M.S. Sections 524.5-204 to 524.5-206 address issues and procedures relating to the Minnesota Judicial Appointment of Guardian(s) for a minor.
Minnesota Judicial Appointment of Guardian(s)
M.S. Sections 524.5-204 to 524.5-206 address issues and procedures relating to the judicial appointment of a guardian for a minor.
Prerequisites for Appointment – Minnesota Judicial Appointment of Guardian(s)
M.S. 524.5-204(a) identifies the circumstances under which a court may appoint a guardian for a minor child, by providing in part as follows:
(a) The court may appoint a guardian for a minor if the court finds the appointment is in the minor’s best interest, and:
(i) both parents are deceased; or
(ii) all parental rights have been terminated by court order.
Therefore, unless both of the parents are dead, or all of their parental rights have been terminated, a Court may only appoint:
- a temporary guardian pursuant to M.S. 5-204(b),
- an emergency guardian pursuant to M.S. 5-204(c).
Priorities for Appointment – Minnesota Judicial Appointment of Guardian(s)
1. Parental Appointee
M.S. 524.5-204(a) identifies that a guardian for a minor child appointed by a parent has priority for judicial appointment as guardian, by providing in part as follows:
If a guardian is appointed by a parent pursuant to section 524.5-202 and
the appointment has not been prevented or terminated under section 524.5-203,
that appointee has priority for appointment.
2. Court Discretion
M.S. 524.5-204(a) identifies that under certain circumstances, a court has discretion to appoint a different guardian for a minor child than the guardian appointed by a parent, by providing in part as follows:
However, the court may proceed with another appointment upon a finding that the appointee under section 524.5-202 has failed to accept the appointment within 30 days after notice of the guardianship proceeding.
3. Minor’s Best Interests
M.S. 524.5-206(a) identifies that a court must take into consideration the best interests of the minor child when appointing someone as guardian, by providing in part as follows:
The court shall appoint as guardian a person whose appointment will be in the best interest of the minor.
4. Person Nominated by the Minor
M.S. 524.5-206(a) identifies that a court may appoint as guardian a person nominated by a minor over the age of 14, by providing in part as follows:
The court shall appoint a person nominated by the minor, if the minor has attained 14 years of age, unless the court finds the appointment will be contrary to the best interest of the minor.
While there is no standard form for the nomination of a guardian by a minor, presumably a minor would nominate a guardian in the name manner as a parent would nominate a guardian.
Temporary Appointment – Minnesota Judicial Appointment of Guardian(s)
M.S. 524.5-204(b) identifies:
- the circumstances under which a court may appoint a temporary guardian for a minor child,
- the notice required, and
- the authority and duration of the appointment,
by providing in part as follows:
If necessary and on petition or motion and whether or not the conditions of paragraph (a) have been established, the court may appoint a temporary guardian for a minor upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor.
Notice must be given to the parents and to a minor who has attained 14 years of age.
Except as otherwise ordered by the court, the temporary guardian has the authority of an unlimited guardian, but the duration of the temporary guardianship may not exceed six months.
Additional Notice of Temporary Appointment
M.S. 524.5-204(b) identifies additional notice requirements relating to a temporary appointment of a guardian for a minor child, by providing in part as follows:
Within five days after the appointment, the temporary guardian shall send or deliver a copy of the order to all individuals who would be entitled to notice of hearing under section 524.5-205.
Emergency Appointment – Minnesota Judicial Appointment of Guardian(s)
If the court finds
- that following the procedures of this article will likely result in substantial harm to a minor’s health or safety and
- that no other person appears to have authority to act in the circumstances,
the court, on appropriate petition, may appoint an emergency guardian for the minor.
Duration of the Emergency Appointment
The duration of the guardian’s authority may not exceed 30 days and the guardian may exercise only the powers specified in the order.
Notice of Emergency Appointment
Reasonable notice of the time and place of a hearing on the petition for appointment of an emergency guardian must be given
- to the minor, if the minor has attained 14 years of age,
- to each living parent of the minor, and
- a person having care or custody of the minor, if other than a parent.
The court may dispense with the notice if it finds from affidavit or other sworn testimony that the minor will be substantially harmed before a hearing can be held on the petition.
