Overview of Minnesota Guardianships and Conservatorships

1. Overview of Minnesota Guardianships and Conservatorships J. Scott Braden Attorney at law Faribault, minnesota 507-332-7483 SCOTTB@BRADENLAWOFFICE.COM

2. LEARNING OBJECTIVES • PROVIDE AN UNDERSTANDING OF GUARDIANSHIP AND CONSERVATORSHIP LEGAL PROCEEDINGS • ANALYZE THE STANDARD FOR INCAPACITY IN A GUARDIANSHIP AND CONSERVATORSHIP ACTION • EXAMINE STATUTORY POWERS AND DUTIES OF A GUARDIAN AND CONSERVATOR • REVIEW ACTIONS REQUIRING COURT APPROVAL AND ANNUAL REPORTS

3. WHAT IS A GUARDIANSHIP • COURT ORDERED ARRANGEMENT • GUARDIAN MAKES SUBSTITUTE DECISIONS FOR WARD • PERSONAL DECISIONS • GUARDIAN AGENT OF THE COURT • ALL DECISIONS MUST BE IN THE BEST INTERESTS OF WARD

4. WARD • WARD LEGALLY INCAPACITATED • DEMONSTRATED DEFICITS IN BEHAVIOR SHOWING INABILITY TO MEET PERSONAL NEEDS • MEDICAL CARE AND TREATMENT • PERSONAL NUTRITION • CLOTHING • SHELTER • SAFETY

5. WHAT IS A CONSERVATORSHIP • COURT ORDERED ARRANGEMENT • CONSERVATOR HANDLES FINANCIAL AFFAIRS OF PROTECTED PERSON • INCAPABLE OF CONTROLLING OWN FINANCES • NO LESS RESTRICTIVE ALTERNATIVE • FIDUCIARY RESPONSIBILITY • ACCOUNTABLE TO THE COURT

6. PROTECTED PERSONS • PERSON WITH ESTATE SUBJECT TO WASTE • PERSON LACKS CAPACITY TO HANDLE OWN FINANCIAL AFFAIRS • DEMONSTRATED BEHAVIORAL DEFICITS REGARDING ESTATE OR FINANCIAL AFFAIRS

7. INITIATION OF PROCEEDINGS • PETITION • PETITIONER SHOULD BE INTERESTED IN WELFARE OF WARD/PROTECTED PERSON • SPOUSE • ADULTCHILD • RELATIVE • SOCIAL WORKER • LAWYER • ADULT PROTECTION WORKER

8. INTERESTED PERSONS • NOTICE OF PROCEEDINGS REQUIRED TO : • SPOUSE • PARENTS • ADULT CHILDREN • ADULT SIBLINGS • HOSPITAL OR NURSING HOME ADMINISTRATOR • ATTORNEY IN FACT • REPRESENTATIVE PAYEE • SOCIAL WORKER /CASE MANAGER • PROPOSED NOMINTATED GUARDIAN/CONSERVATOR

9. BASIC ELEMENTS OF PETITION • CURRENT MENTAL HEALTH DIAGNOSIS • PROGNOSIS • EVIDENCE OF INABILITY TO CARE FOR SELF OR RISK • EVIDENCE OF INABILTIY TO MAKE INFORMED DECISIONS • NOMINATED GUARDIAN OR CONSERVATOR

10. GUARDIAN/CONSERVATOR QUALIFICATIONS • MOST SUITABLE • BEST QUALIFIED • RESPONDENT’S NOMINATION NOT CONTROLLING • DHS BACKGROUND STUDY MAY BE REQUIRED • SERVICE PROVIDERS DISQUALIFIED UNLESS RELATED BLOOD, MARRIAGE, ADOPTION

11. HEARING • PETITIONER MUST ATTEND HEARING • WARD RIGHT TO COUNSEL • COURT APPOINTED • RESPONDENT MUST ATTEND HEARING UNLESS WAIVED • COURT VISITOR • PHYSICIAN STATEMENT • MOST GUARDIANSHIP AND CONSERVATORSHIP HEARINGS BY ACQUIESCENCE • WITNESSES • MEDICAL RECORDS • FINANCIAL RECORDS

12. EMERGENCY GUARDIAN • EX PARTE APPOINTMENT • DUE PROCESS PROCEDURES FOR GENERAL GUARDIANSHIP OR CONSERVATORSHIP WAIVED • FINDING OF SUBSTANTIAL HARM • NOTICE OF APOINTMENT WITH 48 HOUR TO WARD • HEARING REQUIRED WITHIN 5 DAYS • TIME LIMITED • 60 DAYS • 90 DAYS IF INITIATED BY COUNTY UNDER VULNERABLE ADULT ACT

