|
Guardianships & Conservatorships.
 DO
YOU HAVE A FAMILY MEMBER WHO MAY BE IN NEED OF
A CONSERVATORSHIP?
ARE YOU A PROFESSIONAL
CONSERVATOR OR GUARDIAN?
WOULD YOU LIKE
TO KNOW MORE ABOUT OUT-OF-COURT ALTERNATIVES TO
A CONSERVATORSHIP?
WE
CAN HELP YOU!!!!
Primus Law Office, P.A. has an extensive practice
in the areas of guardianships and conservatorships.
A guardianship or conservatorship is a court proceeding
established to protect an incapacitated adult.
On this page you will find Articles
about issues arising in conservatorships, and
Selected Statutes regarding
guardianships and conservatorships.
Brent Primus has served for more than 10 years
on the Hennepin County Probate Court's panel of
Attorneys representing individuals who are the
subject of a pending Petition to create a Guardianship
or Conservatorship over them. In that role he
has acted as the Attorney for numerous persons,
including both young adults and senior citizens,
with widely varying incapacities. Brent has also
represented Conservators, both professionals and
family members, and has acted as a conservator
himself. Brent is currently on the editorial board
of the MAGiC journal, the publication of the Minnesota
Association for Guardianship & Conservatorship.
ARTICLES
THE POWER NOT TO CONSENT TO
MEDICAL CARE - MAGiC JOURNAL, JULY 1997.
STAYING OUT OF TROUBLE:THE
PERSPECTIVE OF THE HENNEPIN COUNTY PROBATE COURT
- MAGiC JOURNAL, JULY 2000.
TO DRINK OR NOT TO DRINK:THAT
IS THE QUESTION - MAGiC JOURNAL, OCTOBER 2000
SELECTED
STATUTES
ARTICLES
THE
POWER NOT TO CONSENT TO MEDICAL CARE - MAGiC JOURNAL,
JULY 1997. By
Brent Wm. Primus, J.D.
Minn. Stat. § 525.56, Subd. 3 (4)(a) reads
as follows:
"The power to give any necessary consent
to enable the ward or conservatee to receive
necessary medical or other professional care,
counsel, treatment or service, except that no
guardian or conservator may give consent for
psychosurgery, electroshock, sterilization,
or experimental treatment of any kind unless
the procedure is first approved by order of
the court as provided in this clause. The guardian
or conservator shall not consent to any medical
care for the ward or conservatee which violates
the known conscientious, religious, or moral
belief of the ward or conservatee."
 "The
logical corollary of the doctrine of informed
consent is that the patient generally possesses
the right not to consent, that is, to refuse treatment."
Cruzan v. Director, Missouri Department
of Health, 497 US 261, 110 S.Ct. 2841 (1990).
In the Cruzan case the US Supreme Court
was reviewing Missouri's state laws regarding
the non-provision of medical services to an incapacitated
person. Missouri required a showing by "clear
and convincing evidence" as to what the incapacitated
person's decision would have been under the circumstances.
Such an approach is called the "substituted judgement"
standard. In Cruzan the Supreme Court found
no constitutional infirmity with Missouri law.
Accordingly, the petitioning parents of a young
women in a persistent vegetative state could not
require the hospital to withdraw artificial nutrition
and hydration.
Minnesota has adopted a different standard known
as the "best interests" standard. The case of
In Re the Conservatorship of Torres, 357
N.W. 2d. 332 (Minn. 1984) is our lead case in
this area. In Torres the court rejected the argument
of the court-appointed attorney for the conservatee
that, as a matter of law, the "best interests"
of a conservatee cannot be served by the removal
of life supports when doing so may result in the
conservatee's death (Torres at 338). Instead,
the Court stated:
We agree with respondent's contention
that Minn.Stat. § 525.56, subd. 3 (4)(a)
(1982), grants the guardian greater authority
over the medical care of the conservatee than
simply the power to consent to medical care. The
provision in (4)(a) is qualified by its lead-in
sentence which states that the "duties and powers
*** which the court may grant to a conservator
of the person include, but are not limited to"
those specifically described. Id., subd. 3. Thus,
we believe that if the conservatee's best interests
are no longer served by the maintenance of life
supports, the probate court may empower the conservator
to order their removal despite the absence of
a specific provision in Minn.Stat. § 525.56
(1982) which authorizes the court to do so. These
same powers may be granted to a conservator by
the court. Id., subd. 3 (1982).
The significance of the last sentence quoted
above is that the Court is saying that it is not
necessary for a conservator to go to Court to
obtain an Order each and every time this situation
arises. It specifically so stated in Footnote
4 (Torres at 341). In other words, the
appointment of a conservator with the statutory
power enumerated in Minn.Stat. § 525.56,
subd. 3 (4)(a) is sufficient authority for a conservator
to refuse to consent to any medical treatment
if in the best interests of the conservatee. It
should be noted as an aside that three of our
Minnesota Supreme Court Justices concurred in
the general holding of Torres, but specially stated
that they felt that there should be a Court Order
in each case with the judicial review that this
would entail.
The Court in Torres went on to state :
By guaranteeing the right of a patient to refuse
medical treatment, Minn.Stat. §144.651,
subd. 12 (Supp.1983), the Minnesota Legislature
has recognized that a patient's "best interests"
may not be served by continued medical treatment.
Expressing a similar regard for the rights of
an incompetent, the Legislature has prohibited
a conservator from consenting to medical care
which would violate the known conscientious,
religious, or moral beliefs of the conservatee.
Minn.Stat. § 525.56, subd. 3 (4)(a) (1982).
Thus, simply equating the continued physical
existence of a conservatee, who has no chance
for recovery, with the conservatee's "best interests"
appears contrary not only to the weight of medical
authority, but also to those indications of
legislative opinion which exist. At a minimum,
any determination of a conservatee's "best interests"
must involve some consideration of the conservatee's
wishes.
Thus, under the "best interests" standard, the
beliefs of the incapacitated person are only one
factor to consider as opposed to being the controlling
factor under a "substituted judgment" standard.