If the guardian is appointed without notice, notice of the appointment must be given within 48 hours after the appointment and a hearing on the appropriateness of the appointment held within five days after the appointment.
Persons Entitled to Petition for Appointment
A person interested in the welfare of a minor may petition for appointment of a guardian.
Hearing Requirement – Minnesota Judicial Appointment of Guardian(s)
After a petition is filed, the court shall set a date for hearing, and the petitioner shall give notice of the time and place for hearing the petition, together with a copy of the petition, to:
(1) the minor, if the minor has attained 14 years of age and is not the petitioner;
(2) any person alleged to have had the primary care and custody of the minor during the 60 days before the filing of the petition;
(3) each living parent of the minor or, if there is none, the adult nearest in kinship that can be found;
(4) any person nominated as guardian by the minor if the minor has attained 14 years of age;
(5) any appointee of a parent whose appointment has not been prevented or terminated under section 524.5-203; and
(6) any guardian or conservator currently acting for the minor in this state or elsewhere.
Required Findings – Minnesota Judicial Appointment of Guardian(s)
The court, upon hearing, shall make the appointment if it finds that
- a qualified person seeks appointment,
- venue is proper,
- the required notices have been given,
- the conditions of section 524.5-204, paragraph (a), have been met, and
- the best interest of the minor will be served by the appointment.
In other cases, the court may dismiss the proceeding or make any other disposition of the matter that will serve the best interest of the minor.
Court Appointed Attorney – Minnesota Judicial Appointment of Guardian(s)
If the court determines at any stage of the proceeding, before or after appointment, that the interests of the minor are or may be inadequately represented, it may appoint a lawyer to represent the minor, giving consideration to the choice of the minor if the minor has attained 14 years of age, provided that such appointment shall expire upon the expiration of the appeal time for the order appointing guardian or the order dismissing a petition or upon such other time or event as the court may direct.
Duty to Provide Documents and Notice After the Hearing
M.S. 524.5-205(d) identifies that a guardian must provide certain documents to the minor after the guardian has been judicially appointed by the court, by providing in part as follows:
Within 14 days after an appointment, a guardian shall send or deliver to the minor ward, and counsel if represented at the hearing, a copy of the order of appointment accompanied by a notice which advises the minor ward of the right to appeal the guardianship appointment in the time and manner provided by the Rules of Appellate Procedure.
Background Study Requirement;
Minnesota Judicial Appointment of Guardian(s)
The court shall require a background study under this section:
(1) before the appointment of a guardian or conservator, unless a background study has been done on the person under this section within the previous two years; and
(2) once every two years after the appointment, if the person continues to serve as a guardian or conservator
Background Study Contents
The background study must include
(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.
Conclusion – Minnesota Judicial Appointment of Guardians
Guardians for minors in Minnesota can either:
- be appointed by the Court, or
- appointed by parents – subject to court confirmation.
The court documents required in order to obtain the judicial appointment of a person as a guardian for a minor can be challenging.
If you require assistance with respect to any Minnesota guardianship issue, please contact attorney Gary C. Dahle, at 763-780-8390, or firstname.lastname@example.org.
Copyright 2018 – All Rights Reserved
No claim to the text of statutory provisions, or judicial decisions.
Gary C. Dahle – Attorney at Law
2704 Mounds View Blvd., Mounds View, MN 55112
Licensed in Minnesota and North Dakota
Phone: 763-780-8390 Fax: 763-780-1735
Topics of Interest:
- Conservator’s Sale of Minnesota Real Property
- Minnesota Conservator Duties and Obligations
- Minnesota Conservator Powers – Statutory
- Minnesota Conservator(s)
- Minnesota Guardian Annual Report | Minnesota Personal Well-Being Report
- Minnesota Guardian Background Study Requirement
- Minnesota Guardian Powers
- Minnesota Guardian(s)
- Minnesota Guardians of Minors
- Minnesota Guardianship Attorney – Gary C. Dahle – Minnesota Conservatorship Attorney
- Minnesota Guardianships – Minnesota Conservatorships
- Minnesota Parental Appointment of Guardian
- Minnesota Temporary Guardian
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Minnesota Judicial Appointment of Guardian(s) – 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/