FAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota. If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website)
FAQ: Can a guardian just quit, or is court approval required.
A guardian who is appointed by the Court may not just “quit” or resign. Court approval is required. See Minn. Stat. 524.5-112 The Guardian, or an interested person, should file a petition with the court asking for approval of resignation and the appointment of a successor guardian. A successor guardian should be selected in advance and named in the petition, or the court is likely to not approve the resignation request.
What happens if the guardian or conservator wants to, or needs to, resign? Or if the ward or some other interested person believes that the guardian or conservator should be replaced with someone different? Can the guardian just quit? Can a new guardian just take over? Does the Court need to approve the new guardian?
These scenarios are frequently encountered, particularly when the guardianship is in place for many years. Things change. Guardians often age or become ill themselves and are not able to continue with the responsibility and duties of being someone’s guardian. Wards or interested persons sometimes think that the current guardian should be replaced. If something changes and a guardian is no longer able to fulfill his/her duties, a petition must be filed with the court in order to terminate that guardian’s duties and appoint a different (successor) guardian. If the ward or an interested person wants the guardian removed, a petition must also be filed.
The statute that governs the process is Minnesota Statute 524.5-112, Termination or Change in Guardian or Conservator’s Appointment. The process itself is similar to the initial hearing to establish the guardianship, in that a petition is filed, a hearing is scheduled, notice (14 days) of the hearing must be given to all Interested Persons, and testimony must be taken at the hearing. However, it is not necessary for the Petitioner to re-establish that a guardianship is necessary. Instead, the Petitioner just testifies as to the particular circumstances justifying the change in the guardian. Any other witnesses and evidence may be offered. The Court then considers any objections of interested persons or information offered by others attending the hearing. The Court must determine what is in the best interest of the ward or protected person. The ward/protected person is also entitled to have an attorney represent him or her at this hearing, just like in the initial hearing. The new (successor) guardian that is appointed must do the same things that the initial guardian was required to do before Letters of Guardianship are issued (file an Acceptance and Oath; have a DHS background study conducted). Unless the Court modifies the powers that were contained in the original order appointing guardian or conservator, the successor guardian would have the same powers that the original guardian/conservator had.
If you have questions concerning successor guardians, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.