The consensus of the case law would appear to
be that the primary factor to consider is the
incapacitated person's quality of life and, in
particular, the degree of pain or suffering which
would have to be endured by the incapacitated
person when the consenting of medical treatment
would prolong the person's life.
One must be careful to distinguish between a
person's "quality of life" and a person's "value
of life". The New Jersey case of In the Matter
of Conroy, 486 A.2d 1209 (N.J. 1985) contains
a thorough review and analysis of these issues
as did Cruzan and Torres. As part
of its discussion the Court stated "....we expressly
decline to authorize decision making based on
assessments of the personal worth or social utility
of another's life, or the value of that life to
others. We do not believe that it would be appropriate
for a court to designate a person with the authority
to determine that someone else's life is not worth
living simply because, to that person, the patient's
"quality of life" or value to society seems negligible.
The mere fact that a patient's functioning is
limited or his prognosis dim does not mean that
he is not enjoying what remains of his life or
that it is in his best interests to die".
 The
New Jersey court made reference to the President's
Commission for the Study of Ethical Problems in
Medicine and Biomedical and Behavioral Research,
Deciding to Forego Life-Sustaining Treatment (1983).
This report broadly defined a person's best interests
to "take into account such factors as the relief
of suffering, the preservation or restoration
of functioning, and the quality as well as the
extent of life sustained". The Conroy Court
then went on to state that "more wide ranging
powers to make decisions about other peoples lives
in our view would create an intolerable risk for
socially isolated defenseless people suffering
from physical or mental handicaps." Put another
way, the "best interests" standard does not authorize
an "assisted suicide".
One other general observation is that a conservator
must be free of any conflicts of interest when
making decisions regarding the refusal to consent
to medical treatment. While a material financial
conflict is unlikely to arise in the instance
of a professional conservator, when a relative
of the conservatee is acting as a conservator
there is a definite potential for such a conflict.
Specifically, one could imagine many scenarios
where the death of the conservatee prior to the
birth of another relative could materially effect
the timing and distribution of one or more trusts.
The above comments are obviously a very truncated
discussion of a very complicated issue. Accordingly,
the three cases discussed above, that is, Cruzan,
Torres, and Conroy are highly recommended
to anyone, whether lawyer or lay person, interested
in this subject. All three of these cases include
numerous references to medical and ethical studies,
as well as surveying the statutory and case law.
ARTICLES
| SELECTED STATUTES
TOP
STAYING
OUT OF TROUBLE:THE PERSPECTIVE OF THE HENNEPIN
COUNTY PROBATE COURT - MAGiC JOURNAL, JULY 2000.
By Brent Wm.
Primus, J.D.
Introduction.
This article will attempt to convey the observations
and concerns of the Hennepin County Probate Court
regarding the activities of guardians and conservators
and, in particular, professional guardians or
conservators. Accordingly, it will be assumed
that the reader has at least a basic familiarity
with guardianships and conservatorships.
To save a few words, the term "guardian" will
be used to refer to both guardians and conservators
and the term "guardianship" will be used to refer
to both guardianships and conservatorships. The
information for the article was obtained by meeting
with Hennepin County Probate Court Referee Richard
Wolfson; Referee Bruce Kruger; Gail Clapp, Probate
Court Administrator; and JoAnne Cardenas, Senior
Court Clerk. The starting point of the article
will be to address the issue as to why a guardian
should care about the views of the Probate Court.
 A
Guardian Is an Agent of the Court.
The relationship between the Court and a guardian
is not the same as the relationship between the
Court and a party in civil litigation or a criminal
prosecution. Rather, a guardian, by statutory
definition, is an agent of the Court. Minn. Stat.
§ 525.56, Subd. 1, reads as follows:
A guardian or conservator shall be subject
to the control and direction of the court at
all times and in all things.
Accordingly, a guardian, and especially a professional
guardian, who has been appointed by the Hennepin
County Probate Court should be very concerned
with the perspective of the Probate Court because
the Court is " the boss".
Belaboring the Obvious.
There are certain aspects of being a guardian
that presumably every professional guardian well
knows. For instance, a guardian cannot act on
behalf of the ward until the letters of guardianship
have been issued by the Court; an inventory is
to be filed within thirty (30) days of the appointment
of a guardian; a personal well-being report is
to be filed every year; and, for guardianships
of the estate, a financial accounting is to be
filed every year. Although presumably well known,
these basic requirements are not always met.
As of May, 2000, there were 2,623 open guardianship
and conservatorship files in Hennepin County.
In addition to guardianship and conservatorship
matters, the Court also administers probate proceedings,
trust matters, and mental health matters. As with
any organization, the Hennepin County Probate
Court has only a specified allocation of budget
and staff to accomplish all that it is charged
to do. Accordingly, the Court finds it very irksome,
to say the least, that it has to use its scarce
resources to remind, and re-remind, persons holding
themselves out as professional guardians of the
need to make a required filing.
 Annual
Accounts. The Court often receives
annual accounts which do not balance on their
face. Accordingly, it is strongly recommended
that prior to filing an annual account that a
tape calculator be used for its preparation and
that the calculations be "double-checked" .
Referee Kruger recommends that a cash method
of accounting, as opposed to an accrual method,
be used. In other words, assets should be shown
on the annual accounts at their inventory values
and neither appreciation nor depreciation of an
asset be reflected on the account until the asset
is sold or disposed. The gain or loss arising
out of the sale or disposal should then be reflected
in the account.
The beginning balance for the first annual account
should be the balance for personal property shown
on the inventory. The beginning balance for subsequent
annual accounts should be the "balance due to
ward" shown on the previous account.
Joanne Cardenas, who is one of the persons responsible
for auditing annual accounts, points out that
the anniversary date of an account cannot be changed
except through court order and that verification
of funds on deposit and verifications for stock
must be submitted with any account that reflects
bank accounts, saving accounts or stocks. Ms.
Cardenas strongly recommends that a fiduciary
checking account be established at a commercial
bank that returns canceled checks on a monthly
basis. All expenditures made for the ward should
be paid directly by checks from this account.
Reimbursements are to be avoided.
