Establishing a Guardianship in Minnesota
PROVIDING FOR YOUR LOVED ONES — ESTABLISHING GUARDIANSHIP IN MINNESOTA
In Minnesota, once an individual reaches the age of 18, he or she is considered a legal adult and his or her own guardian. Most adults have full rights and responsibilities, and are legally entitled to make decisions concerning their own health, safety, and welfare. However, there may become a time when a previously competent and healthy adult lacks the capacity to make decisions for themselves.
In spending time with your relative or loved one, you may make the discomforting discovery that he or she has become incapable of caring for themself. It may be that your relative has difficulty remembering to eat or properly dress themself. If you are concerned that continuing to live alone poses a serious risk to your loved one’s health, safety, or welfare, you may need to seek a guardianship over them. This article will discuss the ways a guardianship may be established in Minnesota, and the rights and responsibilities of all parties involved.
The General Guardianship Process
Any person who is interested in an individual’s welfare may petition the court for a determination that the individual is “incapacitated,” and that an appointment of a guardian for the individual is necessary. The petition must state the reason why a guardianship is necessary, and include a brief description of the nature and extent of the proposed ward’s alleged incapacity. The petition must also state whether all (or only some) of the statutory guardianship powers should be given to the proposed guardian. Lastly, in order for the court to determine whether the proposed guardian is capable of caring for the proposed ward, the petition must provide information about the proposed guardian’s background, professional licenses held, and criminal history.
Upon receipt of a petition to establish guardianship, the court will set a date and time for a court hearing. The proposed ward has the right to be represented by an attorney, and the court will appoint an attorney to represent the proposed ward at all court proceedings, unless a court-appointed “visitor” meets with the proposed ward and the proposed ward makes an informed decision in writing to specifically waive his or her right to an attorney. The proposed ward’s attorney must consult with the proposed ward prior to any court hearing, be given adequate time to prepare for all hearings, and continue to represent the proposed ward throughout the entire guardianship process.
The hearing on the petition for guardianship is a court hearing that the petitioner, proposed guardian, and proposed ward typically participate in. The petitioner and proposed ward may present evidence, subpoena witnesses and documents, examine witnesses, and otherwise participate in the hearing. Additionally, any other person may contest or object to the proposed guardianship, and request permission to participate in the hearing. The court will likely grant the objector’s request upon a showing of good cause, and after determining that the best interest of the proposed ward will be served by allowing the objector to intervene.
If, after the hearing, the court finds by clear and convincing evidence that the proposed ward is an incapacitated person and that the proposed ward’s identified needs cannot be met by less restrictive means, the court may appoint a guardian for the ward. The court must grant to the guardian only those powers necessary to care for the ward, considering the ward’s specific needs, as any powers not specifically granted to the guardian are retained by the ward.
Who may be Guardian?
Minnesota typically gives guardianship priority to certain individuals over others, depending on their relationship with the proposed ward. In appointing a guardian, the court must consider individuals otherwise qualified in the following order of priority:
An individual currently acting as permanent guardian of the proposed ward;
A health care agent appointed by the proposed ward in a health care directive;
The proposed ward’s spouse, or a person nominated by a deceased spouse’s will;
An adult child of the proposed ward;
The proposed ward’s parent, or a person nominated by a deceased parent’s will;
An adult with whom the proposed ward has lived with for more than six months;
An adult who is related to the proposed ward by blood, adoption, or marriage; and
Any other adult or a professional guardian.
Nevertheless, if the court determines that it is in the proposed ward’s best interest to do so, the court may decline to appoint a person having guardianship priority and appoint a person having lower priority or no priority at all. If two individuals have equal priority (i.e. two adult children), the court will select the person it considers to be best qualified.
Powers and Duties of Guardian
Once an individual is appointed as guardian, they are subject to the control and direction of the court at all times. As stated above, the court must only grant a guardian those powers necessary to provide for the demonstrated needs of the ward. If the court determines that all of the powers and duties prescribed by statute are needed to provide for the needs of the ward, the court may give the guardian all of the statutory powers. If, however, the court determines that a guardian is needed to provide for the needs of the ward through the exercise of some, but not all, of the statutory powers and duties, the court may elect to give the guardian limited powers and duties. The duties and powers the court may grant to a guardian include:
The power to have custody of the ward and establish a place for the ward to live;
The duty to provide for the ward’s care, comfort, and maintenance needs;
The duty to take reasonable care of the ward’s clothing, furniture, vehicles, and other personal items;
The power to seek appointment of a conservator of the ward’s estate;
The power to give any necessary consent to medical or other professional care;
The power to approve or withhold approval of any contract the ward may make;
The duty and power to supervise the ward if it is necessary to provide needed care and services; and
The power to apply on the ward’s behalf for government benefits.
Emergency Guardianship Process
If the court finds that complying with the often drawn out process described above would likely result in substantial harm to the proposed ward’s health, safety, or welfare, and that no other person appears to have authority and willingness to act in the circumstances, the court may appoint an emergency guardian (upon the submission of an emergency guardianship petition). An emergency guardianship is often necessary when the proposed ward is the victim of domestic abuse, has suffered from a stroke, or is otherwise declining in health. Importantly, an emergency guardianship only lasts for 60 days, so it is a good idea to submit a general guardianship petition in addition to an emergency guardianship petition (to extend the length of the guardianship).
Similar to a general guardianship, the court will appoint a lawyer to represent the proposed ward in the emergency guardianship hearing, and all of the procedures, powers, and duties described above apply to an emergency guardianship. However, unlike a general guardianship, appointment of an emergency guardian is not a determination of the proposed ward’s incapacity.
Temporary Substitute Guardian
If the court determines that a guardian is not effectively performing his or her duties and that the welfare of the ward requires immediate action, it may appoint a temporary substitute guardian for the ward for a specified period not to exceed six months. The temporary substitute guardian generally has the same powers and duties as the previous guardian, and the authority of the previously appointed guardian is suspended.
Termination or Modification of a Guardianship
There are numerous ways in which guardianships may be terminated in Minnesota. Because a guardianship is imposed to provide for the ward’s needs, it terminates upon the death of the ward. Additionally, because a guardian is subject to the control and direction of the court, the court may terminate a guardianship at any time. Lastly, any person interested in the ward’s welfare may petition the court to terminate the guardianship if the ward no longer needs the assistance or protection of a guardian. If the petitioner adequately establishes that termination is necessary, the court will terminate and discharge the guardian, unless it is proven that continued guardianship is in the best interest of the ward.
The court may also modify the type of appointment or powers granted to the guardian if the previous powers granted have become excessive, insufficient, or if the ward’s capacity to provide for his or her support, care, education, health, and welfare has changed as to warrant modification.
MINNESOTA GUARDIANSHIP ATTORNEYS
The thought of a loved one or relative becoming incapacitated is scary for any Minnesotan. The guardianship process can be long, stressful, and, in the case of a contested guardianship, filled with intra-familial drama. If you or a loved one are in need of good advice and representation from a team of compassionate lawyers who care about your situation, contact the attorneys at RAM Law PLLC, phone number (651) 468-2104, to schedule your free initial consultation.