Termination of a Guardianship: Restoration to Capacity

/ March 12, 2013

In my previous post, I discussed the basics of a guardianship. In this post, I discuss terminating a guardianship when the Ward has regained mental capacity. For example, perhaps the Ward has a brain injury from an accident or a stroke, but after a couple years of therapy she has recovered enough so that a guardianship is no longer needed or appropriate.  Or perhaps an 18-year-old with Asperger Syndrome needs a guardian, but by the time he is 25, he does not.  Whatever the case, a guardianship does not have to be permanent and can be for a short period of time.

In Minnesota, the only way terminate a guardianship is by the death of the Ward or upon order by the Court.  See  Minn. Stat. § .5-317(a).   Assuming the Ward is not deceased, the only other option to terminate a guardianship is to obtain a Court Order Restoring the Ward to Capacity.  What are the steps that you need to take to restore a Ward to capacity?

The Steps

 

First, you must draft a “Petition for Restoration to Capacity.” Any interested person – including the Ward – may petition the Court to restore the Ward to capacity. You will notice that this form does not require the same level of detail that is needed for the initial Petition for General Guardianship. Note that a Ward may be restored to capacity at any point in time.  It does not have to coincide with the notice of the Ward’s right to petition for restoration to capacity that guardian must provide annually.

Once the petition is filed, the procedure for the Restoration is identical to that of the initial petition for guardianship.  A hearing date is set.  You must notify all interested parties of the hearing.  The interested parties should include persons who were listed in the original Petition as well as new interested parties that we not involved at that time, such as a new case worker or independent living specialist.

After the notice to interested parties is sent, begin preparing for the hearing.  Find out if anyone objects to the Petition:  It is wise to be prepared for those objections in advance.  (Anyone who does object must attend the hearing.)  It important that the current guardian agrees with the Petition for Restoration:  It is unlikely that the Petition would be granted if it does not have the support of the Guardian.

In preparation for the hearing, it can be helpful to obtain a Physician’s Statement that supports the Ward’s restoration to capacity.  If there is a social worker or case manager involved, find out if they support the petition for restoration as well – and if he is willing to testify on the Ward’s behalf.   A Court Visitor may come out to meet with the Ward and complete a Visitor Report.  Review that report.  (The Court Visitor’s role is the same as it was during the initial proceeding:  to make an unbiased observation whether a guardian is needed.)  Contact the attorney for the Ward (if one has been appointed) and see if she agrees with restoration.

At the hearing, the judge will ask any interested parties to identify themselves and inquire about objections to the Petition.  If there are no objections, there may or may not be testimony taken.  (This depends entirely on the judge/referee.) If the judge requests testimony, your witnesses (including the Ward) should be prepared with examples of why the guardian is no longer needed.  These examples will demonstrate the Ward’s independence.  The Ward does not need to be completely independent to be restored to capacity.  However, he must know how to use resources that are available to him to assist him meet his needs on a consistent basis.  If the original petition stated that the Ward needed assistance making doctor appointments and following through with medical advice, address how that specific concern has been remedied in your witnesses’ testimony. Keep in mind that a guardian is only appropriate when – by clear and convince evidence – the Ward’s needs cannot be met by the less restrictive means.

If the Petition is granted, the Judge will sign the Order Restoring Ward to Capacity.  This Order terminates the Guardianship and discharges the Guardian.   The Guardian no longer needs to complete the annual report and will no longer be under Court supervision.

Restoring a Ward to capacity is very exciting for both the Ward and the guardian.  However, it does not preclude the need for guardianship in the future.  Family members and professionals should continue to assess the needs of the person formerly under guardianship and make sure that he is utilizing the support services that helped him eliminate the need for guardianship.

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