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Public guardianship

Page posted: 10/1/03

Page reviewed: 4/27/17

Page updated: 4/27/17

Legal authority

Minn. Stat. §252A.01 to §252A. 21, Uniform Guardianship and Protective Proceedings Act (Minn. Stat. §524.5-101 to §524.5-502), Minn. Stat. §626.557, subd. 10(c), 2-3, Minn. R. 9525.3010 to 9525.3100

Background

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.

Definitions

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.

Eligibility

A person may only receive public guardianship if all of the following are true:

1. He or she:

  • • Is age 18 or older
  • • Has been diagnosed with a developmental disability
  • • Demonstrates an inability to meet his or her health and safety needs
  • • Does not have an appropriate, less restrictive alternative to public guardianship
  • • Lacks the capacity to make or communicate responsible, personal decisions
  • • Needs the supervision and protection of a guardian.
  • 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:

  • • Permit and encourage input from the person’s family in the planning and decision-making process
  • • Make personal contact or visit with the person no less than two times per year
  • • Maintain close contact with the person at all other times
  • • Complete periodic reviews of the person’s progress and needs
  • • Take appropriate action on behalf of the person and in accordance with applicable state and federal law if his or her legal rights are violated or appear to have been violated
  • Make decisions and act on behalf of and in the best interest of the person
  • Exercise its delegated powers and duties
  • Seek approval from DHS to exercise non-delegated powers
  • Participate in the person’s service planning on his or her behalf
  • Complete the annual review by the person’s birthday each year
  • Notify the DHS Public Guardianship Office when the person’s status changes.
  • The sections below include more information about some of these responsibilities.

    Limitations

    The same person cannot provide guardianship and case management. This means that:

  • • The lead agency-designated public guardian cannot also provide case management to the person
  • • One of the person’s service providers cannot be assigned guardianship responsibilities.
  • Make decisions and act on behalf of the person

    The decisions the lead agency-designated public guardian makes and actions it takes on behalf of the person must:

  • • Be in the person’s best interest
  • • Be the least restrictive option
  • • Not violate his or her religious, moral or cultural beliefs
  • • Permit and encourage the person’s independence, freedom and self-reliance to the greatest extent possible and consistent with his or her need for supervision and protection.
  • Delegated powers and duties

    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:

  • • Comfort
  • • Food
  • • Health care
  • • Shelter
  • • Social and recreational
  • • Training, education, habilitation or rehabilitation.
  • 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:

  • • Consistent with state and federal law
  • • In the least restrictive environment possible
  • • In the person’s best interest.
  • 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).

    Non-delegated powers

    The lead agency-designated public guardian must receive the DHS commissioner’s written approval to give the following:

  • • Orders to do not resuscitate/do not intubate (DNR/DNI)
  • • Orders to limit medical treatment (LMT)
  • • Consent for the person to participate in research
  • • Consent for the person to receive temporary care at a regional treatment center
  • • Consent for electroconvulsive therapy
  • • Consent for experimental treatment
  • • Consent for psychosurgery
  • • Consent for sterilization.
  • 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:

  • • Begin or defend against a legal action in the name of the person
  • • Consent to the person’s adoption
  • • Give or withhold permission for the person to marry.
  • 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

    Service planning requires the lead agency-designated public guardian to know:

  • • The person
  • • Benefits, entitlements and services the person is eligible to receive.
  • Knowing this information assures the person receives a service plan that is the least restrictive option and in his or her best interest.

    Annual review

    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:

  • • Evaluates the appropriateness of public guardianship based on the person’s progress
  • • Determines whether the person still needs public guardianship or if modification, termination or discharge is appropriate
  • • Evaluates services the person receives to assure they meet his or her physical, mental and social needs.
  • The annual review must address the ward’s:

  • • Mental adjustment and progress
  • • Physical adjustment and progress if a DNR/DNI or LMT order is in place
  • • Social adjustment and progress
  • • Legal status (i.e. need for continued guardianship) based on the previous three items.
  • Notify DHS when the person’s status changes

    The lead agency-designated public guardian must notify the DHS Public Guardianship Office when the person’s status changes. Status changes include:

  • • Court order discharges the person from public guardianship to a private party as a successor guardian or conservator
  • • Lead agency of guardianship responsibility changes
  • • Person dies
  • • Person recovers to full capacity by action of the court
  • • Person’s whereabouts are unknown and the lead agency has conducted a due diligent search.
  • 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.”

    Transfer public guardianship responsibility

    The lead agency can transfer guardianship responsibility for a person to another lead agency by either:

  • • Written agreement
  • • Transfer of venue.
  • Written agreement

    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:

  • • Because the person moved
  • • To ease administrative guardianship responsibilities.
  • 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:

  • • Is in the person’s best interest
  • • Helps the lead agency of guardianship responsibility better serve the person.
  • 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:

  • • Appeal a court order of public guardianship
  • • Petition the court of venue to perform a de novo review on any guardianship matter
  • • Request an informal review by the DHS Public Guardianship Office.
  • 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.).

    Contact information

    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:

  • • Email, DHS.PublicGuardianship@state.mn.us
  • • Fax, 651-431-7527
  • • Phone, 844-205-4189.
  • Additional resources

    The Minnesota Association for Guardianship & Conservatorship (MAGiC)
    National Guardianship Association (NGA)

    Minn. Stat. §563.01 – In forma pauperis proceedings, authorization
    (state statue about court expenses)
    Minnesota Judicial Branch – Guardianship/conservatorship court forms

    CBSM

    CBSM – Approval process for non-delegated powers
    CBSM – Frequently asked questions about public guardianship
    CBSM – How to establish public guardianship

    Training

    The following online courses are available in TrainLink:

  • • Substitute Decision-Making (course code: DS620)
  • • Supported Decision-Making: Protecting Rights, Ensuring Choices (course code: SDM).
  • 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.

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    Updated: 4/27/17 10:48 AM | Accessibility | Terms/Policy | Contact DHS | Top of Page | Updated: 4/27/17 10:48 AM