The Minnesota Legislature last session adopted the Uniform Guardianship and Protective Proceedings Act, significantly overhauling the statutory framework for dealing with guardianships and conservatorships in Minnesota.

by Gregory R. Solum

Now that the dust has settled, it is clear that the past legislative session was arguably (and I use the term in its broadest sense) devoted to economic and budgetary issues. Nevertheless, the session did accomplish a significant overhaul of the statutory framework relating to guardianships and conservatorships in Minnesota. While adoption of the Uniform Guardianship and Protective Proceedings Act ("UBPPA"), 2003 Minn. Laws, ch. 12 (effective August 1, 2003) will have greater impact upon probate, mental health and elder law practitioners, the new statute affects attorneys practicing juvenile, real estate, tax and family law as well.

The new Uniform Guardianship and Protective Proceedings Act, codified at Minn. Stat. §§524.5-101 to 524.5-502 (2003), replaces the prior "Guardianships and Conservatorships" statute found at Minn. Stat. §525.539, et seq. (2002). It retains various substantive and procedural provisions in a manner consistent with prior Minnesota law. For example, the enumerated powers and duties of a guardian of the person are for the most part identical.1 Similarly, the enumerated powers and duties of conservators of the estate closely track the prior act.2

However, there are important changes that present potential pitfalls for practitioners. One very profound difference is the new provision authorizing conservators of the estate (after notice and hearing) to engage in estate planning including the power to "make, amend, or revoke the protected person's will."3

Other specific areas of substantive interest to specialists include a new codification of the laws regarding guardianships of minors4 and powers and duties of a conservator with respect to real property.5

Procedurally, notice under UBPPA is somewhat different and distinguishes between those who must be given notice on an initial petition for guardianship and those who must be given notice on a subsequent petition.6 In the latter case, Minn. Stat. §524.5-308 (c) (2003) requires that notice must be given only to interested persons pursuant to Minn. Stat. §524.5-113.7 Unless specifically designated by the court, an initial petitioner (such as a nursing home social worker who formerly provided services, for example) may or may not be included among the "interested persons" entitled to notice on a petition for modification or termination of a guardianship.

Statutory Overview

The first part of UBPPA contains "General Provisions" covering jurisdiction and notice and including a new definitions section. Because the new statute makes wholesale changes in the definitions of "guardian" and "conservator," this section is particularly important.

Previously, the "guardianship vs. conservatorship" distinction was determined by the powers and duties granted by the probate court pursuant to Minn. Stat. §525.56. Generally, a guardian was appointed only in those cases in which the court found all of the powers and duties over the ward to be necessary.8 If any of the powers or duties were not included, the appointment was deemed to be a conservatorship.9 In addition, if the powers and duties related to personal decisions (i.e., those regarding abode; food, clothing, shelter, social and educational needs; care of personal property; medical decisions; contracts; supervisory authority) the appointment was deemed to be a conservatorship of the person.10 If the powers and duties related to finances, assets or income (i.e., authorization to pay for support, maintenance, or education; to pay debts; collect claims and manage the estate and its investments; or to sell or purchase real estate with prior authority from the court) the appointment was deemed to be a conservatorship of the estate.11 In either case, the petitioner had to prove incapacity in personal decisions and/or financial decisions.12 The burden of proof was clear and convincing evidence.13

UBPPA, on the other hand, categorizes any and all "personal" powers and duties as relating to "guardians" (whether designated as unlimited, limited, emergency or temporary substitute guardian).14 Likewise, any person for whom a guardian has been appointed (even if the guardian has authority for only one "personal" power) is defined as a "ward."15 As under the prior statute, Minn Stat. §525.551, subd. 3 (2002), evidence of the need for, extent of and appropriateness of a particular guardian must be clear and convincing.16 Also, the old and new statutes both require proof of incapacity before any powers of the person are granted. The definitions of incapacity in both statutes are substantially the same, except UBPPA excludes status as a minor as an incapacity for reasons explained in the conclusion below. The definition in UBPPA is found at Minn. Stat. §524.5-102, subd. 6 (2003):

[incapacitated person.] "Incapacitated person" means an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.

The addition of the "technical assistance" provision should be noted as it could enable an otherwise capable person to communicate responsible personal decisions through computer technology.

