Who Can Be a Guardian or
Conservator under Minnesota Law
The guardian of a minor can be appointed by a parent, either while alive upon petition or after death by prior written instruction, or by the minor-ward in certain circumstances, or by the court if the proper conditions are met.
The guardian of a minor may be any person who meets legal criteria, among which is successfully passing a background study (required of both guardians and conservators). This background check is required in all but a couple of very specific situations. The background study is intended to show the court that the proposed guardian does not have an objectionable criminal background or history of maltreatment.
If the minor is old enough, he or she may object to the parent's nomination for guardian and propose his or her own. Other persons may object to the nominated guardian as well, including the other parent, a current guardian, or anyone with custody or care of the minor.
Objecting requires a legal procedure. Objection does not automatically prevent the court from appointing the nominated guardian.
The court can appoint a guardian if any person interested in the welfare of the minor petitions the court to do so. The interested person can petition and nominate a guardian even if proceedings have already begun to appoint a different person as guardian.
Contact me, a Minnesota guardianship attorney, for more information.
Appointment of a guardian of an incapacitated person under Minnesota law is a bit more complicated in some ways than appointment of a guardian of a minor. The reason is not that minors are less important; they aren't less important. The reason is probably because the guardianship of a minor terminates when the minor turns eighteen. The guardianship of an incapacitated person can potentially last until the death of the ward, which may be decades.
Under Minnesota law, nearly anyone can be appointed as a guardian of a minor without much consideration to anyone else. But, Minnesota law provides for recognition of priority among nominees for appointment as guardian of an incapacitated person. We recognize that certain persons are going to be better suited to deal with the life and affairs of incapacitated persons than others will be.
In order, priority currently goes to:
1. current permanent guardian
2. nominee under ward's previously executed health care directive
3. spouse of ward
4. adult child of ward
5. parent of ward
6. adult caregiver of ward
However, right of priority is not absolute. The court has final say. The court may, if in the best interest of the ward, decline to appoint a person who has priority and instead appoint a person who has lower or no priority. If two or more persons have equal priority (say, multiple adult children), then the court will select the person it determines more qualified.
Persons or entities that provide certain care-giving services in exchange for money may not be appointed guardian unless related to the ward.
Call me, a Minnesota guardianship attorney, for more information.
Under Minnesota law, certain persons also have a right of priority to be appointed as conservator of a protected person's estate. Conservator priority closely tracks guardian priority:
1. current conservator, guardian of the estate, or similar fiduciary
2. person previously nominated as conservator by protected person
3. protected person agent by power of attorney
4. spouse of the protected person
5. adult child of the protected person
6. parent of the protected person
7. adult caregiver of the protected person
One significant difference is that any of the above with priority may transfer their priority to a different person. A spouse, for example, may transfer priority to a parent, thereby granting the parent higher priority than the adult children of the protected person.
Just like with guardianship of an incapacitated person, the court has final say and may appoint based on the best interest of the protected person. Also, similarly, caregivers-for-money are restricted in appointment only to those who are related.
Please feel free to contact me, a Minnesota conservatorship lawyer, for representation or to answer any questions. |
