Adopted by the MINNESOTA ASSOCIATION FOR GUARDIANSHIP AND CONSERVATORSHIP
Revised January 2004BILL OF RIGHTS FOR WARDS AND PROTECTED PERSONS
II. STANDARDS APPLICABLE TO ALL GUARDIANS/CONSERVATORS
General Standards for Consent Determination
Ward's Rights after Guardianship/Conservatorship Appointment
III. DUTIES OF GUARDIAN (OF THE PERSON)
Care, Comfort, and Maintenance
Financial - When There is No Conservator
IV. DUTIES OF CONSERVATOR (OF THE ESTATE)
Application for Governmental Benefits
Termination of Power of Attorney
Sale of Real Estate, Leases, Mortgages
Claims Against the Protected Person
V. ACTIONS REQUIRING COURT APPROVAL
VI. MODIFICATION AND TERMINATION OF GUARDIANSHIP/CONSERVATORSHIP
The Minnesota Association for Guardianship and Conservatorship, MAGiC, is a non-profit membership organization focused on the practice and issues of substitute decision-making for vulnerable persons. MAGiC promotes best practices and ethical provision of service in the least restrictive manner possible through education and advocacy for its members and the community.
We affirm the following values:
We believe services are to be provided in the least restrictive manner possible, respecting the rights and dignity of vulnerable persons.
We strive for the highest professional standards and ethics in providing service.
We are committed to the education and training of our members.
We believe in professional collaboration and legislative advocacy in working toward the well-being of vulnerable persons.
BILL OF RIGHTS FOR WARDS AND PROTECTED PERSONSThe ward/protected person retains all rights not restricted by court order or specifically granted to the guardian/conservator. These include but are not limited to:
The right to treatment with dignity and respect.
The right to protection from harm.
The right to exercise control of aspects of life not delegated specifically by court order to the guardian/conservator. The guardian/conservator shall not exceed the bounds of court-granted authority.
The right to guardianship/conservatorship services suited to the ward/protected person’s conditions and needs.
The right to privacy: bodily privacy, right to unimpeded, private, and uncensored communication, and the right to visit with persons of the ward/protected person’s choice.
The right to procreate.
The right to receive health care and medical treatment.
The right to vote.
The right to make a will. NOTE: Depending on the level of incapacity, the ward or
protected person may not retain this right.The right to have current and previously stated personal desires, medical treatment statements, religious beliefs, preferences, and opinions given due consideration in decisions made by the guardian or conservator.
The right to petition the court for termination or modification of the guardianship/ conservatorship.
The right to be represented by an attorney at any time. NOTE: The guardian, the conservator or the court may need
sto authorize the retention of legal counsel by the ward/protected personThe right to marry. NOTE: Court approval may be required, depending on the situation.
All persons have the right to self-determination. Individuals who have an incapacity, however, may not be able to independently exercise this right and may require assistance with decision-making. When such assistance is necessary, it must be respectful of the individual’s dignity and legal rights.
The Minnesota Association for Guardianship and Conservatorship (MAGiC) is a membership organization dedicated to ensuring that substitute decision-making provided to individuals with incapacity is of quality and is provided in the least restrictive manner.
The organization is a means of education and communication for those concerned about individuals with incapacity and those interested in issues related to substitute decision-making.
The Standards Committee was established in 1989 at the First Annual MAGiC Conference. The goal of this committee was to establish a uniform set of standards for individuals and institutions appointed by the courts to act as guardians and conservators. In 1996, the Standards of Practice were revised and expanded to include a Code of Ethics and Bill of Rights for wards and protected persons. These are to be the yardstick by which we will measure the quality of our performance.
The Standards of Practice and Code of Ethics were developed to address the behaviors, practices, and philosophies of acting guardians and conservators. It is assumed that the original appointment of the guardian or conservator was appropriate, accurate, and procedurally conducted in accordance with Minnesota Statutes Chapter 524.
Guardians and conservators benefit wards and protected persons so they may experience life to their fullest potential and maintain self-esteem. By the establishment of a guardianship and/or conservatorship, the court appointed decision-maker is empowered to care for and protect the rights of the ward or protected person. The guardian/conservator is diligent in advocating rights for the benefit of the ward or protected person and in preventing abuse, exploitation, or self-neglect. The courts monitor the actions of the guardian and conservator. Guardians are responsible for the personal affairs of the ward as the courts direct. Conservators are responsible for the financial affairs of protected persons as the courts direct.
The ward/protected person is included in the decision-making process. Additionally, the guardian/conservator shall consult the family, medical and social histories, and past lifestyle to attain a sense of the ward/protected person’s moral, ethical, and spiritual values, as well as fully considering the risks, benefits and alternatives of decisions. In making any decision, the guardian or conservator shall fully consider the risks, benefits, and available alternatives.
Minnesota law employs a “best interest” standard for decision-making and is silent on the model of “substituted judgment” with the exception of two specific instances relating to court approved estate planning and health care directives where the law does consider substituted judgment. MAGiC takes the position that substituted judgment is the higher standard of decision-making and emphasizes the importance of following the ward/protected person’s known wishes as expressed while capacitated, when these wishes do not cause harm to the ward/protected person. If the ward/protected person’s wishes were never known or expressed when capacitated, or if the decision would be likely to cause significant harm to that individual, the guardian/conservator shall then make decisions in the best interest of the individual. Best interest requires that the guardian/conservator consider the least intrusive, most normalizing, and least restrictive course of action to provide for the needs of the ward/protected person and includes consideration of the individual’s current and previous wishes.
The guardian/conservator is an officer of the court and is subject to the direction of the court at all times and in all things related to the guardianship/conservatorship.
A guardian or conservator has only those powers necessary to provide for the demonstrated needs of the ward or protected person. The guardian or conservator shall make decisions in a manner that limits civil rights and restricts personal freedoms only to the extent necessary to provide needed care and services.
The court appointed decision-maker is responsible to protect the rights and pursue relief on behalf of the ward or protected person. The court appointed decision-maker is to safeguard and aggressively pursue protection of the ward or protected person’s interests. If actions by providers of services do not meet the individual needs of the ward or protected person, the guardian/conservator is to take appropriate legal or administrative action on behalf of the ward or protected person, including, but not limited to, the following:
Determine that the individual’s legal rights are protected.
Take appropriate action when necessary or when the individual’slegal rights are abridged.
Initiate appropriate avenues for relief including, but not limited to, administrative appeals or civil action. Relief includes, but is not limited to, redress of abuse.
The Guardian/Conservator’s Relationship with The Ward/Protected Person
The guardian/conservator’s primary responsibility is to the ward/protected person.
The guardian/conservator shall exercise extreme care and diligence when making decisions on behalf of the ward/protected person.
The guardian/conservator shall recognize and respect a ward/protected person’s political, religious, and moral beliefs. A guardian/conservator shall not impose his or her own such beliefs on the ward/protected person in interactions with, or in decision-making for, the individual.
The guardian/conservator shall act as an advocate to protect the civil rights and liberties of the ward/protected person. The guardian/conservator shall maximize opportunities for growth, independence, self-determination, and dignity.
The guardian/conservator shall strive to develop a trusting, accessible relationship with the highest level of communication possible with the ward/protected person, family, and other significant persons.
