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September 2015 Archives

Law 101: Guardianships & Conservatorships

Why does someone need to be under a guardianship? Most commonly, it is method for which a person is appointed by the court to provide for the needs of an incapacitated person. Under the Minnesota Statutes, “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, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance. Minn. Stat. 524.5-102.

Once a child turns eighteen, a parent no longer has the right to make decisions on the child’s behalf and will lose the ability to contact medical providers. If you have a child with special needs who meets the definition of an incapacitated person, then you need to speak to an attorney to start a guardianship proceeding on your child’s behalf.

There are various powers under the statute, and your attorney will advise you that the least restrictive alternative is necessary and the court will require a guardian only receive powers and duties that are necessary. It is best to meet with your attorney prior to your child turning eighteen, so that the petition and accompanying paperwork can be filed with the court prior to your child’s eighteenth birthday, so that there is little, or no, gap between your child’s birthday and your appointment.

The steps to petition for guardianship are simple; we suggest contacting your attorney three months prior to your child’s birthday. The county in which you reside may cover all fees in the guardianship proceeding if you file the proper paperwork on your child’s behalf. After being appointed as guardian, you must file yearly paperwork updating the court your child’s condition. The court wants assurance that the guardianship is still necessary and appropriate.

Minor guardianships are necessary if child’s parent passes away or is unable to take care of the child’s needs, such as shelter, education, food and medical care. In some circumstances, temporary guardianship may be appropriate. Guardianship also becomes necessary when a person becomes incapacitated because of an injury like a TBI, or when a person has dementia or Alzheimer’s. Your medical provider should be able to advise you when someone is no longer of capacity to make decisions on their own behalf. At that time, your attorney can assist you with pursuing a guardianship. In the case of an accident or the abuse of an incapacitated person, an emergency guardianship can be obtained within days of the request.

A conservatorship is necessary if the proposed protected person has money or real property that needs to be protected, and there is no less restrictive way to assist that person. A person who is getting Social Security or SSI does not have to have a conservator of the estate, because the Social Security Administration can appoint a representative payee for someone who cannot manage those funds.

Trump Wants to End Birthright Citizenship - What Does That Mean?

In the CNN GOP Presidential debate this week Donald Trump expressed his view that birthright citizenship should end and that the children of illegal immigrants should be deported.

Birthright citizenship is a concept embedded in our constitution through the 14th Amendment, which states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside." As a result, as long as you are born in the United States, you are automatically an American citizen. The 14th Amendment was ratified in 1868, with the original intent to ensure that the children of slaves born in the U.S. would be deemed citizens, repudiating the decision from Dred Scott. Trump seems to think that there is some way around this concept. Perhaps Trump or pundits are focusing on the exception "subject to the jurisdiction thereof" thinking that could exclude the children of illegal immigrants from the automatic grant of citizenship- but that is not what that section means. There is actually already a U.S. Supreme Court case, U.S. v. Wong Kim Ark, which says that particular exception is for the children of diplomats and similarly situated foreign agents. Relatedly, and on point with Trump's plan to deport all children born to illegal immigrants in the U.S., there is also already a U.S. Supreme Court case saying that if citizenship is held, that citizenship cannot be revoked by the federal government unless the citizenship was conferred by naturalization rather than birth. As a result, natural born citizen children of illegal immigrants are constitutionally protected from deportation.I think the Donald is fired on this one.

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