TITLE: Overview of
Guardianship/Conservatorship Practice and Guardian ad Litems
SOURCE: Troy & Associates, P.A.
DATE POSTED: 6/11/02
OVERVIEW
OF GUARDIANSHIP/CONSERVATORSHIP PRACTICE AND GUARDIAN AD LITEMS
I. Guardian
of the Minor
1. Petition.
a. Who may petition. 525.541. Any person may petition for the appointment of a guardian.
b. Contents of petition: 525.542 Subd. 1
i. Name and address of proposed Ward;
ii. Date of birth of the Ward;
iii. The names and addresses of living parents, children, brothers and sisters, or in the event that none of these persons are living, the names and addresses of the nearest kindred;
iv. If married, the name and address of the spouse;
v. The specific grounds for the guardianship with a statement that the proposed Ward may demand a written bill of particulars;
vi. The probable value and general character of real and personal property and the probable amount of debts;
vii. The names, ages, addresses, and occupations of the proposed guardians; and
viii. The powers requested.
c. Bill of Particulars. 525.542 Subd. 2.
i. If requested, must be delivered to the Ward within 10 days of the request or prior to the hearing, whichever is sooner.
ii. The Bill of Particulars shall be in writing and include factual information which the petitioner believes supports the need for appointment of a guardian such as mental and physical condition, financial transactions, personal actions, or actual occurrences which are claimed to demonstrate the proposed Ward’s inability to provide for personal needs for food, clothing, shelter or health care.
2. Appointment
of Guardian.
a. When effective: 525.615.
i. By Will and acceptance of a testamentary appointment; or
ii. Upon appointment by the court.
b. Nominations by Will and acceptance: 525.6155.
i. Last valid Will of last living parent;
ii. Acceptance by filing with the court;
iii. Acceptance must be delivered to minor if 14 years old or older, to adult siblings, grandparents, aunts, uncles, and to the person having the minor’s care;
iv. Notice must state that any interested person of the minor, or a minor 14 years old or more, may object to the appointment under 525.616.
v. Objections to appointment. 525.616
A. A minor 14 years old or older may file an objection before acceptance is filed, or within 30 days after acceptance is filed.
B. Any adult interested in the minor’s welfare may file an objection before acceptance is filed, or within 30 days after acceptance is filed.
c. Appointment by the Court. 525.6165.
i. First priority is given to testamentary appointment.
ii. Court appoints guardian “in the best interests of the minor.” 525.6175.
iii. The minor is unmarried or all parental rights have been terminated.
3. Notice. 525.618.
a. To the minor, if 14 years old or older, by personal service, at least 14 days before the hearing.
b. To the person with principal care and custody of the minor during the 60 days preceding the date of the petition, by personal service, at least 14 days before the hearing.
c. Any living parent of the minor residing in Minnesota by personal service, at least 14 days before the hearing.
d. Any living parent of the minor residing outside of Minnesota, and any adult brothers and sisters of the minor, service by mail, at least 14 days before the hearing.
e. To any other persons the court may direct.
f. Manner of service:
i. Personal service pursuant to Minn. R. Civ. P. 4.03.
ii. Mail service, by U.S. Mail.
4. Post-Appointment Procedure. 525.618.
a. A copy of the Order appointing the guardian shall be served by mail upon the Ward (and counsel if any). The Order shall be accompanied by a notice that advises the Ward of the right to appeal the appointment within 30 days. 525.618 Subd. 5.
b. Letters of Guardianship. 525.618 Subd. 6, shall contain:
i. Name, address, and telephone number of the guardian;
ii. Name, address and telephone number of the Ward;
iii. Whether it is a guardianship (as opposed to a conservatorship); and
iv. The limitations, if any, upon the guardian.
5. Powers and Duties. 525.619.
a. The same powers and responsibilities of a parent, except there is no duty to use the guardian’s own funds for the Ward.
b. Take reasonable care of the Ward’s personal effects.
c. May receive money and use the money for the support, care and education of the Ward and conserve the excess. DO NOT USE SUCH FUNDS AS COMPENSATION TO THE GUARDIAN WITHOUT AN ORDER. If a conservator is appointed, transfer funds to the conservator.
d. May facilitate the Ward’s social, educational, and other activities, and may authorize medical treatment or other professional care, treatment or advice.
e. A Ward less than 16 years of age may be admitted to a treatment facility as an informal patient (according to 253B.04) but may not be committed to a state institution except pursuant to 253B.04. No guardian may give consent to psychosurgery, electroshock, sterilization or experimental treatment without a court order pursuant to 525.56 Subd. 3.
f. A guardian must report the condition of the Ward (and the estate) as ordered by the court.
6. Resignation and Termination. 525.6195.
Resignation requires court approval. After a hearing on a petition and the court’s determination that removal is in the best interests of the minor, the guardian may be removed/resign. NOTE: This does not discharge the guardian, and may, or may not, terminate the guardianship.
7. Termination-Discharge.
525.6192.
a. Guardian authority (as opposed to liability) terminates upon the death, resignation or removal of the guardian, upon the minor’s death, adoption, marriage or attaining majority.
b. Guardians are discharged upon:
i. Upon the filing of an account and discharge by the court;
ii. Upon petition and acceptance of the accounts by a Ward who has attained the age of majority (or has married); or
iii. Upon acceptance of the accounts by the personal representative of the Ward’s estate.
c. Discharge for fund received. 525.6197. The court may order up to $2,000 to appropriate parties for the benefit, support, maintenance and education of the minor, or may direct the investment of the funds received and the funds deposited may not be withdrawn by the guardian.
