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In Re Guardianship of Kowalski (Kowalski III)

Citation. In re Guardianship of Kowalski, 478 N.W.2d 790, 1991)
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Brief Fact Summary.

Appellant petitioned to be appointed guardian of her lesbian partner after her partner was involved in a serious accident. The court denied appellant’s petition and instead attempted to appoint what it considered to be a neutral guardian.

Synopsis of Rule of Law.

The appointment of a guardian should be based on the best interests of the ward, taking into consideration the ward’s expressed preference and the petitioner’s qualifications.


Sharon Kowalski suffered severe brain injuries as a result of an automobile accident. At the time of the accident, she was living in St. Cloud with her lesbian partner, appellant Karen Thompson. They had exchanged rings, named each other as insurance beneficiaries, and had been living together as a couple for four years. Her parents were unaware of the lesbian relationship. Appellant and Sharon’s father, Donald Kowalski, cross-petitioned for guardianship. Appellant agreed to the appointment of Kowalski as guardian, expecting that she would have certain visitation rights and input into medical decisions. The guardianship order gave complete control of visitation to Kowalski, who received court approval to terminate appellant’s visitation rights and relocated Sharon to a nursing home in his town. Upon order from Judge Robert Campbell specialists examined Sharon and determined that she could express her wishes on visitation. They concluded that Thompson wished to see appe
llant, and the court permitted her to reestablish visitation. Kowalski notified the court that he wished to be removed as Sharon’s guardian due to his own health problems. Appellant filed a petition for appointment as successor guardian, with no competing petitions being filed. The trial court denied appellant’s petition and appointed a family friend, Karen Tomberlin, as guardian. Sixteen medical witnesses testified on appellant’s behalf, while only three witnesses testified in opposition, including Tomberlin.


Was the court correct in appointing Tomberlin as guardian based upon the comparative qualifications of appellant and Tomberlin?


The trial court abused its discretion in denying appellant’s petition and naming Thompson guardian instead.
The relevant Minnesota statute provides that the standard for appointment of a guardian is the best interests of the ward. The first criteria in this determination is the ward’s expressed preference. All of the professional witnesses who worked with Sharon agreed that Sharon was capable of making a determination as to who should be her guardian, and that she expressed the desire to return home with appellant. The three lay witnesses that opposed the petition felt that she was incapable of making such a decision, but they had no medical experience and visited Sharon infrequently.

The second criteria is appellant’s qualifications. Testimony from professional witnesses demonstrates that appellant: 1) achieves outstanding interaction with Sharon; 2) has extreme interest and commitment in promoting Sharon’s welfare; 3) has an exceptional current understanding of Sharon’s physical and mental status and needs; 4) is strongly equipped to attend to Sharon’s social and emotional needs. It was undisputed that appellant was the only person willing or able to care for Sharon outside an institution, and that she is the best able to get Sharon motivated to work through the sometimes painful therapy.

The only qualification relied upon by the court in appointing Tomberlin was her role as an impartial mediator. This was due to family statements that they would not visit Sharon if appellant was appointed guardian. However, Tomberlin testified that she would move Sharon back to St. Cloud, a fact that undermines her role as a neutral guardian. Furthermore, appellant’s appointment as guardian does not prevent family from visiting Sharon.

The court also found deficiencies in appellant’s petition, including the fact that she had made statements to family and the media that she and Sharon were lesbians (this was considered an invasion of privacy); that appellant had taken Sharon to public gay and lesbian oriented events; and that she had solicited legal defense funds and testified that she had been involved in other relationships since Sharon’s accident. None of these facts demonstrates that appellant would be deficient as a guardian. Furthermore, the court’s granting of Tomberlin as guardian without her submission of a formal petition or a hearing on her qualifications is troubling.


The trial court denied appellant’s request to be appointed guardian despite evidence that she was best suited for this position. The trial court appointed Tomberlin in an effort to reconcile arguments from Sharon’s family; however the standard for appointment is the best interests for the ward, not the family.

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