Minnesota Guardian Background Study

Minnesota Guardian Background Study

Minnesota Guardian Background Study Requirements

Minnesota Guardian – Defined

M.S. Section 524.1-201, Subd. 27 defines the term Guardian in the following manner:

Guardian” means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, . . . .

M.S. Section 524.5-102, Subd. 5 defines the term Guardian in the following manner:

Guardian” means a person who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or spouse, or by the court, . . . .

Minnesota Incapacitated Person – Defined

M.S. Section 524.5-102, Subd. 6 defines the term Incapacitated Person in the following manner:

Incapacitated personmeans an individual

  • who, for reasons other than being a minor,
  • is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and
  • who has demonstrated deficits in behavior
  • which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety,
  • even with appropriate technological assistance.

Minnesota Ward – Defined

M.S. Section 524.5-102, Subd. 17 defines the term Ward in the following manner:

Ward” means an individual for whom a guardian has been appointed.

Minnesota Conservator – Defined

M.S. Section 524.5-102, Subd. 3, and also M.S. Section 524.5-102, Subd. 10, define the term Conservator in the following manner:

Conservator” means a person who is appointed by a court to manage the estate of a protected person . . . .

Minnesota Protected Person – Defined

M.S. Section 524.5-102, Subd. 14 defines the term Protected person in the following manner:

Protected person” means a minor or other individual for whom a conservator has been appointed or other protective order has been made.

Minnesota Guardian Background Study – When Required

M.S. Section 524.5-118, Subd. 1(a) identifies that before the appointment of a Minnesota Guardian or Conservator, the Court shall require that a Minnesota Guardian Background Study be performed upon any proposed Guardian or Conservator, unless:

  • there is a qualifying exception, or
  • a Minnesota Guardian Background Study has been provided to the Court within the previous two years with respect to a proposed Guardian or Conservator.

M.S. Section 524.5-118, Subd. 1(a) also identifies that after the appointment of a Minnesota Guardian or Conservator, the Court shall require that an updated Minnesota Guardian Background Study be provided to the Court every two years with respect to any acting Guardian or Conservator.

Minnesota Guardian Background Study – Contents

M.S. Section 524.5-118, Subd. 1(b) identifies that any Minnesota Guardian Background Study must include the following information:

(1)     criminal history data from the Bureau of Criminal Apprehension, other criminal history data held by the commissioner of human services, and data regarding whether the person has been a perpetrator of substantiated maltreatment of a vulnerable adult or minor;

(2)     criminal history data from the National Criminal Records Repository

  • if the proposed guardian or conservator has not resided in Minnesota for the previous ten years or
  • if the Bureau of Criminal Apprehension information received from the commissioner of human services under subdivision 2, paragraph (b), indicates that the subject is a multistate offender or that the individual’s multistate offender status is undetermined;

and

(3)     state licensing agency data if a search of the database or databases of the agencies listed in subdivision 2a shows that the proposed guardian or conservator has ever held a professional license directly related to the responsibilities of a professional fiduciary from an agency listed in subdivision 2a that was conditioned, suspended, revoked, or canceled.

Minnesota Guardian Background Study – Professional License History

M.S. Section 524.5-118, Subd. 2a(a) identifies that the Court shall request the Minnesota Commissioner of Human Services to provide the Court with licensing data from the following Minnesota agencies relating to the proposed Guardian or Conservator:

(1)       Lawyers Responsibility Board;

(2)       State Board of Accountancy;

(3)       Board of Social Work;

(4)       Board of Psychology;

(5)       Board of Nursing;

(6)       Board of Medical Practice;

(7)       Department of Education;

(8)       Department of Commerce;

(9)       Board of Chiropractic Examiners;

(10)     Board of Dentistry;

(11)     Board of Marriage and Family Therapy;

(12)     Department of Human Services; and

(13)     Peace Officer Standards and Training (POST) Board.

Minnesota Guardian Background Study – Scope

M.S. Section 524.5-118, Subd. 1(c) identifies that if the Minnesota Guardian or Conservator is not an individual, a Minnesota Guardian Background Study must be provided to the Court with respect to:

. . . all individuals currently employed by the proposed guardian or conservator who will be responsible for exercising powers and duties under the guardianship or conservatorship.

If the proposed Minnesota Guardian or Conservator has lived outside of the State of Minnesota within the past 10 years:

  • the Court will also require a search of the National Criminal Records Repository,
  • which means that the Minnesota Guardian Background Study must be accompanied by a set of classifiable fingerprints of the proposed Minnesota Guardian or Conservator on a fingerprint card provided by the Minnesota Commissioner of Human Services.