II. Guardian
of the Person (Adult)
1. Petition.
a. Who may petition. 525.541. Any person may petition for the appointment of a guardian.
b. Contents of petition: 525.542 Subd. 1
i. Name and address of proposed Ward;
ii. Date of birth of the Ward;
iii. The names and addresses of living parents, children, brothers and sisters, or in the event that none of these persons are living, the names and addresses of the nearest kindred;
iv. If married, the name and address of the spouse;
v. The specific grounds for the guardianship with a statement that the proposed Ward may demand a written bill of particulars;
vi. The probable value and general character of real and personal property and the probable amount of debts;
vii. The names, ages, addresses, and occupations of the proposed guardians; and
viii. The powers requested.
c. Bill of Particulars. 525.542 Subd. 2.
i. If requested, must be delivered to the Ward within 10 days of the request or prior to the hearing, whichever is sooner.
ii. The Bill of Particulars shall be in writing and include factual information which the petitioner believes supports the need for appointment of a guardian such as mental and physical condition, financial transactions, personal actions, or actual occurrences which are claimed to demonstrate the proposed Ward’s inability to provide for personal needs for food, clothing, shelter or health care.
d. Physician’s Statement. If you can acquire a statement from the physician describing the person’s physical or mental abilities it is useful although it may not be determinative of capacity or competency. Also, the physician may refuse to complete the form based upon client confidentiality.
2. Appointment of Guardian.
a. Nominations by Ward. 525.544.
i. If the proposed Ward has sufficient capacity, the Ward may nominate a guardian in the following manner:
A. In the petition; or
B. By written instrument executed either before or after the petition is filed. The instrument must be executed in the same manner as a Will.
ii. Appointment by the Court. 525.544 Subd. 2. The court appoints guardian “in the best interest of the proposed ward.”
3. Notice. 525.55.
a. To the proposed Ward, by personal service, at least 14 days before the hearing.
b. To any spouse, parents, adult children, brothers and sisters, and if none of those can be located, to the nearest kindred, and to any other persons the court may direct, service by mail, at least 14 days before the hearing.
c. Form of service.
i. The Notice shall include:
A. A copy of the petition;
B. Information regarding the nature, purpose and legal effects of the guardianship proceedings on the proposed Ward;
C. A statement that the person may be adjudged incapable of self-care of the person and therefore in need of a guardian;
D. Adjudication may transfer certain rights to the guardian including the right to manage and control property, to enter into contracts, and to determine residence;
E. The notice shall also contain information regarding the rights of the proposed Ward in the proceeding, including the right to attend the proceeding, the right to be represented by counsel, the right to oppose the proceeding and the right to present evidence;
F. The notice must provide that if the right to counsel is desired, the proposed Ward may obtain counsel of his/her choice or ask the court to appoint counsel; and
G. The notice must explain how to request court appointed counsel (525.5501), and that the county may pay reasonable attorney fees if the person is indigent.
ii. Personal service pursuant to Minn. R. Civ. P. 4.03 and the process server shall inquire whether the proposed Ward desires the notice and petition read to that person, and shall read said documents if so requested.
iii. In the place of a process server, the Court Visitor may deliver the notice and petition and explain them to the proposed Ward.
iv. Mail service, by U.S. Mail.
d. Court Visitor. The court will send a court visitor to report on the proposed Ward. The responsibility of the visitor is outlined in Rules of Practice-District Courts, Rule 416(b).
4. Right to Counsel. 525.5501.
a. A proposed Ward shall be represented by counsel of his/her choice, or by court appointed counsel, unless:
i. The proposed Ward specifically waives such right during the
meeting with the court visitor; or
ii. The petition is voluntary by the proposed Ward.
b. The acting counsel for the Ward continues as such until released by the court.
c. Note that a lawyer may not withdraw from representing a Ward without the consent of the court, although the lawyer may be terminated by the guardian or conservator. Gen. Rul. P. Dist. Ct. 416(a).
5. Hearing. 525.551.
a. Proposed Ward attendance at hearing. 525.551 Subd. 1. If the proposed Ward is within the state, the proposed Ward shall attend the hearing, unless:
i. The proposed Ward specifically waives the right to attend (usually waived at the meeting with the court visitor); or
ii. The proposed Ward cannot attend by reason of a physical condition as evidenced by a written statement by a physician (but note that such a statement may not be used to determine the issue of incapacity).
b. Procedure. 525.551 Subd. 2, 3.
i. Guardianship proceedings may be converted to conservatorship proceedings.
ii. The proposed Ward has the right to summon and cross-examine witnesses.
iii. The rules of evidence apply.
iv. There is a presumption of capacity and the burden is upon the petitioner to prove by clear and convincing evidence that the Ward is incapacitated (as defined in 525.54 Subd. 2).
v. The court must take and preserve a stenographic or tape record.
