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.

Ward Can Be Committed AND Under Guardianship

court opinionThe Minnesota Court of Appeals issued an unpublished decision this week which confirms that an individual may be subject to commitment as a mentally ill person AND at the same time have a guardian.  The Court cited to the broad powers that can be given to a guardian, versus the relatively narrow scope of a committment treatment order.  For the full opinion (which focused on whether it was error for the district court not to restore the ward to capacity), see In the Matter of the Guardianship of Joy Bostrom, Minn. Ct. App. A13-0826.

Restoration of a Ward to Capacity in Minnesota

Once a person is determined to be in need of a guardian, is that the end of the person’s freedom as they know it?  Does the guardianship last forever?  No.  A guardianship can be terminated by restoration of the ward to capacity.   Restoration means that all of the rights which had been removed from the ward pursuant to the court’s guardianship order are given back to the individual and the individual is no longer considered to be incapacitated.

How does a ward go about being restored to capacity?  Like most things relating to the guardianship, a petition is filed, a hearing is held and the judge makes a decision.

Who petitions for restoration to capacity?  Oftentimes it is the ward him or herself who decides to petition the Court because he or she is able to function on their own and is no longer in need of a guardian.  But the petition can be filed by the guardian or any other interested person who believes the ward should be restored to capacity. 

What paperwork must be filed for the hearing?  The forms necessary for restoration are available on the Minnesota Court website here  (under Restoration to Capacity Forms).   You should, of course, consult the statute or an attorney to make sure that the proper notice is given to the appropriate persons.

Is the ward entitled to an attorney?  Yes, just like in the initial petition to establish a guardianship, the ward is entitled to be represented by an attorney.  If the ward can’t afford one of his or her own, the Court will appoint an attorney.

What happens at the hearing?  At the hearing itself, evidence is given to show that the ward now has the functional ability to handle their personal care and/or manage property.  The ward typically testifies about his or her day to day routine, and gives examples of how they are functionally able to do things on their own and why the guardian is no longer necessary.   It is not necessary to show that the ward has gained total control of all functions.  But evidence must show that the ward can now handle their own personal cares and/or manage property.   If a person is able to provide for his/her own self care in spite of a mental impairment, restoration should be granted.

As with any guardianship issues, you should be sure to consult with a qualified attorney to determine whether restoration is appropriate in your particular situation and to be sure all procedures and statutes are followed correctly.