 Hearings
on Annual Accounts. It is recommended
that the guardian be familiar with the status
of the assets as of the time of the hearing, as
well as their status as reflected in the accounts.
This arises out of the fact that a hearing is
typically several months after the end of the
accounting pers,
the bond requirement (as expressed in relation
to the value of the assets) is higher for liquid
assets, e.g., cash, and lower for non-liquid assets,
e.g., real estate.
Also, at the time of the hearing a guardian should
be very aware of the current personal status of
the ward. While it may be a truthful response,
an answer of "I donšt know" is not an acceptable
response for a professional guardian.
Unusual Purchases.
A "rule of thumb" has arisen over the years to
the effect that prior court approval is needed
for an unusual purchase and that an unusual purchase
is something that costs more than $500. While
it is true that something truly unusual would
warrant prior court approval, the Court sees many
petitions which it feels to be unnecessary.
For instance, Referee Kruger pointed out that
Petitions are routinely filed seeking approval
of a prepaid funeral plan costing an excess of
$500, however he could not recall an occasion
when such a Petition was denied. The same would
be true with respect to the purchase of an item
such as a wheelchair.
It should also be kept in mind that the $500
threshold amount embodied in the "rule of thumb"
has been made obsolete through inflation. Based
on the observations of the Referees, the author
would suggest that professionals should reconsider
his or her view of "unusual" ---- taking into
account both the nature of the asset and the cost
of the asset in relationship to the overall assets
of the ward. While such an analysis does require
more professional judgment than rigid adherence
to the old "rule of thumb", the benefit would
be that the time and expense associated with unnecessary
Petitions could be reduced for the benefit of
the Court and guardian as well as the
ward.
DNR/DNI Petitions.
There may be situations where the guardian wishes
to bring a petition to seek approval to terminate
a ward's life support or to initiate DNR/DNI Orders
even though, in the author's opinion, they are
not legally required to do so. (See "The
Power Not to Consent to Medical Care, MAGiC, August,
1997). An example of this would be the situation
where relatives of the ward have differing views
- either with each other or with the guardian.
In any event, the filing of a Petition will lead
to a hearing.
The expectation of the Court of a professional
guardian in such a circumstance is that the guardian
thoroughly acquaint himself or herself with the
religious and cultural background of a ward. And,
having done that, to take the next step and to
determine what is the position of the ward's religion
or culture. For example, once one determines that
a ward is a member of the Catholic church, one
should then determine what the Catholic church's
position is with respect to these issues.
The guardian should also attempt to determine
to the extent possible whether the ward has ever
expressed any personal thoughts on the subject.
The guardian should also try to determine the
view of the involved family members.
To say much further would be far beyond the scope
of this article, but the message for today is
that once the decision has been made to file a
Petition, that the guardian thoroughly prepare
for the Hearing. This would apply not only when
the hearing is expected to be contested, but also
when it is to be uncontested. In the later situation,
the guardian could well be the only source of
information available to the Court upon which
to base a truly "life or death" decision.
 Sale
of Real Estate. The sale of real estate
by a guardian is considered to be a "judicial
sale". (See Restatement of Property: judicial
sales). The advice of the Court for staying out
of trouble when selling real estate is to "follow
the statute". Sections 525.62 through 525.702
of the Minnesota Statutes govern sales of real
estate from a guardianship and conservatorship,
as well as other real estate matters.
The first step of the sale process is the filing
of a Petition to Sell Real Estate. Until the Petition
is granted, a conservator does not have the authority
to even offer or list the property for sale. A
further step of the process, after the Court issues
an Order Directing Sale, is to file a Report of
Sale. Referee Kruger strongly recommends that
a copy of the purchase agreement and a copy of
the preliminary closing statement be attached
to the Report as exhibits.
Again, a thorough discussion of the procedures
and issues relating to the sale of real estate
are beyond the scope of this article, however
a guardian should be very well aware of the provision
of Minn. Stat. § 525.651 which reads as follows:
No real estate shall be sold at private
sale for less than its value as fixed by such
appraisal.
Thus, once a sale has been approved by the Court
at a certain price, the guardian may not re-negotiate
the price, even if acting in perfectly good faith,
without seeking the re-approval of the Court.
This area can be tricky. For instance, it would
be appropriate at closing to deduct the real estate
commission which would result in a net payment
to the guardianship of less than the appraised
value. However, in a transaction where the guardian
did not use a realtor, it would not be appropriate
for the guardian to attempt to facilitate a sale
by providing a proposed buyer a 7% discount from
the appraised value, even though the net payment
would be the same.
Charging for Personal
Services. The charging for personal
services is a practice which at a minimum raises
an appearance of impropriety and, in extreme cases,
could lead to disapproval of the fees or even
a surcharge. An example of charging for personal
services is when a ward has had a lifetime love
of going to the symphony, but can no longer go
unaided. Accordingly, the guardian goes with the
ward to the symphony and uses guardianship funds
to pay for two tickets and charges the ward for
the guardian's time spent at the symphony. A similar
issue arises when a guardian accompanies a ward
on a trip.
Unfortunately, there does not appear to be a
simple answer or "rule of thumb" to address this
situation. The conservative approach would be
to avoid the situation altogether. Depending upon
the circumstances, a guardian could spend the
time and not charge for it or, alternatively,
hire another person to perform the service. If
the guardian concludes that it would be in the
best interest of the ward for the guardian to
personally perform the services, the guardian
would do well to consider obtaining prior approval
of the Court using an analysis similar to the
one discussed above in conjunction with an "unusual
purchase".
 Hiring
of Relatives. There is no prohibition
per se against a guardian hiring a relative to
perform services for the ward, e.g., mowing the
lawn or preparing tax returns. However, the sense
of the Court is that it creates an appearance
of impropriety and, ultimately, is a no-win situation
for the guardian. In the event the relative charges
less than the market rate, the guardian gets little
credit. However, if the relative where to charge
even slightly more than the market rate, the guardian
is opening up himself or herself for criticism.
Removal of a Guardian.
When a guardian doesn't "stay out of trouble"
he or she may be "removed", i.e., his or her appointment
as a guardian is terminated. The removal of a
guardian is governed by two statutes in particular.
