Appointment of Guardian for Incapacitated Spouse by Care-Giver Spouse

Are you the care provider for your incapacitated elderly spouse, pursuant to a Power of Attorney and Health Care Directive, and you are worried about who will “take over” once you die or become incapacitated?  There are steps that can be taken to address your concerns and put in place a guardian for your spouse once you die or become incapacitated.  The details of the procedures to take are a bit complex and vary depending on your specific circumstances, but they are governed by Minn. Stat. 524.5-302.   Essentially the care-giver spouse can nominate a guardian for the incapacitated spouse – either through a Will or through a nominating document (executed with same formalities as a heath care directive).  Then when the triggering event occurs (death or incapacity of the care-giver spouse), the person who was nominated as guardian of the incapacitated spouse petitions the court for appointment.  It is an expedited appointing process that involves two steps.  Step one is an ex parte petition to the court seeking issuance of letters of guardianship.  Step two is a petition for confirmation of appointment (which follows after notice to affected parties).

Note that there are significant differences in this process from the “normal” guardianship process.  One, notice is not given to “Interested Persons” and is instead given to a more focused group of individuals. Two, the incapacitated person does not necessarily get an attorney appointed and a court visitor does not become involved.  Three, a determination of incapacity is not made by the Court.
If you have questions about this process, please call experienced guardianship and conservatorship attorney Cindi Spence Matt at Matt Legal Services.

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