How Will DeYoung Impact Guardians?

The Court of Appeals of Minnesota issued a published opinion on Friday, July 11, 2011, which will impact Guardians and the way they do their job. The case is In re: Guardianship of Jeffrey DeYoung (Minn. App. 2011).

Case summary: Mom challenges the Hennepin County District Court’s denial of her petition to remove the guardian of her 26 year old son and of her to be appointed as successor guardian. The basis for mom’s petition was that the guardian permitted Pathways (a group home where her son resided) to restrict her visitation and exclude her from the group home and that the guardian failed to ensure that the group home was obtaining necessary medical care for her son. The specific facts are set forth in detail in the DeYoung opinion. The District Court had found that although the guardian could have been a bit more responsive, her conduct did not justify removal and mom had not proven that she was best qualified and most suitable to serve as successor guardian. Mom appealed the District Court’s decision, alleging that the guardian improperly delegated her duties and powers to her son’s group home.
The Court of Appeals held that a guardian may not delegate his duties to a third party, especially a group home. It remanded for the district court to make findings as to whether the guardian improperly delegated her powers and duties as guardian.

Based on the facts set forth in the Court’s decision, I disagree with the Court’s characterization of the group home as a guardian. It seems to me the group home was merely a third party service provider. Guardians place their clients in group homes and nursing homes and other facilities all the time. A private group home or other facility does have the authority to create their own rules/parameters the govern their residents and things that impact upon their residents. So, in this case, the group home could certainly make the decision that the mom be excluded from visiting her son in the group home, based upon what they perceived to be a disruption to him and to the other residents. But, in my opinion, the group home making this restriction is not akin to the group home acting as guardian. Ultimately it is the guardian who must make visitation restriction decisions [see Minn. Stat. 524.5-120 (10) ]. The guardian has to do their due diligence in order to restrict visitation (or act with respect to any of the other powers/duties granted to the guardian). In determining whether to restrict visitation, the guardian must consider things like: what is in the best interest of the ward? What do the ward’s doctors and other medical professionals say about the restriction? What does the ward prefer? Are there less restrictive alternatives that are available?

On the facts of this case, I do not believe it appears that guardian improperly delegated her powers/duties to a third party (there certainly appear to have been issues about how she carried out those powers/duties, but those appear to have already been addressed by the District Court). I think remanding on the question “whether Kuhnley improperly delegated her powers and duties as a guardian to Chowen House” can only be answered with a finding that she did not improperly delegate (because she was still involved in the decisions regarding visitation and medical care, it seems clear she was not solely relying on Chowen house to make these types of decisions. Her involvement may have only been very cursory, maybe even rubber stamping, but that goes to the issue of whether she improperly performed her duties, not the issue of whether she improperly delegated her duties).

Another thing that struck me when I was reading the case that goes against the Court of Appeals’ decision that a guardian cannot delegate it’s duties to a third party is Minn. Stat. 524.5-211, which provides: (a) A parent, legal custodian, or guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding one year, any powers regarding care, custody, or property of the minor or ward, except the power to consent to marriage or adoption of a minor ward. I have never seen this statute put into practice by a guardian (and in the majority of cases, I would strongly recommend to guardians that they NOT execute a Power of Attorney giving someone else the authority to act on their behalf, simply because the Guardian is the one that ultimately has to answer to the Court, and if they delegate their powers to someone and that someone makes a mistake, the Guardian is the one who will ultimately be in trouble with the Court). Nonetheless, it appears that this statute does, in fact, allow delegation of duties by a guardian and it is at odds with the Court of Appeals’ decision in this case.

So how does the DeYoung case impact what a guardian does? I think even though the Court of Appeals said, “we do not read the guardianship statute to prohibit a guardian from relying on third parties to satisfy the ward’s daily needs and to make routine decisions in meeting those needs”, the DeYoung decision has the potential to scare guardians into becoming ultra involved in every decision concerning the ward. Even those decisions that really are the day-to-day type decisions that group homes or facilities normally make. Certainly, in light of DeYoung, guardians will now start doing even more independent verification and documentation of “decisions” or recommendations made by third parties, as they relate to the ward. While this may not be a bad thing, it will likely lead to an increase in the guardian’s fees, which ultimately comes out of the ward’s pocket book (or the County, in the case of indigent wards).


Delegation of Powers by a Parent

If a parent is temporarily unable to care for their minor child, is a guardianship necessary?  No.

Under Minnesota Statute 524.5-211, a parent, legal custodian or guardian may delegate to another adult person, their powers regarding care, custody or property.  This is done by the parent (legal custodian or guardian) executing a form called a Delegation of Powers by Parent under Minn. Stat. 524.5-211.  This form is only good for a maximum of one year.  A copy of the completed form must be served upon any non-custodial parent within 30 days of its’ execution, unless the non-custodial parent doesn’t have any parenting time or has supervised parenting time, or unless there is an Order For Protection against the non-custodial parent.
In some cases, a full blown guardianship may be necessary.  For example, if the time period that it will be needed is likely to be greater than one year, or if additional powers are necessary (i.e. the power to consent to marriage).  Usually the Delegation of Powers by Parent is meant for temporary situations, like when the parents of a minor are going to be absent for an extended period of time (in jail, in rehab treatment, etc.).

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