13. NOT APPEALABLE • SUBJECT TO PETITION FOR TERMINATION OR MODIFICATION OF APPOINTMENT • NO DETEMINATION OF INCAPACITY

14. EMERGENCY CONSERVATOR • EX PARTE APPOINTMENT • IMMEDIATLE RISK OF LOSS, WASTE OR DISSIPATION OF ASSETS OR INCOME • MONEY NECESSARY FOR SUPPORT, CARE, EDUCATION HEALTHCARE, WELFARE OF PROTECTED PERSON • NOTICE WITH 48 HOURS • HEARING WTHIN 5 DAYS • NO ALTERNTIVE TO HANDLING FINANCES • POWER OF ATTORNEY • REPRESENTATIVE PAYEE • REVOCABLE TRUST

15. TEMPORARY GUARDIAN/CONSERVATOR • SUBSTITUTE GUARDIAN • UP TO 6 MONTHS • GUARDIAN NOT EFFECTIVELY PERFORMING DUTIES • PROCEDURE APPLIES TO CASE WITH EXISTING GUARDIAN OR CONSERVATOR • SAME POWERS AS PRIOR GUARDIAN CONSERVATOR • ORIGINAL GUARDIAN OR CONSERVATOR POWERS SUSPENDED

16. DEATH OF GUARDIAN OR CONSERVATOR • GUARDIAN OR CONSERVATOR REMOVED FOR CAUSE • MISAPPROPRIATION OF FUNDS • FAILURE TO ACT • FAILURE TO COMPLETE ACCOUNTS, PERSONAL WELL BEING REPORTS

17. GUARDIAN’S DUTIES • ACT WITHIN POWERS GRANTED BY COURT • DECISIONS BEST INTEREST OF WARD • NO LIABILITY FOR ACTS OF WARD • RESPONSIBLE FOR 3RD PARTY CARE PROVIDERS • LIMITED DELEGATION • ANNUAL PERSONAL WELL BEING REPORTS

18. GUARDIAN POWERS • DETERMINE WARD’S ABODE • PROVIDE CARE, COMFORT AND MAINTENANCE • PERSONAL PROPERTY • MEDICAL CARE • CONTRACTS ( IF NO CONSERVATOR) • SUPERVISION • APPLICATION FOR PUBLIC ASSISTANCE ( IF NO CONSERVATOR)

19. CONSERVATOR DUTIES • DECISIONS BEST INTEREST OF PROTECTED PERSON • DEFEND CLAIMS AGAINST PROTECTED PERSON • 60 DAYS TO DISALLOW CLAIMS • RESPECT PRIORITY OF CLAIMS • PREPARE AND FILE ANNUAL ACCOUNT • MAINTAIN CONTEMPORANEOUS FINANCIAL RECORDS

20. CONSERVATOR POWERS • PAY PROTECTED PERSONS REASONABLE LIVING EXPENSES • PAY REASONABLE DEBTS • NO DUTY TO PAY CHARGES FROM OWN FUNDS • MANAGE OF PERSONAL AND REAL PROPERTY • SELL OR EXCHANGE UNDIVIDED INTEREST IN REAL ESTATE • CONTRACTS • APPLY FOR PUBLIC ASSISTANCE • CHALLENGE WARDS PRIOR TRANSACTIONS WITHIN 2 YEARS OF APPOINTMENT

21. COURT APPROVED TRANSACTIONS • ADMISSION TO REGIONAL TREATMENT CENTER • ELECTROCONVULSIVE THERAPY ( ECT) • STERILIZATION • EXPERIMENTAL MEDICAL TREATMENT • DISPOSAL OF PERSONAL PROPERTY OVER OBJECTION OF WARD • REVOCATION HEALTH CARE DIRECTIVE

22. CONSERVATORSHIP TRANSACTIONS REQUIRING COURT APPROVAL • SETTLING OR COMPROMISING CLAIMS • CIVIL LITIGATION, DIVORCE, PARENTAGE • FILING BANKRUPTCY • PAYMENT OF CHILD SUPPORT, MAINTENANCE • CREATING OR AMENDING ESTATE PLAN • GIFTING • MAKING OR AMENDING WILL • PETITION TO SET ASIDE TRANSACTIONS WITHIN 2 YEARS OF CONSERVATORSHIP

