Temporary Substitute Guardians in Minnesota

I frequently get calls from persons under guardianship, or their family members, who are concerned because the current guardian is not doing things that they are supposed to (or is doing things that they are not supposed to).  If the actions of the guardian are serious enough to put the person under guardianship in jeopardy, the Court can appoint a Temporary Substitute Guardian under Minn. Stat. 524.5-312.  The Court could appoint a temporary successor guardian of its own volition, or an interested person could bring a petition asking the court to do it after a hearing.  It depends on the particular circumstances of the case and how urgently a new temporary guardian is needed.  If you have questions about your particular case, you should seek the advice of counsel.

10 Signs Your Loved One May Need a Guardian

10 Signs Your Loved One May Need A Guardian

  1.  He lacks good judgment on how to keep himself safe.
  2.  She cannot reliably take her own medications.
  3.  He gets lost in places that were once very familiar to him.
  4.  She does things around the house that are dangerous – like leaving the burner on after cooking.
  5.  He responds to mail or calls that are obviously scams.
  6.  She insists on driving, even though it’s likely no longer safe for her to do so.
  7.  He has become very forgetful – missing appointments, forgetting events, etc.
  8.  She is frequently late – or completely misses – paying bills, taxes, etc.
  9.  He is no longer able to balance his checkbook.
  10.  She is falling and dismissing it as a one-off event.

If these sorts of things are happening to your parent, spouse or family member, he or she may be in need of a guardian to help him/her make good decisions and keep him/her safe.

FAQ Friday: What Paperwork Must a Guardian File Annually?

faq brownFAQ 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:  What paperwork is a guardian required to file with the Court each year?

A guardian must complete and file with the Court an “Annual Well Being Report” and a “Notice of Right to Petition For Restoration to Capacity” within 30 days of the anniversary of their appointment as guardian.   These documents are simple forms that are available through the Minnesota State Court Website.   These forms must be completed by the guardian (by EACH guardian if there is more than one guardian), a copy served on the Ward and Interested Persons and filed with the Court (along with an Affidavit of Service).  The statute governing these reports is Minn. Stat. 524.5-316

Although most guardians are able to complete these forms on their own, some guardians find it helpful to have an attorney assist them with it the first year that they do it.


FAQ Friday: What is a Court Visitor in Minnesota Guardianship Proceedings?

faq brown

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:  What does a Court Visitor do in Minnesota Guardianship Proceedings?

When a guardianship or conservatorship petition is filed, the Court appoints someone called a “Court Visitor”.  (See Minn. Stat. 524.5-304).  The role of the Court Visitor is to serve the petition on the Respondent (the person for whom a guardianship is being sought),  to go over the petition with the Respondent  and to provide a written report to the Court about the visit.  The Court Visitor’s report will include an opinion as to whether guardianship/conservatorship appears to be appropriate, based upon the Visitor’s interactions with, and observations of, the Respondent.  The Court Visitor will usually call the Respondent, or the person taking care of the Respondent, in advance of the meeting to coordinate a meeting.  Sometimes the Court Visitor will make an unannounced visit to the Respondent.  The Court Visitor will make note in his/her report whether anyone else was present during the meeting with the Respondent.  The Court Visitor’s report is filed with the court and a copy is given to the Petitioner or his attorney in advance of the hearing.

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.

Termination of Minnesota Guardianship When Ward Dies

UK Death certificate, certificates, with last will and testament

What do you do when the Ward (the person for whom you are serving as Guardian) dies?  Do you need to notify the Court?  Do you need to file any papers with the Court?

YES – you need to notify the Court and file papers.  Minnesota Statute 524.5-317 addresses termination of a guardianship due to the ward’s death.  The document that you file, in Minnesota Guardianships, is a Petition For Termination of Guardianship and Discharge of Guardian.  A copy of the death certificate must accompany the Petition (Note:  Since it has a social security number on it, you must file it as confidential).  You should also submit a proposed Order Terminating Guardianship and Discharging Guardian.  If everything is in order, the Court typically signs the Order without requiring Notice and a hearing.

Family Feud? Courts May Appoint An Independent Guardian or Conservator

On July 9, 2012, the Minnesota Court of Appeals issued an unpublished decision (In re the Guardianship and/or Conservatorship of Lois L. Rothfusz) addressing (among other things) the issue of who should be guardian/conservator when there are feuding family members.  In keeping with precedent (In re the Guardianship of Wells, 733 N.W.2d 506 (Minn. App. 2007); In re Conservatorship of Edwards, 390 N.W.2d 300 (Minn. App. 1986), the Court affirmed the trial court’s decision to appoint a neutral professional as successor guardian/conservator, rather than one of the ward’s daughters, when there was significant acrimony between the children.  The full decision of In re: Guardianship and/or Conservatorship of Lois L. Rothfusz can be found here.  Although family members have statutory priority over a professional guardian, the court has discretion to decline to appoint someone with priority if it is in the best interest of the ward to do so.  See Minn. Stat. 524.5-309 (a) (2011) (priority for guardians) and Minn. Stat. 524.5-413(a) (2011) (priority for conservators).  As the Court stated, “the ward’s best interests are the decisive factor and the court’s paramount concern when deciding who to appoint as guardian and conservator of a ward.”  

Who has statutory priority to be a guardian or conservator in Minnesota?

What if more than one person petitions the court to be guardian and/or conservator for a ward in Minnesota?    Does one person have priority over another?  How does the Court decide who should be guardian?

Minnesota Statute 524.5-309 (for guardians) and Minnesota Statute 524.5-413 (for conservators) provide guidance on these questions and sets forth the statutory priority scheme.  They  provides that, as long as a person is otherwise qualified to serve as guardian or conservator, there is priority in the following order:

  • a current guardian or conservator (other than emergency or temporary guardian)
  • a person named under a current health care directive (as long as there are no restrictions contained therein) or durable power of attorney
  • a spouse or the written nominee of a deceased spouse
  • an adult child
  • a parent or the written nominee of a deceased parent
  • an adult who has lived with the proposed ward for at least six months before the filing of the petition
  • an adult who is related to the proposed ward by blood, adoption or marriage
  • any other adult or professional guardian.

So if you are low down on the priority scale (say for example, if you are a brother-in-law or a friend of the proposed ward and an adult child of the proposed ward wants to be guardian) does that mean you don’t have a chance of being appointed as guardian?  No.  Minn. Stat 524.5-309 and Minn. Stat. 524.5-413 require  the court to appoint the best qualified in that case.

What about if tow individuals with differing priority levels want to be guardian?  Does the court automatically pick the one with higher priority?  No.  Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413 allow the court to appoint someone with lower (or no) priority, if the Court finds it is in the best interest of the Respondent.

If you have questions about priority for appointment as guardian or conservator in Minnesota, or any other guardianship questions, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services, LLC.