposed ward is unable to attend because of his/her medical/mental condition. At the hearing, testimony is taken about why the guardianship is necessary. If it is an uncontested proceeding, it is typically just the testimony of the Petitioner. If it is a contested proceeding, there may be multiple witnesses (including medical experts) who talk about specific behaviors, etc. that justify the imposition of a guardianship.
The Judge Makes a Decision - After the Hearing, the Judge will make a decision on whether a guardianship/conservatorship is necessary and who the guardian/conservator should be. Typically the decision is made from the bench (i.e. right at the conclusion of the hearing). In some cases the Judge will take the matter under advisement and issue a written decision after the hearing.
Court Administration Issues Paperwork - after the Judge has granted the petition for a guardianship, Court Administration will issue the papers that give the guardian/conservator the authority to act.
Meeting with Attorney Regarding Duties - you will then typically meet with your attorney to go over your obligations as guardian and/or conservator.

Obviously things may progress differently depending on the specific facts involved, but in general you can expect that the foregoing things will happen if you are trying to establish a guardianship or conservatorship in Minnesota.

Handbook for Assessing Capacity in Older Adults

2010-07-20T08:54:00.002-05:00

That American Psychological Association has some informative handbooks (one for lawyers, one for judges and one for psychologists) to help you assess capacity in older adults. For lawyers this is a great tool to help determine whether a person has capacity to execute documents such as Wills, Powers of Attorney, Revocation of Power of Attorney, etc. It is also very useful to determine whether a guardianship (full or limited) is appropriate.

Life Stories Remain Even After a Guardianship

2010-07-12T11:29:00.001-05:00

In my work with guardianships and conservatorship in Minnesota, I've had experience with people who are subject to guardianships for a variety of different reasons: Down's Syndrome, dementia, alzheimers, traumatic brain injury, physicial and sexual abuse so severe that it was debilitating, etc. Really, there are no two guardianship situations that are exactly alike. People need guardians for different reasons. People need different levels of guardianship. When a guardianship is imposed, it takes away a lot of individual freedoms and rights. Persons under guardianship can no longer do many of the things they used to be able to do themselves. They can't contract (for the most part). They can't make their own decision about medical care. They can't make their own decision on where to live.

But one thing they can still do is tell their stories. Whether I've been representing the ward, the petitioner or the guardian, I've found it to be true that most of the people under guardianship love to talk about their past. About their family. About growing up. About their former jobs. About what their life was like. What is perhaps a bit surprising is that oftentimes they tell their stories quite accurately, despite having impairments that cause their short term or day-to-day functioning to be impaired. Hearing the stories of these people is one of my favorite things about my job. It is a joy to see the faces of individuals that are under a guardianship light up when they talk about their past.

I encourage friends and family members of individuals under a guardianship to sit down with their loved one and get them to share their stories. You will not only make their day, but I guarantee you will also learn something new about your loved one. And if you are lucky you will walk away from your conversation having learned a valuable life lesson as well. As a ward once told me, "The most important thing my grandfather taught me was to listen and pay attention, because you are never too old to learn."

A Man's Home is His Castle: Selling a Protected Person's Real Estate

2010-06-30T09:11:00.002-05:00

There are certain things that Conservators can do without prior court approval: paying ordinary living expenses, paying debts and expenses of the protected person, managing the protected person's property and investments (though prior court approval is required if the conservator is going to compromise debts/claims).

One thing that absolutely requires prior court approval is the sale, mortgage or lease of real property belonging to the protected person. Why? The statute doesn't say why. But if you look at the things that a conservator can do without court approval, and then compare that to transactions relating to real property, I think the answer is pretty simple. As the English says: A man's home is his castle. A person's home is oftentimes special, holding special family memories. One of the things that a court looks at in deciding whether to allow the conservator to sell the protected person's home is whether or not the protected person will be returning home some day. Although it is not required by statute, court's oftentimes want to see a Physician's Statement or other verification that the protected person will no longer be able to reside in the home. This makes sense. The courts don't want to approve a sale of a protected person's home if there is a chance the protected person will be restored to capacity the following year. Homes should only be sold if there is no possibility of the protected person living there anymore, and it no longer makes financial sense to continue to maintain and insure the home when it is vacant.