Unlike the prior statute, UBPPA uses the term "incapacitated person" in reference only to guardianships (i.e., of the person).17 In addition to finding incapacity, the court must find that there are no less restrictive means (including appropriate technological assistance and/or a protective order or conservatorship) to meet the person's identified needs.18 Significantly, the new statute continues to limit personal powers and duties to the extent deemed absolutely necessary by the court:

The court shall grant to a guardian only those powers necessitated by the ward's limitations and demonstrated needs and, whenever feasible, make appointive and other orders that will encourage the development of the ward's maximum self-reliance and independence. Any power not specifically granted to the guardian, following a written finding by the court of a demonstrated need for that power, is retained by the ward.19

The terms "conservator" and "protected person," on the other hand, relate only to powers and duties previously categorized as powers of the "estate" (i.e., finances, assets and income).20 In "conservatorship" matters (called "protective proceedings"), the court has a flexible variety of options including appointment of a limited or unlimited conservator or entry of any other protective order relating to the person's affairs or estate.21 For example, the court can authorize protective arrangements and single transactions pursuant to Minn. Stat. §524.5-412 (2003).

Rather than demonstrating "incapacity," a petitioner in a conservatorship matter must show that an "individual is unable to manage property and business affairs because of an impairment in the ability to receive and evaluate information or make decisions, even with the use of appropriate technological assistance, or because the individual is missing, detained or unable to return to the United States."22 This statutory element is different from the prior statute which required proof of the individual's incapacity to effectively manage property and affairs.23

The petitioner in a conservatorship under UBPPA must prove the respondent's impairment in financial ability by clear and convincing evidence. In a departure from the prior statute, however, under UBPPA the petitioner needs to show only a potential for waste or dissipation of assets by a preponderance of evidence.24 The "less restrictive means" provision is silent on the requisite burden of proof.25

For good or ill, the broader definition of "impairment" and the lower standard of proof will arguably make it much easier to establish conservatorships of the "estate" in future protective proceedings.

Moreover, the procedure for termination of a guardianship or conservatorship is apparently more difficult under UBPPA. Under the prior act, a person could be "restored to capacity" (and the guardianship/conservatorship terminated) as follows:

Restoration to capacity. To obtain an order of restoration to capacity the petitioner must prove by a preponderance of the evidence that the ward or conservatee is no longer incapacitated as defined in section 525.54, and is able to make provisions for personal care or self-management of property. If a ward or conservatee has the functional ability to care for self or for property, or to make provisions for personal care or the care of property, the fact of impairment to some extent by a mental condition shall not preclude restoration to capacity. In any proceedings for restoration, the court may appoint one person duly licensed by a health related licensing board and one accredited social worker with expertise in evaluating persons who have the disabilities similar to those found to be the reason for the ward's or conservatee's incapacity, to assist in the determination of mental condition and functional ability to care for self or property. The court shall allow and order paid to each health professional and social worker a reasonable sum for services. Upon the order, the county auditor shall issue a warrant on the county treasurer for payment thereof.26

The lower standard of proof (preponderance of the evidence), the preference in favor of restoration (despite "impairment to some extent by a mental condition") and the authority to hire and pay experts all speak to the legislative policy in favor of restoration to capacity whenever possible.

UBPPA, on the other hand, requires a court to follow the same procedures to safeguard a person's rights as are available under an initial petition.27 However, the court has a great deal of discretion and can order different procedures for good cause. In addition, following establishment of a prima facie case by a petitioner, the court must order termination unless it is "proven" that termination is not in the person's "best interests."28 Finally, unlike the prior act (Minn. Stat. §525.539, subd. 7 (2002)), UBPPA does not include a specific definition of "best interests."

Conclusion

In many respects, UBPPA represents a major improvement in statutory organization and consistency in nomenclature. For example, appointment of a guardian for a minor can be sought based upon an incapacity other than age (e.g., organic brain disorder or other mental illness).29 If the guardianship were granted under the incapacitated persons section (Minn. Stat. §524.5-301, et seq.) rather than the guardianship of minors section (Minn. Stat. §524.5-201 et seq.), the guardianship would survive the minor's 18th birthday and obviate the need to commence a new guardianship proceeding.30 The same rationale could be applied where the court grants conservatorship powers and duties in cases involving minors who are impaired in financial matters for reasons other than mere age.31

Another organizational improvement is the addition of the power of a ["personal"] guardian to apply for government assistance (e.g., medical assistance) or other benefits on behalf of a ward who does not have a ["financial"] conservator.32 Quite often, a proposed ward who is in need of government benefits or services has only nominal income or assets (otherwise, they would not need government assistance). A court now has the flexibility to grant this limited but important power without the additional procedures necessary for a financial conservatorship or other protective proceeding. Similarly, either a conservator or a guardian (if there is no conservator) can be authorized by the court to enter into contracts.33 This "personal power" authority can be crucial in helping people stay in a community setting where, for example, a lease and contract for home services become necessary.

