SF3357: Guardianship and conservatorship update

Posted by Gregory Singleton | May 09, 2020 | 0 Comments

Yesterday the Senate passed SF3357 that, among other things, updated the Minnesota guardianship and conservatorship laws. The bill was sponsored by the Minnesota State Bar Association's Probate & Trust Law Section. (UPDATE: The bill was signed into law on May 16, 2020.)

Changes in law

As per Senator Warren Limmer' summary, SF3357 makes the following changes:

  • Modifies the right to communication and related duties under the Bill of Rights.
  • Creates a new form, “a bill of particulars,” that contains confidential information related to a person's health and finances.
  • Requires the court make specific findings related to less restrictive means of assisting a person subject to guardianship or conservatorship. This includes supported decision making, and must be done before appointing a guardian or conservator.
  • Requires notice to interested persons when the person subject to guardianship experiences a significant medical or public safety event, or dies.
  • Authorizes the establishment and administration of an ABLE account.
  • Authorizes a conservator to institute cases for civil court actions.
  • Authorizes a person subject to conservatorship to control their own wages.
  • Authorizes a guardian or conservator to seek a restraining order on behalf of a victim who is a person subject to guardianship or conservatorship.
  • Requires durational limits on guardianships when the person subject to guardianship is under the age of 30. But it also authorizes a petition for unlimited guardianship if the person is 29 and currently under a limited guardianship.
  • Places durational limits on emergency guardianships and conservatorships.
  • Authorizes interested persons to waive notice requirements.

The effective date for these changes will be August 1, 2020, provided that SF3357 passes the House.

Supported Decision Making

Guardianships and conservatorships are all or nothing endeavors. Once placed in such a program, the guardian or conservator makes all financial decisions for the person subject to the program. Oftentimes, however, this is much more supervision than is needed. Supported decision making is a trend that has been crossing the country, and has now made its way to Minnesota. It allows people with disabilities to retain their decision-making ability by choosing advisors to support them in making those decisions. With the new law, Minnesota recognizes that supported decision making is a lesser intrusive option and a step to be considered before guardianships or conservatorships.

ABLE Account

ABLE stands for Achieving a Better Life Experience. An ABLE account allows a person who is on disability benefits to save for their future without interrupting those benefits. Normally, if a person has too much in savings, it limits the amount of benefits that they can obtain. An ABLE account allows a person can save up to $27,490 annually without affecting Medical Assistance, SSI, or other benefits. SF3357 authorizes the establishment and administration of an ABLE account.

Bill of Rights for Persons Subject to Guardianship or Conservatorship

In this context, the Bill of Rights refers to Minn. Stat. § 524.5-120. As stated above, a guardianship or conservatorship is a very intrusive program. It allows the guardian or conservator to make all the financial decisions for the person in the program. But the person in the guardianship or conservatorship does not relinquish all rights. Under SF3357, these rights include, among other things, such rights as:

  • Being treated with dignity and respect.
  • Receive timely and appropriate health care and medical treatment that does not violate conscientious, religious, or moral beliefs.
  • Right to exercise all aspects of life not delegated to the guardian or conservator.
  • Right to personal privacy.

This is only a sample of the now 17 (previously 15) enumerated rights included in the Bill of Rights. The new law amends these rights to expand them. Among other things, it improves protections for outside communications and visitors. The law includes protections for cultural practices. And it improves the right to petition the court for termination or modification of decisions made by the guardian or conservator.

Takeaway

SF3357 will modernize the current guardianship and conservatorship laws. It improves the rights of persons under a guardianship and conservatorship. And it requires a court to consider a less drastic option to guardianships and conservatorship. The law brings Minnesota more into alignment with the rest of the country regarding guardianships and conservatorships. If you have questions about the effects of SF3357, contact Signature Law for a free consultation.

About the Author

Gregory Singleton

Trusted Legal Advisor Gregory Singleton is a skilled attorney, experienced in both litigation and transactional work. He has tried multi-million-dollar cases and has negotiated multi-billion dollar contracts. With Signature Law, his goal is to make the law accessible to you, your families, and y...

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