So how does one sell real estate belonging to someone under a conservatorship? Look to Minn. Stat. 524.5.418 for the specific details, but in general, the conservator must proceed as follows:

First, the conservator needs 2 appraisals from appraisers appointed by the Court. Each county does things differently, so consult with the court in your county to determine specifically how to proceed. However, in most cases, the conservator should submit a proposed order to the court with the names of 2 appraisers. The Court then signs the order appointing appraisers.
Conservator then coordinates with the 2 appraisers to appraise the property. There is a form the appraisers fill out, swearing to do their duty and as to the value of the appraisal.
Conservator then files a Petition with the Court to proceed with a private sale. (Attaching the 2 appraisals). Typically, the following documents are submitted with the Petition: an Affidavit of the Conservator setting forth the factual basis for seeking sale of the home; a Physician's Statement or letter indicating that the protected person will no longer be able to safely return home; a county assessor verification statement, which gives the property's most recent appraised value by the county.
The court then issues a Notice of Hearing, which the conservator serves on all interested parties.
At the hearing, testimony is provided as to why the property needs to be sold. Testimony should also be given as to the general plan that the conservator has to sell the property (i.e. hire a realtor, sell it to a family member, etc.)
After the hearing the Court will issue an Order Directing Sale, which will specify the manner of sale and any parameters (i.e. private sale, to be listed by a realtor with 5% commission, with a minimum sale price of X, etc.).
Before a conservator completes a sale of the property, it MUST be confirmed by the Court. Obviously a buyer will want a purchase agreement signed. However, the purchase agreement must be contingent upon approval by the Court. When the terms of an agreement are arrived at, and a contingent purchase agreement signed, the conservator files a Report with the Court, setting forth the specific proposed terms, and seeking an Order Confirming Sale from the Court. If the Court approves the proposed sale, it signs the Order Confirming Sale and the conservator then has the authority to proceed with a closing on the sale of the property.
Title Companies typically require the following documents in order to close on the sale of property owned by someone subject to a conservatorship: certified copy of: 1) Order Approving Sale; 2) Order Confirming Sale; 3) Letters of Conservatorship; 4) Deed of Sale (conservator's deed).

If a conservator wants to sell the property at a public sale (auction), the same procedures as above are followed, except that published notice of the auction is required. (Which makes sense, because the Court wants to ensure that as many people as possible know about the sale, in order to ensure that a fair price is received for the property at the auction). Even at a public auction, it must be made clear to the bidders that the sale is contingent upon approval by the court.

This is just a general overview of the procedures a conservator must follow in order to sell real estate belonging to a protected person. As always, there may be other restrictions, limitations or idiosyncrasies that relate to your particular situation. Therefore, you should consult with an attorney to be sure the proper procedures are followed.

Minnesota Board of Aging website

2010-06-28T14:17:00.005-05:00

Here is another helpful website, packed full of information and resources on aging, which may be useful to you as you consider whether a guardianship or conservatorship for your loved one.

Minnesota Board of Aging

New Minnesota Emergency and Temporary Conservator legislation

2010-06-16T13:38:00.005-05:00

The legislature has new legislation regarding emergency and temporary conservators. It can be found at: https://www.revisor.mn.gov/laws/?id=334&year=2010&type=0

Previously, there was not specific statutory authority for an emergency conservator. Instead, if there was a financial emergency for a vulnerable person, one would either have the option of applying for an emergency guardian and hope that the emergency guardian could head off any sort of financial wrongdoings, or apply for a protective order and hope that the court crafted the protective order in such a manner that it would take care of the financial emergency. Now, with the new legislation, there is specific statutory authority for the appointment of an emergency and temporary conservator. The statutory procedures appear to closely mirror those necessary for an emergency guardian.

With the back log in the Courts, and the apparent increase in financial exploitation of vulnerable adults (as evidenced by what seems to be an increasing number of newspaper articles regarding the same), it will be interesting to see whether this new statutory provision for an emergency conservator is utilized. As with general guardianships and conservatorships, I think petitioners need to be selective in what they apply for and only apply for those powers which are necessary (and don't just check the "all powers" box).

Emergency or General Guardianship in Minnesota?

