2000 Minnesota Statutes

     525.551 Hearing; appointment; bond; prosecution; notice. 

    Subdivision 1.    Attendance at hearing.  If the 
 proposed ward or conservatee is within the state, that person 
 shall be present at the hearing unless in a meeting with a 
 visitor that person specifically waives the right to appear in 
 person or is not able to attend by reason of medical condition 
 as evidenced by a written statement from a licensed physician.  
 The written statement shall be evidence only of the proposed 
 ward's or conservatee's medical inability to attend the hearing, 
 and shall not be considered in determining the issue of 
 incapacity.  The written statement must also inform the court of 
 the physician's knowledge, if any, of the existence of a health 
 care directive, as defined in section 145C.01, executed by the 
 proposed ward or conservatee, a living will executed under 
 chapter 145B, or any other similar document executed in another 
 state and enforceable under the laws of this state.  In any 
 instance in which a proposed ward or conservatee is absent from 
 the hearing, the court shall specify in its findings of fact the 
 reason for nonattendance. 

    If a visitor delivered the notice and petition pursuant to 
 section 525.55 and the proposed ward or conservatee has waived 
 the right to attend the hearing, the visitor may testify as to 
 the notice and any waiver of the right to appear in person, and 
 as to other matters which may assist the court in determining 
 the need for a guardian or conservator and the extent of the 
 power to be granted.  

    Subd. 2.    Interchangeability of petition.  If the 
 circumstances warrant, the court may treat a petition for 
 guardianship as a petition for conservatorship. 

    Subd. 3.    Conduct of hearing; proof.  The proposed 
 ward or conservatee has the right to summon and cross-examine 
 witnesses.  The rules of evidence apply.  In the proceedings, 
 there is a legal presumption of capacity and the burden of proof 
 is on the petitioner.  The standard of proof is that of clear 
 and convincing evidence. 

    Subd. 4.    Record of proceedings.  In all proceedings 
 the court shall take and preserve an accurate stenographic 
 record or tape recording of the proceedings. 

    Subd. 5.    Findings.  In all cases the court shall make 
 specific written findings of fact, state separately its 
 conclusions of law, and direct the entry of an appropriate 
 judgment or order. 

    If upon completion of the hearing and consideration of the 
 record the court finds:  (a) that the requirements for the 
 voluntary appointment of a conservator or guardian have been 
 met, or (b)(1) that the proposed ward or conservatee is 
 incapacitated as defined in section 525.54; and (2) in need of 
 the supervision and protection of a guardian or conservator; and 
 (3) that no appropriate alternatives to the guardianship or 
 conservatorship exist which are less restrictive of the person's 
 civil rights and liberties, such as those set forth in section 
 525.54, subdivision 7, it shall enter its order or judgment 
 granting all of the powers set out in section 525.56, 
 subdivision 3, in the case of a guardian of the person, and 
 section 525.56, subdivision 4, in the case of a guardian of the 
 estate, or specifying the powers of the conservator pursuant to 
 section 525.56.  The court shall make a finding that appointment 
 of the person chosen as guardian or conservator is in the best 
 interests of the ward or conservatee.  Except as provided in 
 section 525.544, subdivision 1, if more than one person has 
 petitioned the court to serve as guardian or conservator, or if 
 the petition is contested, the court shall make a finding that 
 the person to be appointed as guardian or conservator is the 
 most suitable and best qualified person among those who are 
 available before making the appointment.  The court's finding as 
 to the best available guardian must specifically address the 
 reasons for the court's determination that the appointment of 
 that person is in the best interests of the ward or 
 conservatee.  The court must also clarify the respective legal 
 authorities of a guardian or conservator appointed under this 
 chapter and any existing health care agent or proxy appointed 
 under a health care directive as defined in section 145C.01, a 
 living will under chapter 145B, or other similar document 
 executed in another state and enforceable under the laws of this 
 state. 

    The court may enumerate in its findings which legal rights 
 the proposed ward or conservatee is incapable of exercising. 

    Subd. 6.    Bond.  Upon the filing of a bond by the 
 guardian or conservator of an estate in an amount the court may 
 direct and an oath according to law, or upon the filing of an 
 acceptance of the trust pursuant to section 48A.08, subdivision 
 4, letters of guardianship or conservatorship shall issue.  If 
 there is no personal property, the court may waive the filing of 
 a bond, but if the guardian or conservator receives or becomes 
 entitled to any property of the ward or conservatee the guardian 
 or conservator shall immediately file a report thereof and a 
 bond in an amount the court may direct.  In case of breach of a 
 condition of the bond an action thereon may be prosecuted by 
 leave of the court by any interested person or by the court on 
 its own motion. 

    Subd. 7.    Notification.  If a patient of a state 
 hospital, regional center, or any state-operated service has a 
 guardianship or conservatorship established, modified, or 
 terminated, the head of the state hospital, regional center, or 
 state-operated service shall be notified.  If a ward or 
 conservatee is under the guardianship or conservatorship of the 
 commissioner of human services as mentally retarded or dependent 
 and neglected or is under the temporary custody of the 
 commissioner of human services, the court shall notify the 
 commissioner of human services if the public guardianship or 
 conservatorship is established, modified, or terminated.  

    HIST: (8992-134) 1935 c 72 s 134; 1959 c 525 s 1; 1973 c 618 s 
 7; 1975 c 347 s 114; 1979 c 43 s 2; 1980 c 493 s 8; 1981 c 313 s 
 7; 1982 c 424 s 117; 1982 c 472 s 4; 1984 c 654 art 5 s 58; 1986 
 c 444; 1Sp1986 c 3 art 3 s 7; 1Sp1993 c 1 art 3 s 41; 1998 c 331 
 s 39; 1998 c 399 s 34,35