The Guardianship Process

If you are an adult child, one of the most painful moments in your lifetime will be when you realize your mother or father is no longer able to safely care for himself/herself. Whether the cause is physical injury, Alzheimer’s, or the natural aging process, the result is the same. It may be time to consider guardianship. If you have never been a guardian before, you probably know very little about the guardianship process. Given the highly personal nature of the guardianship process, no two petitions follow the exact same steps; however, to give you a general idea of what to expect, a Grand Forks elder law lawyer explains the North Dakota & Minnesota guardianship process.

What Is Guardianship?

Guardianship is a court-appointed relationship between a competent adult or entity (Guardian) and an individual considered unable to handle his or her affairs (Ward). When a guardian is appointed, the court gives the Guardian authority to handle certain legal rights of the Ward and removes those rights from the Ward. The extent of the authority granted to the Guardian will depend on what the Ward needs. The court is required to use the least restrictive means possible to ensure the Ward’s safety and to safeguard the Ward’s assets. Therefore, if the Ward is still capable of handling some of his/her affairs, the Guardian’s authority will be tailored accordingly.

Types of Guardians

In the States of North Dakota & Minnesota, several types of Guardians are recognized, including:

• General Guardian — responsible for decisions in ALL aspects of the Ward’s life. The Guardian assures that the Ward has a place to live, food to eat, proper clothing, and other necessities, as well as medical treatment, schooling, vocational opportunities, and other needed services. The Guardian may oversee social security and medical benefits, but is not required to have the Ward live with him or her, or assume personal financial responsibility.
• Limited Guardian — has the authority to make decisions ONLY in specific areas of the Ward’s life, such as financial or residential. The court’s Findings of Fact and Orders and/or Letters of Appointment will identify these areas.
• Emergency or Temporary Guardian — may be appointed in situations where immediate action is required to prevent harm to the Ward. An emergency guardianship CANNOT be in effect longer than 90 days and has ONLY the authority identified by the court at the time of the appointment.

Note: A Guardian is not responsible for the Ward’s assets nor for managing the financial affairs of the Ward. In North Dakota and Minnesota, a Conservator is appointed to manage and protect the estate of an incapacitated individual. You can, however, petition to be both a Conservator and a Guardian.

Petitioning for Guardianship 

To become your parent’s Guardian you must first file a petition for guardianship in the appropriate court. You are required to notify the Ward, as well as immediate family members and a spouse, of your filing. The court may conduct its own investigation in an attempt to determine the need for a Guardian. Ultimately, the court will set the matter for a hearing at which time you will need to present sufficient evidence of the need for a Guardian to convince the judge to grant your petition. You will also need to convince the judge that you are the right person to grant as the Guardian. If the judge agrees with you, your petition for guardianship will be granted and the judge will explain the authority you are being granted and any limitations to that authority.

Contact a Grand Forks Elder Law Lawyer

Please join us for an upcoming FREE seminar for more information. If you have additional question or concerns regarding the North Dakota & Minnesota guardianship process, or if you are ready to get started with your petition for guardianship, contact the experienced elder law lawyers at German Law by calling 701-738-0060 to schedule an appointment.