How is a Guardianship or Conservatorship Established in Minnesota
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 Dutie
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.