The guardian/conservator shall perform duties with the highest level of integrity, confidentiality, and respect for the unique qualities of the individual ward/protected person.
The guardian/conservator shall not discriminate against a ward/protected person on the basis of age, sex, race, national origin, religion, disability, political affiliation, sexual orientation, economic position, choice of lifestyle, or on any other basis.
The guardian/conservator shall not engage in any sexual relationship with a ward/protected person, or a ward/protected person’s family members.
The guardian/conservator shall scrupulously avoid any actual or appearance of conflict of interest, impropriety, or self-dealing which may further the guardian/conservator’s personal, religious, political, or outside business interests in relations with the ward/ protected person or the ward/protected person’s estate.
The guardian/conservator shall accept professional fees as the total compensation for services. The guardian/conservator, or the guardian/conservator’s associates and families shall not profit from providing housing, care, medical or social service to the ward/protected person.
The guardian/conservator shall not sell or profit from the sale of any guardianship/ conservatorship to a successor guardian/conservator.
The conservator shall manage the estate of the protected person with prudence, care, judgment, and fiduciary integrity.
The guardian/conservator shall perform duties in the least restrictive form of intervention available, recognizing that the ward/protected person retains all rights not granted to the conservator.
The guardian/conservator shall, at all times, bear in mind the ward/protected person’s right to be restored to capacity. The guardian/conservator shall assist the ward/protected person to achieve the highest level of independence.
Conduct as a Guardian or ConservatorThe guardian/conservator shall maintain high standards of personal conduct in the capacity and identity as guardian or conservator.
The guardian/conservator shall strive to become and remain proficient in professional practice and the performance of professional practice.
The guardian/conservator shall take responsibility for identifying, developing, and utilizing available knowledge necessary for professional practice.
The guardian/conservator shall comply with all statutory requirements, and be knowledgeable and informed about local, state, and federal laws and policies in the provision of service and in obtaining resources for the ward or protected person.
The Guardian/Conservator and the ProfessionThe guardian/conservator shall treat colleagues with respect, courtesy, fairness, and good faith.
The guardian/conservator shall uphold and advance the values, ethics, and knowledge of the profession.
II. STANDARDS APPLICABLE TO ALL GUARDIANS/CONSERVATORS
- General Standards for Consent Determination
When decisions are made pursuant to guardianship or conservatorship, the guardian/conservator shall consider the following:
- That no less restrictive alternatives exist, and;
- That the benefit and potential harm to the ward/protected person has been weighed, and;
- That the desires of the ward/protected person have been considered, and;
- That community integration is considered whenever reasonably possible, and;
- That reasonable efforts have been made to obtain the opinions of the relatives and other involved individuals.
- Vulnerable Adults Act
Pursuant to Minn. Stat. Section 626.5572, Subd.16, a guardian/conservator is a person engaged in the care of a vulnerable adult and is subject to the reporting requirements of the Vulnerable Adults Act (Minn. Stat. Section 626.557) in the event of concerns of maltreatment. Further, the guardian/conservator shall consider him or herself a mandated reporter.
- Ward’s Rights after Guardianship/Conservatorship Appointment
Right to Appeal
STATUTE: Minn. Stat. Section 524.5-310(e) Each year, within 30 days after an appointment, a guardian shall send or deliver to the ward a notice of the right to request termination or modification of the guardianship.
STATUTE: Minn. Stat. Section 524.5-409(e) Each year, within 30 days after the anniversary date of an appointment, a conservator shall send or deliver to the protected person a notice of the right to request termination or modification of the conservatorship.Right to Petition for Restoration
STATUTE: Minn. Stat. Section 524.5-310(e) Each year, within 30 days after an appointment, a guardian shall send or deliver to the ward a notice of the right to request termination or modification of the guardianship.
STATUTE: Minn. Stat. Section 524.5-409(e) Each year, within 30 days after the anniversary date of an appointment, a conservator shall send or deliver to the protected person a notice of the right to request termination or modification of the conservatorship.
Annually the guardian/conservator must give notice to the ward/protected person of the right to petition for restoration to capacity, discharge of the guardian or conservator, or modification of the guardianship or conservatorship order.
Annually the guardian/conservator must file with the court an affidavit of mailing the Annual Notice of Rights to the ward/protected person.
- Modification of Guardianship/Conservatorship
A guardian/conservator shall petition for modification of the guardianship/conservatorship when the condition of the ward/protected person changes such that fewer or additional powers are required.
The guardian/conservator shall support that ward/protected person at the highest level of functioning in any action to modify or terminate the guardianship/conservatorship.
- Guardian/Conservator Fees
STATUTE: 524.5-502 COMPENSATION AND EXPENSES. (c) When the court determines that a guardian or conservator has rendered necessary services or has incurred necessary expenses for the benefit of the ward or protected person, the court may order reimbursement or compensation to be paid from the estate of the protected person or from the county having jurisdiction over the guardianship or protective proceeding if the ward or protected person is indigent…(d) The court shall order reimbursement or compensation if the guardian or conservator requests payment and the guardian or conservator was nominated by the court or by the county adult protection unit because no suitable relative or other person was available to provide guardianship or protective proceeding services necessary to prevent maltreatment of a vulnerable adult…
A guardian/conservator shall bear in mind at all times the responsibility to conserve the estate when making decisions regarding the provision of guardianship/ conservatorship services, including when determining their fees.
Factors to be considered in determining reasonableness of the guardian/conservator’s fee include the following:
Powers and responsibilities of the guardian/conservator.
Necessity of the services.
Time and labor required.
Difficulty of the situation involved.
Skill and experience required to properly carry out the duty.
Needs of the ward/protected person.
Costs of alternatives.
Fees or expenses charged by a guardian/conservator shall be documented through billings maintained by the guardian/conservator in the form of time records. Time records shall clearly and accurately state:
Time spent on a task.
Duty performed.
Expenses incurred.
Collateral contacts involved.
Identification of individual who performed the duty (e.g., guardian/conservator, staff, volunteer).
Guardians/conservators shall not bill for fees incurred or staff time required in transmitting data or responsibilities between a guardian/conservator’s staff or within a corporation.
III. DUTIES OF GUARDIAN
STATUTE: Minn. Stat. Section 524.5-313(c) The court may appoint a guardian if it determines that all the powers and duties listed in this section are needed to provide for the needs of the incapacitated person. The court may also appoint a guardian if it determines that a guardian is needed to provide for the needs of the incapacitated person through the exercise of some, but not all, of the powers and duties listed in this section. The duties and powers of a guardian or those which the court may grant to a guardian include, but are not limited to:
- Custody and Abode
STATUTE: Minn. Stat. Section 524.5-313(c)(1) the power to have custody of the ward and the power to establish a place of abode within or outside the state, except as otherwise provided in this clause. The ward or any interested person may petition the court to prevent or to initiate a change in abode. A ward may not be admitted to a regional treatment center by the guardian except:
(i) after a hearing under chapter 253B;
(ii) for outpatient services; or
(iii) for the purpose of receiving temporary care for a specific period of time not to exceed 90 days in any calendar year;
The guardian has custody of the ward and may determine place of abode.
