Guardianships in Minnesota

Posted on February 18, 2022 by jlawyer

Guardianships in Minnesota

This article will discuss the key concepts behind guardianships in Minnesota.

A person who has a Minnesota guardian is most-often incapacitated by age or mental infirmity. A person may be incapacitated due to mental illness, disability, or other condition they were born with. The other common situation is when a child (minor) needs a guardian due to being under the age of 18 years.

Guardian for Minors

It may be necessary to establish a guardian for a minor if a child’s parents have died. This situation is often tragic and family members of the deceased parents become the court-appointed guardians.

Our office has dealt with situations where two parents passed-away from cancer and there were several children who were under the age of 18. The relatives of children, the aunts and uncles, took over responsibility of caring for the minor children until they were 18. In situations involving the death of both parents, guardians are absolutely necessary so that an adult has legal responsibility over the minor’s welfare.

Health care institutions and schools are required to communicate only with parents or “legal guardians” for minors. A court-order is needed to establish legal rights. The guardian must have legal authority to communicate with these institutions. Minnesota Statute 524.3-313 describes the powers of Minnesota guardian.

How do you obtain legal authority as a guardian? First, you must petition the proper court. The court will then issue Letters of Guardianship to the new Guardians. The petition for guardianship must be made in the proper court or “venue”. This will be the county where the children live. The county court can be changed to where the new guardians live if the children’s residence has been moved.

Once established, the county court has continuing jurisdiction over the guardianship case until the children are 18. During their childhood, personal-well-being reports need to be filed with the court, on a yearly basis. The personal well-being reports help the court understand how the children are doing. It also ensures that the court knows where they are, what their address is, and what their condition is.

Guardianship of and Adult (Persons over 18 years old)

Our office has seen numerous instances where persons with disabilities reach the age of 18 years. That person likely needs continuing care due to their disability. In this case, a guardianship is necessary.

Common disability symptoms include: Autism Spectrum Disorder, Down Syndrome, or other mental health diagnosis. An experienced physician must make a disability diagnosis and issue a report of that diagnosis to the court. Essentially, the diagnosis must state that the person has diminished capacity which makes them unable to care for themselves.

The process of petitioning the appropriate County District Court is very similar to what was described above. Just as with a minor, a person will need to petition for a guardianship over an adult. The petition will outline the appropriate legal arguments for why the guardianship is necessary. The petition will include a physician’s statement proving the diagnosis for disability of the person. Notice of the court action will need to be served upon all next of kin or relatives of the adult person. As an aside, this adult person is often referred to as a “ward“.

Once the petition is filed in the appropriate court, the court will appoint a guardian over the ward and the annual well-being report will need to be filed with that County District Court.

Guardianship Over Elderly Persons

The second most common adult guardianship in Minnesota is a guardianship over incapacitated, elderly person. Incapacitation is a legal standard which is defined by Minnesota statute. Basically, there is a legal test for whether a person has become so mentally incapacitated that they can no longer care for their own needs. A diagnosis from a physician will also be necessary in this scenario. A common diagnosis could be Dementia, Alzheimer’s disease, or other mental defect.

We often counsel adult children who are serving as guardians for their parents. Children reverse roles and now take over as care-givers for the day-to-day needs of their elderly parents. This is often very daunting for the children and parents. However, the children may choose to work with assisted-living or other long-term-care facilities. In these conversations, decisions can be made about who maintains the day-to-day care. The children might only make big-picture decisions for their elderly parents.

Sometimes the children will care for their parents in a home where the elderly parent has lived most of their lives. There are options for care and people are not limited by what they can do, legally. Instead, the only limitations are often financial: what can the parents or children afford for care?

As described above, the court grants legal authority to children for their parents. The court issues Letters of Guardianship. Minnesota guardianships can be very helpful for allowing the children to help their parents manage their on-going care. Every situation is unique. The legal system is there to help people. The courts provide a systematic approach for establishing and maintaining guardianships in Minnesota.