Minn. Stat. § 582(d) reads as follows:
If a guardian or conservator becomes unsuitable,
incapacitated or disabled, or violates the trust
or fails to perform any duty imposed on him
by law or the lawful order of the court, the
court upon petition or the courtšs own motion
may remove the guardian or conservator after
notice.
Minn. Stat. § 525.61, Subd. 3, reads
in part as follows:
The court shall appoint a new guardian or
conservator if it finds that:
(1) the existing guardian or conservator
has failed to perform the duties associated
with the guardianship or conservatorship or
to provide for the best interests of the ward
or conservatee;
Obvious examples of conduct leading to the removal
of a guardian would include theft, physical or
sexual abuse of the ward, or a material conflict
of interest. Less obvious examples would be the
failure to file an inventory, personal well-being
report or an annual account. These are statutory
duties imposed upon guardians, not just "suggested
paperwork". (See Minn. Stat. § 525.58). Other
statutory duties imposed upon a guardian are set
forth in Minn. Stat. § 525.56, Subd. 4.
 Communication,
Communication, Communication. Both
Referee Kruger and Referee Wolfson felt very strongly
that the single best way to "stay out of trouble"
was communication with those involved in the ward's
life. Referee Kruger felt that it was very important
to be in touch with the ward's family to the extent
possible. For instance, he suggested inviting
involved family members to care conferences. Another
technique he has observed is the circulation of
a "family newsletter" when there is a large extended
family for which it would be too time consuming
to make individual contact.
Referee Wolfson observed that most of the family
fights he has seen over the years arise out of
placement issues or issues involving personal
property or the homestead. He suggested that the
guardian should try to keep the family advised
not only of the current status, but also of anticipated
major changes, e.g., a change in placement or
a shift in investment strategy. He also believes
that it is important to keep interested persons
updated as to the ward's personal health status,
not just the ward's financial status.
Conclusion. To conclude, the author would summarize
the observations of the Court as follows:
- Prepare and file the requisite reports in
as accurate and as timely fashion as possible;
- Read the Statutes;
- Follow the Statutes; and
- Be as engaged as possible with the other persons
involved in the ward's life.
Finally, the author would like to point out that
he is an attorney with very poor handwriting and
not a news reporter with short hand skills. Accordingly,
he would like to apologize in advance for any
misquotes, errors of attribution, or misstatements
of legal theories.
All for now!
ARTICLES
| SELECTED STATUTES
TOP
TO
DRINK OR NOT TO DRINK:THAT IS THE QUESTION - MAGiC
JOURNAL, OCTOBER 2000 By
Orrin Tietz and Brent Wm. Primus, J.D.
 This
article will explore the role of the conservator
with respect to a conservatee's use of alcohol.
For some conservatees the issue may not even arise,
for instance, an elderly person with advanced
Ahlzimers living in a nursing home or a young
adult with severe mental retardation living in
a group home. Even if these persons were able
to form the desire or intent to drink, they would
not have the means to do so.
However, for individuals who are only moderately
incapacitated, issues relating to the use or abuse
of alcohol can certainly arise. Such a conservatee
might be a young adult who is just beginning to
experiment with alcohol (and who may or may not
be of legal drinking age) or an elderly person
with drinking patterns established over the course
of their entire life.
LEGAL FRAMEWORK.
The issues include the basic legal questions as
to whether a conservatee has a right to drink
at all and whether a conservator has any authority
or duty with respect to the conservatee's drinking.
A quick check of the decisions of the Minnesota
appellate courts did not lead to any decision
which specifically addressed these two questions.
Accordingly, the conservator, as is often the
situation, will have to rely on the language of
the conservatorship statutes for guidance.
Minnesota Statute §
525.56 is entitled "Guardian's or conservator's
powers and duties". While the provisions of M.S.
§ 525.56, Subd. 3, are often colloquially
described by conservatorship attorneys and conservators
as "the powers", a conservator should not overlook
the fact that the provisions of Subd. 3 include
duties, as well as powers.
The portions of this statute most relevant to
our discussion are as follows:
Subd. 3 (1) The POWER to have custody of the
ward or conservatee and the power to establish
a place of abode within or without the state,
except as otherwise provided in this clause.
The ward or conservatee or any person interested
in the ward's or conservatee's welfare may petition
the court to prevent or to initiate a change
in abode. A ward or conservatee may not be admitted
to a regional treatment center by the guardian
or conservator except (1) after a hearing pursuant
to chapter 253B; (2) for outpatient services;
or (3) for the purpose of receiving temporary
care for a specific period of time not to exceed
90 days in any calendar year.
(2) The DUTY to provide for the ward's or conservatee's
care, comfort and maintenance needs, including
food, clothing, shelter, health care, social
and recreational requirements, and, whenever
appropriate, training, education, and habilitation
or rehabilitation... Failure to satisfy the
needs and requirements of this clause shall
be grounds for removal of a private guardian
or conservator, but the guardian or conservator
shall have no personal or monetary liability.
(4) (a) The POWER to give any necessary consent
to enable the ward or conservatee to receive
necessary medical or other professional care,
counsel, treatment or service, except that no
guardian or conservator may give consent for
psychosurgery, electroshock, sterilization,
or experimental treatment of any kind unless
the procedure is first approved by order of
the court as provided in this clause. The guardian
or conservator shall not consent to any medical
care for the ward or conservatee which violates
the known conscientious, religious, or moral
belief of the ward or conservatee...
(6) The DUTY and POWER to exercise supervisory
authority over the ward or conservatee in a
manner which limits civil rights and restricts
personal freedom only to the extent necessary
to provide needed care and services (emphases
added).
When a conservatorship is created the conservator
is usually granted all or most of these powers
and duties.
When a conservator exercises these powers and
duties the Minnesota courts have long held that
the decisive factor when making any choice on
behalf of conservatee is "the best interests of
a conservatee". While the decisions of the Minnesota
appellate courts often discuss what might be the
best interests of a conservatee in the situation
before them, they do not appear to have ever provided
a general definition. However, it has been stated
that "at a minimum, any determination of a conservatee's
best interest must involve some consideration
of the conservatee's wishes". (Conservatorship
of Torres, 357 N.W.2d 332 (Minn. 1984)).