Exception: The ward may not be admitted to any regional treatment center except pursuant to the provisions of Minn. Stat. Section 253B, the Minnesota Commitment Act of 1982.
The guardian shall carefully monitor the living situation of the ward. The following factors should be examined and evaluated:
Whether the living arrangements provide the most appropriate and least restrictive living arrangements available.
The ward's prior lifestyle and present satisfaction with the living arrangements.
Whether the living arrangements meet the needs of the ward with minimal intrusion on the privacy and autonomy of the ward. In making this determination, the following criteria shall be considered:
(1) The state of repair, cleanliness, and safety of the abode. (2) The availability of needed support systems. Support systems include, but are not limited to, the help and care given by family, friends, and church and community organizations. Professional services such as in-home services, medical and psychological services, and transportation needs should be considered. (3) The planning process. The guardian shall participate with appropriate community health care resources in establishing and effecting an appropriate plan. The plan shall consider the availability of support services, physical therapy, occupational therapy and counseling, and educational and recreational opportunities. The financial aspects of all moves must be carefully weighed. (4) The quality of life offered by the living environment. In making this determination, consideration should include, but is not limited to:
(a) The availability of recreational, educational, and productive activities, especially individually designed activities. (b) The atmosphere and physical condition of the living situation, such as cleanliness, safety, availability of windows and light, accessibility to the outdoors, setting and surroundings in which the residence is located, upkeep of the buildings, furnishings, etc. (c) The quality of personal and medical care provided. (d) The presence of personal items of comfort, sentiment, and familiarity. CAUTION: Muscala v. Wirties, 310 N.W.2d 696 (Minn. 1981). A guardian moving a ward from the homestead for more than six months must file a Notice of Intent to Return with the County Assessor’s Office if the homestead exemption is to be preserved. Minn. Stat. Section 510.07
CAUTION: Any person may petition the court to initiate a residence change. This option is available to offset abuses by the guardian. A corollary is that absent an objection to the court, the guardian can control the residence, even against the wishes of the ward.
- Care, Comfort, and Maintenance
STATUTE: Minn. Stat. Section 524.5-313(c)(2) the duty to provide for the ward's care, comfort, and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements, and, whenever appropriate, training, education, and habilitation or rehabilitation. The guardian has no duty to pay for these requirements out of personal funds. Whenever possible and appropriate, the guardian should meet these requirements through governmental benefits or services to which the ward is entitled, rather than from the ward's estate. Failure to satisfy the needs and requirements of this clause shall be grounds for removal of a private guardian, but the guardian shall have no personal or monetary liability;
The guardian shall have meaningful visits with the ward no less than once a month. but as often as necessary to ensure the ward's well-being. In addition, the guardian shall have at least one other communication with, the ward s significant others, care professionals, or interested parties to remain current on the ward's status. In some cases it may be necessary to meet with the ward and care providers separately to properly assess situations.
A meaningful visit shall consist of, but is not limited to, the following activities:
(1) Communication with the ward. In this communication, the guardian shall make every effort to ascertain the ward's attitude toward the living situation, the current status, needs, and desires of the ward. (2) Assessment of the ward's physical appearance and psychological and emotional state, change in weight, injury, grooming, and assessment of personal items such as clothing and personal care items.
Other communication as required by circumstances may include, but is not limited to:
(1) Regular communication with care providers. Where applicable, this may include conversations with physicians, psychologists, nurses, social workers, chaplain/clergy, physical or occupational therapists, teachers, and residential staff. The guardian should make a reasonable effort to attend and participate in care conferences concerning the ward. (2) Examination of records kept regarding the ward.
(3) Assessment of the appropriateness of maintaining the ward in the current living situation including that the ward is receiving appropriate programming and treatment. (4) Regular, proactive communication with family and other significant persons regarding changes in emotional status, care, abode, medical condition, and any other condition, whenever the health and safety of the ward would not be jeopardized by such communication. The guardian shall be available to the ward and/or interested parties for routine and emergency communications. For routine matters, response will be in a reasonable time frame to address the issue.
The guardian shall actively promote the care, comfort, and maintenance of the ward by:
Promoting individualized care planning reflecting previous lifestyle, including but not limited to hobbies, social activities, employment and volunteer interests, family, and community involvements;
Gaining thorough knowledge of the ward's current diagnosis and care; and
Reporting changes in condition to care providers, family, and other significant persons.
The guardian shall keep a written summary of visits and other communication related to the guardianship.
The guardian shall know the religious faith and church affiliation of the ward and assist the ward in maintaining participation, as desired.
The guardian shall arrange for the ward to receive personal services.
If the ward moves, the guardian shall facilitate the move so that the ward's personality and life style will be reflected in the new environment.
The guardian shall monitor and evaluate services by reviewing information from providers and others.
The guardian shall obtain sufficient knowledge of the ward as is reasonably possible to make appropriate decisions on the ward's behalf.
The guardian shall utilize knowledge of the service entitlements and service availability in order to plan for individual needs of the ward and to assist in representing the ward.
The guardian shall take appropriate action to safeguard that county agencies and providers exercise and implement responsibilities in a manner consistent with the least restrictive alternative.
The guardian shall pursue services for the ward that will enable the ward to grow and to develop personally and intellectually.
The guardian shall pursue steps toward utilization of community-based services on behalf of the ward.
The guardian shall obtain knowledge of entitlement programs on behalf of the ward and aggressively pursue the benefits of those programs.
- Care of Personal Effects
STATUTE: Minn. Stat. Section 524.5-313(c)(2) the duty to provide for the ward's care, comfort, and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements, and, whenever appropriate, training, education, and habilitation or rehabilitation. The guardian has no duty to pay for these requirements out of personal funds. Whenever possible and appropriate, the guardian should meet these requirements through governmental benefits or services to which the ward is entitled, rather than from the ward's estate. Failure to satisfy the needs and requirements of this clause shall be grounds for removal of a private guardian, but the guardian shall have no personal or monetary liability;
Personal property should be appraised and secured. The statute states "reasonable care" must be taken. The risk of a ward's loss of personal belongings by gift, theft, or otherwise, must be balanced with depriving the ward of wanted personal items.
A ward's stored personal items shall be carefully inventoried and labeled and be identifiable as separate from the belongings of any other individual.
Personal property no longer needed by the ward may be disposed of in numerous ways. including sale, donation, and refuse. The ward and other interested persons are is informed of the intended disposition by a written notice. If objections are received, there must be a hearing prior to the disposition of the property.
CAUTION: Property referred to in the ward's will requires special consideration. An attorney should be consulted before disposal of such property.Family pictures, items of sentimental or religious value, and items of personal property may be stored when it is not appropriate for the ward to retain such items in the living environment.
- Consent to Medical Treatment
STATUTE: Minn. Stat. Section 524.5-313(c)(4)(i) The power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment, or service, except that no guardian may give consent for psychosurgery, electroshock, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the court as provided in this clause. The guardian shall not consent to any medical care for the ward which violates the known conscientious, religious, or moral belief of the ward.
