This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







In Re:  Guardianship of

Ellen C. Setterberg.



Filed January 16, 2001


Hanson, Judge


Anoka County District Court

File No. P0996051



Eric J. Magnuson, R. Thomas Greene, Jr., Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402 (for appellant John M. Setterberg)


Felix A. Mannella, Marnie J. Zak, Babcock, Neilson, Mannella, LaFleur & Klint, PLLP, 118 East Main Street, Anoka, MN  55303 (for respondent Steven Setterberg)



            Considered and decided by Hanson, Presiding Judge, Shumaker, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s decision that the guardian of his mother’s person and estate has the authority to draw on stock held in joint tenancy by appellant and his mother, “as necessary to manage the ward’s estate.”  Because the district court erred in determining that the Multiparty Accounts Act, Minn. Stat. §§ 524.6-201 to -214 (2000), applied to jointly-held stock and in granting the guardian unilateral authority to draw on the stock without a judicial finding of need, we reverse.


            In October 1999, the district court granted respondent Steven Setterberg’s petition to be appointed guardian of the person and estate of his grandmother, Ellen C. Setterberg.  In March 2000, respondent petitioned the district court to order appellant John M. Setterberg, who is respondent’s father and the ward’s son, to turn over certificates for stocks held in joint tenancy by appellant and the ward.  The district court ordered appellant to (1) deliver to respondent all certificates for the jointly-held stock and (2) execute a limited power of attorney permitting respondent to endorse dividend checks from the stock for deposit into a guardianship account.  The court then directed the parties to submit memoranda of law “regarding instructions of the court to be issued regarding said jointly held property.”  After receiving the memoranda, and without an evidentiary hearing or findings of fact, the court concluded that the Minnesota Multiparty Accounts Act, Minn. Stat. §§ 524.6-201 to -214 (2000), and the general powers of a guardian authorized respondent to draw on the jointly-held stock as necessary to manage the ward’s estate.  This appeal followed.




1.         The Multiparty Accounts Act

Appellant argues that the district court erred in concluding that the Multiparty Accounts Act, Minn. Stat. §§ 524.6-201 to -214 (2000) (“MPAA”), applies to jointly-held stock.[1]  Statutory construction is a question of law, which this court reviews de novo.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). 

The MPAA defines an account as

a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account and other like arrangement.


Minn. Stat. § 524.6-201, subd. 2.  In order for there to be an account as defined by the MPAA, the contract of deposit must be with “a financial institution.” Id.  The  MPAA defines a financial institution as

any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, savings associations, and credit unions.


Id., subd. 3. 

We conclude that jointly-held stock is not a “multiparty account” within the meaning of the MPAA.  Stock is not a “contract of deposit of funds” and is not necessarily or typically deposited with or held by a “financial institution.” 

Because the jointly-held stock was not a multiparty account as defined by the MPAA, the district court erred in concluding that the MPAA authorized the guardian to draw on the stock.  See Berg v. D.D.M., 603 N.W.2d 361, 364 (Minn. App. 1999) (holding that joint investment account with stock-brokerage firm was not a “deposit of funds in a financial institution” and thus not a multiparty account within meaning of the MPAA), review denied (Minn. Mar. 14, 2000).

2.         Guardian’s Power to Draw on Stock in a Joint Tenancy

            Respondent argues that, regardless of the applicability of the MPAA, guardians have the general authority to draw on jointly-held stock.  The district court concluded that the guardian’s authority “to draw upon jointly held assets of the ward” is found in both MPAA and “the power of a duly appointed guardian.”  We disagree.

While a joint tenant generally has the right to unilaterally sever a joint tenancy,  Wendt v. Hane, 401 N.W.2d 457, 459 (Minn. App. 1987), the Minnesota Supreme Court has noted that a guardian

does not become the alter ego of the incompetent and is not empowered by virtue of his office to act for the incompetent in matters involving the exercise of personal discretion so as to change an act performed by the incompetent while mentally normal.


Hagen v. Rekow, 253 Minn. 341, 345, 91 N.W.2d 768, 771 (1958) (citation omitted). [2]  Similarly, this court has held that because a guardian cannot exercise the personal elective rights of a ward, he or she lacks authority to unilaterally revoke a Totten trust established by the ward and transfer the funds to a guardianship account.  In re Estate of Kroyer, 385 N.W.2d 31, 33-35 (Minn. App. 1986).  To the contrary, a guardian may revoke a Totten trust only “if the court finds that it is necessary for the care and support of the ward.”  Id. at 35 (emphasis added); see also In re Estate of Schober, 303 Minn. 226, 229-30, 226 N.W.2d 895, 898 (1975) (noting court’s power to “take such steps as may be for the best interest of the wards * * * .” (quotation omitted)). 

We believe the same rule applies to jointly-held stock:  a guardian may eliminate the survivorship interest of a joint tenant in stock only if the court finds that it is necessary for the care and support of the ward.  No such finding was made here.  Instead, the district court inappropriately delegated the determination of future need to the guardian. 

The district court erred in determining that the guardian had the authority to draw on the jointly-held stock without a finding, based on an evidentiary hearing, that doing so was necessary to provide for the demonstrated needs of the ward.[3]



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] If the jointly-held stock were subject to the MPAA, the guardian would have the authority to eliminate the survivorship interest of a joint tenant without prior court approval.  See Minn. Stat. §§ 524.6-201, subd. 7, and –205.

[2]The district court concluded that case law preceding the enactment of the MPAA in 1973 was inapplicable here.  While pre-1973 case law is inapplicable to the interpretation or application of the MPAA, In re Conservatorship of Gobernatz, 603 N.W.2d 357, 360 n.1 (Minn. App. 1999), review denied (Minn. Feb. 15, 2000), it continues to apply to questions of the authority of a guardian over joint tenancy properties that fall outside the MPAA.

[3] The question whether and to what extent the court should authorize a guardian to draw upon jointly owned assets will depend upon a demonstration of need, as noted above, and may also involve consideration of the ward’s other property and prioritization of the sequence in which various assets should be used by the guardian.