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.
The Court of Appeals of Minnesota issued a published opinion on Friday, July 11, 2011, which will impact Guardians and the way they do their job. The case is In re: Guardianship of Jeffrey DeYoung (Minn. App. 2011).
Based on the facts set forth in the Court’s decision, I disagree with the Court’s characterization of the group home as a guardian. It seems to me the group home was merely a third party service provider. Guardians place their clients in group homes and nursing homes and other facilities all the time. A private group home or other facility does have the authority to create their own rules/parameters the govern their residents and things that impact upon their residents. So, in this case, the group home could certainly make the decision that the mom be excluded from visiting her son in the group home, based upon what they perceived to be a disruption to him and to the other residents. But, in my opinion, the group home making this restriction is not akin to the group home acting as guardian. Ultimately it is the guardian who must make visitation restriction decisions [see Minn. Stat. 524.5-120 (10) ]. The guardian has to do their due diligence in order to restrict visitation (or act with respect to any of the other powers/duties granted to the guardian). In determining whether to restrict visitation, the guardian must consider things like: what is in the best interest of the ward? What do the ward’s doctors and other medical professionals say about the restriction? What does the ward prefer? Are there less restrictive alternatives that are available?
On the facts of this case, I do not believe it appears that guardian improperly delegated her powers/duties to a third party (there certainly appear to have been issues about how she carried out those powers/duties, but those appear to have already been addressed by the District Court). I think remanding on the question “whether Kuhnley improperly delegated her powers and duties as a guardian to Chowen House” can only be answered with a finding that she did not improperly delegate (because she was still involved in the decisions regarding visitation and medical care, it seems clear she was not solely relying on Chowen house to make these types of decisions. Her involvement may have only been very cursory, maybe even rubber stamping, but that goes to the issue of whether she improperly performed her duties, not the issue of whether she improperly delegated her duties).
Another thing that struck me when I was reading the case that goes against the Court of Appeals’ decision that a guardian cannot delegate it’s duties to a third party is Minn. Stat. 524.5-211, which provides: (a) A parent, legal custodian, or guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding one year, any powers regarding care, custody, or property of the minor or ward, except the power to consent to marriage or adoption of a minor ward. I have never seen this statute put into practice by a guardian (and in the majority of cases, I would strongly recommend to guardians that they NOT execute a Power of Attorney giving someone else the authority to act on their behalf, simply because the Guardian is the one that ultimately has to answer to the Court, and if they delegate their powers to someone and that someone makes a mistake, the Guardian is the one who will ultimately be in trouble with the Court). Nonetheless, it appears that this statute does, in fact, allow delegation of duties by a guardian and it is at odds with the Court of Appeals’ decision in this case.
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.