Guardianship in Minnesota: Frequently Asked Questions

What is a guardian?

A guardian is a person, corporation or an association appointed by a probate court to be legally responsible for another person and/or for another person’s property (estate) when that person is unable to manage his or her personal needs or property because of a mental disability.

What is a ward?

A ward is the person for whom a guardian has been appointed.

What is a protected person?

A protected person is a person for whom a conservator has been appointed.

Why are guardians appointed?

A probate court will appoint a guardian to direct the legal, financial affairs and/or the personal care of a person who is not able to manage his or her own affairs because of a mental disability. Family members or others can ask the court to act to protect someone who appears to be lacking ability to do so for him or herself and is therefore “incompetent.” If the court finds that the person is incompetent and a guardianship is necessary, the court will appoint a guardian. Once appointed, a guardian is accountable to the probate court for providing proper care and management of the ward’s affairs in the ward’s best interest.

What are the general powers and duties of a guardian?

The control that a guardian has over a ward is limited to the authority granted by Minnesota statutes, decisions of Minnesota courts, and orders and rules of the probate court. All guardians must obey the orders and judgments of the probate court which appointed them. The probate court may give broad and far-reaching powers to a guardian, or it may limit or deny any power granted under Minnesota statutes or Minnesota case law.

What are the types of guardianships and conservatorships?

  • Conservatorship of the Estate – Conservator of the estate gives the conservator the authority to make all financial decisions for the ward.
  • Guardianship of the Person – Guardianship of the person gives the guardian the authority to make day-to-day decisions of a personal nature, except financial decisions, on behalf of the ward. Such decisions would include such things as arrangements for food, clothing, living arrangements, medical care, recreation and education. It includes consent for medical care and other treatment or training programs.
  • Emergency Guardianship – Emergency guardianship allows a probate court to issue any order that it considers necessary to prevent injury to the person or the person’s estate or may appoint someone as guardian when: 1) an emergency exists, and 2) a guardian is necessary to prevent injury to the person or estate of the person who is incompetent. This initial appointment of an emergency guardian may last for a maximum of 60 days.
  • Co-Guardianship – Co-guardianship allows two people to be appointed to act as guardians for someone at the same time.
  • Limited Guardianship – Limited guardianship allows a probate court to appoint someone as guardian over only the portion of a person’s life where he or she is both incompetent and has a need. Thus, there can be a limited guardian for medical purposes only (to provide consent for medical procedures), or for placement purposes only (admission to a group home), or for the limited purpose of approving behavior plans and/or psychotropic medications. This less restrictive form of guardianship should be used instead of full guardianship whenever possible. A ward under a limited guardianship  retains all rights in all areas not covered by the court’s order.

What rights are taken away when a guardian is appointed?

There are several types of guardianship in Minnesota. The rights taken away depend upon the type of guardianship established by the probate court.

  • If a guardian of person is appointed, the ward may make any decision that is not contrary to the authority of guardian. Also, the ward can contest the presumption that he or she does not have the ability to make a decision.
  • The loss of personal rights is why guardianship is a very serious step that should be taken as a matter of last resort. A limited guardianship that identifies and limits a specific area in a person’s life, and does not affect any other rights, is preferred if guardianship is necessary. Less restrictive alternatives to guardianship should be considered before guardianship because these options allow the person to keep as many personal rights as possible while providing protection in those areas the person needs.

Does the ward retain any rights?

Some areas of the person’s life may involve fundamental rights or a right of privacy. There may be specific medical procedures, such as those that implicate reproductive rights, for example abortion or sterilization, which should be decided by the person whenever possible. If this is not possible, the law may require the guardian to ask the probate court to review the guardian’s decision. In addition, voting is a fundamental right. Unless a court specifically rules, after a hearing, that a person is incompetent for purposes of voting, the person retains the right to vote even if the person has a guardian of the person and the estate.

Also, some rights are personal to the ward and cannot be exercised by a guardian. A guardian cannot make a will or execute a power of attorney for the ward. The ward may be able to exercise these rights if he or she has the capacity to do so.

What are some less restrictive alternatives to guardianship?