6. Findings-Order.
The court must make specific findings of fact and conclusions of law. 525.551 Subd. 5. The court can either order a protective arrangement or appoint a guardian.
a. Protective Arrangements. 525.54 Subd.7. The court may determine that a less restrictive option to the appointment of a guardian or conservator is appropriate. The court may:
i. Authorize, direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person (such as payment, delivery, deposit or retention of funds or property; sale, mortgage, lease or other transfer of property; entry into an annuity contract, a contract for life care, a deposit contract or contract for training and education; or addition to or establishment of a suitable trust); or
ii. Authorize, direct or ratify any contract, trust or other transaction relating to the protected person’s financial affairs or involving the protected person’s estate if the court determines that the transaction is in the best interests of the protected person.
iii. Before granting the protective arrangement the court shall consider the interests of creditors and dependents of the protected person, and whether the protected person needs the continuing protection of the guardian. The special conservator may be appointed for the accomplishment of the authorized transaction or task.
b. Appointment of Guardian. 525.551 Subd. 5.
i. The appointment is appropriate if:
A. The requirements for a voluntary appointment have been met, note Rules of Practice-District Courts, Rule 416(c); or
B. The proposed Ward is incapacitated (see 525.54 Subd. 2); and
C. No appropriate alternatives exist (see 525.54 Subd. 7).
ii. The court order shall grant the powers outlined in section 525.56 Subd. 3.
iii. The court shall make a finding that the appointed guardian is in the best interest of the Ward.
7. Post Hearing Notice.
a. If a guardian is appointed (modified or terminated) for a person in a state hospital or regional center, or under a guardianship or conservatorship of the commissioner of human services (or is in their custody), the head of such hospital or center, or the commissioner as the case may be, shall be notified. 525.551 Subd. 7.
b. A copy of the order appointing a guardian shall be served by mail upon the Ward and his/her counsel. The order shall be accompanied by a notice advising the Ward of the right to appeal the guardianship within 30 days. 525.5515 Subd. 1.
8. Letters.
Letters of guardianship shall contain:
a. The name, address and telephone number of the guardian;
b. The name, address and telephone number of the Ward;
c. Whether it is of the person (or person & estate);
d. The legal limitations, if any, imposed by the court. 525.5515.
9. Annual Filings.
a. Notice of right to petition for restoration to capacity. 525.58 Subd. 2;
b. Annual report of the guardian of the person;
c. Affidavit of service of (a) & (b).
10. Termination of Guardian of the Person.
The guardianship terminates upon the death of the Ward or the Ward’s restoration to capacity. 525.60.
11. Restoration to Capacity, Modification of Guardianship.
a. Restoration may be granted by a petition and hearing and proof by a preponderance of the evidence that the Ward is no longer incapacitated and is able to provide for his/her care.
b. The court shall appoint a new guardian if:
i. The existing guardian has failed to perform or to provide for the Ward’s best interests;
ii. The Ward’s best interests are better served by a new guardian; and
iii. The court’s decision is supported by specific findings required by section 525.551 Subd. 5.
III. Guardian of the Estate
1. Petition.
a. Who may petition. 525.541. Any person may petition for the appointment of a guardian.
b. Contents of petition: 525.542 Subd. 1.
i. Name and address of proposed Ward;
ii. Date of birth of the Ward;
iii. The names and addresses of living parents, children, brothers and sisters, or in the event that none of these persons are living, the names and addresses of the nearest kindred;
iv. If married, the name and address of the spouse;
v. The specific grounds for the guardianship with a statement that the proposed Ward may demand a written bill of particulars;
vi. The probable value and general character of real and personal property and the probable amount of debts;
vii. The names, ages, addresses, and occupations of the proposed guardians; and
viii. The powers requested.
c. Bill of Particulars. 525.542 Subd. 2.
i. If requested, must be delivered to the Ward within 10 days of the request or prior to the hearing, whichever is sooner.
ii. The Bill of Particulars shall be in writing and include factual information which the petitioner believes supports the need for appointment of a guardian such as mental and physical condition, financial transactions, personal actions, or actual occurrences which are claimed to demonstrate the proposed Ward’s inability to provide for personal needs for food, clothing, shelter or health care.
d. Physician’s Statement. If you can acquire a statement from the physician describing the person’s physical or mental abilities it is useful although it may not be determinative of capacity or competency. Also, the physician may refuse to complete the form based upon client confidentiality.
2. Appointment of Guardian.
a. Nominations by Ward 525.544.
i. If the proposed Ward has sufficient capacity, the Ward may nominate a guardian in the following manner:
A. In the petition; or
B. By written instrument executed either before or after the petition is filed. The instrument must be executed in the same manner as a Will.
ii. Appointment by the Court. 525.544 Subd. 2. The court appoints guardian “in the best interest of the proposed ward.”
iii. The court usually requires the guardian to post a bond. 525.551 Subd. 6.