(ii) a guardian who believes a procedure described in item (i) requiring prior court approval to be necessary for the proper care of the ward, shall petition the court for an order and, in the case of a public guardianship under chapter 252A, obtain the written recommendation of the commissioner of human services. The court shall fix the time and place for the hearing and shall give notice to the ward in such manner as specified in section 524.5-308 and to interested persons. The court shall appoint an attorney to represent the ward who is not represented by counsel, provided that such appointment shall expire upon the expiration of the appeal time for the order issued by the court under this section or the order dismissing a petition, or upon such other time or event as the court may direct. In every case the court shall determine if the procedure is in the best interest of the ward. In making its determination, the court shall consider a written medical report which specifically considers the medical risks of the procedure, whether alternative, less restrictive methods of treatment could be used to protect the best interest of the ward, and any recommendation of the commissioner of human services for a public ward. The standard of proof is that of clear and convincing evidence. (iii) In the case of a petition for sterilization of a mentally retarded ward, the court shall appoint a licensed physician, a psychologist who is qualified in the diagnosis and treatment of mental retardation, and a social worker who is familiar with the ward's social history and adjustment or the case manager for the ward to examine or evaluate the ward and to provide written reports to the court. The reports shall indicate why sterilization is being proposed, whether sterilization is necessary and is the least intrusive method for alleviating the problem presented, and whether it is in the best interest of the ward. The medical report shall specifically consider the medical risks of sterilization, the consequences of not performing the sterilization, and whether alternative methods of contraception could be used to protect the best interest of the ward.
(iv) Any ward whose right to consent to a sterilization has not been restricted under this section or section 252A.101 may be sterilized only if the ward consents in writing or there is a sworn acknowledgment by an interested person of a nonwritten consent by the ward. The consent must certify that the ward has received a full explanation from a physician or registered nurse of the nature and irreversible consequences of the sterilization.
(v) A guardian or the public guardian's designee who acts within the scope of authority conferred by letters of guardianship under section 252A.101, subdivision 7, and according to the standards established in this chapter or in chapter 252A shall not be civilly or criminally liable for the provision of any necessary medical care, including, but not limited to, the administration of psychotropic medication or the implementation of aversive and deprivation procedures to which the guardian or the public guardian's designee has consented.
STATUTE: Minn. Stat. Section 524.5 315 (c) A guardian, without authorization of the court, may revoke the appointment of an agent of a health care directive of which the ward is the principal, but the guardian may not, absent a court order, revoke the health care directive itself. If a health care directive is in effect, absent an order of the court to the contrary, a health care decision of the guardian takes precedence over that of an agent.
Health care definitions and principles
"Consent" is the principle that every competent person has the right to decide what can or cannot be done to their own body.
"Informed consent" is the principle that a consent is valid only if the person understands the nature of the treatment, including risks, benefits, and alternatives and is capable of deciding which alternative is in that person's best interest. Informed consent includes the following:
(1) The person is able to receive and assimilate relevant information. (2) The person has the capacity to reason and to understand relevant information and to make decisions based upon the relevant information.
(3) The consent is given voluntarily and without coercion (4) The person understands the nature of the diagnosis, the prognosis, and the current clinical condition. (5) The person understands risks and benefits of all treatment alternatives including risks and benefits of no treatment. "Health care" encompasses physical and mental health.
"Treatment" includes medical or other professional care, counsel, service, or intervention.
The standard for health care and treatment consents under guardianship is informed consent.
Criteria and procedures for making an informed health care decision: (Note: The following process may be abbreviated during medical emergencies or routine/preventative care.)
Only a guardian with court-appointed authority may consent to or refuse health care and treatment for the ward.
The guardian's decisions will comply with applicable state and federal laws and rules. The guardian should be aware of any pertinent institutional policies and procedures related to health care decision-making.
The guardian shall review and evaluate the information necessary to exercise informed consent, including:
(1) Ward's health care records; (2) The professional opinion of the treating physician(s) and involved health-care professionals;
(3) The ward's diagnosis, prognosis, and current clinical condition;
(4) Reasons for the treatment; (5) Benefits of the treatment;
(6) Possible risks and side effects of the treatment; (7) Possible alternative procedures, as well as risks and benefits; and
(8) The consequences if consent for the treatment is not given. Obtain a second medical opinion for any treatment, as indicated.
Solicit opinions of other professionals as indicated (e.g., nurse, psychiatrist, psychologist, social worker, advocate, clergy, occupational therapist, physical therapist, biomedical ethics committee, other medical professionals, etc.) A broad range of perspectives may reduce the possibility of personal biases entering the decision-making process.
Inform the ward of the diagnosis, prognosis, proposed treatment, and the risks, benefits, and alternatives of the proposed treatment, including no treatment, as well as common medical and psychological results of any treatment or alternative.
(1) This information must be given in the form in which the ward communicates and understands (e.g., native language, written communication, sign language, hearing aid devices, etc.) (2) If documented by the attending physician to be medically inadvisable, specific medical information need not be given.
(3) The ward has the right to refuse to receive medical information.
Solicit the opinion of the ward regarding the treatment and consider:
(1) The current statements of the ward;
(2) Prior statements of the ward including, but not limited to, health care directive, living will, durable power of attorney for health care, or any other oral or written declarations of intent. NOTE: The guardian may revoke the appointment of a health care agent, but absent a court order, the guardian may not violate the health care directive itself.
(3) Known conscientious, religious, or moral beliefs of the ward.
As appropriate, make reasonable efforts to inform and solicit information from the family and/or significant others.
CAUTION: Be sensitive to confidentiality issues.Consult with the guardian's attorney, as appropriate, especially when there are objections, questions, controversy, family disagreement, significant issues, or remaining doubts.
Document the decision-making process in the guardian's record. Obtain copies of appropriate documents, including all consent. Request that the medical record contain adequate documentation of the decision-making process.
Review the ward's health insurance coverage, including benefits, authorized services, authorized providers, and appeal procedures. Check for coverage of needed services.
Seek court intervention when necessary or required.
Health care treatment decisions shall not be based on discrimination due to the ward's status, condition, or disability
Neuroleptic Medications: The guardian must determine what medication(s) the ward is receiving. If any neuroleptic medication is being received, or is proposed, the guardian must do the following:
Follow informed health care decision criteria and procedures as described above.
Evaluate whether there exists a psychiatric diagnosis that is drug-responsive.
Determine exactly what the proposed medication is, including dosage and normal range of dosage for the ward's age and diagnosis.
Evaluate whether there are identifiable and measurable behaviors, supported by the observation of baseline data, that are targeted to be affected by the medication.
Determine that other (non-psychiatric) causes for the behavior have been ruled out and that other interventions have been tried or ruled out prior to the suggestion of neuroleptic medication.
Determine that the potential benefits of the medication are worth the potential risks and side effects.
Evaluate that there is a specific, adequate plan for monitoring and review of the medications and targeted behavior.
Determine that the medication is being used for appropriate reasons, not as a substitute for staff coverage or as punishment.
If the ward refuses to take the medications, seek legal counsel.
Exceptions:
The guardian shall not consent to psychosurgery, electro-shock, sterilization, or experimental treatment of any kind without court approval.
The guardian shall not consent to any health care that violates the known conscientious, religious, or moral beliefs of the ward without court approval.
When clear and reliable evidence of the ward's wishes regarding health care, counsel, treatment, or service are known to have been expressed prior to incapacity, the guardian s decisions shall not violate these known wishes without court approval.