23. REAL ESTATE • MORTGAGE • SALE • LEASE MORE THAN 1 YEAR • CREATING OR TERMINATING PAY ON DEATH OR TRANSFER ON DEATH ACCOUNTS • ELECTING OPTIONS OR CHANGING LIFE INSURANCE BENFICIARIES, ANNUITIES OR RETIREMENT PLANS

24. DECISION MAKING STANDARDS • LESS RESTRICTIVE ALTERNATIVE • BEST INTEREST OF PROTECTED PERSON • DUTY TO PROTECTED PERSON • SPECIAL CONCERNS: • WHAT WOULD THE PROTECTED PERSON HAVE DONE • INCOME, ESTATE, GIFT TAX CONSEQUENCES • FINANCIAL NEEDS OF PROTECTED PERSON • ELIGIBILITY FOR GOVERNEMENTAL ASSIsTANCE • ESTATE PLAN • LIFE EXPECTANCY

25. FIDUCIARY’S ANALYSIS • LESS RESTICTIVE ALTERNATIVE • BEST INTEREST OF THE WARD • PRIMARY PHYSICIAN RECOMMENDATIONS • WARD’S PREFERENCES • POTENTIAL HARM OR ABUSE TO WARD BY NOT EXERCISING POWER • BALANCE OF COMPETING INTERESTS

26. ANNUAL ACCOUNTS • MY MINNESOTA CONSERVATOR (MMC) • ONLINE • UNIFORM REPORTING • ON LINE TRAINING • COORDINATES QUICK BOOKS, QUICKEN • AGENCY DESIGNATION • CPA, ATTORNEY

27. ANNUAL ACCOUNTS • ASSETS INVENTORIED DATE OF APPOINTMENT • ASSETS: • HOMESTEAD • NON HOMESTEAD REAL PROPERTY • BURIAL PLOT • CONTRACT FOR DEED • FURNITURE • WEARING APPAREL • STOCKS, BONDS • BANK ACCOUNTS, CERTIFICATES OF DEPOSIT

28. CONSERVATOR BONDS • REQUIRED ESTATES GREATER THAN $10,000 • DETERMINED BY LIQUID ASSETS ON HAND • PREMIUMS PAID BY ESTATE • $1000-1500 PER YEAR $200,000 TO $250,000 BOND • SEPARATE BONDS FOR EMERGENCY AND GENERAL CONSERVATORSHIPS

29. ANNUAL ACCOUNT HEARINGS • 5 YEAR HEARING TO ADJUDICATE CURRENT AND PRIOR ACCOUNTS ACCEPTED BY COURT • DEATH OF PROTECTED PERSON • DEATH OF CONSERVATOR • RESIGNATION OF CONSERVATOR • RESTORATION TO CAPACITY OF PROTECTED PERSON • NOTICE TO PROTECTED PERSON AND INTERESTED PERSONS

30. STANDARDS OF CONDUCT • NO SELF DEALING • NO COMMINGLING OF FUNDS • NO BORROWING OF FUNDS • REASONABLE PRUDENT PERSON INVESTMENT STANDARD • GOAL PRESERVATION OF ESATE • PAY REASONABLE CHARGES • MAINTAIN INSURANCE VEHICLE, REAL PROPERTY • TIMELY PAY INCOME TAXES • FILE FEDERAL AND STATE OF MINNESOTA TAX RETURNS

31. CONSERVATORSHIP AUDITS • 1ST AND 5TH ANNUAL ACCONTS • RANDOM AUDITS • CONSERVATOR MAINTAIN RECEIPTS, CHECKS, INVOICES, VERIFICATION OF FUNDS ON HAND • DOCUMENTATION FINANCIAL TRANSACTIONS • TAX RETURNS

32. GUARDIAN AND CONSERVATOR FEES • SUBJECT TO REVIEW BY COURT • REASONABLE • CONTEMPORANEOUS TIME RECORDS • AFFIDAVIT OF CONSERVATOR FEES • NO PREPAYMENT • NO RETAINERS • IN FORMA PAUPERIS

33. PERSONAL WELL BEING REPORTS • ANNUAL REPORT /30 DAYS OF ANNIVERSARY OF APPOINTMENT • UPDATE COURT WARD’S STATUS • CHANGES IN ADDRESS OF WARD OR GUARDIAN • SERVICE OF PROCESS INTERESTED PERSONS • ORDER TO SHOW CAUSE NON COMPLIANCE • POSSIBLE REMOVAL OR OTHER SANCTIONS