Though parents plan to care for children forever, sometimes others have to step in for any number of reasons. Similarly, guardianships provide family members with much-needed authority to step in and care for loved ones with incapacity. Incapacity can stem from dementia and aging, medical conditions, and even age.
Jump ahead to these sections:
- What Types of Guardianship Exist in Minnesota?
- Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Minnesota?
- What Forms Do You Need to File for Guardianship in Minnesota?
- How Do You File for Guardianship in Minnesota?
- How Do You Assign a Guardian for a Minor Child in Minnesota?
- How Guardianship Works for Minor Children
- How Guardianship Works for Older Adults
- How Guardianship Works for Adults With Developmental Disabilities or Special Needs
- Frequently Asked Questions: Guardianship in Minnesota
Minnesota law considers minors incapacitated for the purposes of appointing a guardian or conservator. The same is true for adults who might need additional support from a court-appointed guardian.
Guardians make medical and care decisions while conservators exclusively manage the money and property of the protected person. Both types of cases are available through Minnesota probate courts. In this guide, we’ll explore how guardianship works in Minnesota for children and families alike.
What Types of Guardianship Exist in Minnesota?
Several types of guardianships exist in Minnesota.
First, protective proceedings are divided into guardianships and conservatorships. Guardianships provide medical and care decision-making powers, while conservatorships focus on managing money and other assets.
From there, both guardianships and conservatorships can be full or limited. Full guardianships and conservatorships give the fiduciary the full menu of powers set out in statute.
The court specifies which powers a guardian or conservator does or does not have for limited guardianships. Typically, the court tries to limit protective proceedings to preserve the protected person's independence as much as possible.
Guardianships and conservatorships can also be emergency or permanent arrangements. The court can issue emergency appointments while the permanent hearing is pending. However, it only does so when the respondent or their property is at some imminent risk or danger that can be resolved through the appointment of a guardian or conservator.
Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Minnesota?
Minnesota courts apply a preference for the appointment of guardians based on the nominee’s relationship to the respondent. However, the court can choose to skip over someone with priority or appoint someone with no priority if doing so is in the respondent’s best interests.
In minor guardianships, anyone nominated by the parents earns the highest priority level. However, even with that designation, the court could still appoint someone else if the minor objects to the appointment or if the court finds the nominated guardian’s appointment to be contrary to the child’s best interests.
Similarly, anyone nominated in writing by the respondent maintains the highest priority in adult guardianships and conservatorships.
What Forms Do You Need to File for Guardianship in Minnesota?
You can access all the needed forms for free online through the Minnesota Judicial Branch. The site separates forms into adult and minor cases to make it easier to choose the right forms. Go to the section for establishing a case to find the first set of forms that you’ll need.
For each case type, use the petition to start and open your case with the court. It contains the details about each person involved in the case. It is the formal way you ask the court to do something, like granting guardianship to you or someone else.
Throughout the process, you’ll need several more forms. All cases also require the acceptance of appointment, which is the document where the guardian or conservator accepts the role's responsibilities.
The courts provide an instruction document for adult cases that further breaks down which forms you need depending on your case type.
How Do You File for Guardianship in Minnesota?
First, find the correct district court for your county online. You’ll file your case in the court that covers the county where the respondent lives. Or, if you’re filing for a conservatorship, you can also file in the county where the respondent’s property is located.
When you file your case, the court also charges a filing fee. If you file your paperwork in person, make sure that you make copies before giving the originals to the court.
In most cases, the court requires that the person considered for appointment provide a background study. Check the court’s requirements to determine whether the background study applies to your situation.
After filing your case, you serve the respondent and send notice to the interested parties. In adult cases, the court might appoint a court visitor to the case or an attorney for the respondent.
Filing your paperwork is only the first step in your case. Read the paperwork that the court gives you after you file, called a case management order, for additional information and requirements. If you have questions about managing your case, contact one of the court self help centers.
How Do You Assign a Guardian for a Minor Child in Minnesota?
Even if you haven’t had children yet, you can nominate a guardian for any children you currently have or might have in the future. A parent can nominate a guardian by designating one in their will or by another signed writing. Alternatively, parents can also designate a standby guardian.
Then, when the parent becomes incapacitated or dies, the nominated guardian must go to the court within 30 days to get the guardianship confirmed.
Alternatively, a parent can also initiate the petition for guardianship for themselves. In the petition, the parent nominates someone to serve as guardian. This type of guardianship would take effect immediately, whereas the options above are future-looking and in the event of the parent’s death or incapacity.
How Guardianship Works for Minor Children
Guardianships for minor children come in many shapes and sizes, but they all have a few things in common.
Most importantly, guardianship gives a non-parent the powers of a parent. The court can issue a limited guardianship that sets out specific powers or order an unlimited guardianship that gives a guardian the full spectrum of parental powers. An unrestricted guardianship gives the guardian the powers of a parent, including medical and educational decision-making, having the child live with them, applying for government benefits, and even pursuing child support.
The court might limit some of these powers, especially in situations where one of the parents hopes to resume their responsibilities in the future.
