Legal Memorandum: Application for Co-guardianship in MN

Issue: What is the basic law applicable to an application for co-guardianship in Minnesota?

Area of Law: Family Law, Municipal, County and Local Law
Keywords: Co-guardianship; Application; Best interest of the ward
Jurisdiction: Minnesota
Cited Cases: 733 N.W.2d 506; 303 Minn. 226; 478 N.W.2d 790; 226 N.W.2d 895; 347 N.W.2d 62; 286 N.W. 245; 205 Minn. 399
Cited Statutes: Minn. Stat. § 524.5-301, § 524.5-303(a), § 524.5-309(a), § 524.5-309(b)
Date: 02/01/2011

Under Minnesota guardianship law, which is based on the Uniform Guardianship and Protected Persons Act, a person may become a guardian of an incapacitated person either through a parental or spousal appointment, or upon appointment by the court.  See Minn. Stat. § 524.5-301 (2010).  Any person interested in an individual’s welfare may petition the court for a determination of incapacity of that individual, in whole or in part, and for the appointment of a limited or unlimited guardian for the individual.  Id. § 524.5-303(a).

The guardianship statute prioritizes who may be appointed as guardian.  The court, in appointing a guardian, must consider persons otherwise qualified in the following order of priority*FN1:

  • a health care agent appointed by the respondent in a health care directive that does not include limitations on the nomination of the health care agent as a guardian;
  • a parent of the respondent;
  • an adult with whom the respondent has resided for more than six months before the filing of the petition;
  • an adult who is related to the respondent by blood, adoption, or marriage; and
  • any other adult or a professional guardian.

Id. § 524.5-309(a).  See also Schmidt v. Hebeisen, 347 N.W.2d 62, 64 (Minn. Ct. App. 1984) (explaining that “[c]ourts generally select someone with family ties or the nominees of such persons when appointing a guardian.  However, that requirement is not mandatory and the court will disregard the application of a family member if […]

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