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Adult Public Guardianship

Page posted: 10/01/03

Page reviewed: 4/14/14

Page updated: 5/30/14

Legal Authority

Minn. Stat. §524.5-101 to §524.5-502, Minn. Stat. §252A.01 to §252A. 21, Minn. Stat. §626.557, subd. 10 c, 2-3, , Minn. R. 9525.3010 – 9525.3100

Definitions

Adult public guardianship: Appointment of the Commissioner of the Minnesota Department of Human Services by the court to act as public guardian for an adult with a diagnosis of developmental disability who needs this level of supervision and protection, and has no other private party willing or able to act in this role.

Conservatorship: Court procedure in which a court appoints a person (conservator) to manage another person’s assets and estate.

Developmental Disability (DD): Severe, chronic disability attributable to mental and/or physical impairment, which manifests before age 22 years and is likely to continue indefinitely. The disability results in substantial limitations in three or more of the following areas: self - care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living and economic self-sufficiency as well as the continuous need for individually planned and coordinated services.

Legal guardian: Person with legal authority and duty to act on behalf of the ward as a substitute decision-maker to care for personal and property interests of another person.

Ward: Person placed under the protection of a legal guardian.

Background

Public Guardianship dates from the early 1900s when most people with developmental disabilities were cared for in public institutions. Children born with significant disabilities were frequently assigned to a number of state schools or hospitals operated by what is today the Department of Human Services. People living in such facilities were under the direction of the Commissioner of DHS.

In the middle of the century, as attitudes and treatments improved, many institutionalized persons were moved to community settings. Over the years, families had dispersed or died, or were unable to assume responsibility for the institutionalized person, requiring public or private guardians to be appointed. In most cases, the Commissioner was appointed by court venues, with local responsibility delegated to counties where the wards lived.

Towards the latter part of the century and into the year 2000, the previously institutionalized population is dwindling, either by death or by assignment of private guardians. However, about 2,800 people still require public guardianship. A small number of people continue to be nominated for public guardianship annually, as no other alternative exists for them.

Although restrictive in prescription, public guardianship law encourages the independence, community inclusion and family involvement of the ward, to the extent that the ward is able to safely and appropriately engage.

Public guardianship eligibility

People over the age of 18 years who have a diagnosis of a developmental disability are candidates for public guardianship. Minnesota law limits the public guardianship option to this population only. The person must:

  • • Be impaired to the point of lacking understanding or capacity to make or communicate responsible personal decisions
  • • Demonstrate an inability to meet personal needs for health and safety
  • • Be in need of the supervision and protection of a guardian
  • No appropriate alternatives to public guardianship can exist that would be less restrictive of the person’s civil rights and liberties.

    Decision making delegation

    Although the Commissioner, by office, is the named legal guardian, most day-to-day decision-making is delegated to the lead agency in the home county of the ward.

    In the performance of their guardianship responsibilities, public guardians must:

  • • Take actions and
  • • Make decisions on behalf of the ward that allow the maximum level of independent functioning.
  • Decisions made by public guardians are to be the least restrictive of the ward's personal freedom consistent with the need for supervision and protection, and permit and encourages maximum self-reliance on the part of the ward. Guardians should also permit and encourage input by families of the ward in planning and decision making on behalf of the ward.

    Guardianship delegates (lead agencies) are responsible to:

  • • Make personal contact or visit with the ward no less than two times per year
  • • Maintain close contact with the ward at all other times
  • • Complete periodic reviews of the progress and needs of the ward
  • Covered services

    Minnesota statutes and rules specify both delegated and non-delegated powers and duties:

  • • Delegated powers and duties are those that lead agencies may perform acting in the Commissioner’s stead
  • • Non-delegated powers and duties are those that only DHS may perform
  • Delegated powers

    DHS delegates the following powers and duties:

  • • Authority to consent to release of information
  • • Duty to determine that provision has been made for the ward's care, comfort, maintenance needs, including food, shelter, health care, social and recreational requirements, and whenever appropriate, training, education, and habilitation or rehabilitation
  • • Duty to take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects, and, if other property requires protection, the power to seek appointment of a guardian of the estate
  • • Power to approve or withhold approval of any contract the ward makes, except for necessities
  • • Power to determine the ward's place of residence consistent with state and federal law, and the least restrictive environment consistent with the ward's best interest
  • • Power to give necessary consent to enable the ward to receive necessary medical or other professional care - this power includes consent to aversive and deprivation procedures under Minn. R. 9525.3045 and psychotropic medications under Minn. R. 9525.3050.
  • Additional powers, if granted by the court, include the authority for lead agency to do the following::

  • • Begin or defend against legal action in the name of the person
  • • Consent to the adoption of the ward
  • • Give or withhold permission for the person to marry
  • The public guardian is to take appropriate action if the following occur:

  • • Legal rights of a person are abridged or appear to have been abridged
  • • Pursue appropriate action on behalf of the person in accordance with applicable state and federal law
  • Non-delegated powers and consents

    Certain guardianship duties, however, cannot be delegated to counties, under Minnesota Rules part 9525.3055 and 9525.3060. These require the written approval of the commissioner through the public guardianship office.