3. Notice. 525.55.
a. To the proposed Ward, by personal service, at least 14 days before the hearing.
b. To any spouse, parents, adult children, brothers and sisters, and if none of those can be located, to the nearest kindred, and to any other persons the court may direct, service by mail, at least 14 days before the hearing.
c. Form of service.
i. The Notice shall include:
A. A copy of the petition;
B. Information regarding the nature, purpose and legal effects of the guardianship proceedings on the proposed Ward;
C. A statement that the person may be adjudged incapable of self-care of the person’s property and therefore in need of a guardian, note Rules of Practice-District Courts, Rule 416(c);
D. Adjudication may transfer certain rights to the guardian including the right to manage and control property, to enter into contracts, and to determine residence;
E. The notice shall also contain information regarding the rights of the proposed Ward in the proceeding, including the right to attend the proceeding, the right to be represented by counsel, the right to oppose the proceeding and the right to present evidence;
F. The notice must provide that if the right to counsel is desired, the proposed Ward may obtain counsel of his/her choice or ask the court to appoint counsel; and
G. The notice must explain how to request court appointed counsel (525.5501), and that the county may pay reasonable attorney fees if the person is indigent.
ii. Personal service pursuant to Minn. R. Civ. P. 4.03 and the process server shall inquire whether the proposed Ward desires the notice and petition read to that person, and shall read said documents if so requested.
iii. In the place of a process server, the Court Visitor may deliver the notice and petition and explain them to the proposed Ward.
iv. Mail service, by U.S. Mail.
d. Court Visitor. The court will send a court visitor to report on the proposed Ward. The responsibility of the visitor is outlined in Rules of Practice-District Courts, Rule 416(b).
4. Right to Counsel. 525.5501.
a. A proposed Ward shall be represented by counsel of his/her choice, or by court appointed counsel, unless:
i. The proposed Ward specifically waives such right during the meeting with the court visitor; or
ii. The petition is voluntary by the proposed Ward.
b. The acting counsel for the Ward continues as such until released by the court.
c. Note that a lawyer may not withdraw from representing a Ward without the consent of the court, although the lawyer may be terminated by the guardian or conservator. Gen. R. Prac. Dist. Ct. 416(a).
5. Hearing. 525.551.
a. Proposed Ward attendance at hearing. 525.551 Subd. 1. If the proposed Ward is within the state, the proposed Ward shall attend the hearing, unless:
i. The proposed Ward specifically waives the right to attend (usually waived at the meeting with the court visitor); or
ii. The proposed Ward cannot attend by reason of a physical condition as evidenced by a written statement by a physician (but note that such a statement may not be used to determine the issue of incapacity).
b. Procedure. 525.551 Subd. 2, 3.
i. Guardianship proceedings may be converted to conservatorship proceedings.
ii. The proposed Ward has the right to summon and cross-examine witnesses.
iii. The rules of evidence apply.
iv. There is a presumption of capacity and the burden is upon the petitioner to prove by clear and convincing evidence that the Ward is incapacitated (as defined in 525.54 Subd. 2).
v. The court must take and preserve a stenographic or tape record.
6. Findings-Order.
The court must make specific findings of fact and conclusions of law. 525.551 Subd. 5. The court can either order a protective arrangement or appoint a guardian.
a. Protective Arrangements. 525.54 Subd.7. The court may determine that a less restrictive option to the appointment of a guardian or conservator is appropriate. The court may:
i. Authorize, direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person (such as payment, delivery, deposit or retention of funds or property; sale, mortgage, lease or other transfer of property; entry into an annuity contract, a contract for life care, a deposit contract or contract for training and education; or addition to or establishment of a suitable trust); or
ii. Authorize, direct or ratify any contract, trust or other transaction relating to the protected person’s financial affairs or involving the protected person’s estate if the court determines that the transaction is in the best interests of the protected person.
iii. Before granting the protective arrangement the court shall consider the interests of creditors and dependents of the protected person, and whether the protected person needs the continuing protection of the guardian. The special conservator may be appointed for the accomplishment of the authorized transaction or task.
b. Appointment of Guardian. 525.551 Subd. 5.
i. The appointment is appropriate if:
A. The requirements for a voluntary appointment have been met; or
B. The proposed Ward is incapacitated (see 525.54 Subd. 2); and
C. No appropriate alternatives exist (see 525.54 Subd. 7).
ii. The court order shall grant the powers outlined in section 525.56 Subd. 4.
iii. The court shall make a finding that the appointed guardian is in the best interest of the Ward.
iv. The court usually requires the guardian to post a bond. 525.551 Subd. 6.
7. Post Hearing Notice.
a. If a guardian is appointed (modified or terminated) for a person in a state hospital or regional center, or under a guardianship or conservatorship of the commissioner of human services (or is in their custody), the head of such hospital or center, or the commissioner as the case may be, shall be notified. 525.551 Subd. 7.
b. A copy of the order appointing a guardian shall be served by mail upon the Ward and his/her counsel. The order shall be accompanied by a notice advising the Ward of the right to appeal the guardianship within 30 days. 525.5515 Subd. 1.
8. Letters.
Upon filing of a bond the letters of guardianship may be issued and shall contain:
a. The name, address and telephone number of the guardian;
b. The name, address and telephone number of the Ward;
c. Whether it is of the person (or person & estate); and
d. The legal limitations, if any, imposed by the court. 525.5515.
9. Inventory. 525.561.
An inventory shall be filed one month after appointment. The inventory shall include all assets in the guardian’s knowledge or possession. If real property is to be sold then appraisals are required pursuant to 525.562.
10. Annual Filings.
a. Notice of right to petition for restoration to capacity. 525.58 Subd. 2;
b. Annual report of the guardian of the person;
c. Affidavit of filing for (a) and (b); and
d. Annual accounts of the guardianship are filed within 30 days of the anniversary date of appointment.