- Financial - When There Is No Conservator
STATUTE: Minn. Stat. Section 524.5-313(c)(5) In the event there is no duly appointed conservator of the ward's estate, the guardian shall have the power to approve or withhold approval of any contract, except for necessities, which the ward may make or wish to make
STATUTE: Minn. Stat. Section 524.5-313(c)(7) If there is no acting conservator of the estate for the ward, the guardian has the power to apply on behalf of the ward for any assistance, services, or benefits available to the ward through any unit of government.
- Supervisory Authority
STATUTE: Minn. Stat. Section 524.5-313(c)(6) The duty and power to 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
The power to exercise supervisory authority over the ward can include the power to consent or withdraw consent to marriage if the court finds the ward "incapacitated with respect to choosing a spouse." See In Re Guardianship of Mikulanec, 356 N.W. 2d 683 (Minn. 1984)
- Annual Report of Personal Well-Being
STATUTE: Minn. Stat. Section 524.5-316 (a) A guardian shall report to the court in writing on the condition of the ward at least annually and whenever ordered by the court. A report must state or contain:
(1) the current mental, physical, and social condition of the ward;
(2) the living arrangements for all addresses of the ward during the reporting period;
(3) the medical, educational, vocational, and other services provided to the ward and the guardian's opinion as to the adequacy of the ward's care; and
(4) a recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship.
STATUTE: Minn. Stat. Section 534.5-308 (d) The guardian shall give notice of the filing of the guardian's report, together with a copy of the report, to the ward and any other person the court directs. The notice must be sent or delivered within 14 days after the filing of the report.
The guardian will ensure the annual report is given to the ward as well as to the court.
- Immunities of Guardian; Limitations
STATUTE: Minn. Stat. Section 524.5-315 (b) A guardian is not liable to a third person for acts of the ward solely by reason of the relationship. A guardian who exercises reasonable care in choosing a third person providing medical or other care, treatment, or service for the ward is not liable for injury to the ward resulting from the wrongful conduct of the third person
IV. DUTIES OF THE CONSERVATOR
STATUTE: Minn. Stat. Section 524.5-417(c) The court may appoint a conservator of the estate if it determines that all the powers and duties listed in this section are needed to provide for the needs of the protected person. The court may also appoint a conservator if it determines that a conservator is necessary to provide for the needs of the protected person through the exercise of some, but not all, of the powers and duties listed in this section. The duties and powers of a conservator include, but are not limited to:V. Actions Requiring Court Approval
- Pay Reasonable Charges STATUTE: Minn. Stat. Section 524.5-417(c)(1): The duty to pay the reasonable charges for the support, maintenance, and education of the protected person in a manner suitable to the protected person's station in life and the value of the estate. Nothing herein contained shall release parents from obligations imposed by law for the support, maintenance, and education of their children. The conservator has no duty to pay for these requirements out of personal funds. Wherever possible and appropriate, the conservator should meet these requirements through governmental benefits or services to which the protected person is entitled, rather than from the protected person's estate. Failure to satisfy the needs and requirements of this clause shall be grounds for removal, but the conservator shall have no personal or monetary liability
Billings should issue in the name of the protected person and all documents signed by the conservator on behalf of the protected person should indicate that relationship, to prevent incurring personal liability.
The conservator has the duty to pay reasonable charges on behalf of the protected person. This obligates the conservator to determine reasonable charges.
Charges for support and maintenance include, but are not limited to:
CAUTION: If there is no guardian, the responsibility for obtaining these services may fall to the conservator by default.
Housing and related expenses, personal living expenses.
Necessary withholding, unemployment taxes, and workers' compensation premiums for employees of the protected person.
Medical services rendered. File all related insurance documents.
- Pay All Just and Lawful Debts STATUTE: Minn. Stat. Section 524.5-417(c)(2): The duty to pay out of the protected person s estate all just and lawful debts of the protected person and the reasonable charges incurred for the support, maintenance, and education of the protected person s spouse or dependent children and, upon order of the court, pay such sum as the court may fix as reasonable for the support of any person unable to earn a livelihood who is legally entitled to support from the protected person;
Statute: Minn. Stat. Section 524.5-427
(a) …a conservator may expend or distribute income or principal of the estate of the protected person without further court authorization or confirmation for the support, care, education, health, and welfare of the protected person and individuals who are in fact dependent on the protected person, including the payment of child or spousal support, in accordance with paragraphs (b) to (e).
(b) The conservator shall consider recommendations relating to the appropriate standard of support, care, education, health, and welfare for the protected person or an individual who is in fact dependent on the protected person made by a guardian, if any, and, if the protected person is a minor, the conservator shall consider recommendations made by a parent.
(c) The conservator may not be surcharged for money paid to persons furnishing support, care, education, or benefit to the protected person or an individual who is in fact dependent on the protected person pursuant to the recommendations of a parent or guardian of the protected person unless the conservator knows that the parent or guardian derives personal financial benefit therefrom, including relief from any personal duty of support, or the recommendations are not in the best interest of the protected person.
(d) In making distributions under this section, the conservator shall consider:
(1) the size of the estate, the estimated duration of the conservatorship, and the likelihood that the protected person, at some future time, may be fully self-sufficient and able to manage business affairs and the estate; (2) the accustomed standard of living of the protected person and individuals who are in fact dependent on the protected person; and (3) other money or sources used for the support of the protected person.
(e) Money expended under this section may be paid by the conservator to any person, including the protected person, to reimburse for expenditures that the conservator might have made or in advance for services to be rendered to the protected person if it is reasonable to expect the services will be performed and advance payments are customary or reasonably necessary under the circumstances.
Determine tax status and file returns.
The conservator shall make a reasonable effort to pay debts in a timely manner.
Guidelines for paying debts and charges of the protected person.
The conservator shall make a reasonable effort to pay debts in a timely manner.
The conservator shall consider recommendations relating to the appropriate standards of care.
The conservator may not be surcharged for the monies paid to those furnishing services to the protected person pursuant to a recommendation of a guardian unless the conservator knows that the guardian received a personal financial benefit from the services or the recommendation was not in the best interest of the protected person.
In making distributions, the conservator shall consider, among other things, the following:
the size of the estate,
the expected duration of the conservatorship,
the accustomed standard of living of the protected person
other monies available for the protected person's support
Guidelines for paying charges for the protected person's spouse, child, or other dependent:
CAUTION: Obtain court approval before spending the protected person's assets for the benefit of someone other than the protected person, despite the apparent authority given under Minn. Stat. Sec. 524.5-427.
The conservator shall consider the recommendations relating to the appropriate standard of care for the dependent person
The conservator may not be surcharged for the monies paid to those furnishing services to the protected person's spouse, child, or other dependent pursuant to a recommendation of a guardian unless the conservator knows that the guardian received a personal financial benefit from the services or the recommendation was not in the best interest of the protected person's spouse, child, or other dependent.
In making distributions for an individual who is a dependent of the protected person, the conservator shall consider the factors noted in the above statute and in paragraph 3 d. above.
