Minnesota Guardians and Conservators

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Minnesota Parental Appointment of Guardian

Minnesota Statutes (“M.S.”) Sections 524.5-202 to 524.5-203 address issues and procedures relevant to the Minnesota Parental Appointment of Guardian.

Minnesota Parental Appointment of Guardian

Minnesota Parental Appointment of Guardian

Minnesota Statutes (“M.S.”) Sections 524.5-202 to 524.5-203 address issues and procedures relevant to the appointment of a guardian for a minor child by a parent.

The statutory scheme for the Minnesota parental appointment of guardian for a minor child was developed in order to provide a more expedient procedure than the traditional judicial appointment process.

While the parent’s choice of guardian for a minor child can be confirmed by the court prior to the death or disability of a parent, the document filings for such a confirmation proceeding are somewhat extensive, and will likely require professional assistance in order to complete.

In addition, the relevant statutes relating to the parental appointment of a guardian for a minor child contain numerous cross references, and are not always self explanatory.

In contrast, 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 – under traditional concepts which have been in place for many years.

M.S. 524.5-202 identifies that a parent may appoint a guardian for a minor child that will be effective after the first to occur of the appointing parent’s death, a determination of incapacity with respect to the appointing parent, or a written determination by a physician that the parent cannot take care of the minor child.

Method of Appointment – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(a) identifies the manner in which a parent can appoint a guardian for a minor child – even a child not yet born or adopted – by providing as follows:

A guardian may be appointed

  • by will,
  • by designation of a standby guardian pursuant to chapter 257B, or
  • by other signed writing executed in the same manner as a health care directive under chapter 145C

by a parent for any minor child the parent has or may have in the future.

Will Admitted for Probate in Another State

M.S. Section 524.5-202(g) identifies that a parent can appoint a guardian for a minor child pursuant to a Will which was filed for probate in another state, by providing in part as follows:

An appointment by a parent which is effected by filing the guardian’s acceptance under a will probated in the state of the testator’s domicile is effective in this state.

Limitation of Powers – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(a) identifies that a parent can limit the powers exercisable by a guardian for a minor child appointed by the parent, by providing in part as follows:

The appointment may specify the desired limitations on the powers to be given to the guardian.

Revocation or Amendment of Appointment – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(a) identifies that a parent can either revoke, or amend, any appointment by the parent of a guardian for a minor child – as long as the revocation or amendment occurs prior to judicial confirmation of the appointment – by providing in part as follows:

The appointing parent may revoke or amend the appointment prior to court confirmation.

Effect of Appointment on Parental Rights – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(g) identifies that an appointment of a guardian for a minor child does not override or terminate any existing parental rights, by providing as follows:

The appointment of a guardian by a parent does not supersede the parental rights of either parent.

Conflicting Priorities for Appointment – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(g) identifies that if a minor’s parents have appointed different guardians for a minor child, the appointment made by the last parent to either die, or become incapacitated, will have priority, by providing as follows:

If both parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who dies or was adjudged incapacitated has priority.

Effective Date of Appointment – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(c) identifies the effective date of a parental appointment of a guardian for a minor child, by providing as follows:

Subject to section 524.5-203 – relating to objections to the appointment –  the [parental] appointment of a guardian becomes effective upon

  • the appointing parent’s death,
  • an adjudication that the parent is an incapacitated person, or
  • a written determination by a physician who has examined the parent that the parent is no longer able to care for the child,

whichever occurs first.

Filing of Acceptance of Appointment – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(d) identifies that a guardian for a minor child who was appointed by a parent must file an acceptance with the Court within 30 days of the effective date of appointment, by providing as follows:

The guardian becomes eligible to act upon the filing of an acceptance of appointment, which must be filed within 30 days following the effective date of the guardian’s appointment.

Such an acceptance would be sworn to under oath, and would contain statements similar to the following:

I do swear that I will faithfully and justly perform all the duties of the office and trust which I now assume as Guardian of the above-named ___________, to the best of my ability. . . . I hereby accept my appointment and I submit to the jurisdiction of the Court in any proceeding relating to the person subject to guardianship that may be instituted by the Court or any person interested in the affairs of the person subject to guardianship .