11. Allowance of Accounts.
By motion of the court or other interested party, a petition may be filed and notice given for the hearing on account. 525.581. After hearing the court may allow the account (or the account be corrected and then allowed). 525.582. If the Ward has been restored to capacity the Ward may settle the accounts with the guardian and the guardian then discharged. 525.582(b). The resignation of a guardian shall not be effective until the final account is allowed. If the Ward dies, notice of the hearing on the final account is given to the personal representative of the estate. Rules of Practice-District Courts, Rule 416(g). Also note that annual accounts require a “verification” of account balances and securities owned as of the end of the accounting period. Also required are vouchers, i.e., checks written, bills paid, and other disbursements. Gen. R. Prac. Dist. Ct. 412.
a. Note that if attorney fees are contested, pleadings pursuant to Rules of General Practice-District Courts, Rule 119 are probably applicable.
b. Also note Rules 416(e)-(h) regarding allowance of accounts.
12. Termination of Guardian of the Estate.
The guardianship terminates upon the death of the Ward or the Ward’s restoration to capacity. 525.60. But note that the account must be settled with the Ward or by hearing before the court before the guardian can be discharged. 525.582.
13. Restoration to Capacity, Modification of Guardianship.
a. Restoration may be granted by a petition and hearing and proof by a preponderance of the evidence that the Ward is no longer incapacitated and is able to manage his or her estate.
b. The court shall appoint a new guardian if:
i. The existing guardian has failed to perform or to provide for the Ward’s best interests;
ii. The Ward’s best interests are better served by a new guardian; and
iii. The court’s decision is supported by specific findings required by section 525.551 Subd. 5.
14. Successor Guardian. 525.59.
IV. Conservator of the Person (Adult)
1. Petition.
a. Who may petition. 525.541. Any person may petition for the appointment of a conservator.
b. Contents of petition, 525.542 Subd. 1:
i. Name and address of proposed Conservatee;
ii. Date of birth of the Conservatee;
iii. The names and addresses of living parents, children, brothers and sisters, or in the event that none of these persons are living, the names and addresses of the nearest kindred;
iv. If married, the name and address of the spouse;
v. The specific grounds for the conservatorship with a statement that the proposed Conservatee may demand a written bill of particulars;
vi. The probable value and general character of real and personal property and the probable amount of debts;
vii. The names, ages, addresses, and occupations of the proposed conservators; and
viii. The powers requested.
c. Bill of Particulars. 525.542 Subd. 2.
i. If requested, must be delivered to the Conservatee within 10 days of the request or prior to the hearing, whichever is sooner.
ii. The Bill of Particulars shall be in writing and include factual information which the petitioner believes supports the need for appointment of a conservator such as mental and physical condition, financial transactions, personal actions, or actual occurrences which are claimed to demonstrate the proposed Conservatee’s inability to provide for personal needs for food, clothing, shelter or health care.
d. Physician’s Statement. If you can acquire a statement from the physician describing the person’s physical or mental abilities it is useful although it may not be determinative of capacity or competency. Also, the physician may refuse to complete the form based upon client confidentiality.
2. Appointment of Conservator.
a. Nominations by Conservatee: 525.544.
i. If the proposed Conservatee has sufficient capacity, the Conservatee may nominate a conservator in the following manner:
A. In the petition; or
B. By written instrument executed either before or after the petition is filed. The instrument must be executed in the same manner as a Will.
ii. Appointment by the Court. 525.544 Subd. 2. The court appoints conservator “in the best interest of the proposed Conservatee.”
3. Notice.
525.55.
a. To the proposed Conservatee, by personal service, at least 14 days before the hearing.
b. To any spouse, parents, adult children, brothers and sisters, and if none of those can be located, to the nearest kindred, and to any other persons the court may direct, service by mail, at least 14 days before the hearing.
c. Form of service.
i. The Notice shall include:
A. A copy of the petition;
B. Information regarding the nature, purpose and legal effects of the conservatorship proceedings on the proposed Conservatee;
C. A statement that the person may be adjudged incapable of self-care of the person and therefore in need of a conservator;
D. Adjudication may transfer certain rights to the conservator including the right to manage and control property, to enter into contracts, and to determine residence;
E. The notice shall also contain information regarding the rights of the proposed Conservatee in the proceeding, including the right to attend the proceeding, the right to be represented by counsel, the right to oppose the proceeding and the right to present evidence;
F. The notice must provide that if the right to counsel is desired, the proposed Conservatee may obtain counsel of his/her choice or ask the court to appoint counsel; and
G. The notice must explain how to request court appointed counsel (525.5501), and that the county may pay reasonable attorney fees if the person is indigent.
ii. Personal service pursuant to Minn. R. Civ. P. 4.03 and the process server shall inquire whether the proposed Conservatee desires the notice and petition read to that person, and shall read said documents if so requested.
iii. In the place of a process server, the Court Visitor may deliver the notice and petition and explain them to the proposed Conservatee.
iv. Mail service, by U.S. Mail.
d. Court Visitor. The court will send a court visitor to report on the proposed Conservatee. The responsibility of the visitor is outlined in Rules of Practice-District Courts, Rule 416(b).
4. Right to Counsel. 525.5501.
a. A proposed Conservatee shall be represented by counsel of his/her choice, or by court appointed counsel, unless:
i. The proposed Conservatee specifically waives such right during the meeting with the court visitor;
ii. The petition is voluntary by the proposed Conservatee.
b. The acting counsel for the Conservatee continues as such until released by the court.
c. Note that a lawyer may not withdraw from representing a Conservatee without the consent of the court, although the lawyer may be terminated by the guardian or conservator. Gen. R. Prac. Dist. Ct. 416(a).
