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The Who(s) and What(s) of Establishing Guardianship and Conservatorship: First Steps to Filing a Petition

December 4, 2018

We’ve previously discussed what types of consideration should be given before deciding that a guardianship and/or a conservatorship is an appropriate avenue to pursue when caring for an incapacitated or incompetent adult. If you missed that blog post, you can read it here.

 

Once it is determined that there is no less restrictive alternative available, the next step is to initiate guardianship and conservatorship proceedings with the court, the first piece of which is to begin gathering information to include in the petition.

 

Who Can (and Should) Petition for Guardianship or Conservatorship?

 

Minnesota law provides that anyone may be the petitioner for guardianship and conservatorship, assuming that person has useful knowledge to start a guardianship and conservatorship. This holds true even if someone like a spouse, child, close relative, or social worker is not the one to commence proceedings. As part of the guardianship/conservatorship petition, the petitioner must state his or her name, address, telephone number, and describe his or her interest in the proceeding and relationship to respondent. The intent here is to always make the court available to protect a person when needed.

 

Who Should be Notified of Guardianship and Conservatorship Proceedings?

 

The purpose of a guardianship and conservatorship proceeding is to protect the ward and protected person and the focus of the proceeding is to determine whether or not the respondent is incapacitated and in need of a guardian to protect the respondent’s person and a conservator to protect the respondent’s property. When determining who should receive notice of the proceedings, the court is looking to give notice to those persons who have useful and accurate information that will assist in providing protection to the respondent. Interested parties may include:

 

  • The respondent’s spouse, if any, or if there is no spouse, the person, if any, with whom the respondent has resided for six months or more;
     

  • The respondent’s adult children, or if none, the respondent’s living parents and adult brothers and sisters, or if none, the respondent’s next-of-kin;
     

  • The administrative head of any institution where the respondent is a patient or resides;
     

  • The respondent’s legal representative; and
     

  • The nominated or proposed guardian and conservator.

 

What are the Reasons for Guardianship and Conservatorship?

 

The allegations in the Petition must support the ultimate court determination that the respondent is an incapacitated person as defined under Minnesota law. These allegations must include:

 

  • The current mental condition and prognosis for the respondent, which often repeats the information found in the physician’s statement;
     

  • Specific examples and facts to support the appointment of a guardian and/or conservator, which may include specific examples of how the respondent cannot provide adequate self-care, how the respondent places himself or herself at risk, or that reflect the respondent’s inability to make informed decisions or manage his or her property or business affairs.

 

What Powers Should be Requested for the Guardian and Conservator?

 

Only the powers requested in the petition can be granted, so it is important to request all powers that may be needed. The purpose of this requirement is to compel the petitioner and the court to carefully consider the least-restrictive alternatives to a general guardianship and conservatorship and to encourage the least possible interference with the respondent’s rights. The statutory powers of a guardian and conservator are listed below:

There are many considerations that go into making a decision as to whether or not to commence guardianship and conservatorship proceedings and gathering information to support a guardianship and conservatorship petition is the first step. The establishment of a guardianship and conservatorship results in significant rights and freedoms being taken away from a respondent and the decision to pursue guardianship and conservatorship should not be taken lightly. If you believe a loved one is in need of guardianship or conservatorship, contact our office or book an appointment online to schedule an initial consultation.

 

 

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