Legal Memorandum: Application for Co-guardianship in MN

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

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 […]