Page posted: 10/1/03
Page reviewed: 4/27/17
Page updated: 4/27/17
Public guardianship began in the early 1900s when most people with developmental disabilities were cared for in public institutions. Children born with significant disabilities were frequently assigned to state schools or hospitals operated by what is today the Department of Human Services (DHS). People who lived in such facilities were under the direction of the DHS commissioner.
In the middle of the twentieth century, many people who lived in institutions began to move to community settings. If the person’s family had moved or died, or was unable to be the person’s legal representative, the person received a public or private guardian. In most cases, courts appointed the DHS commissioner, who delegated daily responsibilities to the county where the person lived.
Today, the number of people who previously lived in institutions and needed a guardian is declining. However, people still receive public guardianship, and a small number of people continue to be nominated for public guardianship, as no other alternatives exist for them.
Public guardianship law encourages the person’s independence, community inclusion and family involvement, in ways that are important to and for the person.
Public guardianship: Court appointment of the DHS commissioner as the legal guardian of an adult with a developmental disability.
Legal guardian: A person with the legal authority and duty to act on behalf of another person. The legal guardian can make decisions for the person about where to live, medical treatment, training and education, etc. Decision-making is limited to the specific powers the court assigns to the legal guardian.
Ward: A person placed under the protection of a legal guardian.
A person may only receive public guardianship if all of the following are true:
1. He or she:
2. No other party is willing or able to serve as the person’s guardian.
How to establish public guardianship
For information about how to establish public guardianship for a person, see CBSM – How to establish public guardianship.
Lead agency responsibilities
Although the DHS commissioner is the person’s appointed public guardian, the DHS commissioner delegates most day-to-day responsibilities to the lead agency that serves the area where the person’s public guardianship was established. This lead agency is the lead agency of guardianship responsibility.
The lead agency designates staff as public guardians. The lead agency-designated public guardian is responsible to:
The sections below include more information about some of these responsibilities.
The same person cannot provide guardianship and case management. This means that:
The decisions the lead agency-designated public guardian makes and actions it takes on behalf of the person must:
The DHS commissioner delegates the following powers and duties to the person’s lead agency-designated public guardian:
1. Authority to consent to release information.
2. Duty to determine if all of the person’s needs are provided for. Needs may include but are not limited to:
3. Duty to take reasonable care of the person's clothing, furniture, vehicles, and other personal items, and, if other property requires protection, the power to appoint a guardian of his or her estate.
4. Power to approve or not approve any contract the person makes. This power does not apply to a contracts the person makes for necessities.
5. Power to determine where the person lives. The person’s residence must be:
6. Power to give consent for the person to receive necessary medical or other professional care. This power includes consent to aversive and deprivation procedures (defined under Minn. R. 9525.3045) and psychotropic medications (defined under Minn. R. 9525.3050).
The lead agency-designated public guardian must receive the DHS commissioner’s written approval to give the following:
For instructions on how to request DHS approval for these powers, see CBSM – Approval process for non-delegated powers.
Others that require DHS approval
The lead agency-designated public guardian also must receive the DHS commissioner’s written approval to:
To request approval for these powers, contact the DHS Public Guardianship Office.
The lead agency-designated public guardian also should refer any disputed or contentious matters that he or she cannot resolve in the person’s best interests to DHS.
Service planning requires the lead agency-designated public guardian to know:
Knowing this information assures the person receives a service plan that is the least restrictive option and in his or her best interest.
The lead agency-delegated public guardian must complete Annual Review of Ward under Public Guardianship, DHS-5836 and submit it to the DHS Public Guardianship Office by the person’s birthday each year.
During the annual review, the lead agency-delegated public guardian:
The annual review must address the ward’s:
The lead agency-designated public guardian must notify the DHS Public Guardianship Office when the person’s status changes. Status changes include:
In the notification, the lead agency-designated public guardian must include relevant court documents or death notices.
The person’s public guardianship is terminated in all of these scenarios except for “lead agency of guardianship responsibility changes.”
The lead agency can transfer guardianship responsibility for a person to another lead agency by either:
When lead agencies transfer guardianship responsibility for a person by a written agreement, the original court files remain with the court located in the area where public guardianship was initially established (i.e. in the court and county of venue). Future court actions related to the person’s public guardianship happen in the court and county of venue.
Lead agencies may choose to do this:
Transfer of venue
Lead agencies may petition the court of venue to transfer guardianship responsibility for a person through a transfer of venue. A transfer of venue moves the original court files to a court in the new lead agency of guardianship responsibility’s jurisdiction. Future court actions related to the person’s public guardianship happen in the new court and county of venue.
Both lead agencies must agree the transfer of venue:
Right to due process
A person under public guardianship keeps his or her right to due process.
He or she may exercise this right to due process in response to public guardianship decisions or actions taken by the lead agency or DHS. Any interested party may:
None of these options prevent the person from exercising his or her right to due process in other ways (e.g., obtaining a lawyer, filing a formal complaint or charge with an enforcement authority, conciliation conferences, administrative hearing, deposition, mediations, arbitration, court trials, appeals, etc.).
The DHS Public Guardianship Office acts on behalf of the DHS commissioner. The lead agency may contact and submit relevant materials to the DHS Public Guardianship Office via:
The Minnesota Association for Guardianship & Conservatorship (MAGiC)
The following online courses are available in TrainLink:
Select “find a course” and enter the course code in the “search by class name” field.
Introduction and Guide to Supported Decision Making is also available on DHS’ YouTube channel.