Minnesota Guardian Background Study – Conditional Appointment

M.S. Section 524.5-118, Subd. 1(d) identifies that:

If the court determines that it would be in the best interests of the ward or protected person to appoint a guardian or conservator before the background study can be completed, the court may make the appointment pending the results of the study, however, the background study must then be completed as soon as reasonably possible after appointment, no later than 30 days after appointment.

Minnesota Guardian Background Study – Fee Payment

 In 2016, the fee for conducting a Minnesota Guardian Background Study was $50.00, plus an additional fee if the proposed Minnesota Guardian or Conservator lived outside of the State of Minnesota within the past 10 years.

(i)      Professional Guardian or Conservator

M.S. Section 524.5-118, Subd. 1(e) identifies that if the proposed Minnesota Guardian or Conservator is a professional in the business of serving as a Minnesota Guardian or Conservator, the fee for conducting the Minnesota Guardian Background Study must be paid by the Minnesota Guardian or Conservator:

The fee for conducting a background study for appointment of a professional guardian or conservator must be paid by the guardian or conservator.

(ii)     In Forma Pauperis

M.S. Section 524.5-118, Subd. 1(e) identifies that if the petition for a proposed Minnesota Guardian or Conservator is proceeding in forma pauperis, the fee for conducting the Minnesota Guardian Background Study must be paid by the Court.

(iii)    The Estate of the Proposed Ward or Protected Person

M.S. Section 524.5-118, Subd. 1(e) identifies that if the proposed Ward or Protected Person has sufficient assets to constitute an estate, the fee for conducting the Minnesota Guardian Background Study must be paid from the estate of the proposed Ward or Protected Person.

(iv)    Other Cases

M.S. Section 524.5-118, Subd. 1(e) identifies that if:

  • the proposed Ward or Protected Person does not have sufficient assets to constitute an estate,
  • but the petition for a proposed Minnesota Guardian or Conservator is not proceeding in forma pauperis,

the fee for conducting the Minnesota Guardian Background Study must be paid as directed by the Court.

Minnesota Guardian Background Study – Exceptions

(i)      State Agency or County

M.S. Section 524.5-118, Subd. 1(f)(1) identifies that if the proposed Minnesota Guardian or Conservator is a state agency or County, the Minnesota Guardian Background Study requirements are not applicable.

(ii)     Bank or Trust Company

M.S. Section 524.5-118, Subd. 1(f)(3) identifies that if the proposed Minnesota Guardian or Conservator is a bank with trust powers, bank and trust company, or trust company, organized under the laws of any state or of the United States and which is regulated by the commissioner of commerce or a federal regulator, the Minnesota Guardian Background Study requirements are not applicable.

(iii)    Parent or Guardian of the Proposed Ward or Protected Person

M.S. Section 524.5-118, Subd. 1(f)(2) identifies that the Minnesota Guardian Background Study requirements would not be applicable:

  • if the proposed Minnesota Guardian or Conservator is a parent or guardian of a proposed Ward or Protected Person who has a developmental disability – providing that the parent or guardian has raised the proposed Ward or Protected Person in the family home until the time the petition is filed,
  • unless a Minnesota Guardian Background Study is recommended by counsel appointed for the proposed ward or protected person under:
    • M.S., Section 524.5-205, paragraph (d);
    • M.S., Section 524.5-304, paragraph (b);
    • M.S., Section 524.5-405, paragraph (a); or
    • M.S., Section 524.5-406, paragraph (b).

Conclusion;

Minnesota Guardian Background Study Requirement

The failure to meet the Minnesota Guardian Background Study requirements can prevent the appointment of a proposed Minnesota Guardian or Conservator, or result in the removal of the Minnesota Guardian or Conservator.

If you require assistance with respect to meeting the Minnesota Guardian Background Study requirements, or any other Minnesota guardianship issues, please contact attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Gary C. Dahle – Attorney at Law

Phone: 763-780-8390

E-Mail: gary@dahlelaw.com

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Legal Disclaimer

Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota guardianships involve many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with legal counselGary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

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Minnesota Guardianship and Conservatorship Links

Minnesota Conservatorships for Adults – https://dahlelaw.com/minnesota-conservatorships-adults/

Minnesota Guardianship and Conservatorship Statutes – Minors: https://www.revisor.mn.gov/statutes/?id=524.5-101

Minnesota Guardianship and Conservatorship Statutes – Adults: https://www.revisor.mn.gov/statutes/?id=524.5-601

Pacer Center: http://www.pacer.org/

National Institute of Mental Health: https://www.nimh.nih.gov/index.shtml

The Alzheimer’s Foundation of America: https://alzfdn.org/