Minnesota Guardianship Lawyers

The decision to ask a court for a guardianship is difficult. There are very significant new responsibilities that the guardian will take on. This is a big responsibility and the courts take it very seriously.

Our office has years of experience dealing with many different situations involving guardianships in Minnesota. The office has also dealt with emergency guardianships. We understands that it can be very scary. We know what to do to help.

Contact the Minnesota guardianship lawyers today for your free initial consultation. The telephone number is 612-424-0398.

Choosing A Guardian for Your Child | Minnesota Law

Posted on January 13, 2022 by jlawyer

Choosing a Guardian for Your Child

When you think of estate planning, the first thing that comes to your mind might be leaving assets to your children.

Minnesota Guardianship law does a bit more in that you can find someone who can take care of your children when you’re unavailable. Similar to how you can give durable power of attorney to another party, guardianships can be put in place to help you out while you’re still alive.

As a kind of introduction to guardianships for your family, you should think of them as wills for your kids.

Though, it means involving real people not just paper documents. That’s to say that if you don’t have a proper one set into place, a judge will probably have to figure out what’s to be done about the situation. Just as people might be asking where your assets will go, they’ll probably also be asking where your kids will go. Granting guardianship over your kids answers the latter question.

Do Not Let a Judge Choose for You

A judge might have to do it otherwise. That’s the short answer to why picking out a guardian is important for your kids. Say that you and the spouse passed away, leaving a judge to contemplate what’s to be done about your offspring’s welfare. Your choice for a guardian may not even come to the judge’s mind. In almost every estate planning matter, unless you do things the legal way, people might not be able to carry out your plans whatsoever.

If you’re willing to say that something should be done, act on it ahead of time. Your family and friends may not be perfect, but think about who can take care of the children. That’s a huge part. Who has the finances to take care of them, who will raise them to be qualitative individuals, and who will teach them the values that you want them to have are all questions you should contemplate. You may even want to sit down and plan things out.

Backup to a Guardian for Your Child

The person you name as your children’s guardian probably wants your input if they plan on raising your kids just as you intend. That kind of conversation isn’t one that you can summarize in a one-page document and leave them to figure out the rest. Values, expectations, parenting techniques, and college hopes could all be on the table. You’re really finding your children’s next parent here.

They might not become your life partner or adopt the kids, but that doesn’t mean that they won’t make any impact on their lives. Whoever you designate to be their guardian might end up making serious medical decisions for your kids. As far as you’re concerned, treat this like you would treat an adoption, save that you’re not the one adopting. You’re not losing your kids. You’re not forfeiting your rights as a parent. You’re setting up backup for when you can no longer be there for them.

Military Families

Military families face hardships just like any other families. Though, sometimes those hardships come in the form of a parent being stationed away while their child needs them the most. Having a primary and alternative guardian live near your family can make things safer, ensuring that someone can be there in case medical emergencies happen on either side. Life isn’t always ice cream and cake. And the fact is that you can’t always be there to be their hero.

You might want them help provide education for your children. You might want them to fill in the parental role when you’re on tour. Whatever you want your children’s guardian to be has got to be voiced while you still can. It’s time to deal with the reality that you may fall outside of or during combat. Leaving them a fortune is one thing, but leaving them a flesh and blood human being is a whole new level.

Single Parent Household

Being a single mom or dad takes a lot of work. Maybe you just became a single parent due to the loss of your partner. The situation matters little compared to how you handle it. What matters is having someone for them. The sad thing is that you might be the only one to be there for them. Selecting a guardian might be the best option for you and your kids. Unlike dating, there doesn’t need to be any roses or movie nights.

If you’ve been doing this for a while, you probably know how much time that you need to dedicate to your family and good on you for it. However, it’s possible you could become incapacitated, be called away for duty, have to visit a sick relative in another state, or want to see your favorite band in another country. Death is not the only time in which you may want a guardian to be there for your kids. Give them a more stable life by helping bring someone new into their reality.

