CONSERVATORSHIP - Minnesota

1 CONSERVATORSHIP AND GUARDIANSHIP IN Minnesota Published By: Minnesota Conference of Chief Judges Pending, 2003 Amended 2009, 2010, 2013, 2016 GAC101 State ENG Rev 08/16 Page i of v CONSERVATORSHIP AND GUARDIANSHIP IN Minnesota TABLE OF CONTENTS I. INTRODUCTION 1 A. PURPOSE 1 B. USE OF THIS MANUAL 1 II. GENERAL OVERVIEW 2 A. CONSERVATORSHIP AND GUARDIANSHIP 2 1. What does incapacity mean? 2 2. What is the difference between CONSERVATORSHIP and Guardianship? 2 3. Guardianship 3 4. CONSERVATORSHIP 3 5. How much power and authority does a Guardian or Conservator have? 3 6. What types of Guardianships or Conservatorships are there? 3 a. Guardianship of the person 3 b. CONSERVATORSHIP of the estate 4 c. Guardianship of the person and CONSERVATORSHIP of the estate 4 d.

2 Emergency Guardianship of the person or CONSERVATORSHIP the estate, 4 or both e. Public vs. private Guardianship or CONSERVATORSHIP 5 III. LESS RESTRICTIVE ALTERNATIVES 6 A. ALTERNATIVES TO GUARDIANSHIP OR CONSERVATORSHIP 6 1. Why not Guardianship or CONSERVATORSHIP ? 3-2 2. What does Least Restrictive Alternative mean? 6 3. Can Less Restrictive Alternatives be planned ahead? 6 4. What alternative planning tools are available? 6 5. How are the tools used or written? 6 B. VOLUNTARY ALTERNATIVES FOR PERSONAL NEEDS 7 1. Healthcare declaration (Living Will) 7 2. Advance psychiatric directive 7 3. Individuals plan 7 4. Families plan 7 5. Case managers plan 7 6. Health care facility plan 7 C. VOLUNTARY ALTERNATIVES FOR FINANCIAL NEEDS 8 1. Banking options 8 2.

3 Power of Attorney (POA) 8 3. Trusts 9 4. Social Security representative payee 9 D. NON-VOLUNTARY ALTERNATIVES FOR FINANCIAL NEEDS 9 1. Social Security representative payee 9 2. Arrangements for veterans and railroad retirement benefits 9 3. Management of state general assistance benefits 10 GAC101 State ENG Rev 08/16 Page ii of v E. CONSERVATORSHIP PLANNING 10 F. OTHER PROTECTIVE ORDERS 10 G. ASSOCIATION OF RETARDED CITIZENS NATIONAL POSITION ON GUARDIANSHIP/ CONSERVATORSHIP 11 IV. ASSESSING THE NEED FOR LEGAL REPRESENTATION 12 A. DETERMINING IF GUARDIANSHIP OR CONSERVATORSHIP IS NECESSARY 12 1. What types of people need Guardians or Conservators? 12 2. What are the criterions for establishing a Guardianship or CONSERVATORSHIP ? 12 3. How is incapacity determined? 12 4. What assessments should be completed and who should complete them?

4 13 V. WHO MAY ACT AS GUARDIAN OR CONSERVATOR 14 A. HOW GUARDIANS AND CONSERVATORS ARE CHOSEN 14 1. Can more than one Guardian or Conservator be appointed? 14 2. Must the Guardian/Conservator and Ward/Protected Person live in the same city or state? 14 3. Can a person s service provider be appointed Guardian or Conservator? 15 4. Criminal Background Checks for Proposed Guardians and Conservators 15 VI. POWERS, DUTIES, AND RESPONSIBILITIES 17 A. ON-GOING RESPONSIBILITIES OF GUARDIANS & CONSERVATORS 17 1. What if the Guardian or Conservator will be temporarily unavailable to act? 17 2. Does the Guardian and Conservator act as an advocate? 18 3. How does a Guardian or Conservator advocate effectively? 18 B. POWERS AND DUTIES OF A GUARDIAN OF THE PERSON 18 1. Custody of the Ward and to establish the place of residence 18 2. Provide for care, comfort, and maintenance needs 19 3.

5 Take reasonable care of personal effects 19 4. Consent to medical or other professional care 20 5. Contracts 20 6. Supervisory authority 20 7. What are the annual duties of the Guardian of the person? 20 a. Annual report of well being 20 b. Affidavit of annual notice of rights 21 8. Keep the Court promptly informed of status changes of the Guardian 21 C. POWER AND DUTIES OF A CONSERVATOR OF THE ESTATE 21 1. Pay reasonable charges for support, maintenance, and education of the protected person 21 2. Pay all just and lawful debts of the protected person, pay reasonable charges for 22 support, maintenance, and education of the protected person s spouse and dependents 3. Possess and manage the estate, collect all debts and claims 22 GAC101 State ENG Rev 08/16 Page iii of v 4. What are the Conservator s duties at the time of appointment? 22 5.