It has also been stated that in evaluating a conservateešs
best interests, consideration must be given to
the conservatee's overall welfare. (In Re Medworth,
562 N.W.2d 522 (Minn. App. 1997)).
Minnesota Statute § 525.539, Subd. 7, includes
the following definition of a ward or conservatee's
welfare:
(i) food, clothing, shelter, and appropriate
medical care;
(ii) social, emotional, religious, and recreational
requirements; and
(iii) training, education, and rehabilitation.
The ultimate consideration of what is in the
conservatee's best interests is whether the alternative
is the least restrictive to the conservatee's
rights and liberties. The establishment of a conservatorship
does not per se deprive the conservatee
of the right to drink any more than it deprives
him or her of the right to own a handgun, drive
on the freeway, smoke cigarettes, download pornography
from the internet, buy lottery tickets or to get
married. However, a conservator who was granted
the powers and duties enumerated above would certainly
have the legal authority, i.e. power, to restrict
such activities and the legal obligation, i.e.
duty, to do so when and if it is "in the best
interests of the conservatee".
THE CONSERVATOR'S ROLE.
In addition to the legal framework discussed above,
there are also many practical issues which arise,
for instance, should a young adult conservatee
be allowed to drink and, if so, what would be
the appropriate parameters? How does a conservator
distinguish appropriate social drinking from inappropriate
drinking or alcoholism? In sum, how does a conservator
exercise his or her role as a conservator in discharging
the powers and duties granted to him or her by
the Probate Court in a manner which is in the
best interests of the conservatee?
From the perspective of a chemical dependency
counselor, there are at least three areas a professional
conservator may wish to consider when acting in
the best interest of the conservatee who wants
to use alcohol. What the conservator is able to
do will depend on which powers and duties he or
she has been granted.
THE CONSERVATEE'S VALUES.
While the use of alcohol, a drug, is generally
accepted, even highly encouraged, in our society,
we all judge its use with our own set of morals
and values. Some would not use at all. Some would
use, but find drunkenness offensive. Some would
limit intoxication to "safe" situations. Some
have virtually no limits. For a young conservatee,
or sometimes for an older one, the conservator
might help the conservatee think through drinking
decisions within the conservatee's own values.
This may also be the opportunity to talk about
drinking responsibly, especially with a young
conservatee.
MEDICAL ISSUES.
The use of alcohol is medically contraindicated
for many diagnoses from seizure disorders to diabetes.
Alcohol reacts with a host of medications to alter
the medication's effectiveness. It would be important
for the conservator to know whether the conservatee
can safely use alcohol at all. The conservatee's
physician would be able to provide this information
and might be enlisted to advise the conservatee.
Unless the individual is alcoholic, advice alone
may be adequate even when it is sometimes broken.
Just as the diabetic is given advice about diet,
which the diabetic may break occasionally at his
or her own peril, so an occasional use of alcohol
may be risky, but not life threatening. An acceptable
amount of rule breaking may have to be tolerated.
It would behoove the conservator to make sure
the conservatee is advised and document well.
 THE
DISEASE OF ALCOHOLISM. The single most
helpful definition of alcoholism is "to lose control".
If a person can have a drink and stop with no
serious consequences, he or she is probably not
an alcoholic and simple advice about drinking
behavior may suffice. But if each time the individual
drinks he or she does not stop until there are
negative consequences, the person may be addicted
and the consequences may become severe.
The individual's behavior may become unpredictable
and harmful to self or others. The personšs living
arrangement may become threatened because others
are unwilling tolerate the personšs behavior.
Heavy alcohol use eventually affects virtually
every organ of the body causing emergency hospital
admissions, producing depression, affecting cognition,
and eventually ending in death. To simply advise
the alcoholic that he or she should not drink
is ineffective and treatment may be necessary.
Keep in mind that a hallmark of this disease
is denial. When asked, the alcoholic will say
he or she does not drink or will minimize drinking
and its related consequences. The alcoholic sees
his or her behavior differently than others see
it and may be firmly convinced there is no problem
even when the problems are blatantly obvious.
Often the alcoholic reacts angrily when questioned
about alcohol use. In order to evaluate drinking
behavior, the conservator may need to seek physical
evidence such as empty bottles, changes in behavior
such as not eating properly, and the reports of
others.
The conservator who suspects alcoholism may
wish to seek an assessment of the conservatee's
drinking behavior. A professional chemical health
assessor is qualified to diagnose alcoholism,
recommend the most appropriate treatment program
and determine whether the individual qualifies
to receive consolidated funding to support treatment.
The county chemical dependency treatment department
is able too provide a listing of qualified assessors.
The incidence of alcoholism among persons with
diagnoses such as traumatic brain injury and certain
mental illnesses is higher than in the general
population. Often persons with such diagnoses
require special attention and understanding during
treatment, but there are few specialized programs.
 At
the time of referral to a treatment program, it
is best to give the admitting counselor a clear
description of the conservatee's diagnoses, behaviors,
and mental limitations to help the counselor determine
whether the program is prepared to treat the conservatee.
The conservator should do the research to ensure
the program is appropriate for the client.
In the event that the conservatee is unwilling
to voluntarily enter treatment, problems arise.
The power of the conservator to establish a place
of abode for the conservatee (MS § 525.56,
Subd. 3(1), see above) is not unlimited. The issues
relating to involuntary placement or treatment
are beyond the scope of this article. Suffice
it to say here that, depending upon the seriousness
of the underlying problem, the conservator may
have little choice but to initiate a commitment
proceeding pursuant to Minnesota Statute Chapter
253B.
Studies indicate that the longer a recovering
alcoholic receives structured support for sobriety,
the more likely the person will remain in recovery.
After treatment the conservator might consider
placement in a living environment that provides
ongoing structured support for sobriety and limits
access to alcohol. It is important to understand
that the recovering alcoholic will not be able
to drink alcohol safely again.
TREATMENT PROGRAMS
FOR SPECIAL POPULATIONS. Two programs
in the Metro area that provide specialized treatment
are listed below.