Minnesota Guardianship Lawyers

Finding a guardian might not be your problem. Perhaps your kids’ uncles and aunts are leaping at the chance. Working out the legal details and jargon is another thing. That’s why you may want a guardianship lawyer from Flanders Law Firm LLC. You can grab a free quote at 612-424-0398 before you begin and go from there.

Don’t worry about getting your kids involved unless you feel they might want to have say in the mater. This isn’t putting them up for adoption. This is helping ensure that they can have a better tomorrow. If you really feel pressured to give your children a home with two parents, guarantee that at least one person will be there when you can’t be.

MN Guardianship | Paying for Parents Nursing Home Costs

Posted on May 6, 2021 by jlawyer

Paying for Parents Nursing Home Costs

It’s not always easy to tell whether or not you’ll end up covering the debt that your parent incurred during their time at a nursing home.

To be concerned about this topic is understandable, and there are laws which can mean that individuals may be charged for their parents’ nursing home bills. To ease your fears, however, not every state has these laws. And even if you’ve been granted financial power of attorney by your parents, you may still not have to pay for those nursing home expenses. This isn’t the same as dealing with debt during probate. Just as a taste, there might be five factors which all need to become active before you’ll even need to consider paying.

One in Twenty-Nine

On top of Puerto Rico, there are at least twenty-nine states out there which may cause you to pay for your parent’s unpaid nursing home bills. That means that if your parent were to randomly chose to live in any given state in the US, they would have a greater than fifty percent chance to live in a state that may hold you accountable for mom and dad’s nursing home bills. The concern is where they live rather than where you live. Filial support laws are what may cause you to pay up, but thankfully, cases in which these laws are actually enforced are rather rare.

You want to be aware that these laws usually impact families in which the parents can’t pay their bill. If they’re refusing to pay their bill, that might be an entirely different matter. Filial support laws are, moreover, not without mercy. They’re intended to also to factor in the offspring’s ability to pay for their parents as well. If this does become a serious topic of discussion, both parties should discuss how their income and money may change the situation. This isn’t the time to be shy about money matters.

POA May Change Nothing

For people who have been granted financial power of attorney, your duty is, more or less, to deal with the principal’s assets.

You’re not dealing with your own assets. So, if you have financial POA and your parents don’t reside in a state with filial laws, you might not be held accountable for your parents’ unpaid nursing home bills. It might be nice of you to think of using some of your money to help them out or selling some property to pay for their care, but that might not be needed. That said, having or not having POA will probably not impact the matter overall.

At least, it may not impact the matter if you can’t do anything with the principal’s assets.

You’ve got to come to terms with what can be done and what can’t be done with what they’ve got. There’s almost always the possibility that what you do with the other party’s assets will cause you harm if not done properly. No matter what, you’ve got to make the right decisions. Nonetheless, you still need to be aware of the fact that if you agreed to be responsible for your principal’s expenses, you may still need to pay regardless of where they live. Then, you might have to pay up.

Five Main Factors | Paying for Parent’s Nursing Home Costs

Getting back to general situations involving filial support laws, there tends to be at least five factors which must come into place. That’s to say, you may not have to worry about paying a dime unless all five of these circumstances arise.

Please note that things might be different if you have agreed to pay for your parent’s expenses when you were granted financial POA. The first factor should be rather obvious in that your parent will need to be living in a state that actually has filial laws. You probably don’t need to worry about whether or not you live in one as much as you need to be aware of your parent’s place of residence.

The next three factors can be summed up into your parent not having the resources to pay while you do. The first factor is that your parent can’t be able to pay. Then, they have to not be able to receive Medicaid assistance. After that, if you so happen to have the money to pay the bill, which is the fourth factor, the fifth factor can come into place. The people who were taking care of your parent will have to sue you to try to get their money. It’s when that fifth factor becomes a reality that you should be concerned about how much you have to pay.

Medicaid Trouble

As a word of warning, you must also be careful about your parent relying on Medicaid. Some people truthfully need it, and that’s perfectly fine. It’s that you’ve got to be mindful that Medicaid might want part of your folk’s estate. You heard correctly. The Medicaid recovery process may take away your family’s assets in order to help recover from whatever costs your parents incurred. This may not just impact the family home, but it can also take away money from a trust and other things that your folks owned, too.