    The DHS Public Guardianship Office must give the Commissioner’s consent for the following :

  • • Do Not Resuscitate, Do Not Intubate orders (DNR-DNI)
  • • Orders to limit medical treatment (LMT)
  • • Participation of a ward in research
  • • Temporary Care at Regional Treatment Center
  • Additionally, any disputed or contentious matters that cannot be resolved on behalf of the best interests of the ward at the lead agency level should be referred to DHS

    Consent requiring court order

    In addition to DHS recommendation, Minnesota Law requires additional review and court order for the following:

  • • Experimental treatment
  • • Psychosurgery
  • • Sterilization
  • • Treatment by electroconvulsive therapy
  • Annual review

    Lead agency delegates must submit an annual review to the DHS Public Guardianship Office by the ward’s birthday. The public guardian:

  • • Evaluates appropriateness of the legal status of a person based on their progress
  • • Determines whether their need for guardianship continues to exist or whether modification, termination or discharge is appropriate
  • • Evaluates services provided to assure they meet the physical, mental and social needs of the person
  • The annual review must address the ward’s:

    A. Physical adjustment and progress
    B. Mental adjustment and progress
    C. Social adjustment and progress
    D. Legal status (need for continued guardianship) based on items A to C

    Submit the annual review using one of the following:

  • Annual Review of Ward under Public Guardianship (DHS-5836)
  • • Other format of the lead agency’s choice that addresses the four review areas
  • • Page or pages from the ward’s current Individual Service Plan that addresses the four review areas
  • Fax the completed documents to (651) 431-7458 or e-mail to DHS.PublicGuardianship@state.mn.us
    or mail to:

    Minnesota Department of Human Services
    Disability Services Division
    PO Box 64967
    St. Paul Minnesota, 55164-0967
    Attn: Public Guardian

    Paying relatives and legally responsible individuals

    Legally responsible individuals and non-professional guardians and conservators may be paid to provide waiver services under certain conditions. See CBSM — Paying relatives and legally responsible individuals for more information.

    Other notifications to the Public Guardianship Office

    Lead agencies must notify the DHS Public Guardianship Office of changes to the status of public wards. Changes include:

  • • Change of county of guardianship responsibility
  • • Death
  • • Discharge of the public guardian by court order to a private party as a successor guardian or conservator
  • • Restoration of the person to full capacity
  • • Unknown whereabouts following a due diligent search
  • Provider standards and qualifications

    The Commissioner carries out duties as the public guardian through the staff of the DHS Public Guardianship Office and lead agencies. The county in which public guardianship is established is the county of venue and the county of public guardianship responsibility.

    Lead agencies designate staff to exercise public guardianship responsibilities. While lead agencies make some decisions on behalf of wards, Minn. Stat. mandates the same person cannot perform the duties of guardianship or conservatorship and case management. Similarly, a provider of services to the ward may not be assigned guardianship responsibilities.

    Lead agencies may contract only for public guardianship representation required by the screening and the individual service planning process. Lead agencies cannot contract with any party for the provision of other public guardianship duties.

    See Minn. R. 9525.3035 General Standards For Public Guardianship

    Process and procedure

    Access
    Assessment
    Authorization
    Legal procedures
    Planning and consent
    Termination or discharge
    Due process

    Additional resources

    Frequently asked questions
    Minn. Stat. section 563.01 Forma pauperis proceedings; authorization
    Minnesota Judicial Branch Court Forms – Guardianship/Conservatorship Forms
    Substitute Decision-Making online training
    CBSM — Paying relatives and legally responsible individuals

    Process and Procedure

    Effective Date: 10/01/03

    Review Date: 09/29/09

    Access

    Any interested individual may nominate the Commissioner to act as public guardian of the person.

    To nominate the Commissioner, an individual or lead agency must submit a notarized sworn request to the DHS Public Guardianship Office and request nomination from DHs to be appointed as public guardian of a ward.

    Assessment

    Within 20 working days of receipt of the notarized letter of nomination, the DHS Public Guardianship Office orders a comprehensive evaluation by the local county social services agency serving the area in which the proposed ward resides. The comprehensive evaluation consists of the following:

    1. Medical report on the health status and physical condition of the proposed ward, prepared under the direction of a licensed physician.
    2. Report on the psychological status of the proposed ward prepared by a psychologist. The psychologist should be qualified in the diagnosis and treatment of person’s with developmental disabilities. The report should:

  • • Include information on the intellectual capacity and functional abilities of the ward
  • • Specify tests and other data used in reaching the conclusions state
  • 3. A report from the case manager that includes:

  • • Most current individual service plan, which includes recommendations from the county on the amount of assistance and supervision the person requires to function as independently as possible in society
  • • Most recent assessments of the service needs of the person, including an assessment documenting his or her decision-making skills
  • • Report on contact made with near relatives, their responses and opinions
  • • Statement to the effect there is no appropriate alternative to public guardianship and that no other party is willing or able to serve as guardian
  • Reports, as required above, must be completed no more than 12 months before the filing of the petition. If a comprehensive assessment completed with the last twelve months is not available, the county agency must arrange for a comprehensive assessment to be prepared and forwarded to DHS within 90 days.

