What Do Courts Consider When Deciding Who To Appoint As Guardian or Conservator?

The guardianship and conservatorship statutes (Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413) require that the consider individuals or entities that have priority to serve as guardian or conservator.   But, when a court is considering the qualifications of the proposed guardian or conservator herself, what exactly do Judges consider?

According to the Minnesota Guardianship and Conservatorship Manual  published by the Conference of Chief Judges, the following should be considered by Minnesota Judges when determining who should serve as guardian and conservator:

  • Is the proposed guardian or conservator herself competent? (over 18, not under guardianship or conservatorship himself, have sufficient mental capacity himself to handle the duties)
  • Has the proposed guardian or conservator submitted to, and passed,  a background study?
  • What are the incapacitated person’s wishes for the choice of his or her guardian or conservator (if the person has sufficient mental capacity and understanding to reasonably express a preference; or there is evidence of what the person’s wishes were before he became incapacitated)?
  • Is there regular and appropriate interaction between the person and the proposed guardian or conservator?
  • Is there interest and commitment of the proposed guardian or conservator in advocating for the welfare and rights of the person?
  •   Does the proposed guardian or conservator maintain a current understanding of the person’s needs in all areas of the person’s life?

The standard that the Courts need to ultimately use in deciding who to appoint as guardian or conservator is a best interest standard:  what is in the best interest of the proposed ward or protected person.

For information about appointment of a guardian or conservator, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.


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