2010-06-11T20:54:00.004-05:00

With all the budget cut-backs and increased caseloads that the Courts are facing, it may be awhile until your petition for a guardianship can be head. If your situation is extreme, you may be able to apply for the appointment of an emergency guardian. The procedures for an emergency guardian are set forth in Minnesota Statue 524.5-311. Each county does things a bit differently. For example, in Hennepin County emergency guardianships are rarely granted. In some other counties, including Wright County and Sherburne County, emergency guardianships are granted in the appropriate situation. Essentially, the Courts look at the emergency petition and decide whether the proposed ward will be substantially harmed before the court can have a full hearing on the guardianship petition. I have had emergency petitions granted when elderly individuals clearly suffering from advanced dementia are endangering themselves in their homes (cooking food and leaving the burners on all night or wandering outside of their home in sub-zero temperatures without appropriate winter clothing on, etc.). There is no hard and fast rule for whether a court will grant emergency petitions. It is very case specific - depending on the specific facts of the case and how long until the general petition will be heard. If you are contemplating bringing an emergency guardianship, consult with an attorney to have your specific case evaluated.

Statutory Authority:

Emergency: Guardianships: 524.5-311; Conservatorships/protective arrangements: 524.5-406(f) and 524.5-412

General: 524.5-301 et. seq. (guardianships); 524.5-401 et. seq. (conservatorships)

How long from time of filing petition until order?

Emergency: Can be the same day; often times within a couple of days

General: Minimum 15 days, but typically 4 – 6 weeks.

Is notice to respondent and a hearing necessary before Order issued?

Emergency Guardianships: Appointment without notice and preliminary hearing if Court finds from affidavit or other sworn testimony that respondent will be substantially harmed before a hearing on the appointment can be held. If granted, notice of the appointment must be given to respondent within 48 hours and the Court must hold a hearing within 5 days.
Conservatorship/protective proceeding: must have preliminary hearing, but do not need to give notice to others. See Minn. Stat. 524.5-406(f)

General: Yes, a hearing is held after at least 14 days notice given to proposed ward (via service by Court Visitor, who files Visitor’s Report) and interested persons.

How long does Order last?

Emergency: 60 days

Guardianship: Indefinitely

Special filing requirements?

Emergency: A petition for a general guardianship must either be filed at the same time as emergency petition or it must indicate in petition that it will soon be filed; For an emergency conservatorship, a petition for general conservatorship must be filed at the same time.

Standard/Burden of Proof?

Emergency: Court must find that compliance with the procedures of for a general petition “will likely result in substantial harm to the respondent’s health, safety or welfare, and that no other person appears to have authority and willingness to act in the circumstances. See Minn. Stat. 524.5-311

General: Clear and convincing evidence that respondent is incapacitated and that respondent’s needs can’t be met by less restrictive means. See Minn. Stat. 524.5-310

Order appealable?

Emergency: No

General: Yes

Great Resource: Conservatorship and Guardianship in Minnesota

2010-06-07T22:16:00.007-05:00

Hands down one of the best resources out there for issues related to Minnesota Guardianships and Conservatorships:

Conservatorship and Guardianship In Minnesota, a manual published by the Minnesota Conference of Chief Judges

Check it out. You will be glad you did. You will reference it often.

Minnesota Bill of Rights for Wards and Protected Persons

2010-06-04T06:00:00.000-05:00

Recently, a 76 year old client suffering from Alzheimers Disease was asked by opposing counsel what he would do if the Court denied the petition to establish a guardianship and the elderly gentlemen could therefore leave the locked Alzheimers facility. My client responded, "Well, I would like to be able to walk outside and get the newspaper on my own. What I'm doing now, being locked up, isn't living. It's existing. I'm 76 years young. I want to be living, not just existing."

Very insightful for someone suffering from fairly advanced Alzheimers. It got me thinking about the Minnesota Bill of Rights for Wards and Protected Persons. If you aren't already familiar with it, and you practice law in this area, or have a loved one that is subject to a guardianship, or are a guardian yourself, then you should read it. And read it again. It's important stuff. It boils down to this: just because a person has a guardianship or conservatorship imposed upon them by the Court, does not mean that the person gives up his or her basic human rights. They are still a person with feelings and desires and opinions. They deserve to live, not just exist.

So here you go, take these to heart:

524.5-120 MINNESOTA BILL OF RIGHTS FOR WARDS AND PROTECTED PERSONS.