Walker Cityview Chemical Health Program, 618
East 17th Street, Minneapolis, Minnesota, 612-332-3541.
This program provides treatment for persons who
receive nursing and medical care at Walker Cityview,
a skilled nursing facility, and focuses on the
older adult.
Vinland Center, Lake Independence, Loretto, Minnesota,
612-479-3555. This program provides treatment
for persons with cognitive disabilities associated
with brain injury, mild mental retardation, mental
illness and other conditions.
ARTICLES
| SELECTED STATUTES
TOP
SELECTED STATUTES
Minn
Statute § 525.539 Definitions.
Minnesota Statutes 2000, 525.539Minnesota
Statutes 2000, Table of Chapters Table of contents
for Chapter 525
Subdivision
1. Scope. For the purposes of sections 525.54
to 525.5515; 525.56; 525.57 to 525.581; 525.583
to 525.61; 525.62; 525.63; 525.67; and 525.69,
the following terms shall have the meanings given
them.
Subd.
2. Guardian. "Guardian" means a person or entity
who is appointed by the court to exercise all
of the powers and duties designated in section
525.56 for the care of an incapacitated person
or that person's estate, or both.
Subd.
3. Conservator. "Conservator" means a person appointed
by the court to exercise some, but not all, of
the powers designated in section 525.56 for the
care of an incapacitated person or that person's
estate, or both. Subd.
4. Ward.
"Ward" means an incapacitated person for whom
the court has appointed a guardian. Subd.
5.
Conservatee. "Conservatee" means an incapacitated
person for whom the court has appointed a conservator.
Subd.
6. Visitor.
"Visitor" means a person who is trained in law,
health care, or social work and is an officer,
employee, or special appointee of the court with
no personal interest in the proceedings. Subd.
7. Best
interests of the ward or conservatee. "Best interests
of the ward or conservatee" means all relevant
factors to be considered or evaluated by the court
in nominating a guardian or conservator, including
but not limited to:
(1)
the reasonable preference of the ward or conservatee,
if the court determines the ward or conservatee
has sufficient capacity to express a preference;
(2)
the interaction between the proposed guardian
or conservator and the ward or conservatee;
and
(3)
the interest and commitment of the proposed
guardian or conservator in promoting the welfare
of the ward or conservatee and the proposed
guardian's or conservator's ability to maintain
a current understanding of the ward's or conservatee's
physical and mental status and needs. In the
case of a ward or a conservatorship of the person,
welfare includes:
(i) food, clothing, shelter, and appropriate
medical care;
(ii) social, emotional, religious, and recreational
requirements; and
(iii) training, education, and rehabilitation.
Kinship
is not a conclusive factor in determining the
best interests of the ward or conservatee but
should be considered to the extent that it is
relevant to the other factors contained in this
subdivision.
HIST:
1980 c 493 s 1; 1981 c 313 s 1; 1986 c 444; 1Sp1986
c 3 art 3 s 5; 1Sp1993 c 1 art 3 s 40 Copyright
2000 by the Office of Revisor of Statutes, State
of Minnesota.
ARTICLES
| SELECTED STATUTES
TOP
Minn
Statute § 525.54 Adults subject to guardianship
and conservatorship.
Minnesota Statutes 2000, 525.54
Minnesota Statutes 2000, Table of Chapters Table
of contents for Chapter 525 525.54
Subdivision 1. Adults subject to
guardianship and conservatorship. Upon petition
as provided in this chapter, the court, if satisfied
of the need therefor, may appoint one or more
persons suitable and competent to discharge the
trust as guardians of the person or estate or
of both or as conservators of the person or the
estate or of both, of any incapacitated person.
The county human services agency may create a
screening committee to review a petition involving
an indigent person. The screening committee must
be made up of individuals selected by the agency
with knowledge of the availability of alternatives
that are less restrictive than guardianships or
conservatorships. If the agency has created a
screening committee, the court shall make its
decision after the screening committee has reviewed
the petition. For indigent persons, the court
may appoint a guardian or conservator under contract
with the county to provide these services.
Subd. 2. Guardianship or conservatorship
of the person. "Incapacitated person" means, in
the case of guardianship or conservatorship of
the person, any adult person who is impaired to
the extent of lacking sufficient understanding
or capacity to make or communicate responsible
personal decisions, and who has demonstrated deficits
in behavior which evidence an inability to meet
personal needs for medical care, nutrition, clothing,
shelter, or safety.
Subd. 3. Guardianship or conservatorship
of the estate. Appointment of a guardian or conservator
may be made in relation to the estate and financial
affairs of an adult person:
(a) voluntarily, upon the
person's petition or consent in writing if the
court is satisfied of the need thereof;
(b) involuntarily, upon
the court's determination that (1) the person
is unable to manage the person's property and
affairs effectively because the person is an
incapacitated person, and (2) the person has
property which will be dissipated unless proper
management is provided, or that funds are needed
for the support, care and welfare of the person
or those entitled to be supported by the person,
and (3) a guardian or conservator is necessary
to adequately protect the person's estate or
financial affairs; or
(c) involuntarily, upon
the court's determination that an indigent incapacitated
person is institutionalized and has a demonstrated
need for guardianship or conservatorship services
beyond financial services available through
the institution as required by chapter 144A
and sections 256B.35 and 256B.36, or through
the county human services agency, to the extent
the agency provides these services. The need
for a guardian or conservator may not be based
solely on the fact that the ward or conservatee
is a recipient of medical assistance or is institutionalized.
"Incapacitated person" means, in the case of
guardianship or conservatorship of the estate
of an adult, any adult person who is impaired
to the extent that the person lacks sufficient
understanding or capacity to make or communicate
responsible decisions concerning the person's
estate or financial affairs, and who has demonstrated
deficits in behavior which evidence an inability
to manage the estate, or who is unable to manage
the estate or financial affairs effectively
by reason of detention by a foreign power or
disappearance.
Subd. 4. Voting. The appointment
of a conservator shall not deprive the conservatee
of the right to vote, unless the right is restricted
by court order.