5. Hearing. 525.551.
a. Proposed Conservatee attendance at hearing. 525.551 Subd. 1. If the proposed Conservatee is within the state, the proposed Conservatee shall attend the hearing, unless:
i. The proposed Conservatee specifically waives the right to attend (usually waived at the meeting with the court visitor);
ii. The proposed Conservatee cannot attend by reason of a physical condition as evidenced by a written statement by a physician (but note that such a statement may not be used to determine the issue of incapacity).
b. Procedure. 525.551 Subd. 2, 3.
i. The proposed Conservatee has the right to summon and cross-examine witnesses.
ii. The rules of evidence apply.
iii. There is a presumption of capacity and the burden is upon the petitioner to prove by clear and convincing evidence that the Conservatee is incapacitated (as defined in 525.54 Subd. 2).
iv. The court must take and preserve a stenographic or tape record.
6. Findings-Order.
The court must make specific findings of fact and conclusions of law. 525.551 Subd. 5. The court can either order a protective arrangement or appoint a conservator.
a. Protective Arrangements. 525.54 Subd.7. The court may determine that a less restrictive option to the appointment of a guardian or conservator is appropriate. The court may:
i. Authorize, direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person (such as payment, delivery, deposit or retention of funds or property; sale, mortgage, lease or other transfer of property; entry into an annuity contract, a contract for life care, a deposit contract or contract for training and education; or addition to or establishment of a suitable trust); or
ii. Authorize, direct or ratify any contract, trust or other transaction relating to the protected person’s financial affairs or involving the protected person’s estate if the court determines that the transaction is in the best interests of the protected person.
iii. Before granting the protective arrangement the court shall consider the interests of creditors and dependents of the protected person, and whether the protected person needs the continuing protection of the conservator. The special conservator may be appointed for the accomplishment of the authorized transaction or task.
b. Appointment of Conservator. 525.551 Subd. 5.
i. The appointment is appropriate if:
A. The requirements for a voluntary appointment have been met, note Rules of Practice-District Courts, Rule 416(c); or
B. The proposed Conservatee is incapacitated (see 525.54 Subd. 2); and
C. No appropriate alternatives exist (see 525.54 Subd. 7).
ii. The court order shall grant the powers outlined in section 525.56 Subd. 3.
iii. The court shall make a finding that the appointed conservator is in the best interest of the Conservatee.
7. Post Hearing Notice.
a. If a conservator is appointed (modified or terminated) for a person in a state hospital or regional center, or under a guardianship or conservatorship of the commissioner of human services (or is in their custody), the head of such hospital or center, or the commissioner as the case may be, shall be notified. 525.551 Subd. 7.
b. A copy of the order appointing a conservator shall be served by mail upon the Conservatee and his/her counsel. The order shall be accompanied by a notice advising the Conservatee of the right to appeal the conservatorship within 30 days. 525.5515 Subd. 1.
8. Letters.
Letters of conservatorship shall contain:
a. The name, address and telephone number of the conservator;
b. The name, address and telephone number of the Conservatee;
c. Whether it is of the person (or person & estate); and
d. The legal limitations, if any, imposed by the court. 525.5515.
9. Annual Filings.
a. Notice of right to petition for restoration to capacity. 525.58 Subd. 2.
b. Annual report of the conservator of the person; and
c. Affidavit of service of (a) & (b).
10. Termination of Conservator of the Person.
The conservatorship terminates upon the death of the Conservatee or the Conservatee’s restoration to capacity. 525.60.
11. Restoration to Capacity, Modification of Conservatorship.
a. Restoration may be granted by a petition and hearing and proof by a preponderance of the evidence that the Conservatee is no longer incapacitated and is able to provide for his/her care.
b. The court shall appoint a new conservator if:
i. The existing conservator has failed to perform or to provide for the Conservatee’s best interests;
ii. The Conservatee’s best interests are better served by a new conservator; and
iii. The court’s decision is supported by specific findings required by section 525.551 Subd. 5.
V. Conservator of the Estate
1. Petition.
a. Who may petition. 525.541. Any person may petition for the appointment of a conservator.
b. Contents of petition 525.542 Subd. 1:
i. Name and address of proposed Conservatee;
ii. Date of birth of the Conservatee;
iii. The names and addresses of living parents, children, brothers and sisters, or in the event that none of these persons are living, the names and addresses of the nearest kindred;
iv. If married, the name and address of the spouse;
v. The grounds for the conservatorship with a statement that the proposed Conservatee may demand a written bill of particulars;
vi. The probable value and general character of real and personal property and the probable amount of debts; and
vii. The names, ages, addresses, and occupations of the proposed conservators.
c. Bill of Particulars. 525.542 Subd. 2.
i. If requested, must be delivered to the Conservatee within 10 days of the request or prior to the hearing, whichever is sooner.
ii. The Bill of Particulars shall be in writing and include factual information which the petitioner believes supports the need for appointment of a conservator such as mental and physical condition, financial transactions, personal actions, or actual occurrences which are claimed to demonstrate the proposed Conservatee’s inability to provide for personal needs for food, clothing, shelter or health care.
d. Physician’s Statement. If you can acquire a statement from the physician describing the person’s physical or mental abilities it is useful although it may not be determinative of capacity or competency. Also, the physician may refuse to complete the form based upon client confidentiality.