The ward or protected person retains all rights not restricted by court order and these rights must be enforced by the court. These rights include the right to:

1) treatment with dignity and respect;

2) 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;

3) 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;

4) exercise control of all aspects of life not delegated specifically by court order to the guardian or conservator;

5) guardianship or conservatorship services individually suited to the ward's or protected person's conditions and needs;

6) petition the court to prevent or initiate a change in abode;

7) care, comfort, social and recreational needs, training, education, habilitation and rehabilitation care and services, within available resources;

8) be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the ward's 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;

9) personal privacy;

10) communication and visitation with persons of the ward's 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 or protected person's health, safety, or well-being, that communication or visitation may be restricted but only to the extent necessary to prevent the harm;

11) marry and procreate, unless court approval is required, and to consent or object to sterilization as provided in section 524.5-313, para (c) clause (4), item (iv);

12) petition the court for termination or modification of the guardianship or conservatorship or for other appropriate relief;

13) be represented by an attorney in any proceeding or for the purpose of petitioning the court; and

14) vote, unless restricted by the Court

Establishing a Guardianship in Minnesota

2010-05-15T18:02:00.010-05:00

Potential clients often ask me what is involved in establishing a guardianship or conservatorship. This post should provide a general guideline of what is involved in establishing a guardianship or conservatorship. As always, you should consult with a lawyer about the specifics of your particular situation.

Documents that are filed before the hearing:

● Petition (this is all that needs to be filed to get a hearing date)

● Notice of Hearing

● Physician’s Statement (not technically required, but usually done)

● Acceptance and Oath (signed by proposed guardian/conservator)

● Informational Statement (new requirement in 2010)

● Proposed Letters of Guardianship/Conservatorship

● Proposed Order

● Visitor’s Report (filed by Court Visitor)

● Affidavit of Service of Notice of Hearing (giving at least 14 days notice of hearing to Interested Persons, as defined by statute)

Court Visitor and Court Appointed Attorney For Respondent:

● When a Petition is filed, the Court Administrator provides a copy of it to a Court Visitor who, at least 14 days before the hearing, meets with the Respondent and serves Respondent by reading him/her a copy of the Petition.

● The Court Visitor must also complete a Visitor’s Report and file it with the Court.

● The Visitor’s Report will indicate whether Respondent is requesting an attorney.

● Court must appoint an attorney, if requested by Respondent and if Respondent isn’t hiring private counsel. Respondent’s attorney has the right and duty to consult with his/her client and have adequate time to prepare for hearing. This may necessitate continuing the hearing if the attorney was only appointed a day or two before the hearing (which often happens). Attorney must disclose any conflicts to Court (involvement with the proposed guardian).

Hearing

Respondent must be present at the hearing unless a Physician has signed a statement saying that Respondent cannot physically appear and/or unless the Court orders that Respondent not appear (which must be for good cause).

Uncontested Hearings

● Testimony should still be taken, since it is a proceeding which ultimately takes away fundamental liberties of the ward/protected person.

● Typically Petitioner will be sworn and questioned by Petitioner’s attorney to prove up the Petition.

● Court also considers physician’s statement, Visitor’s Report and any other documents Petitioner may offer.

● Respondent’s attorney will let the Court know Respondent’s position.

● Court typically issues order at the conclusion of the hearing.

Contested Hearings

● Rules of Civil Procedure and Evidence apply.

● Attorneys for other Interested Persons must ask the Court for permission to participate in the hearing. (See Minn. Stat. 524.5-408(b) and 524.5-307(b))

● Parties can conduct discovery, take depositions, bring motions (for adverse exam, to compel disclosure of medical records, etc.).

● At hearing, testimony is taken from Petition, other individuals who know and have observed Respondent, medical personnel (or perhaps just medical records), the Court Visitor, and anyone else counsel feel have information important for the Court to consider.

● Court typically takes matter under advisement. If necessary, Court could issue interim “protective order” if Court feels protection of the Respondent is necessary before Court’s Order on the guardianship/conservatorship itself will be issued.

Miscellaneous:

● Court sets bond for conservator based on amount of assets.

● Guardian/Conservator must have DHS background study done before appointment, unless a limited exception applies. See Minn. Stat. 524.5-118

● Bill of Rights for Wards and Protected Persons: see Minn. Stat. 524.5-120

FAQ About Guardianships and Conservatorships in Minnesota

2010-05-15T17:40:00.005-05:00

What is a guardianship?

A court proceeding where the court appoints a person (the guardian) to act as a substitute decision maker for someone (the ward) who is determined to be incapacitated.

What is incapacitated?

“Incapacitated Person” means an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance. See Minn. Stat. 524.5-102, subd 6.

What is the standard of proof?

Clear and convincing evidence that:

1) respondent is an incapacitated person; AND

2) that respondent’s needs cannot be met by less restrictive alternative, including use of appropriate technological assistance. see Minn. Stat. 524.5-310

Who may be guardian?