Subd. 5. Competency. Appointment
of a guardian is evidence of the incompetency
of the incapacitated person. Appointment of a
conservator is not evidence of incompetency.
Subd. 6. Authority to appoint guardian.
Nothing contained in this section shall diminish
the power of the court to appoint a guardian to
serve or protect the interest of any person under
disability in any proceedings therein.
Subd. 7. Certain protective arrangements.
If it is established in a proper proceeding under
section 525.551 that a basis exists for the appointment
of a guardian or conservator, the court, instead
of appointing a guardian or conservator, may
(a) authorize, direct or
ratify any transaction necessary or desirable
to achieve any security, service, or care arrangement
meeting the foreseeable needs of the protected
person. Protective arrangements include, but
are not limited to: payment, delivery, deposit
or retention of funds or property; sale, mortgage,
lease or other transfer of property; entry into
an annuity contract, a contract for life care,
a deposit contract or a contract for training
and education; or addition to or establishment
of a suitable trust; or
(b) authorize, direct or
ratify any contract, trust or other transaction
relating to the protected person's financial
affairs or involving the protected person's
estate if the court determines that the transaction
is in the best interests of the protected person.
Before approving a protective arrangement or
other transaction under this subdivision, the
court shall consider the interests of creditors
and dependents of the protected person and,
in view of the disability, whether the protected
person needs the continuing protection of a
guardian or conservator. The court may appoint
a special conservator with or without bond to
assist in the accomplishment of any protective
arrangement or other transaction authorized
under this subdivision, who shall have the authority
conferred by the order and serve until discharged
by order after making a report to the court
of all matters done pursuant to the order of
appointment.
HIST: (8992-129) 1935 c 72 s 129;
1971 c 588 s 1; 1973 c 618 s 1; 1980 c 493 s 2;
1981 c 313 s 2; 1986 c 444; 1988 c 456 s 1; 1993
c 118 s 1,2 Copyright 2000 by the Office of Revisor
of Statutes, State of Minnesota.
ARTICLES
| SELECTED STATUTES
TOP
Minn
Statute § 525.56 Guardian's or conservator's
powers and duties.
Minnesota Statutes 2000,
525.56Minnesota Statutes 2000, Table of Chapters
Table of contents for Chapter 525 525.56
Subdivision 1. Court's direction
and control. A guardian or conservator shall be
subject to the control and direction of the court
at all times and in all things.
Subd. 2. Only necessary powers.
The court shall grant to a guardian or conservator
only those powers necessary to provide for the
demonstrated needs of the ward or conservatee.
Subd. 3. Specific powers and
duties, guardian or conservator of person. The
court may appoint a guardian of the person if
it determines that all the powers and duties listed
in this subdivision are needed to provide for
the needs of the incapacitated person. The court
may appoint a conservator of the person if it
determines that a conservator is needed to provide
for the needs of the incapacitated person through
the exercise of some, but not all, of the powers
and duties listed in this subdivision. The duties
and powers of a guardian or those which the court
may grant to a conservator of the person include,
but are not limited to:
(1) The power to have custody
of the ward or conservatee and the power to
establish a place of abode within or without
the state, except as otherwise provided in this
clause. The ward or conservatee or any person
interested in the ward's or conservatee's welfare
may petition the court to prevent or to initiate
a change in abode. A ward or conservatee may
not be admitted to a regional treatment center
by the guardian or conservator except
(1) after a hearing pursuant to chapter 253B;(2)
for outpatient services; or(3)
for the purpose of receiving temporary care
for a specific period of time not to exceed
90 days in any calendar year.
(2) The duty to provide
for the ward's or conservatee's care, comfort
and maintenance needs, including food, clothing,
shelter, health care, social and recreational
requirements, and, whenever appropriate, training,
education, and habilitation or rehabilitation.
The guardian or conservator has no duty to pay
for these requirements out of personal funds.
Whenever possible and appropriate, the guardian
or conservator should meet these requirements
through governmental benefits or services to
which the ward or conservatee is entitled, rather
than from the ward's or conservatee's estate.
Failure to satisfy the needs and requirements
of this clause shall be grounds for removal
of a private guardian or conservator, but the
guardian or conservator shall have no personal
or monetary liability.
(3) The duty to take reasonable
care of the ward's or conservatee's clothing,
furniture, vehicles, and other personal effects,
and, if other property requires protection,
the power to seek appointment of a guardian
or conservator of the estate. The guardian or
conservator must give notice in the manner required
and to those persons specified in section 525.55
prior to the disposition of the ward's or conservatee's
clothing, furniture, vehicles, or other personal
effects. The notice must inform the person of
the right to object to the disposition of the
property within ten days and to petition the
court for a review of the guardian's or conservator's
proposed actions. Notice of the objection must
be served by mail or personal service on the
guardian or conservator and the ward or conservatee
unless the ward or conservatee be the objector.
The guardian or conservator served with notice
of an objection to the disposition of the property
may not dispose of the property unless the court
approves the disposition after a hearing.
(4)
(a)
The power to give any necessary consent to
enable the ward or conservatee to receive
necessary medical or other professional care,
counsel, treatment or service, except that
no guardian or conservator may give consent
for psychosurgery, electroshock, sterilization,
or experimental treatment of any kind unless
the procedure is first approved by order of
the court as provided in this clause. The
guardian or conservator shall not consent
to any medical care for the ward or conservatee
which violates the known conscientious, religious,
or moral belief of the ward or conservatee.
(b)
A guardian or conservator who believes a procedure
described in clause (4)(a) requiring prior
court approval to be necessary for the proper
care of the ward or conservatee shall petition
the court for an order and, in the case of
a public guardianship or conservatorship under
chapter 252A, obtain the written recommendation
of the commissioner of human services. The
court shall fix the time and place for the
hearing and shall give notice to the ward
or conservatee and to the other persons specified
in section 525.55, subdivision 1. The notice
shall comply with the requirements of, and
be served in the manner provided in section
525.55, subdivision 2. The court shall appoint
an attorney to represent the ward or conservatee
who is not represented by counsel. In every
case the court shall determine if the procedure
is in the best interests of the ward or conservatee.
