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How does a court decide who will serve as a guardian?

When it comes to estate planning, St. Paul residents have a lot of control in setting forth their wishes. However, it's also important to understand Minnesota's statutes when it comes to different areas, in order to know how courts will approach a particular issue.

As discussed in last week's blog, there are a number of powers and duties set forth under Minnesota statute when it comes to a guardian. However, before a guardianship is established in the first place, individuals should understand how a person is selected as a guardian.

Minnesota statute lays out a number of categories of individuals who may be a guardian. The statute also sets forth priorities in choosing between these different categories.

Under the statute, a court should first consider appointing a person who is currently serving as a guardian for the ward. If there is no such person, the court next considers a health care agent appointed by the ward in a health care directive. The third category given priority under the statute is the spouse of the ward, or a person who is nominated under a will or other writing that is signed like a health care directive. Accordingly, the statute's priority to these individuals demonstrates why it is important that individuals act by appointing others in their estate planning documents.

The statute then proceeds to give priority to individuals to serve as a guardian based on their relationship with the ward. Priority is first given to an adult child, followed by a parent, an adult with whom the ward has resided for more than six months, an adult related by blood, adoption, or marriage and any other adult or professional guardian.

While the statute gives priority in the order set forth above, it also gives courts the power to appoint a person as guardian who has lower priority. Accordingly, each case is different, as the court will still attempt to determine which person is best qualified to serve as a guardian.

Source: The Office of Revisor of Statutes, "524.5-309," accessed on Feb. 14, 2015

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