FAQ on Termination of Guardianship in Minnesota

termination guardianshipWhat is the statute governing restoration to capacity in Minnesota?  Minnesota Statute 524.5-317

Once a guardianship is established, is it forever?  Or can it be terminated?  A guardianship does not always last forever.  Although many times with elderly individuals who have progressive diseases, they do last for the duration of the individual’s life, there are circumstances where guardianships don’t last forever.  For example, when a person is injured in a car accident but eventually recovers sufficiently to direct his/her own activities, a guardianship may no longer be necessary.  Sometimes a person will have a stroke that is dibilitating, but then gradually recover.  Sometimes a person will be put under guardianship because of mental illness, but when medication is regularly taken, the need for a guardianship may end.

Who may ask the court to end a guardianship? Anyone interested in the ward’s welfare may petition the court to end the guardianship.  This would mean the ward him/her self, a family member, a social worker, a doctor, even the current guardian.

How do you terminate a guardianship?  A petition is filed with the court and a hearing date is set.  Notice of the hearing must be given to the interested persons (as defined by Minnesota statute).  At the hearing, testimony will be taken and evidence presented in order to establish that the ward no longer needs a guardian.  Typically this will be done through testimony from the ward him/her self, testimony of others who have the opportunity to interact with and observe the ward (including the guardian), and physician support (testimony or a written statement).

What is the standard to terminate a guardianship?  In order to terminate a guardianship, it must be established by prima facie evidence that a guardianship is no longer necessary, because the ward no longer needs the assistance or protection of a guardian.  If this is established, the burden then shifts to anyone opposing the guardianship to prove that it is in the best interest of the ward to keep the guardianship in place.

When can someone petition to terminate a guardianship? Any time.  You don’t have to wait until the annual notice of right to petition for restoration is served upon the ward.  If the ward no longer needs a guardian at any point throughout the year, a petition may be filed.

If a petition to terminate a guardianship is denied, does that mean the guardianship is forever?  No, not necessarily.  If the person’s circumstances change (i.e. his medical condition improves, he is able to do activities of daily living on own, etc.), he may petition for restoration again.

Do you need physician support to end a guardianship?  Although the statute doesn’t technically require it, unless the ward is very clearly able to demonstrate to the court that he/she is able to function independently and make and communicate decisions which would keep him/her safe, provide for nutrition and understand own medical situation, the support of a physician is imperative.

5 Things to Consider Before Filing For Guardianship of Your Elderly Parent

mother and daughterSo you think that your elderly parent is no longer able to make sound personal and medical decisions, and might be in need of a guardian?  Before filing  a petition for guardianship, here are some of the main things you should consider:

  1. Does your elderly parent already have a health care directive in place?  If so, this may be a “lesser restrictive alternative” to guardianship.
  2. Do you have physician support for the guardianship?  Although not technically required, in order to be successful on your guardianship petition, physician’s support is recommended.  If you can’t get it (because of HIPPA), you may need to rely on behavioral evidence alone.  If you are the current health care agent under a health care directive, you should try to get physician’s support.
  3. If you are thinking of being the guardian, you need to consider the impact that being guardian will have on your relationship with the parent.  Often times the elderly individual resents the guardian and is hostile.  Sometimes children may want to petition, but ask that a neutral individual (or professional) be appointed as guardian.
  4. Are you prepared to make tough choices?  A guardian makes tough choices – medical decisions, where to live, supervisory decisions.  The decisions aren’t always easy, black and white decisions.  Before taking on this important role, you need to make sure you are prepared for the challenges that it will present.
  5. Will filing for guardianship of your elderly parent cause friction among you and your siblings?  Oftentimes siblings feud over whether mom or dad even need a guardian, or who the is best person to be guardian.  Before filing the petition, you should ascertain whether you have the support of your siblings and, to the extent that you don’t have their support, you must be prepared to forge ahead for what you believe is right for your parent.

Do You Need an Emergency Guardianship?

emergency

The statute governing emergency guardianships in Minnesota is Minn. Stat. 524.5-311.  It requires the court to make a finding that following the  normal guardianship procedures (which would typically mean that the guardianship petition wouldn’t be heard for 4 – 6 weeks) would likely result in substantial harm to the health, safety or welfare of an individual.

So as a practical matter, what sorts of things constitute an emergency, which would support an emergency guardianship in Minnesota?

  • An individual is refusing to follow medical advice about a necessary surgery
  • An individual has stopped taking his medication, feeding himself properly and/or is otherwise putting himself at risk
  • An individual is in a nursing home and needs that level of care but is now saying that he will check himself out of the nursing home
  • An individual was in a car accident and is now hospitalized and in critical condition and unable to make medical decisions and does not have a health care directive in place

These are examples of some of the most common times that an emergency guardianship is appropriate.  There can be many other cases where an emergency guardianship makes sense.  The general rule of thumb:  if someone is in danger of harm and can’t wait until the full guardianship hearing, file emergency guardianship papers.