UPDATES TO MINNESOTA GUARDIANSHIP AND CONSERVATORSHIP STATUTES
By: Dustin J. McIntee, Associate Attorney
On May 16, 2020, Governor Tim Walz signed Chapter 86, S.F. 3357, which amended the Minnesota guardianship and conservatorship statutes (and other statutes) and which takes effect August 1, 2020. As a whole, these changes protect the rights and promote the independence of individuals who are subject to a guardianship or a conservatorship. This article will look at five of the most notable changes in the laws and discuss how these changes will affect guardianships and conservatorships in Minnesota.
Mandatory Consideration of Specific Less Restrictive Alternatives
Under the current law, a court must find that “the respondent’s identified needs cannot be met by less restrictive means, including use of appropriate technological assistance” before ordering a guardianship or conservatorship. The amended statutes require the court to “make specific findings particular to the respondent why less restrictive alternatives do not work” and to consider whether “supported decision making”—a new term in guardianship and conservatorship law that defines assistance with making choices—would allow the respondent’s needs to be met. Similarly, the amended statutes also require a petition for a guardianship or conservatorship to state “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.”
These changes provide additional protections and due process for respondents because they require the petitioner to examine specific, less restrictive alternatives to a guardianship or conservatorship and for the court to make specific findings as to why those alternatives will not meet the respondent’s needs. This does not expand or narrow the ability of a court to impose an unlimited guardianship or conservatorship where appropriate, but it does require extra efforts and specific considerations from the petitioner and the court before such a drastic restriction of the respondent’s rights can be ordered.
Discretionary and Mandatory Durational Limits on Guardianships
The current guardianship and conservatorship statutes do not provide for limited-duration guardianships except for those that are filed as emergency petitions. The amended statutes give the court the ability to “appoint a guardian, limited or unlimited in duration or power” and to “limit the duration of any guardianship.” The amended statutes also require that any guardianship ordered for a person who is under 30 years old (on the day the order is entered) “must be of a limitation determined by the court, not exceeding a period over 72 months”; however, a petitioner may seek an indefinite guardianship “for any person who is 29 years or older and is currently subject to a guardianship of limited duration.”
These changes allow a court greater discretion to shape a guardianship to the needs of the respondent, particularly those whose needs may be short-term, situational, or related to a medical condition. The limit on duration for guardianships imposed on adults under the age of 30 provides a young adult subject to a guardianship with additional opportunities for their case to be considered by the court before the burden of petitioning to remove an indefinite guardianship shifts to them. The ability (or requirement) of the court to order a guardianship of limited duration allows the court to have more contact with the respondent, which gives the judge additional opportunities to consider whether a limited guardianship or some other less restrictive alternative is appropriate.
Specific Limitations on a Guardian’s Power to Restrict Social Contact
The current guardianship statutes allow the court to grant to a guardian the authority to supervise a person subject to a guardianship “in a manner which limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services.” The amended statutes add the following limitation on this supervisory authority:
“A guardian may not restrict the ability of the person subject to guardianship to communicate, visit, or interact with others, including receiving visitors or making or receiving telephone calls, personal mail, or electronic communications including through social media, or participating in social activities, unless the guardian has good cause to believe restriction is necessary because interaction with the person poses a risk of significant physical, psychological, or financial harm to the person subject to guardianship, and there is no other means to avoid such significant harm. In all cases, the guardian shall provide written notice of the restrictions imposed to the court, to the person subject to guardianship, and to the person subject to restrictions. The person subject to guardianship or the person subject to restrictions may petition the court to remove or modify the restrictions.”
The statute also expands the current annual reporting requirements regarding any “restrictions placed on the rights of a person subject to a guardianship to communicate, visit, or interact with others” in a similar fashion. The current law requires the guardian to report annually the “factual bases” for any restrictions on a person’s rights to communicate and visit with any person or people of their choosing. The amended statute broadens and clarifies the restrictions that the guardian is required to report.
These changes provide much greater protections for a person subject to a guardianship. The standard of “necessary [due to] a risk of significant physical, psychological, or financial harm” does not appear in the current statutes; this is a newly-created standard that appears to set a high threshold for restricting social interaction. Any restrictions in social contact for the person subject to a guardianship must now be documented to three separate parties, including the court. These several opportunities for the court to review restrictions on social interactions will help to prevent abuse by guardians who try to restrict social contact as a means of controlling or punishing a person subject to a guardianship.
Wages and Salary Not Part of Conservatorship Estate (unless otherwise ordered by court)
The amended statute exempts “wages or salary for employment” from the conservatorship estate of a person subject to conservatorship and provides that such funds “shall be paid to [and] subject to the control of the person subject to conservatorship to the same extent as if the conservatorship did not exist.” While the amended statute does provide the court the ability to override this exemption in individual cases, the statutory presumption that an individual subject to a conservatorship will be able to retain control over the wages or salary they earn provides a much greater level of protection for individual rights than the current statutes and makes it more likely that people subject to a conservatorship will be able to enjoy the benefits of their work.
Removal of Terms “Ward” and “Protected Person”
If you are currently serving as a guardian or conservator, you may have noticed that I have not referred to a person subject to a guardianship as a “ward” or a person subject to a conservatorship as a “protected person” in this article. The amended statutes remove the terms “ward” and “protected person” and substitute the phrases “person subject to guardianship” and “person subject to conservatorship” throughout. While this change will not materially affect guardianship or conservatorship proceedings, the use of person-centric language in the amended statutes is designed to emphasize the individual, rather than their legal status, throughout the entirety of the court process.
The ultimate objective when seeking a guardianship or conservatorship proceeding is to provide assistance for, and protect the best interests of, an individual who cannot meet their needs on their own, while restricting or interfering with their legal rights and decision-making abilities as minimally as possible. These amended statutes will hopefully contribute to meeting this objective and provide greater protection for the rights and freedoms of persons who are subject to a guardianship or conservatorship.
Kennedy & Ruhsam Law Offices, P.A., is committed to protecting the rights and freedoms of persons who may need assistance with managing their daily affairs, whether in the form of a guardian, a conservator, or a less restrictive alternative. If you have any questions concerning a guardianship or conservatorship, or you wish to speak with an attorney about the updates to the guardianship and conservatorship statutes, please contact Tina M. Johnson, RP®, at: (651) 262-2080 or clerk@mpkennedylaw.com.