Location of Filing Acceptance – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(d) identifies the proper courthouse in which a guardian’s acceptance of appointment by a parent must be filed, by providing as follows:

The guardian shall: (1)     file the acceptance of appointment and a copy of the will with the court of the county in which the will was or could be probated or, in the case of another appointing instrument, file the acceptance of appointment and the appointing instrument with the court of the county in which the minor resides or is present;

Notice of Acceptance – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(d) identifies the manner in which a guardian for a minor appointed by a parent must give notice of his or her acceptance, by providing as follows:

The guardian shall: (2)     give written notice of the acceptance of appointment to the appointing parent, if living, the minor, if the minor has attained 14 years of age, and a person other than the parent having care and custody of the minor.

Notice of Right to Object – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(e) identifies that the guardian’s written notice of acceptance of appointment must contain a notification that certain persons have a right to object and terminate the appointment – unless such appointment was previously confirmed by the Court, by providing as follows:

Unless the appointment was previously confirmed by the court, the notice given under paragraph (d), clause (2), must include a statement of the right of those notified to terminate the appointment by filing a written objection in the court as provided in section 524.5-203.

The notice of acceptance of appointment document would be sworn to under oath, and must contain statements similar to the following:

You have the right to object to the appointment of the Guardian listed herein. By filing a written objection of the appointment with the Court you will terminate the appointment of Guardian until a court can hold a hearing on the matter.

Effective Date of Guardian’s Powers

M.S. Section 524.5-202(h) identifies that the effective date of a guardian’s powers with respect to a minor child will relate back to the date of appointment – even though such date will necessarily be before the date of the guardian’s acceptance of appointment – by providing as follows:

The powers of a guardian who timely complies with the requirements of paragraphs (d) and (e) relate back to give acts by the guardian which are of benefit to the minor and occurred on or after the date the appointment became effective the same effect as those that occurred after the filing of the acceptance of the appointment.

Objections to Appointment – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-203 allows certain interested persons to file any objection to the parental appointment of a guardian for a minor child – which objection will have the effect of immediately terminating such appointment if the objection is filed and properly served prior to the effective date of the appointment – by providing in part as follows:

Until the court has confirmed an appointee under section 524.5-202, a minor who is the subject of an appointment by a parent and who has attained 14 years of age, the other parent, or a person other than a parent or guardian having custody or care of the minor may prevent or terminate the appointment at any time by filing in the court in which the appointing instrument is filed a written objection and by giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment.

Court Authority Notwithstanding Any Objection

M.S. Section 524.5-203 identifies that notwithstanding any objection to the parental appointment of a guardian, the court will still have authority to make the same appointment of a guardian that the parent would have made, by providing in part as follows:

An objection does not preclude an appointment of the appointee by the court.

Petition for Emergency or Temporary Guardian

M.S. Section 524.5-203 identifies that notwithstanding any objection to the appointment of a guardian under the statute, the court has authority to treat the objection to the appointment as a petition for the appointment of an emergency or temporary guardian, by providing in part as follows:

The court may treat the filing of an objection as a petition for the appointment of an emergency or a temporary guardian under section 524.5-204, and proceed accordingly.

Termination of Appointment – Minnesota Parental Appointment of Guardian

M.S. Section 524.5-202(i) identifies that the powers of a guardian appointed by a parent of a minor child terminate:

  • upon the judicial appointment of a guardian by the court or
  • upon the proper filing and service of an objection,

by providing as follows:

The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court or the giving of written notice to the guardian of the filing of an objection pursuant to section 524.5-203.

However, if the authority of the guardian appointed by a parent is terminated by reason of the judicial appointment of a guardian, the Court will grant new powers of guardianship to the Court appointed guardian.

Nevertheless, once the minor attains age 18, the guardianship will end – unless the basis for guardianship was the incapacity of the minor for reasons other than age.