2. Appointment of Conservator.
a. Nominations by Conservatee. 525.544.
i. If the proposed Conservatee has sufficient capacity, the Conservatee may nominate a conservator in the following manner:
A. In the petition; or
B. By written instrument executed either before or after the petition is filed. The instrument must be executed in the same manner as a Will.
ii. Appointment by the Court. 525.544 Subd. 2. The court appoints conservator “in the best interest of the proposed Conservatee.”
3. Notice. 525.55.
a. To the proposed Conservatee, by personal service, at least 14 days before the hearing.
b. To any spouse, parents, adult children, brothers and sisters, and if none of those can be located, to the nearest kindred, and to any other persons the court may direct, service by mail, at least 14 days before the hearing.
c. Form of service.
i. The Notice shall include:
A. A copy of the petition;
B. Information regarding the nature, purpose and legal effects of the conservatorship proceedings on the proposed Conservatee;
C. A statement that the person may be adjudged incapable of managing the person’s property and therefore in need of a conservator;
D. Adjudication may transfer certain rights to the conservator including the right to manage and control property, to enter into contracts, and to determine residence;
E. The notice shall also contain information regarding the rights of the proposed Conservatee in the proceeding, including the right to attend the proceeding, the right to be represented by counsel, the right to oppose the proceeding and the right to present evidence;
F. The notice must provide that if the right to counsel is desired, the proposed Ward may obtain counsel of his/her choice or ask the court to appoint counsel; and
G. The notice must explain how to request court appointed counsel (525.5501), and that the county may pay reasonable attorney fees if the person is indigent.
ii. Personal service pursuant to Minn. R. Civ. P. 4.03 and the process server shall inquire whether the proposed Conservatee desires the notice and petition read to that person, and shall read said documents if so requested.
iii. In the place of a process server, the Court Visitor may deliver the notice and petition and explain them to the proposed Conservatee.
iv. Mail service, by U.S. Mail.
d. Court Visitor. The court will send a court visitor to report on the proposed Conservatee. The responsibility of the visitor is outlined in Rules of Practice-District Courts, Rule 416(b).
4. Right to Counsel. 525.5501.
a. A proposed Conservatee shall be represented by counsel of his/her choice, or by court appointed counsel, unless:
i. The proposed Conservatee specifically waives such right during the meeting with the court visitor; or
ii. The petition is voluntary by the proposed Conservatee.
b. The acting counsel for the Conservatee continues as such until released by the court.
c. Note that a lawyer may not withdraw from representing a Conservatee without the consent of the court, although the lawyer may be terminated by the guardian or conservator. Gen. R. Prac. Dist. Ct. 416(a).
5. Hearing. 525.551.
a. Proposed Conservatee attendance at hearing. 525.551 Subd. 1. If the proposed Conservatee is within the state, the proposed Conservatee shall attend the hearing, unless:
i. The proposed Conservatee specifically waives the right to attend (usually waived at the meeting with the court visitor); or
ii. The proposed Conservatee cannot attend by reason of a physical condition as evidenced by a written statement by a physician (but note that such a statement may not be used to determine the issue of incapacity).
b. Procedure. 525.551 Subd. 2, 3.
i. The proposed Conservatee has the right to summon and cross-examine witnesses.
ii. The rules of evidence apply.
iii. There is a presumption of capacity and the burden is upon the petitioner to prove by clear and convincing evidence that the Conservatee is incapacitated (as defined in 525.54 Subd. 2).
iv. The court must take and preserve a stenographic or tape record.
6. Findings-Order.
The court must make specific findings of fact and conclusions of law. 525.551 Subd. 5. The court can either order a protective arrangement or appoint a conservator.
a. Protective Arrangements. 525.54 Subd.7. The court may determine that a less restrictive option to the appointment of a guardian or conservator is appropriate. The court may:
i. Authorize, direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person (such as payment, delivery, deposit or retention of funds or property; sale, mortgage, lease or other transfer of property; entry into an annuity contract, a contract for life care, a deposit contract or contract for training and education; or addition to or establishment of a suitable trust); or
ii. Authorize, direct or ratify any contract, trust or other transaction relating to the protected person’s financial affairs or involving the protected person’s estate if the court determines that the transaction is in the best interests of the protected person.
iii. Before granting the protective arrangement the court shall consider the interests of creditors and dependents of the protected person, and whether the protected person needs the continuing protection of the conservator. The special conservator may be appointed for the accomplishment of the authorized transaction or task.
b. Appointment of Conservator. 525.551 Subd. 5.
i. The appointment is appropriate if:
A. The requirements for a voluntary appointment have been met, note Rules of Practice-District Courts, Rule 416(c); or
B. The proposed Conservatee is incapacitated (see 525.54 Subd. 2); and
C. No appropriate alternatives exist (see 525.54 Subd. 7).
ii. The court order shall grant the powers outlined in section 525.56 Subd. 4.
iii. The court shall make a finding that the appointed conservator is in the best interest of the Conservatee.
iv. The court usually requires the conservator to post a bond. 525.551 Subd. 6.