6 How does a Conservator manage insurance? 23 6. How does a Conservator manage real estate? 23 7. Does the Conservator of the estate ever have to go to court? 24 8. What is the inventory? 24 9. What are the Conservator s annual duties? 24 10. What financial records is the Conservator responsible for keeping? 25 11. Keep the Court promptly informed of status changes of the Conservator 25 Sample Letter to Bank/Savings and Loan 26 Sample Letter to Securities Transfer Agent 27 Sample Letter to Internal Revenue Service and Minnesota Department of Revenue 28 Sample Letter to Social Security/Veteran s Administration 29 VII. DECISION MAKING 30 A. STANDARDS AND PRINCIPLES OF SUBSTITUTE DECISION MAKING 30 1. Are there criteria by which to make decisions? 30 2. What are the standards of ethical decision making? 30 a. Judgment 31 b.

7 Best interest 31 c. Least Restrictive Alternative 31 d. Informed consent 32 3. How are the ward s or protected person s rights protected when making decisions? 32 4. Must the ward s or protected person s wishes be considered in every decision? 32 B. RIGHTS OF WARDS AND PROTECTED PERSONS 33 1. What is a ward s or protected person s civil and constitutional rights? 33 2. What is a ward s or protected person s statutory rights under Minnesota law? 33 C. DETERMINING AND CONSIDERING WISHES OR PREFERENCES 34 1. What if the ward or protected person cannot speak or is not understandable? 35 D. CONSENT OR DENIAL CHECKLIST 35 E. MEDICAL TREATMENT DECISIONS 36 1. When is it necessary to go to court for approval of medical treatment? 36 2. What happens if the ward or protected person refuses treatment? 36 F. MEDICAL TREATMENT CONSENT CHECKLIST 36 G. ADDITIONAL CONSIDERATIONS FOR CONSENTS FOR LIMITED MEDICAL TREATMENT 37 H.

8 CONSENT FOR BEHAVIOR CONTROLLING INTERVENTIONS 38 1. What are the options to control behavior? 38 2. What is behavior management? 38 3. What are the keys to successful behavior management? 39 4. What if the ward s/protected person s behavior is very challenging? 39 5. When is behavior management really necessary? 39 GAC101 State ENG Rev 08/16 Page iv of v 6. What are the ward s or protected person s rights when a behavior management plan is used? 39 I. BEHAVIOR MANAGEMENT CONSENT CHECKLIST 39 J. CONSENT FOR USE OF BEHAVIOR ALTERING MEDICATION 40 1. What happens after consenting to the use of medication? 40 K. BEHAVIOR MEDICATION CONSENT CHECKLIST 40 VIII. SERVICE PLANNING 42 A. HOW TO PLAN FOR SERVICES 42 1. How does a person apply for these entitlements and benefits? 42 2. What benefits are available? 42 IX. LEGAL PROCEDURES AND REQUIREMENTS 43 A.

9 PROCEDURES TO ESTABLISH A GUARDIANSHIP/ CONSERVATORSHIP 43 1. How is a Guardian or Conservator appointed? 43 2. What is required in the filing process? 43 a. Obtain forms 44 b. Complete forms 44 c. File forms 44 3. What are the costs of filing? 44 B. BEFORE THE HEARING 44 1. Complete and file petition for appointment of general Conservator or Guardian 44 2. Complete and file notice of hearing and notice of rights and setting date for hearing 45 3. Complete and mail notice of hearing and notice of rights 45 4. Who is the court visitor and what does he or she do? 46 5. Complete and file Affidavit of Mailing Notice of Hearing and Notice of Rights and Petition 46 C. PREPARING FOR THE HEARING 46 1. Who must contact witnesses and gather evidence? 46 2. How is evidence collected for the hearing? 46 3.

10 Should the proposed Ward or Protected Person attend the hearing? 46 4. Does the proposed Ward or Protected Person have an attorney? 46 D. THE HEARING 46 1. What is a bond and when is it necessary? 47 E. AFTER THE HEARING 47 1. Complete and file order appointing general Guardian or Conservator of the person 47 and estate 2. Complete and file Notice of Entry of Order and Right to Appeal 47 3. Complete and file Acceptance of Appointment by Corporation/Individual 48 4. Request letters of general Guardianship/ CONSERVATORSHIP 48 5. Complete and file Inventory 48 GAC101 State ENG Rev 08/16 Page v of v F. ANNUALLY AFTER THE HEARING 48 1. What is the Personal Well-being report? 48 2. What is the Annual and Final Account? 48 3. What is the Annual Notice of Right to Petition and Affidavit of Service? 48 G. MODIFICATIONS AND TERMINATION OF GUARDIANSHIP/ CONSERVATORSHIP 49 1.