- Financial Management STATUTE: Minn. Stat. Section 524.517(c)(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 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, and 501B.151, 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);
The conservator shall take possession of and secure assets, including any real estate. Property, both occupied and unoccupied, shall be maintained. The conservator shall make reasonable effort to obtain and maintain insurance for all real and personal property.
CAUTION: If there is no guardian, the responsibility for securing and insuring personal property may fall to the conservator by default.The conservator shall investigate and determine all debts and claims in order to pursue collection.
The conservator may, with consent of the court, institute lawsuits and act on behalf of the protected person.
The conservator shall invest all funds, preserving, protecting, and conserving assets and producing as much income as possible with minimal risk to principal.
The conservator has a duty to search out and apply for all governmental benefits for which the protected person may be eligible.
CAUTION: The conservator is a fiduciary, a bonded agent dealing with the funds of another, and as such is subject to fiduciary standards.
- Approval of Contracts Statute: Minn. Stat. Section 524.5-417(c)(5) The power to approve or withhold approval of any contract, except for necessities, which the protected person may make or wish to make;
- Application for Governmental Benefits Statute: Minn. Stat. Section 524.5-417(c)(6) The power to apply on behalf of the protected person for any assistance, services, or benefits available to the protected person through any unit of government.
- Termination of Power of Attorney Statute: Minn. Stat. Section 524.5-417(d) The conservator shall have the power to revoke, suspend, or terminate all or any part of a durable power of attorney of which the protected person is the principal & If a durable power of attorney is in effect, the conservator takes precedence over that of an attorney-in-fact.
- Sale of Real Estate, Leases, Mortgages STATUTE: Minn. Stat. Section 524.5-417(c)(4) Where a protected person has inherited an undivided interest in real estate, the court, on a showing that it is for the best interest of the protected person, may authorize an exchange or sale of the protected person s interest or a purchase by the protected person of any interest other heirs may have in the real estate, subject to the procedures and notice requirements of section 524.5-418
STATUTE: Minn. Stat. Section 524.5-418(a) The court may direct a sale, mortgage, or lease of any real estate of a protected person when the personal property is insufficient to pay debts and other charges against the estate, or to provide for the support, maintenance, and education of the protected person, a spouse, and dependent children, or when it shall determine the sale, mortgage, or lease to be for the best interest of the protected person. The homestead of a protected person shall not be sold, mortgaged, or leased unless the written consent of the spouse has been filed.
STATUTE: Minn. Stat. Section 524.5-418(b) A conservator may file a petition to sell, mortgage, or lease alleging briefly the facts constituting the reasons for the application and describing the real estate involved therein. The petition may include all the real estate of the protected person or any part or parts thereof. It may apply for different authority as to separate parcels. It may apply in the alternative for authority to sell, mortgage, or lease. (1) Upon the filing of such petition, the court shall fix the time and place for the hearing thereof. Notice of the hearing shall be given to interested persons and shall state briefly the nature of the application made by the petition &(2) Upon the hearing, the court shall have full power to direct the sale, mortgage, or lease of all the real estate described in the petition, or to direct the sale, mortgage, or lease of any one or more parcels thereof, provided that any such direction shall be within the terms of the application made by the petition &
STATUTE: Minn. Stat. Section 524.5-418 (b)(5) If a private sale be ordered, the real estate shall be reappraised by two or more disinterested persons under order of the court unless a prior appraisal of the real estate has been made by two or more disinterested persons not more than six months before the sale, which reappraisal shall be filed before the confirmation of the sale. No real estate shall be sold at private sale for less than its value as fixed by such appraisal.
In considering whether it is in the best interests of the protected person to dispose of real or personal property, the conservator shall consider, but is not limited to a consideration of, the following factors:
Impact on the life of the protected person
Future need of or benefit to the protected person
The current desire of the protected person.
The provisions of the protected person s estate plan.
Financial benefit/burden of maintaining the property.
Secure, maintain, and insure occupied and unoccupied property.
Consult an attorney before selling or encumbering any property, real, or personal, or any interest therein to ensure compliance with statutory requirements.
Comply with medical assistance rules when applicable.
For any mortgage or for a lease of real estate for one year or more, the conservator must obtain court approval.
- Transaction Set-Aside STATUTE: Minn. Stat. Section 524.5-417(e) Transaction set aside. If a protected person has made a financial transaction or gift or entered into a contract during the two-year period before establishment of the conservatorship, the conservator may petition for court review of the transaction, gift, or contract. If the court finds that the protected person was incompetent or subject to duress, coercion, or undue influence when the transaction, gift, or contract was made, the court may declare the transaction, gift, or contract void except as against a bona fide transferee for value and order reimbursement or other appropriate relief. This subdivision does not affect any other right or remedy that may be available to the protected person with respect to the transaction, gift, or contract.
STATUTE: Minn. Stat. Section 524.5-417 (f) After the filing of the petition, a certificate of the district court certified to that fact may be filed for record with the Minnesota secretary of state… If a conservator is appointed on the petition, and if the conservatorship order removes or restricts the right of the protected person to transfer property or to contract, then all contracts except for necessaries, and all transfers of personal property, tangible or intangible, including, but not limited to, cash or securities transfers at banks, brokerage houses, or other financial institutions, or transfers of cash or securities, made by the protected person after the filing and before the termination of the conservatorship shall be voidable.
- Inventory STATUTE: Minn. Stat. Section 524.5-419(a): Within 60 days after appointment, a conservator shall prepare and file with the appointing court a detailed inventory of the estate subject to the conservatorship, together with an oath or affirmation that the inventory is believed to be complete and accurate as far as information permits.
The following property shall be included in the inventory:
All encumbrances, liens, and other charges on any item shall be stated. The conservator shall set forth in the inventory the fair market value of all assets listed therein.
(1) real estate, with plat or survey description, and if a homestead, designated as such, (2) furniture and household goods (3) wearing apparel (4) corporation stocks described by certificate numbers (5) mortgages, bonds, notes, and other written evidence of debt, described by name of debtor, recording data, or other identification, (6) all other personal property accurately identified
Conduct a comprehensive search for all assets.
When a separate guardian and conservator are appointed, the guardian shall cooperate with the conservator in completing the inventory of personal property
If there is a need to use legal means to protect assets, notify an attorney.
- Financial Record Keeping STATUTE: Minn. Stat. Section 524.5-419(b) A conservator shall keep records of the administration of the estate and make them available for examination on reasonable request of the court, ward, protected person, or any attorney representing such persons.
Establish a separate conservatorship account to receive all deposits and make all payments.
Maintain a complete and accurate ledger that shows all funds going through the conservatorship account.
Seek approval from the court before making large purchases. An Order to Expend Funds may be obtained ex parte.
CAUTION: Each probate court may have varying definitions of what constitutes a large purchase. large purchase.The conservator may be required to file appropriate accountings with the agencies paying benefits to the protected person.
- Conflicts of Interest STATUTE: Minn. Stat. Section 524.5-423 Any transaction involving the conservatorship estate which is affected by a conflict between the conservator's fiduciary and personal interests is voidable unless the transaction is expressly authorized by the court after notice to interested persons. A transaction affected by a conflict between personal and fiduciary interests includes any sale, encumbrance, or other transaction involving the conservatorship estate entered into by the conservator, the spouse, descendant, agent, or lawyer of a conservator, or corporation or other enterprise in which the conservator has a beneficial interest.