    If the proposed ward refuses to participate in any part of the comprehensive evaluation, the petition may still proceed to hearing if the county director files an affidavit stating the proposed refusal by the ward.

    The county agency must prepare and submit the comprehensive evaluation to the DHS Public Guardianship Office within 90 days from the date of the order for a comprehensive evaluation.

    Authorization

    DHS notifies lead agency of acceptance or denial within 20 working days from receipt of the comprehensive evaluation from the county agency. The acceptance letter will instruct the lead agency on the legal procedures to commence.

    The Commissioner accepts the nomination if the following criteria have been met:

  • • Person has been diagnosed with a developmental disability
  • • Person needs supervision and protection of a guardian and
  • • No other less restrictive alternative to public guardianship is available
  • If the Commissioner rejects the nomination, the person diagnosed with a developmental disability or his or her parents, spouse or near relative may file a petition with the court to appoint the Commissioner as a public guardian. Under such circumstances, the Commissioner forwards a copy of a comprehensive assessment to the court upon notice of the petition

    Legal procedures

    Petition / attorney representation

    Within 20 days of the county receiving the acceptance from DHS, the lead agency attorney or the county’s legal contractor files the following:

  • • Petition that states the powers sought by the lead agency on behalf of the Commissioner is needed to protect the ward’s person and interests
  • • Copy of the comprehensive assessment (see assessment section above)
  • The court sets a hearing date and appoints an attorney to represent the proposed ward unless the proposed ward or others provide counsel. The court will give the attorney adequate time to prepare and visit with the proposed ward before the hearing is held.

    Upon receipt of filing, the court of venue will require that notification of the hearing be made to interested persons at least 14 days prior to the scheduled hearing. Interested persons may include immediate family or near relatives, or others known to the lead agency who may have an interest in the protection and welfare of the proposed ward as appropriate.

    Hearing

    The court makes specific written findings of fact, conclusions of law and appropriate judgments and orders. Unless the court rejects the appointment of a public guardian, the court’s order specifies the appointment of the Commissioner as public guardian and references the duties and powers under law.

    Transfers of public guardianship responsibility

    Public guardianship responsibility is determined by and lies with the county in which the person resides at the time of the hearing. That county remains the county of guardianship responsibility unless one of the following options is pursued:

    Written agreement

    By written agreement between two local agencies, guardianship responsibility may be transferred:

  • • To another county to which a ward may have moved
  • • For the purpose of ease of administration of guardianship responsibilities
  • Under this arrangement, the original court files remain with the court in the county in which the public guardianship was initially established, meaning the county and court of venue. Future court actions related to the public guardianship are pursued in the county and court of venue unless a formal transfer of venue is first obtained.

    Transfer of venue

    The court of venue changes the county of public guardianship responsibility through a transfer of venue to another county district probate court by petition of the counties. Both the county of venue and the county of supervisory responsibility agree the transfer of venue:

  • • Is in the best interest of the person
  • • Helps the county of supervisory responsibility better serve the needs of the person
  • Planning and consent

    Service planning

    Service planning requires the public guardian to know:

  • • The ward
  • • Benefits or entitlements the ward is eligible to receive
  • • Services available for the ward in order to assure services meet the criteria of least restrictive alternatives and the ward’s best interest
  • Consent for service planning, financial management and making other decisions.

    Consent determination requires the public guardian to determine whether specific actions:

  • • Are in the best interest of the person
  • • Are the least restrictive alternative
  • • Violate the religious, moral or cultural beliefs of the person
  • Termination or discharge

    Public guardianship is terminated:

  • • On receipt of written notification regarding the death of a ward
  • • On restoration of the person to full capacity by court action
  • • When the whereabouts of the person is unknown following a due diligent search and lead agency petitions court for discharge
  • • On discharge of the Commissioner by court order with a possible concurrently issued order appointing a private party as successor guardian or conservator
  • Lead agencies must:

  • • Inform the DHS Public Guardianship Office of these changes
  • • Submit relevant court documents or death notices to the office
  • Due process

    A person under public guardianship retains his or her rights to due process in response to public guardianship decisions or actions taken by lead agencies or DHS acting as public guardian. Any interested party may request the following level of review:

  • • Appeal a court order of public guardianship
  • • Informal review by the DHS Public Guardianship Office
  • • Petitioned de novo review by the court of venue on any guardianship matter
  • None of these options preclude the legal right of a person to exercise or pursue any other due process course of action under law or regulations. For example, obtaining a lawyer, filing a formal complaint or charge with an enforcement authority, conciliation conferences, administrative hearing, deposition, mediations, arbitration, court trials and appeals.

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