In making its determination, the court shall
consider a written medical report which specifically
considers the medical risks of the procedure,
whether alternative, less restrictive methods
of treatment could be used to protect the
best interests of the ward or conservatee,
and any recommendation of the commissioner
of human services for a public ward or conservatee.
The standard of proof is that of clear and
convincing evidence.
(c)
In the case of a petition for sterilization
of a mentally retarded ward or conservatee,
the court shall appoint a licensed physician,
a psychologist who is qualified in the diagnosis
and treatment of mental retardation, and a
social worker who is familiar with the ward's
or conservatee's social history and adjustment
or the case manager for the ward or conservatee
to examine or evaluate the ward or conservatee
and to provide written reports to the court.
The reports shall indicate why sterilization
is being proposed, whether sterilization is
necessary and is the least intrusive method
for alleviating the problem presented, and
whether it is in the best interests of the
ward or conservatee. The medical report shall
specifically consider the medical risks of
sterilization, the consequences of not performing
the sterilization, and whether alternative
methods of contraception could be used to
protect the best interests of the ward or
conservatee.
(d)
Any conservatee whose right to consent to
a sterilization has not been restricted under
this section or section 252A.101, may be sterilized
only if the conservatee consents in writing
or there is a sworn acknowledgment by an interested
person of a nonwritten consent by the conservatee.
The consent must certify that the conservatee
has received a full explanation from a physician
or registered nurse of the nature and irreversible
consequences of the sterilization operation.
(e)
A guardian or conservator or the public guardian's
designee who acts within the scope of authority
conferred by letters of guardianship under
section 252A.101, subdivision 7, and according
to the standards established in this chapter
or in chapter 252A shall not be civilly or
criminally liable for the provision of any
necessary medical care, including but not
limited to, the administration of psychotropic
medication or the implementation of aversive
and deprivation procedures to which the guardian
or conservator or the public guardian's designee
has consented.
(5) The power to approve
or withhold approval of any contract, except
for necessities, which the ward or conservatee
may make or wish to make.
(6) The duty and power
to exercise supervisory authority over the ward
or conservatee in a manner which limits civil
rights and restricts personal freedom only to
the extent necessary to provide needed care
and services.
Subd. 4. Duties of guardian
or conservator of the estate. The court may appoint
a guardian of the estate if it determines that
all the powers and duties listed in this subdivision
are needed to provide for the needs of the incapacitated
person. The court may appoint a conservator of
the estate if it determines that a conservator
is necessary to provide for the needs of the incapacitated
person through the exercise of some, but not all,
of the powers and duties listed in this subdivision.
The duties and powers of a guardian or those which
the court may grant to a conservator include,
but are not limited to:
(1) The duty to pay the
reasonable charges for the support, maintenance,
and education of the ward or conservatee in
a manner suitable to the ward's or conservatee's
station in life and the value of the estate.
Nothing herein contained shall release parents
from obligations imposed by law for the support,
maintenance, and education of their children.
The guardian or conservator has no duty to pay
for these requirements out of personal funds.
Wherever possible and appropriate, the guardian
or conservator should meet these requirements
through governmental benefits or services to
which the ward or conservatee is entitled, rather
than from the ward's or conservatee's estate.
Failure to satisfy the needs and requirements
of this clause shall be grounds for removal,
but the guardian or conservator shall have no
personal or monetary liability;
(2) The duty to pay out
of the ward's or conservatee's estate all just
and lawful debts of the ward or conservatee
and the reasonable charges incurred for the
support, maintenance, and education of the ward's
or conservatee's spouse and dependent children
and, upon order of the court, pay such sum as
the court may fix as reasonable for the support
of any person unable to earn a livelihood who
is legally entitled to support from the ward
or conservatee;
(3) The duty to possess
and manage the estate, collect all debts and
claims in favor of the ward or conservatee,
or, with the approval of the court, compromise
them, institute suit on behalf of the ward or
conservatee and represent the ward or conservatee
in any court proceedings, and invest all funds
not currently needed for the debts and charges
named in clauses (1) and (2) and the management
of the estate, in accordance with the provisions
of sections 48A.07, subdivision 6, and 501B.151,
or as otherwise ordered by the court. The standard
of a fiduciary shall be applicable to all investments
by a guardian or conservator. A guardian or
conservator shall also have the power to purchase
certain contracts of insurance as provided in
section 50.14, subdivision 14, clause (b);
(4) Where a ward or conservatee
has inherited an undivided interest in real
estate, the court, on a showing that it is for
the best interest of the ward or conservatee,
may authorize an exchange or sale of the ward's
or conservatee's interest or a purchase by the
ward or conservatee of any interest other heirs
may have in the real estate.
Subd. 5. Transaction set
aside. If a ward or conservatee has made a financial
transaction or gift or entered into a contract
during the two-year period before establishment
of the guardianship or conservatorship, the guardian
or conservator may petition for court review of
the transaction, gift, or contract. If the court
finds that the ward or conservatee was incompetent
or subject to duress, coercion, or undue influence
when the transaction, gift, or contract was made,
the court may declare the transaction, gift, or
contract void except as against a bona fide transferee
for value and order reimbursement or other appropriate
relief. This subdivision does not affect any other
right or remedy that may be available to the ward
or conservatee with respect to the transaction,
gift, or contract.
HIST: (8992-135) 1935 c 72
s 135; 1941 c 395 s 1; 1947 c 209 s 1; 1953 c
457 s 1; 1961 c 288 s 1; 1973 c 618 s 9; 1980
c 493 s 10; 1981 c 313 s 9,10; 1986 c 444; 1987
c 185 art 2 s 4; 1987 c 403 art 2 s 152; 1989
c 340 art 2 s 4; 1991 c 118 s 1; 1996 c 314 s
6; 1998 c 331 s 40 Copyright 2000 by the Office
of Revisor of Statutes, State of Minnesota.
ARTICLES
| SELECTED STATUTES
TOP
QUESTIONS?
Send inquiries to frontdesk@primuslawoffice.com
or call us at (612) 333-0909
ARTICLES
| SELECTED STATUTES
TOP
|