7. Post Hearing Notice.
a. If a conservator is appointed (modified or terminated) for a person in a state hospital or regional center, or under a guardianship or conservatorship of the commissioner of human services (or is in their custody), the head of such hospital or center, or the commissioner as the case may be, shall be notified. 525.551 Subd. 7.
b. A copy of the order appointing a conservator shall be served by mail upon the Conservatee and his/her counsel. The order shall be accompanied by a notice advising the Conservatee of the right to appeal the conservatorship within 30 days. 525.5515 Subd. 1.
8. Letters.
Upon filing of a bond the letters of conservatorship may be issued and shall contain:
a. The name, address and telephone number of the conservator;
b. The name, address and telephone number of the Conservatee;
c. Whether it is of the person (or person & estate); and
d. The legal limitations, if any, imposed by the court. 525.5515.
9. Inventory. 525.561.
An inventory shall be filed one month after appointment. The inventory shall include all assets in the conservator’s knowledge or possession. If real property is to be sold then appraisals are required pursuant to 525.562.
10. Annual Filings.
a. Notice of right to petition for restoration to capacity. 525.58 Subd. 2;
b. Annual report of the conservator of the person; and
c. Affidavit of filing for (a) and (b).
d. Annual accounts of the guardianship are filed within 30 days of the anniversary date of appointment.
11. Allowance of Accounts.
By motion of the court or other interested party, a petition may be filed and notice given for the hearing on account. 525.581. After the hearing the court may allow the account (or the account be corrected and then allowed). 525.582. If the Conservatee has been restored to capacity the Conservatee may settle the accounts with the conservator and the conservator may then be discharged. 525.582(b). The resignation of a guardian shall not be effective until the final account is allowed. If the Conservatee dies, notice of the hearing on the final account is given to the personal representative of the estate. Rules of Practice-District Courts, Rule 416(g). Also note that annual accounts require a “verification” of account balances and securities owned as of the end of the accounting period. Also required are vouchers, i.e., checks written, bills paid, and other disbursements. Gen. R. Prac. Dist. Ct. 412.
a. Note that if attorney fees are contested, pleadings pursuant to Rules of General Practice-District Courts, Rule 119 are probably applicable.
b. Also note Rules 416(e)-(h) regarding allowance of accounts.
12. Termination of Conservator of the Estate.
The conservatorship terminates upon the death of the Conservatee or the Conservatee’s restoration to capacity. 525.60. But note that the account must be settled with the Conservatee or by hearing before the court before the conservator can be discharged. 525.582.
13. Restoration to Capacity, Modification of Conservatorship.
a. Restoration may be granted by a petition, hearing and proof by a preponderance of the evidence that the Conservatee is no longer incapacitated and is able to manage his/her estate;
b. The court shall appoint a new conservator if:
i. The existing conservator has failed to perform or to provide for the Conservatee’s best interests;
ii. The Conservatee’s best interests are better served by a new conservator; and
iii. The court’s decision is supported by specific findings required by section 525.551 Subd. 5.
14. Successor Conservator. 525.59.
VI. Special Guardianship or Conservatorship.
1.
Petition.
525.591.
Provides that any person may file a petition for a special guardian or conservator. The petition shall contain:
a. All of the information required by 525.542;
b. The reasons that the petitioner believes the proposed Ward or Conservatee is in need of a special guardian or conservator; and
c. The reasons why the regular procedure for obtaining guardianship or conservatorship is not appropriate.
2. Notice. 525.591 Subd. 2.
Notice shall be given at least 24 hours prior to the hearing (although the court may waive the 24 hour notice upon showing of immediate and foreseeable harm) and shall contain the information required by 525.55 Subd. 2 with a copy of the petition.
3. Order.
Upon a clear showing of necessity the court may order the appointment. 525.591 Subd.2. Notice of the order shall be given to the Ward or Conservatee. Id. The court shall specify in its order the duration of the guardianship or conservatorship. Id. at Subd. 5.
4. Inventory and Account.
An inventory shall be filed within 14 days after appointment and an account filed upon termination of the guardianship or conservatorship. Id.
5. Termination.
The special guardianship or conservatorship terminates upon the first to occur of (1) death of the protected person; (2) upon expiration of the period specified in the court’s order; and (3) upon appointment of a general guardian or conservator. Id. Note that termination of the special guardian or conservator (of the estate) does not discharge such person until the final account is allowed.
VII. Sale, Lease or Mortgage of Real Property.
Any transaction related to the sale, lease or mortgage of real property must be brought before the court pursuant to the provisions of 525.62 - 525.702.
VIII. Guardian Ad Litem.
The general rule to the use of guardian ad litems is found in the Rules of Practice for the District Courts, Rule 108 (Title X, Rules 901-914 are applicable to Family Court and Juvenile Court). Under this rule, the guardian ad litem is to be treated as a party to the action and must be provided copies of all pleadings, documents and reports by the party or agency which served or submitted them. The guardian ad litem submits its written recommendations or report to the court and to each party at least 10 days before the hearing on the matter relevant to the report.
IX. Ex Parte Orders.
General Rules of Practice for the District Courts, Rule 3, provides that the reasons for supporting the Order shall be stated in the Order, and the application for an ex-parte Order shall include an affidavit showing that no prior application for the relief requested has been made, or if made, shall name the court, judge, result of prior application, and the new facts presented with the current application.
If you would like to discuss any of the issues raised in this summary