Common Mistakes to Avoid in a Guardianship Case

When an adult becomes unable to manage their own care, there are many decisions to be made, including who is best suited to serve as guardian. Even after someone is appointed to that role, there are potential pitfalls that can snare even the most well-intentioned guardian. If you are considering seeking guardianship of a loved one, you should be aware of these common mistakes to avoid in guardianships.

Choosing a Guardian Based on Convenience

In situations where there is more than one possible choice of guardian, there may be a temptation for family members to choose a guardian based on convenience—for example, the person who lives nearest to the incapacitated person, or the one who has the most free time. There is certainly value to having a guardian who lives in close proximity and is available to serve. But the primary consideration should be whether a proposed guardian has the capacity and skill to take on the responsibilities of a guardian—and, of course, the willingness to do so.

Failing to Provide Accurate and Complete Information

Another of the most common guardianship mistakes is providing incomplete or inaccurate information on the Petition for Appointment for Guardian, or providing insufficient documentation to support the need for a guardianship. The court may need to see medical reports, financial documentation, or other written evidence that the allegedly incapacitated person is truly unable to make their own decisions and manage their personal affairs. It should go without saying that evidence and testimony in a guardianship hearing should also be truthful and accurate.

Providing incomplete or inaccurate information could lead to the dismissal of the petition. Knowingly providing false or misleading information could result in dismissal as well as more serious consequences.

Not Giving Proper Notice to All Interested Parties

Establishing a guardianship and appointing a guardian affects a person’s right to self-determination. As such, the allegedly incapacitated person and other interested parties, such as their spouse, adult children, certain other relatives, and any legal representatives, are entitled to proper notice of guardianship proceedings. Failure to provide notice as required by law is likely to result in dismissal of the petition for guardianship.

Failing to Comply with Court Orders and Reporting Requirements

In Minnesota, guardians must complete certain annual reports and submit other documents to the court concerning the incapacitated person. These include a Personal Well-Being Report, Annual Notice of Rights, Bill of Rights, and Affidavit of Service. These documents can be completed online and must be completed annually within 30 days of the anniversary of the guardian’s appointment.

Certain documents, including Annual Notice of Right to Petition for Termination or Modification, must also be served on the person subject to guardianship. Failure to complete the required documents can result in a guardian being compelled to appear in court to explain the reason for the failure.

Exceeding the Guardian’s Authority

The guardian is granted powers by the court to the extent necessary to protect the well-being of the person who is subject to the guardianship. However, Minnesota law requires guardians to promote the independence and autonomy of that person to the extent possible. One of the common guardianship mistakes for guardians is to make decisions beyond the authority given them by the court. Some powers such as the authority to revoke a healthcare directive of the person subject to guardianship or the authority to consent to medical care that significantly impacts health such as electroconvulsive therapy (ECT) or sterilization require a specific court order.

Not Involving the Incapacitated Person in Decisions

A person subject to a guardianship may lack capacity to make decisions about their living arrangements, medical care, and other personal matters. However, that does not mean that they should not be involved in those decisions to the extent possible. For example, the guardian should seek the incapacitated person’s input and preference regarding decisions if they are able to express their wishes.

Failing to Modify the Guardianship When Appropriate

Unfortunately, some people who need a guardianship, such as those with advancing dementia, will need increasing support and care for the remainder of their lives. But other individuals subject to a guardianship have a condition that will improve, eventually allowing them to become more independent.

One of the mistakes to avoid in a guardianship case is the assumption that the person subject to a guardianship will always need the same level of care. If the person does regain the ability to make decisions about their personal needs, the guardian should petition the court for a modification of the guardianship rather than retaining control that is no longer needed.

Trying to Do Everything Without Professional Help

Most guardians take their responsibilities very seriously and want to do a good job. Many guardians are serving in the role for the first time; they may have underestimated the time and effort involved, or simply not be familiar enough with Minnesota law to fully understand their obligations.

An experienced attorney can help a guardianship avoid guardianship mistakes and provide better service to the incapacitated person. For example, an attorney can ensure that a Petition for Appointment of a Guardian is properly completed, supported, and filed, and that required notices and reports are sent to the proper parties. A guardianship attorney is also a valuable resource and sounding board for a guardian who wants to be sure they are fulfilling their responsibilities and not exceeding their authority.

Work with an Experienced Guardianship and Conservatorship Attorney

If you are a guardian in Minnesota, you deserve support in carrying out your duties. Dave Burns Law Office offers guidance to help the guardianship process be easier and more effective for guardians and those they are working to protect.

To learn more about common mistakes to avoid in guardianships, contact Dave Burns Law Office at (612) 677-8351 or by emailing Dave Burns at dave@daveburnslaw.com. Dave works with clients throughout the Twin Cities metro area, and is available to meet with clients in both Minneapolis and St. Paul.