There are statutory priorities for order of appointment (current guardian, health care agent, spouse, adult child, parent, adult with whom respondent has resided for more than 6 months). Court, acting in best interest of respondent, can decline to appoint someone with priority. As between 2 people with equal priority, court determines who is best qualified. See Minn. Stat. 524.5-309

Can there be a limited guardianship?

Yes. Court shall only grant those powers necessitated by wards’s limitations and demonstrated needs and, whenever feasible, should make other orders that will encourage development of ward’s maximum self-reliance and independence. See 524.5-310(c) and 524.5-313(b) and (c).

What about Guardianships for minors?

There are also guardianship proceedings for the appointment of a guardian of a minor (for example, when a minor’s parents die). There are essentially two avenues for appointment of a guardian of a minor. One, the court confirms a nomination in a parent’s will. Two, the court appoints a guardian. These materials do not address those proceedings specifically. For more information see Minn. Stat. 524.5-201 et. seq.

What is a conservatorship?

A court proceeding where the court appoints a person (the conservator) to manage the estate/assets of someone (the protected person) because that person is determined by the court to be unable to receive and evaluate information to such an extent that the person’s assets are at risk of being wasted or lost. The protected person is not declared incapacitated like in a guardianship.

Do guardianships and conservatorships go hand in hand?

Not always, but typically. There are scenarios where a person would only need a guardian or a conservator. For example, if a person only has minimal assets and no real income, a conservatorship would not be necessary. Similarly, a person may have significant assets that need managing, but that person may be able to make and communicate their own decisions about healthcare, living arrangements, etc., so only a conservatorship would be necessary.

Are there alternatives to guardianships and conservatorships?

Yes! And those alternatives should be fully explored by the petitioner before filing a petition. Some alternatives include: a health care directive, power of attorney joint bank accounts, and systems/procedures that help the respondent accomplish activities of daily living. A guardianship can only be imposed by the court if there are no less restrictive alternatives available for the proposed ward/protected person.

How is a guardianship and/or conservatorship established?

A person (typically a family member) files a petition and other documents with the court setting forth the reason why a guardianship and/or conservatorship is appropriate, and asking the court to appoint someone as a guardian and/or conservator.

The court sets the matter for a hearing and notice of the hearing is provided to “interested persons”, who are defined by statute but who generally include family members. At the hearing, the petitioner presents evidence showing the court why a guardianship and/or conservatorship is necessary. If the court determines that there is appropriate evidence to support the petition, it will appoint a guardian or conservator.

What does a guardian do?

A guardian makes sure that the ward’s medical, care, comfort, living, food and social requirements are being met. A guardian does not have to personally take care of the ward. More often than not a guardian will hire providers to see that these needs are met for the ward.

Full guardianship powers include (but are not limited to):

● To have custody of ward and to establish the place of abode within or without the State;

● To provide for the Respondent’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements;

● To take reasonable care of the Respondent’s clothing, furniture, vehicles and other personal effects and, if property requires protection, apply for a conservator;

● To give any necessary consent to enable, or to withhold consent for, the necessary medical or other professional care, counsel, treatment or service;

● Exercise supervisory authority over the ward, in a manner which limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services;

● To approve or withhold approval of any contract, except for necessities, which the Respondent may make or wish to make (if there is no conservator); and

● To apply on behalf of the Respondent for any assistance, services, or benefits available to the Respondent through any unit of government (if there is no conservator).

See Minn. Stat. 524.5-313.

What does a conservator do?

A conservator makes sure the protected person’s finances are tended to. The conservator figures out what assets the protected person has and files an inventory listing those assets with the court. The conservator then pays the protected person’s bills and manages their money and other assets. Each year the conservator must file an accounting with the court showing what the conservator has used the protected person’s money for over the past year.

A conservator’s powers include (but are not limited to):

● To pay reasonable charges for the support, maintenance, and education of the Respondent in a manner suitable to the Respondent's station in life and the value of Respondent’s estate;

● To pay out of the Respondent's estate all just and lawful debts of the Respondent;

● To possess and manage the estate of the Respondent, collect all debts and claims in favor of the Respondent, or to compromise them, institute suit on behalf of the Respondent, or invest Respondent’s assets not currently needed for debts, charges, and management of the estate; and

● Exchange or sell an undivided interest in real property.

See Minn. Stat. 524.5-417