A conservator shall keep conservatorship accounts separate from the conservator's funds at all times.
A conservator shall not borrow funds from, nor lend funds to, the protected person and shall not encumber the protected person's property.
The conservator shall not purchase from the protected person any personal or real property without approval of the court.
The conservator shall not make any gifts out of the protected person's funds without court approval. This includes donations to churches and other charitable organizations.
5. A protected person's funds shall not be used to pay the debts of any party other than the protected person without court approval.
- Claims Against the Protected Person STATUTE: Minn. Stat. Section 524.5-429 Claims Against Protected Person. (a) A conservator may pay, or secure by encumbering assets of the estate, claims against the estate or against the protected person arising before or during the conservatorship upon their presentation and allowance in accordance with the priorities stated in paragraph (d)….
(b) &.A presented claim is allowed if it is not disallowed by written statement sent or delivered by the conservator to the claimant within 60 days after its presentation. The conservator before payment may change an allowance to a disallowance in whole or in part, but not after allowance by a court order or judgment or an order directing payment of the claim….
(d) If it appears that the estate is likely to be exhausted before all existing claims are paid, the conservator shall distribute the estate in money or in kind in payment of claims in the following order:
(1) Costs and expenses of administration; (2) Claims of the federal or state government having priority under other law; (3) Reasonable and necessary medical, hospital, or nursing home expenses of the protected person, including compensation of persons attending the ward, protected person, or respondent; (4) Claims incurred by the conservator for support, care, education, health, and welfare previously provided to the protected person or individuals who are in fact dependent on the protected person; (5) Claims arising before the conservatorship; and (6) All other claims.
(e) Preference may not be given in the payment of a claim over any other claim of the same class, and a claim due and payable may not be preferred over a claim not due….
Upon receiving a claim, the conservator shall act promptly to determine the legitimacy of the presented claim. The conservator may allow or disallow the claim. To disallow a claim, the conservator needs to act within 60 days of its presentment.
If the estate does not have enough assets to pay existing claims, claims should be paid in the following order. All claims within a higher priority must be paid before a claim in a lower priority is paid.
Costs and expenses of administration.
Federal or state government claims having priority.
Medical and nursing home expenses and attendant compensation, if reasonable and necessary.
Claims incurred during the conservatorship related to the protected person or dependents.
Claims arising before the conservatorship.
All other claims.
- Annual Accounting STATUTE: Minn. Stat. Section 524.5-420(a) A conservator shall report to the court for administration of the estate annually unless the court otherwise directs, upon resignation or removal, upon termination of the conservatorship, and at any other times as the court directs …
524.5-420(b) A report must state or contain a listing of the assets of the estate under the conservator s control and a listing of the receipts, disbursements and distributions during the reporting period.
524.5-420(c)… In conjunction with the report, the court may order a conservator to submit the assets of the estate to an appropriate examination to be made in the manner the court directs.
The annual accounting must show all expenditures on behalf of the protected person during that year. The conservator should keep receipts for all purchases so that cancelled checks can be compared to receipts to verify expenditures.
The annual accounting should show all receipts into the conservatorship during the year. The conservator should keep copies of checks or check stubs so that they can be compared to receipts to verify receipts into the conservatorship.
The conservator must make certain that all financial transactions have a documented trail so that if the court requires additional information regarding any of the assets, the information is available.
- Estate Planning By the Conservator Statute: Minn. Stat. Section 524.5-411(a) After notice to affected persons as provided in this section, and after hearing, and upon express authorization of the court, a conservator may:
(1) make gifts; (2) convey, release, or disclaim contingent and expectant interests in property…; (3) exercise or release a power of appointment; (4) create a revocable or irrevocable trust of property of the estate, …, or to revoke or amend a trust revocable by the protected person; (5) …. exercise rights to elect options and change beneficiaries under insurance policies and annuities or surrender the policies and annuities…; (6) exercise any right to exempt property and an elective share in the estate of the protected person's deceased spouse and to renounce or disclaim any interest by testate or intestate succession or by transfer inter vivos; (7) …. exercise rights to elect options and change beneficiaries under any &. retirement plan ….; (8) exercise the power to create, terminate, or alter the beneficial interests and beneficiaries of, a payable on death (POD) account, a transfer on death (TOD) security registration or account, or joint tenancy interests with rights of survivorship; and (9) make, amend, or revoke the protected person's will.
(e) The court, in exercising or in approving a conservator's exercise of the powers listed in paragraph (a), shall consider primarily the decision that the protected person would have made, to the extent that the decision can be ascertained. The court shall also consider:
(1) the financial needs of the protected person and the needs of individuals who are dependent on the protected person for support and the interests of creditors; (2) possible effect on income, estate, gift, inheritance, or other tax liabilities; (3) eligibility for governmental assistance with the goal of avoiding reliance on such programs; (4) the protected person's previous pattern of giving or level of support; (5) the existing estate plan ; (6) the protected person's life expectancy and the probability that the conservatorship will terminate before the protected person's death; (7) whether the protected person's needs can be met from the person's remaining assets after any transfer is made, taking into account the effect of any transfer on eligibility for medical assistance long term care services; and (8) any other factors the court considers relevant.
(g) Notwithstanding the power granted to the conservator by the court under this section, the conservator owes no duty to any person other than the protected person. The conservator shall not be held liable for the exercise or the failure to exercise, or the decision to exercise or the decision to decline to exercise, the powers granted by this section. The conservator, however, may be held liable to the protected person's estate for gross negligence related to the implementation of any action approved by the court under this section.
In considering whether to conduct "estate planning" for the protected person, the conservator first needs to ascertain whether the protected person would have intended to make the estate planning decision. If the protected person's intent cannot be ascertained, the conservator must consider the "best interest" of the protected person in determining whether to proceed with a petition. It will be a rare case in which it is in the "best interest" of the protected person to conduct estate planning that results in reducing the protected person's available assets.
Estate planning decision-making should be made only after consideration is given to the following factors which the court will evaluate in giving its consent:
The financial needs of the protected person and the needs of those who are dependent on the protected person for support and the interest of creditors;
The effect on income, estate, gifts, inheritance or other tax liabilities;
Eligibility for governmental assistance with the goal of avoiding reliance on such programs;
Previous pattern of giving or level of support.
The existing estate plan;
Life expectancy and the probability that the conservatorship will terminate before the protected person s death;
Whether needs can be met from the protected person s remaining assets after any transfer is made, taking into account the effect of any transfer on eligibility for medical assistance long term care services; and
Any other relevant factors.
Despite the fact that the statute gives the conservator the ability to request an order from the court to conduct estate planning for the protected person, the conservator owes no duty to any person other than the protected person. Likewise, the conservator will not be held liable for the exercise or the failure to exercise, or the decision to exercise or the decision to decline to exercise, the powers granted under this statute.
- Delegation of Conservator Functions Statute: Minn. Stat. Section 524.5-426
(a) A conservator may not delegate to an agent or another conservator the entire administration of the estate, but a conservator may otherwise delegate the performance of functions that a prudent person of comparable skills may delegate under similar circumstances.