While the enhanced organization and flexibility of UBPPA are commendable, one significant problem will likely arise regarding the nomenclature. In my view, application of the label "ward" to any and all persons subject to a personal power creates a stigma. Under the prior statute, appointment of a conservator was not evidence of incompetence.34 Appointment of a guardian, on the other hand, was evidence of incompetence.35 Under UBPPA, a person who is competent to exercise all personal powers except one or two (e.g., where they live or whether to consent to medical procedures) is nonetheless included in the category of incompetent wards under the traditional statutory definition.

This issue of stigmatization will not soon disappear as there is a very long-term transition provision in the new statute, allowing the prior nomenclature to be used for many years to come.36 In the meantime, trial and appellate courts will need to struggle to protect the rights of all parties in guardianship and protective proceedings under the new UBPPA statute.

Notes
1 Compare Minn. Stat. §525.56, subd. 3 (2002) with Minn. Stat. §524.5-313(c)(2003).

2 Compare Minn. Stat. §525.56, subd. 4 (2002) with Minn. Stat. §524.5-418(c)(2003).

3 Minn. Stat. §524.5-411(a)(9) (2003).

4 Minn. Stat. §§524.5-201 to 524.5-211 (2003).

5 Minn. Stat. §524.5-418A (2003).

6 Compare Minn. Stat. §524.5-303(b) and 304 (c) (2003) (initial petition) with Minn. Stat. §524.5-308 (a)-(c) (2003) (subsequent petition).

7 "Interested person" is defined at Minn. Stat. §524.5-102, subd. 7 (2003).

8 Minn. Stat. §525.539, subd. 2 (2002).

9 Minn. Stat. §525.539, subd. 3 (2002).

10 Minn. Stat. §525.56, subd. 3 (2002).

11 Minn. Stat. §525.56, subd. 4 (2002).

12 Minn. Stat. §525.54, subds. 2 and 3 (2002).

13 Minn Stat. §525.551, subd. 3 (2002).

14 Minn. Stat. §524.5-102, subd. 5 (2003).

15 Minn. Stat. §524.5-102.subd. 17 (2003).

16 Minn. Stat §524.5-310 (a) (2003).

17 Minn. Stat. §524.5-102, subd. 5 (2003).

18 Minn. Stat §524.5-310(a)-(b) (2003).

19 Minn. Stat. §524.5-310 (c) (2003). Compare Minn. Stat. §525.56, subd. 2(2002) ("The court shall grant to a guardian or conservator only those powers necessary to provide for the demonstrated needs of the ward or conservatee").

20 Defined at Minn. Stat §524.5-102, subds. 3 and 14 (2003), respectively. These powers and duties are enumerated at Minn. Stat §524.5-418(c)(2003).

21 Minn. Stat. §524.5-401 (2003).

22 Minn. Stat. §524.5-409(a)(1) (2003).

23 Minn. Stat. §525.54, subd. 3 (2002).

24 Minn. Stat. §524.5-409(a)(1) and (2) (2003).

25 Minn. Stat. §524.5-409(a)(3)(2003).

26 Minn. Stat. §525.61, subd. 2 (2002).

27 Minn. Stat. §524.5-317(c) (2003); Minn. Stat. §524.5-431(d) (2003).

28 Id.

29 See, Minn. Stat. §524.5-102, subd. 6 (2003).

30 Compare, Minn. Stat. §524.5-210(a) with Minn. Stat. §524.5-317(a)(2003).

31 Minn. Stat. §524.5-401(2)(2003); Minn. Stat. §524.5-431 (a)(2003).

32 Minn. Stat. §524.5-313(c)(7)(2003).

33 Minn. Stats. §§524.5-313(c)(5) and 524.5-418(c)(5) (2003).

34 Minn. Stat. §525.54, subd. 5(2002).

35 Id.

36 2003 Minn. Laws, ch. 12, art. 2, §9.

Editor's Note: New guardianship and conservatorship forms, together with the Court's Guardianship and Conservatorship Manual, are now available via practicelaw.org, the MSBA's online resource for members. The Guardianship and Conservatorship Forms Library includes 81 forms, many not available anywhere else online.

GREGORY R. SOLUM is a sole practitioner and an instructor at the University of Minnesota Law School. He practices in the areas of probate, estate planning, family law, mediation, and appellate advocacy.