Court Confirmation After Effective Date; 

Minnesota Parental Appointment of Guardian

Minnesota statutes require that a guardian for a minor child who was appointed by a parent must file a petition for court confirmation of the appointment.

Requirements

M.S. Section 524.5-202(f) identifies the requirements for court confirmation of a parental appointment of a guardian for a minor child, by providing as follows:

Unless the appointment was previously confirmed by the court, within 30 days after filing the notice and the appointing instrument, a guardian shall petition the court for confirmation of the appointment, giving notice in the manner provided in section 524.5-205, paragraph (b).

Notice

M.S. Section 524.5-205(b) identifies the requirements for a hearing and notice thereof with respect to court confirmation of a parent’s appointment of a guardian for a minor child, by providing as follows:

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.

Hearing

The court hearing will occur about 60 days after the date on which the petition is filed.

Temporary Letters of Authority

If a guardian appointed by a parent needs authority to take action on behalf of a minor child before the hearing, the guardian can petition the court – without notice to anyone else – and request the issuance of temporary Letters of Guardianship until the hearing can be held on the petition for confirmation of appointment of the guardian.

Court Confirmation Before Effective Date;

Minnesota Parental Appointment of Guardian

Minnesota statutes allow a parent of a minor child to obtain court confirmation of any parental appointment of a guardian for a minor child in advance of the effective date of the appointment – which is a different statutory procedure than that involved in either:

  • a guardian’s petition for confirmation of the appointment of a guardian by a parent, or

Requirements

M.S. Section 524.5-202(b) identifies the requirements for court confirmation of a parental appointment of a guardian for a minor child while the parent is still alive and not incapacitated, by providing as follows:

Upon petition of an appointing parent and a finding that the appointing parent will likely become unable to care for the child within two years or less, and after notice as provided in section 524.5-205, paragraph (b), the court, before the appointment becomes effective, may confirm the parent’s selection of a guardian and terminate the rights of others to object.

Hearing

The court will schedule a hearing, and notice must be given to all interested persons.

Order Confirming Appointment

If no objections are filed – or are not otherwise overruled by the Court – and all documents are in order, the court will issue an Order approving the petition.

Background Study Requirement; 

Minnesota Parental Appointment of Guardian

M.S. 524.5-118(a) identifies that a proposed guardian must submit to a criminal background study before being appointed by the court, by providing in part as follows:

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 five years; and (2) once every five years after the appointment, if the person continues to serve as a guardian or conservator.

Background Exception – Parents

M.S. 524.5-118(f)(2) identifies that a criminal background study is not required of certain parents of a person subject guardianship or conservatorship who has a developmental disability, by providing in part as follows:

The requirements of this subdivision do not apply if the guardian or conservator is: . . .  (2)     a parent or guardian of a person proposed to be subject to guardianship or conservatorship who has a developmental disability, if the parent or guardian has raised the person proposed to be subject to guardianship or conservatorship in the family home until the time the petition is filed, unless counsel appointed for the person proposed to be subject to guardianship or conservatorship under section 524.5-205, paragraph (d); 524.5-304, paragraph (b); 524.5-405, paragraph (a); or 524.5-406, paragraph (b), recommends a background study;

Background Study Contents

M.S. 524.5-118(b) identifies the contents of any required criminal background study before being appointed by the court, by providing in part as follows:

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 record check as defined in section 245C.02, Subdivision 13c; 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

The statutory scheme for the Minnesota Parental Appointment of Guardian(s) was developed in order to provide a more expedient procedure than the traditional judicial appointment process.

While a parent’s choice of guardian for a minor child can be confirmed by the court prior to the death or disability of the parent, the document filings for such a confirmation proceeding are somewhat extensive, and will likely require professional assistance in order to complete.

In addition, the required petition by a guardian for confirmation of appointment made by a parent can also be challenging. If you require assistance with respect to any Minnesota guardianship issues, please contact attorney Gary C. Dahle, at 763-780-8390, or [email protected].

Minnesota Parental Appointment of Guardian

Copyright 2021 – 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

[email protected]

Minnesota Parental Appointment of Guardian

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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 counsel. Gary 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/