(b) The conservator shall exercise reasonable care, skill, and caution in:
(1) selecting an agent; (2) establishing the scope and terms of a delegation, consistent with the purposes and terms of the conservatorship; (3) periodically reviewing an agent's overall performance and compliance with the terms of the delegation; and (4) redressing an action or decision of an agent which would constitute a breach of fiduciary duty if performed by the conservator.
(c) A conservator who complies with paragraphs (a) and (b) is not liable to the protected person or to the estate for the decisions or actions of the agent to whom a function was delegated.
(d) In performing a delegated function, an agent shall exercise reasonable care to comply with the terms of the delegation.
(e) By accepting a delegation from a conservator subject to the laws of this state, an agent submits to the jurisdiction of the courts of this state.
The following is a summary of actions by a guardian/conservator which require court approval:
Guardianship
Admitting a ward to a regional treatment center for treatment that exceeds 90 days, except for outpatient services. Minn. Stat. §524.5-313(c)(1)
Disposing of a ward’s personal property after receipt of an objection from a Notice of Intent to Dispose. Minn. Stat. §524.5-313(c)(3)
Consenting to psychosurgery, electroshock, sterilization or experimental treatment of any kind. Minn. Stat. §524.5-313(c)(4)
Revoking a ward’s health care directive (a health care agent can be revoked without court approval). Minn. Stat. §524.5-315(c)
Commitment of a ward to an institution. Minn. Stat. §524.5-315(d)
Conservatorship
Altering the protected person’ s preexisting estate plan, including make gifts; convey, release or disclaim contingent or expectant interests in property; exercise or release a power of appointment; create, revoke or amend a trust; exercise rights to elect options or surrender insurance policies and annuities; alter beneficiary designations; exercise any right to exempt property and an elective share of a deceased spouse’s estate; renounce or disclaim any succession interest or by transfer inter vivos; exercise options or alter beneficiaries of a retirement plan; create, terminate or alter beneficial interests and beneficiaries of a POD account or TOD registration or account or joint tenancy interests; make, amend or revoke a will. Minn. Stat. §524.5-411
Pay support to someone who is unable to earn a livelihood and who is legally entitled to support from the protected person. Minn. Stat.§524.5-418(c)(2)
Compromise claims and debts; institute lawsuits on behalf of the protected person or represent the protected person in any court proceeding. Minn. Stat. §524.5-418(c)(3)
Sell or exchange the protected person’s real estate. Minn. Stat. §524.5-418(c)(4); Minn. Stat. §524.5-418A(a)
Mortgage (or extend an existing mortgage for five or more years) or lease (for one or more years) the protected person’s real estate. Minn. Stat. §524.5-418A(a)
Approve the compensation received for the protected person’s real estate in an eminent domain matter. Minn. Stat. §524.5-418A(e)
Plat the protected person’s real estate. Minn. Stat. §524.5-418A(f)
Convey or lease (for one or more years) real estate to which the protected person is legally bound to make. Minn. Stat. §524.5-418A(g)
Enter into transactions affected by a conflict between the conservator’s fiduciary interests and the conservator’s personal interests. (A transaction affected by a conflict includes any sale, encumbrance or other transaction involving the conservatorship estate entered into by the conservator, or the conservator’s spouse, descendant, agent, lawyer or a corporation or enterprise in which the conservator has a beneficial interest.) Minn. Stat. §524.5-423
Caution: The probate court may require court approval for additional actions, such as making expensive purchases.
VI. MODIFICATION AND TERMINATION OF GUARDIANSHIP/CONSERVATORSHIP
STATUTE: 524.5-317 TERMINATION OR MODIFICATION OF GUARDIANSHIP.
(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.
(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.
STATUTE: 524.5-431 TERMINATION OF PROCEEDINGS [of Conservatorship]
(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.
(c) On petition of any person interested in the protected person's welfare, the court may terminate the conservatorship if the protected person no longer needs the assistance or protection of a conservator. Termination of the conservatorship does not affect a conservator's liability for previous acts or the obligation to account for funds and assets of the protected person.
(d) Except as otherwise ordered by the court for good cause, before terminating a conservatorship, the court shall follow the same procedures to safeguard the rights of the protected person that apply to a petition for conservatorship. Upon the establishment of a prima facie case for termination, the court shall order termination unless it is proved that continuation of the conservatorship is in the best interest of the protected person.
(e) Upon termination of a conservatorship, whether or not formally distributed by the conservator, title to assets of the estate remains vested in the formerly protected person or passes to the person's successors subject to administration, including claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption. The order of termination must provide for expenses of administration and direct the conservator to execute appropriate instruments to evidence the transfer of title or confirm a distribution previously made and to file a final report and a petition for discharge upon approval of the final report.
(f) The court shall enter a final order of discharge upon the approval of the final report and satisfaction by the conservator of any other conditions placed by the court on the conservator's discharge.
STATUTE: 524.5-428 Death of a Protected Person.
(a)If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into the conservator’s possession, inform the personal representative named in the will of the delivery, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto.
A guardian/conservator or ward/protected person may petition at any time for modification of the guardianship/conservatorship.
A guardian/conservator shall petition for modification of the guardianship/ conservatorship when the condition of the ward/protected person changes such that fewer or additional powers are required.
A guardian/conservator shall support the ward/protected person at the highest level of functioning in any action to modify or terminate the guardianship/conservatorship.
A guardian/conservator's powers shall end upon death of the ward/protected person, termination of the guardianship/conservatorship, or the appointment of a successor guardian/conservator.
A conservator shall be relieved of conservatorship responsibilities when a final account is allowed by the court and a discharge petition granted.
Upon the death of the ward/protected person, the guardian/conservator should do the following:
CAUTION: In many cases there is no one able to assume responsibility for overseeing funeral arrangements, and this may fall to the guardian/conservator by default.
Deliver to the court any will of the deceased ward/protected person and inform the named personal representative of the delivery.
Retain the ward/protected person s estate for delivery to the duly appointed personal representative or others entitled to it.
Notify any agency providing benefits to the ward/protected person of the death.
Acknowledgments
Special thanks to the following for their contributions to this document:
1991 MAGiC Standards Committee:
Kris Maser, Chair
Dana M. Brandt
Kathleen Connelly
Jim Doran
Karen Dove
Mary Gooderl
Terry Larpenteur
Peggy Lane
Mary McGurran
Joseph Morse
Pat Murphy
Mary Lou Ruegsegger
Michael Ruegsegger
Jill Slaikeu
Jan Smith
Shawn M. Taylor
Evelyn Van Allen
Marc Wagner
Craig Wilson
1991 Executive Board Members
1996 Ad Hoc Standards Revision Committee:
Anita Raymond-Wrage
Joyce Velte
Mary WatsonAdditional Contributions by:
Allan Lynk
Mary McGurran
1996 Executive Board Members2000 Ad Hoc Standards Revision Committee:
Toni Chapman, Standards Chair
Mary McGurran
Anita Raymond
Kathy Shemon
Shawn TaylorAdditional Contributions by:
2000 Executive Board Members2003-2004 Standards Committee
Toni Chapman
Marilyn Klug
Mary McGurran
Anita Raymond
Mary Watson
© 2004 Minnesota Association for Guardianship & Conservatorship