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

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.

Person subject to public guardianship: A person placed under the protection of the DHS commissioner.

Public guardianship began in the early 1900s, when most people with developmental disabilities received care in public institutions. Children born with significant disabilities often were assigned to state schools or hospitals operated by what is now known as the Minnesota Department of Human Services (DHS). People who lived in such facilities were under the direction of the DHS commissioner.

In the middle of the 20th century, many people who lived in institutions began to move to community settings. If the person’s family moved, died or was unable to be the person’s legal representative, the person received a public or private guardian. In most cases, a court appointed the DHS commissioner as the person’s guardian, and the commissioner delegated daily responsibilities to the county in which the person lived.

Today, the number of people who need a guardian is declining. However, some people still receive public guardianship because 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 them.

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

1. The person:

2. No other party is willing or able to serve as the person’s guardian.

For information about how to establish public guardianship for a person, refer to CBSM – How to establish public guardianship.

Although the DHS commissioner is the person’s appointed public guardian, the commissioner delegates most day-to-day responsibilities to the county that serves the area where the person’s public guardianship was established. This county is called the county of guardianship responsibility.

The county designates staff members as public guardians. A county-designated public guardian is responsible to:

Limitations

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

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

The DHS commissioner delegates the following powers and duties to the person’s county-designated public guardian:

1. Authority to consent to release information.

2. Duty to determine if all of the person’s needs are provided for, including, but 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 the person’s estate.

4. Power to approve or not approve any contract the person makes.
Note: This power does not apply to a contract the person makes for necessities, such as an apartment lease.

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, including consent to aversive and deprivation procedures (defined under Minn. R. 9525.3045) and psychotropic medications (defined under Minn. R. 9525.3050).

The county-designated public guardian must receive the DHS commissioner’s written approval to give consent for:

For instructions on how to request DHS approval for these powers, refer to CBSM – Approval process for non-delegated powers.

Other actions that require DHS approval

The county-designated public guardian also must receive the DHS commissioner’s written approval to:

To request approval for these powers, the county-designated public guardian must contact the DHS Public Guardianship Office.

The county-designated public guardian also should refer to DHS any disputed or contentious matters the guardian cannot resolve in the person’s best interests.

Support planning requires the county-designated public guardian to know:

Knowing this information ensures the person receives a support plan that is the least restrictive option and in their best interest.

The county-designated 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. The county-designated public guardian can save DHS-5836 to a computer and come back to it, as needed.

During the annual review, the county-designated public guardian must:

The annual review must address the person’s:

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

In the notification, the county-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 when the county of guardianship responsibility changes.

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

Written agreement

When counties 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., the court and county of venue). Future court actions related to the person’s public guardianship happen in the court and county of venue.

Counties may choose to do this:

Transfer of venue

Counties 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 county 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 counties must agree the transfer of venue:

People under public guardianship keep their right to due process. They may exercise this right to due process in response to public guardianship decisions or actions taken by the county or DHS. Any interested party may:

None of these options prevent people from exercising their 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 hearings, depositions, mediations, arbitration, court trials, appeals, etc.).

The DHS Public Guardianship Office acts on behalf of the DHS commissioner. The county may contact and submit relevant materials to the DHS Public Guardianship Office via: