Topics in Probate, Guardianship, Conservatorship Law

What's in a name?

Formerly, Minnesota law talked about the executor and executrix and the administrator and administratrix. These were all names for the person who settled the estate of the decedent. (The -or was male and the -rix was female.)

Now, all of those names have been dropped in favor of uniform and gender-neutral term: personal representative. The personal representative still performs the same function that these previously-named characters once did. The laws are the same; only the names have changed.

Speaking of which, now guardians of the person are simply called guardians, while guardians of the estate are called conservators. The guardian's charge is the ward. The conservator's charge is the estate of the protected person.

Why couldn't they just call the respondent in a conservatorship proceeding a ward also (like in guardianship)? I assume because they want to make it easy to distinguish the proceedings. I don't really think it was necessary.

Darlene Luther Revised Uniform Anatomical Gift Act

Simply replaces the old Uniform Anatomical Gift Act and commemorates Darlene Luther, the late wife of my former boss, Bill Luther.

The revised law creates new guidelines for donating, harvesting, preserving, and registering organs, among several other changes. The provisions include the ability for a terminally ill or injured person to gift his or her organs by any means of communication addressed to at least two adults as long as one or more of them is a disinterested witness.

Health Care Agent Visitation

A health care agent is allowed to visit the principal (the person for granting the agent's authority) in a health care facility regardless of whether the principal retains decision-making capacity, unless:

1. the principal has otherwise specified in the health care directive,

2. a principal who retains decision-making capacity indicates otherwise,

3. a health care provider reasonably determines that the principal must be isolated from all visitors or that the presence of the health care agent would endanger the health or safety of the principal, other patients, or the facility where the patient is located.

Governor's Study Group on Guardians & Conservators

The study group will convene to make recommendations on the rights of wards and protected persons; the powers and duties of guardians and conservators; the prescreening and diversion of persons from guardianships and conservatorships; the complaint process; training; financial auditing; and the reimbursement of attorneys, guardians, and conservators. The study group report is due by 15 March 2008 to the legislature.

Identity Theft from Court Documents

In the past, several court proceedings required that one or more of the parties include their social security numbers on documents filed with the court. This was done purely for identification purposes.

However, anything done for identification purposes, if publicly available, can be used by identity thieves to steal another person's identity.

As a result of the potential threat of identity theft, the Minnesota legislature passed a law that eliminated the requirement that probate proceedings (including guardianship and conservatorship) include soc. sec. numbers. Now documents may be filed without the identification numbers. Such information can be filed in a confidential information document.

Selling off the Homestead

A personal representative may sell the estate's homestead without consent of the children of the decedent, if the personal representative has consent of the surviving spouse.

The kids don't have any authority to block the transaction, whether for sentimentality reasons or otherwise.

Look Back for MA

Medical assistance now requires a sixty-month look back at transactions to recapture those for less than fair market value of the property transferred.

Plus, the Department of Human Services must be named a remainder beneficiary on annuities owned by a medical-assistance recipient (or by the recipient's spouse), so that the DHS can recapture some of the benefits it provides on the death of the recipient.