Guardianships in Minnesota
This article will discuss the key concepts behind guardianships in Minnesota.
A person who has a Minnesota guardian is most-often incapacitated by age or mental infirmity. A person may be incapacitated due to mental illness, disability, or other condition they were born with. The other common situation is when a child (minor) needs a guardian due to being under the age of 18 years.
Guardian for Minors
It may be necessary to establish a guardian for a minor if a child’s parents have died. This situation is often tragic and family members of the deceased parents become the court-appointed guardians.
Our office has dealt with situations where two parents passed-away from cancer and there were several children who were under the age of 18. The relatives of children, the aunts and uncles, took over responsibility of caring for the minor children until they were 18. In situations involving the death of both parents, guardians are absolutely necessary so that an adult has legal responsibility over the minor’s welfare.
Health care institutions and schools are required to communicate only with parents or “legal guardians” for minors. A court-order is needed to establish legal rights. The guardian must have legal authority to communicate with these institutions. Minnesota Statute 524.3-313 describes the powers of Minnesota guardian.
How do you obtain legal authority as a guardian? First, you must petition the proper court. The court will then issue Letters of Guardianship to the new Guardians. The petition for guardianship must be made in the proper court or “venue”. This will be the county where the children live. The county court can be changed to where the new guardians live if the children’s residence has been moved.
Once established, the county court has continuing jurisdiction over the guardianship case until the children are 18. During their childhood, personal-well-being reports need to be filed with the court, on a yearly basis. The personal well-being reports help the court understand how the children are doing. It also ensures that the court knows where they are, what their address is, and what their condition is.
Guardianship of and Adult (Persons over 18 years old)
Our office has seen numerous instances where persons with disabilities reach the age of 18 years. That person likely needs continuing care due to their disability. In this case, a guardianship is necessary.
Common disability symptoms include: Autism Spectrum Disorder, Down Syndrome, or other mental health diagnosis. An experienced physician must make a disability diagnosis and issue a report of that diagnosis to the court. Essentially, the diagnosis must state that the person has diminished capacity which makes them unable to care for themselves.
The process of petitioning the appropriate County District Court is very similar to what was described above. Just as with a minor, a person will need to petition for a guardianship over an adult. The petition will outline the appropriate legal arguments for why the guardianship is necessary. The petition will include a physician’s statement proving the diagnosis for disability of the person. Notice of the court action will need to be served upon all next of kin or relatives of the adult person. As an aside, this adult person is often referred to as a “ward“.
Once the petition is filed in the appropriate court, the court will appoint a guardian over the ward and the annual well-being report will need to be filed with that County District Court.
Guardianship Over Elderly Persons
The second most common adult guardianship in Minnesota is a guardianship over incapacitated, elderly person. Incapacitation is a legal standard which is defined by Minnesota statute. Basically, there is a legal test for whether a person has become so mentally incapacitated that they can no longer care for their own needs. A diagnosis from a physician will also be necessary in this scenario. A common diagnosis could be Dementia, Alzheimer’s disease, or other mental defect.
We often counsel adult children who are serving as guardians for their parents. Children reverse roles and now take over as care-givers for the day-to-day needs of their elderly parents. This is often very daunting for the children and parents. However, the children may choose to work with assisted-living or other long-term-care facilities. In these conversations, decisions can be made about who maintains the day-to-day care. The children might only make big-picture decisions for their elderly parents.
Sometimes the children will care for their parents in a home where the elderly parent has lived most of their lives. There are options for care and people are not limited by what they can do, legally. Instead, the only limitations are often financial: what can the parents or children afford for care?
As described above, the court grants legal authority to children for their parents. The court issues Letters of Guardianship. Minnesota guardianships can be very helpful for allowing the children to help their parents manage their on-going care. Every situation is unique. The legal system is there to help people. The courts provide a systematic approach for establishing and maintaining guardianships in Minnesota.
Minnesota Guardianship Lawyers
The decision to ask a court for a guardianship is difficult. There are very significant new responsibilities that the guardian will take on. This is a big responsibility and the courts take it very seriously.
Our office has years of experience dealing with many different situations involving guardianships in Minnesota. The office has also dealt with emergency guardianships. We understands that it can be very scary. We know what to do to help.
Contact the Minnesota guardianship lawyers today for your free initial consultation. The telephone number is 612-424-0398.
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