No such proceeding - Guardianship (Plenary)

Guardianship

 

The part of the Probate Code covering guardianship of minors states, "A person becomes a guardian of a minor by parental appointment, by designation of a standby guardian pursuant to chapter 257B, or upon appointment by the court." Minn. Stat. § 524.5-201.

 

By court - permanent guardianship - no such proceeding

 

Section 524.5-204(a) clarifies that the court is permitted to appoint a guardian where "appointment is in the minor's best interest, and: (i) both parents are deceased; or (ii) all parental rights have been terminated by court order."  Thus, there is no proceeding where a court can permanently appoint a guardian against the wishes of the parent, making the right to counsel question a nullity.

To learn more about the right to counsel in termination of parental rights matters, please see Legislation, Termination of Parental Rights (State) - Birth Parents, Legislation, Termination of Parental Rights (Private) - Birth Parents, and — as to the right to counsel for parents and custodians of Indian children — Court Rule or Initiative, Termination of Parental Rights (Private) - Birth Parents.

 

By court - temporary guardianship - no right to counsel

 

Even if a minor's parents are not deceased and parental rights have not been terminated, a guardian may be appointed on a temporary basis for up to six months if there is an emergency situation.  Section 524.5-204(b) states:

If necessary and on petition or motion and whether or not the conditions of paragraph (a) have been established, the court may appoint a temporary guardian for a minor upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor. Notice must be given to the parents and to a minor who has attained 14 years of age.

No right to counsel provision was found.

 

By parental appointment - no right to counsel for objecting parent

 

Section 524.5-203 states:

Until the court has confirmed an appointee under section 524.5-202, a minor who is the subject of an appointment by a parent and who has attained 14 years of age, the other parent, or a person other than a parent or guardian having custody or care of the minor may prevent or terminate the appointment at any time by filing in the court in which the appointing instrument is filed a written objection and by giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment.

(emphasis added).  No appointment of counsel provision was located for the objecting parent.

 

Conservatorship - no right to counsel

Though no right to counsel provision is found for parents of minors subject to conservatorship or other protective order matters, parents of the respondent are given priority above most others, as Section 524.5-413 provides:

(a) Except as otherwise provided in paragraph (d), the court, in appointing a conservator, shall consider persons otherwise qualified in the following order of priority:

(1) a conservator, guardian of the estate, or other like fiduciary appointed or recognized by an appropriate court of any other jurisdiction in which the person subject to conservatorship resides;

(2) a person nominated as conservator by the respondent, including the respondent's most recent nomination made in a durable power of attorney, if the respondent has attained 14 years of age and at the time of the nomination had sufficient capacity to express a preference;

(3) an agent appointed by the respondent to manage the respondent's property under a durable power of attorney;

(4) the spouse of the respondent;

(5) an adult child of the respondent;

(6) a parent of the respondent;

(7) an adult with whom the respondent has resided for more than six months before the filing of the petition;

(8) an adult who is related to the respondent by blood, adoption, or marriage; and

(9) any other adult or a professional conservator.

 

(emphasis added).  In turn, paragraph (d) simply specifies the situations in which a conservator may receive a fee for their services: "(d) Any individual or agency which provides residence, custodial care, medical care, employment training, or other care or services for which they receive a fee may not be appointed as conservator unless related to the respondent by blood, marriage, or adoption."