A person may have significant deficits in life, but the person’s support network (for example, families, friends, service providers) may be so effective that guardianship is not necessary. Other options exist that can effectively address a person’s needs without the appointment of a guardian:

  • Representative Payeeship or Authorized Representative – If the person’s only significant income comes from government benefits, it may not be necessary for the person to have a guardian of the estate or a conservator. A representative payee may be able to manage all of the person’s financial needs. A representative payee or authorized representative may be available for state and federal benefit or entitlement programs including Social Security, SSDI (Social Security Disability Insurance), VA (Veterans Administration) benefits, Railroad Retirement Benefits, and welfare benefits. For more information about representative payees contact the appropriate government office: the Social Security Administration (SSA), Department of Veteran Affairs (VA), Railroad Retirement Board (RRB).
  • Trust – A trust could be used instead of a conservatorship to handle funds for the person.
  • Conservatorship – A “conservator” is a person appointed by the probate court at the request of a mentally competent adult who is physically unable to manage certain aspects of his or her life. The person requesting the appointment of a conservator specifies the powers requested on the Petition for Conservatorship. If a person is mentally competent but has a physical disability that limits the ability to manage matters, the person can:
    • Ask the probate court to appoint a conservator.
    • Choose the person who will become the conservator.
    • Dismiss the conservator if the person wants to change to a different conservator.
    • Specify to the court just what authority he or she wants the conservator to have.
    • Ask the probate court to end the conservatorship because the person’s physical disability has decreased and a conservatorship is no longer necessary.
  • Long-term Care Ombudsman – If the person lives in a nursing home or adult care facility and has unmet needs or problems with care, the long-term care ombudsman can help. Ombudsmen take complaints about long-term care services, and voice the person’s needs and concerns to nursing homes, home health agencies, and other providers of long-term care. The Ombudsman Office works with the long-term care provider, the person, the person’s family, or other representatives to resolve problems and concerns about the quality of services. Ombudsmen link people with the services or agencies needed to live a more productive, fulfilling life, provide advice on selecting long-term care in Minnesota, provide information about the rights of consumers, and provide information and assistance with benefits and insurance.
  • Protection Orders – If it would be too restrictive to take away a person’s rights through a guardianship in order to keep that person safe, when it might be possible to accomplish the same thing with a court order of protection. A person may also be able to ask that a court order someone who is hurting that person or threatening to hurt that person to stay away and not have any contact.
  • Powers of Attorney – A power of attorney is a legal document that gives someone else authority to act on a person’s behalf. A person must be competent when he or she gives someone else this authority. Powers of attorney can be revoked at any time. If you are thinking about creating a power of attorney, you should consider that there is no oversight of the person acting with the power of attorney and, therefore, it is possible that it will be used in ways contrary to your interests.

What happens at a guardianship hearing?

The court will set the matter for hearing, often before a referee instead of the judge. If everyone is in agreement that the guardianship is needed, or if no one appears to object, then the guardianship is awarded. If anyone objects, including the person who would receive the guardian, then the hearing becomes more like a trial where witnesses will be examined and cross-examined.

The proposed ward has the right to object to having a guardian appointed for him or her and has several other due process rights, including these:

  • The right to be present during the hearing;
  • The right to have an attorney represent him or her, even if he or she cannot afford one;
  • The right to have the court appoint an attorney at no cost if he or she cannot afford one;
  • The right to prevent his or her personal physician and certain other parties from testifying against him or her.

What if a guardian does not appear to be doing a good job?

Anyone can provide information to the court to help the judge determine if the guardian is performing his or her duties. The ward may always ask the judge to issue instructions to the guardian requiring the guardian to agree to specific things, such as allowing the ward to participate in a vocational program or to move to a community based setting.

If a guardian has consented to medical care, the ward or an “interested party” can object, and the court must hold a hearing to determine whether the medical care is in the best interests of the ward. An “interested party” can also seek periodic review of the need for guardianship.

The judge can also remove a guardian who has engaged in misconduct, such as stealing from the ward. In this case, another individual may be appointed to act as the person’s guardian.

How is a guardianship terminated?

Sometimes it becomes apparent that a guardianship never should have been granted for the person with a disability. Also, that person may no longer need a guardian and has regained the ability to make some or all life decisions. In such cases, it is appropriate to approach the probate court with a petition to terminate a guardianship, or to reduce a guardianship to a limited guardianship. There are provisions in the law where the ward may file a petition with the court asking that the guardianship be ended. The ward can request that the court appoint an attorney to represent him or her in the hearing.