Probate Code
Each state’s laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action – Filing a Petition:
An individual or any person interested in the individual’s welfare may initiate guardianship proceedings by filing a petition for the appointment of a limited or unlimited guardian.
The petition must set forth the petitioner’s name, residence, current address, relationship to the respondent, and interest in the appointment and, to the extent known, state or contain the following with respect to the respondent and the relief requested:
(1) the respondent’s name, age, principal residence, current street address;
(2) the name and address of the respondent’s: spouse, or if the respondent has none, an adult with whom the respondent has resided for more than six months before the filing of the petition, and adult children including adult step-children of a living spouse;
(3) the name of the administrative head and address of the institution where the respondent is a patient, resident, or client of any hospital, nursing home, home care agency, or other institution;
(4) the name and address or post office box of any legal representative for the respondent;
(5) the name, address or post office box, and telephone number of any person nominated as guardian by the respondent in any manner permitted by law, including a health care agent nominated in a health care directive;
(6) the name, address, and telephone number of any proposed guardian and the reason why the proposed guardian should be selected;
(7) the name and address of any health care agent or proxy;
(8) the reason why guardianship is necessary, including a brief description of the nature and extent of the respondent’s alleged incapacity;
(9) what less restrictive means have been attempted and considered, how long such less restrictive means have been attempted, and a description of why such less restrictive means are not sufficient to meet the respondent’s identified needs;
(10) if an unlimited guardianship is requested, the reason why limited guardianship is inappropriate and, if a limited guardianship is requested, the powers to be granted to the limited guardian; and
(11) a general statement of the respondent’s property with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts.
The petition must also including information regarding the proposed guardian, such as whether the proposed guardian has ever been removed from another similar legal arrangement and whether the proposed guardian has even been found civilly or criminally liable.
Notice of Hearing:
Notice of the petition must be given to the alleged incapacitated individual and the persons named in the petition. The notice must include a statement that the respondent must be physically present unless excused by the court; inform the respondent of the respondent’s rights at the hearing; and include a description of the nature, purpose, and consequences of an appointment.
Examinations, Evaluation, and Interviews:
Once a petition is filed, the court may appoint a “visitor” to help manage the investigation and explain proceedings to the person alleged to be incapacitated. Among other responsibilities, the visitor must interview the person alleged to be incapacitated and explain the proceedings to the person. The visitor must also file a confidential report with the court.
Conservatorship in Minnesota:
Where a person is incapable of managing their own financial affairs, the person to be protected or any person who is interested in that person’s estate, affairs, or welfare, or any person who would be adversely affected by lack of effective management of the person’s estate and affairs may petition for the appointment of a conservator.
Minn. Stat. § 524.5-301 through Minn. Stat. § 524.5-310
Minn. Stat. § 524.5-403 through Minn. Stat. § 524.409
Minn. Stat. § 524.5-303
Minn. Stat. § 524.5-308
Minn. Stat. § 524.5-304