What Happens in a Minnesota Guardianship Hearing?

Law Books and Gavel - Guardianship Hearing

Minnesota state laws include the Uniform Guardianship and Protective Proceedings Act. A guardianship proceeding is a process in probate court through which a guardian is appointed for a minor or a person who is determined by the court to be incapacitated and unable to care for himself or herself.

A guardian serves under court supervision and has legal responsibilities relating to the care of the ward, the legal term for the person for whom a guardian has been appointed. A guardian tends to the ward’s needs for personal care, including food and clothing, medical care, and housing. The guardian does not have control over the ward’s financial affairs. A different probate court proceeding, called conservatorship,is available when it is necessary to appoint a person or organization to oversee an individual’s financial affairs.

Petition for Appointment of a Guardian

A guardianship proceeding begins with filing a petition in probate court in the county of residence of the person for whom a guardian appointment is sought. Any person who is interested in an individual’s welfare can file a petition for determination of incapacity and appointment of a limited or unlimited guardian for the person.

The petition must set forth the reasons that the guardianship is necessary and name all persons, agencies, and institutions who may be interested in the proceeding, including next of kin. The petition names the proposed guardian, who may be the petitioner.

Pre-Hearing Process for Guardianship Petitions

On receipt of the petition, the probate court sets a hearing date not less than 14 days after the filing. All interested parties must be given notice of the hearing, including the person for whom the guardian appointment is sought, his or her spouse, and next of kin, as well as all other interested persons.

Before the hearing, the court will appoint a court visitor, who is responsible for meeting with the person for whom guardian appointment is sought and investigating the circumstances. The visitor advises the person of his or her rights, which include the right to be represented by counsel.

If the person wishes to be represented by an attorney, he or she may retain counsel, or the court will appoint an attorney for the person. The visitor explains the substance and purpose of the petition, determines the individual’s views about the proposed guardian, and explains that costs and expenses of the proceeding will be paid from the person’s estate.

The court visitor provides a report and recommendations to the probate court before the hearing. In addition, the court may request an examination by a medical professional in advance of the hearing. The court may also conduct a background investigation of the proposed guardian.

Probate Court Guardianship Hearing

Attendance and Evidence

The petitioner and proposed guardian (if someone other than the petitioner) attend the hearing. The individual for whom guardian appointment is sought, called the respondent, also must attend the hearing unless excused by the court for good cause, such as physician’s statement that the respondent is medically unable to attend.

The petitioner and respondent may subpoena witnesses and documents. At the hearing, both may present evidence and examine witnesses, including the court visitor. Anyone may request the court’s permission to participate. The court may attach conditions to participation when appropriate.

Contested Guardianship Hearings

A contested guardianship hearing can take much longer than a hearing on an uncontested petition. If there is an objection, making it a contested process, it can take months for the process to be completed. Both sides are able to conduct discovery, including taking depositions and interviewing witnesses, to prepare for the hearing. Physical and psychological examinations may be required.

The rules of evidence apply to the guardianship hearing. There likely will be multiple witnesses, including medical experts to discuss physical and psychological condition and behavior. The petitioner and court visitor will testify. The respondent is entitled to testify as well. With court permission, interested parties may also testify.

Evidence presented at a contested hearing can include lengthy documentation about the condition and care of the respondent, medical reports, current service or care plans, and any other assessments.

If you are involved in a contested guardianship hearing in Minnesota as petitioner, respondent, or an interested party, having skilled legal counsel is essential. Without an experienced probate court litigation attorney who knows and understands contested guardianship proceedings, your chances of succeeding are minimized considerably.

Probate Court Determinations

Based on the evidence presented at the hearing and gathered prior to the hearing, the probate court will determine whether the respondent is incapacitated and unable to take care of his or her own personal needs. The legal standard under the statute is clear and convincing evidence of incapacitation. In addition, the court must conclude that the respondent’s identified needs cannot be met by less restrictive means. The probate court grants to a guardian only powers necessitated by a ward’s demonstrated needs and limitations. Powers that are not specifically granted to the guardian are retained by the ward.

If the court determines that appointment of a guardian is warranted, Minnesota law provides specific priorities for selecting the person or agency to serve as guardian. The standard applied by the court is determining what is in the best interest of the respondent. Applying that standard, the court may conclude that appointing a person with lower priority than someone else wishing to be appointed is in the respondent’s best interest. If different persons with the same priority are under consideration, the statute provides that the court will appoint the person who is best qualified.

Guardianship Hearing Conclusion

In cases where the appointment is uncontested, the court may rule at the hearing and issue letters of guardianship immediately. In the event of a contested hearing, the court generally will take the matter under advisement and make a decision sometime after the conclusion of the hearing. If necessary, the court can issue an interim protective order when doing so is necessary to protect the respondent until the guardianship issue is determined. In any guardianship proceeding, the court can exercise the alternatives of entering a protective order, any other appropriate order, or dismissing the case.

Talk With an Experienced Probate Court Litigation Attorney About Guardianship Proceedings

Having an experienced probate litigation attorney is critical when you are involved in any capacity in a guardianship proceeding. While some proceedings go smoothly, disputes sometimes arise over appointment, selection, or behavior of a guardian. At the Dave Burns Law Office, probate court litigation is central to my practice. I am a member of the Minnesota Association for Guardianship and Conservatorship (MAGiC), as well as the Hennepin and Ramsey County Guardianship and Conservatorship Panel.

I represent all parties in guardianship proceedings, including contested and uncontested petitions for guardianship and claims of breach of duty by a guardian. In addition to being a strong and skillful advocate for my client’s rights and interests, I treat guardianship matters with the sensitivity and understanding that they deserve.

If you are facing a guardianship issue in probate court, I welcome you to contact me at (612) 677-8351 or by emailing dave@daveburnslaw.com. I work with clients throughout the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul.

Categories: Probate

The Dave Burns Law Office hopes you find this article helpful. But please do not rely on it as legal advice. The law changes regularly and the outcome of any legal matter depends on its unique circumstances. View full disclaimer