There are many different kinds of debt that can impact elder law. Once you go through the probate process you might just realize how many assets need to be sold in order to pay off unpaid debt. So, it’s no surprise that Medicaid wants to have your parent pay off the debt they created. You have to view every object as being a dollar sign to them. You may have some very deep sentiment towards family heirlooms, but the money might need to be paid someway.

Planning for the Future | Minnesota Guardianship and Conservatorship Lawyers

Elder law matters can range from will writing to getting ready for a loved one’s passing. Dealing with each of those matters takes patience and wisdom. Rather than relying on your own strength, you can always get help with these matters with Minnesota guardianship lawyers. Assistance is a phone call away at 612-424-0398.

You might be surprised how many different topics surround elder law as most of these subjects intertwine with one another. Making a trust to help pay for living expenses is only one of many options out there. Plan for the future by starting today. You can help a loved one by being there for the things that they need you the most.

Minnesota Guardianship | What is a legal guardian?

Posted on January 16, 2017 by jlawyer

Guardianship in Minnesota

In certain situations, a court may appoint a person to make personal decisions for a person incapable of making their own personal decisions. These people are known as guardians and their position is naturally, referred to as a Minnesota guardianship. They provide a valuable service. This article intends to define a guardian, their duties, what they can do on behalf of a person, and what the limitations are.

Guardians Roles in Minnesota

There are different types of guardian roles within Minnesota, depending on what service the guardian is providing. The definition of guardian in Minnesota is “a person who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or spouse, or by the court . . . .”Minn. Stat. § 524.5-102 subd. 5. A guardian makes personal decision on behalf a ward – generally thought to be the incapacitated person. Minn. Stat. § 524.102 subd. 17. Another type of guardian is a conservator. A conservator relates more to estate planning. Minnesota statutes defines conservator as a person who manages a protected person’s estate. Minn. Stat. § 524.5-102 subd. 3.

The court imposes certain procedural requirements upon a guardian. For example, the guardian must submit what is known as a Personal Well Being Report to the Court on the ward’s health, mood, recovery, or other matters. Minn. Stat. § 524.5-316 (a). Similarly, although the guardian may generally make decisions regarding the ward’s assets, he or she must provide at least ten days notice to the ward before doing so. Min Stat. § 524.5.313(c)(3).

Law on Guardians in Minnesota

In re Guardianship of Jeffrey DeYoung, 801 N.W.2d 211 (Minn. Ct. App. 2011) provides an overview of the guardian’s duties. The mother appealed the district court’s refusal to remove the guardian in charge of her adult son, who was severely disabled. Id. at 212. The ward’s father and the guardian opposed the proposed removal. Id. at 213. In addition, the mother sought to assume the guardian role upon removal of the ward’s current guardian. Id.

Evidence indicated the guardian restricted the mother’s visitation time after observing possible abuse of the ward. Id. The mother’s primary contention was that the guardian, in placing the ward in a supervised home designed for disabled people, improperly delegated her duty as a guardian third parties. Id. at 217–18.

The Court of Appeals agreed. First, the Court of Appeals noted Minnesota prevents “any individual of agency which provides residence, custodial care . . .or other care or service for which they receive a fee.” Id. at 217 (citing Minn. Stat. § 524.5-309 (2010)). Because a guardian enjoys duties and power given it to it by the judicial branch, a guardian cannot delegate powers to a third person. Id. Although the guardian may adopt recommendations from health care professionals or other experts, the guardian cannot completely delegate their authority. Id. at 218.

In re DeYoung provides a nice distinction on the guardian’s duties to a disabled in healthcare, financial, or other matters. They may obtain information from third parties regarding appropriate courses of action, but they may not wholly delegate the duties of a guardianship to another person.

Minnesota Guardianship Lawyers

Contact Flanders Law Firm LLC today for your free initial consultation on legal guardianship in Minnesota. We are happy to answer any questions you may have. Call the attorneys at 612-424-0398.