Appointing a Successor Guardian in Minnesota

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.

The Role of the Court Visitor in Guardianship and Conservatorship Proceedings in Minnesota

What is a Court Visitor? A Court Visitor is an individual appointed by the Court to serve notice upon the Respondent and make a report to the Court about the Respondent’s condition and the appropriateness of the relief requested in the Petition.

What is the statutory authority for a Court Visitor?  Minn. Stat. 524.5-304 (guardianships) and Minn. Stat. 524.5-406 (conservatorships) governs the role and authority of the Court Visitor. 

What does a Court Visitor do?  The Court Visitor, once appointed by the Court, contacts the Respondent and schedules a time to meet with the Respondent.  When the Court Visitor meets with the Respondent, he or she personally serves the Respondent with a copy of the Notice of Hearing and Rights and the Petition.  The Court Visitor will ask the Respondent whether he/she would like the Notice and Petition read out loud. If requested, the Court Visitor will then read the entire Notice/Petition to the Respondent.

What is contained in the Court Visitor’s report?  The Court Visitor completes a report that is then filed with the Court (and provided to Petitioner’s attorney), providing the Court with information about: the Respondent’s appearance, the Respondent’s ability to answer basic questions, the Respondent’s position on the petition, whether the Respondent wants an attorney appointed, and whether and to what extent the Court Visitor believes a guardianship or conservatorship is appropriate.

Who are the Court Visitors?  Each county is different.  However, in general the Court Visitor is an individual from the county human services.

What role does the Court Visitor’s Report have in the proceedings?  It is considered by the Court in determining the appropriateness of the guardianship or conservatorship. 

If you have questions about guardianships or conservatorships, please contact Cindi Matt at Matt Legal Services.