Conservatorship for minors
A parent or other adult can petition the court for the appointment of a conservator for a minor. A conservator manages a child’s money or other assets for their benefit until they turn 21. Children often need conservators when they inherit money or earn a personal injury settlement.
The court must approve any use of the child’s money, and it typically can’t be used for the child’s basic expenses that a parent is responsible for.
How Guardianship Works for Older Adults
Older adults can benefit from guardianship when they experience reduced decision-making abilities or become totally incapacitated.
The appointment process provides essential procedural safeguards to prevent the respondents from being unnecessarily restricted or abused. The court can add a variety of professionals to the case to improve the court’s understanding of the respondent’s condition and needs and the suitability of any potential guardians.
Your case might have a court visitor, which is someone who interviews the respondent about their thoughts and needs and prepares a report to the court with recommendations. The court can also appoint a guardian ad litem (“GAL”). A GAL represents the best interests of someone who cannot fully participate in the case due to their age or incapacity. Of course, if they’re able, the respondent can also hire an attorney of their own.
After the court appoints a guardian, the guardian remains accountable to the court, the respondent, and the respondent’s family. Most importantly, the guardian prepares an annual report that describes the respondent’s condition and any changes to their living situation.
Conservatorship for older adults
Although conservatorships focus on the financial aspect of a respondent’s care, the same safeguards exist as for guardianships.
Conservators can expect a more detailed reporting process after appointment than guardians. The court must approve a spending plan for the respondent, and deviation from that plan can result in personal liability for the conservator. Consider consulting the state’s guardian and conservator manual before accepting the role so that you fully understand the limitations going in.
How Guardianship Works for Adults With Developmental Disabilities or Special Needs
The same types of guardianships and conservatorships exist for adults with special needs as with older adults. While the options remain the same, the best way to utilize them shifts with the needs and conditions of the respondent.
Children with special needs become eligible for adult guardianship upon their 18th birthday. Parents often request the appointment to extend the same care they’ve always provided into their child’s adulthood.
The guardians and conservators of special needs adults often go through the court process more than once as they look to the future and designate a successor guardian or conservator. The fiduciary can ensure uninterrupted care for their loved one by someone they trust by designating someone to replace them when they become unable to perform the guardian's responsibilities.
Frequently Asked Questions: Guardianship in Minnesota
Guardianships can be excellent tools for families, and many people successfully navigate the cases on their own. However, talking with an attorney about your situation can help you determine the best course of action.
How long is temporary guardianship in Minnesota?
Temporary guardianship of minors lasts up to six months. It’s seen as an emergency measure, not a long-term solution.
The court typically only appoints temporary guardians for adults when there’s a concern or issue with the current guardian’s performance. Then, the court appoints a temporary substitute guardian.
The court can appoint an emergency guardian for adults in time-sensitive situations. It serves as a temporary appointment while the permanent petition is pending. An emergency appointment can last several weeks.
What’s the difference between guardianship, conservatorship, and custody in Minnesota?
Guardianship, conservatorship, and custody cases can all apply to a minor child. Determining which case type helps you meet your goals will save you the frustration of filing the wrong case type and experiencing delays and wasted filing fees.
First, conservatorship cases exclusively deal with money and property. In a conservatorship, the court gives someone the power to accept and manage property on behalf of the child. Children only need a conservatorship if their property is valued at more than $10,000.
Custody cases usually deal with parenting time, child support, and decision-making issues between the child’s parents. They can be part of a divorce case as well. The court can issue complex parenting time schedules through a custody case and evaluate how much parenting time each parent should have. Occasionally, other parties – like grandparents or other family members – join custody cases because they somehow end up with the child.
Guardianship cases exclusively give parenting authority to a non-parent. Parents cannot obtain court orders against the other parent through guardianship cases. Guardianship cases do not terminate or end a parent’s rights and can be terminated when the parent proves their ability to care for the child again.
Non-parents might choose to file a custody case if they anticipate sharing parenting time with one of the parents.
Can you get guardianship without going to court in Minnesota?
Only the court can appoint a guardian. However, several less restrictive options exist that do not involve going to court.
Parents can execute delegations of parental authority that give someone else the ability to care for or make decisions for their child.
Adults can also make powers of attorney to name a financial or medical decision-maker for themselves. Advanced directives serve as instructions for treatment if they cannot speak for themselves. And a variety of care providers and assistants can fill the gap in physical care needs. Many people find that planning ahead and implementing a combination of these tools helps them avoid the guardianship and conservatorship process.
Choose Your Own Guardian Through Nomination
Guardians and conservators make critical decisions for incapacitated people that drastically impact their quality of life. Consequently, the nomination of a guardian and conservator should be a basic part of the estate planning process for every adult.
Besides reducing family conflict, this best ensures that your wishes are followed if you become unable to express them. Everyone deserves to have their wishes met.
Sources:
- “Conservatorship and Guardianship in Minnesota.” Minnesota Conference of Chief Judges. Mncourts.gov
- “Chapter 524. Uniform Probate Code.” 2021 Minnesota Statutes. Revisor.mn.gov