Minnesota Guardianships and Conservatorships
There are times in people’s lives where they may not have legal decision-making capabilities. People who are under eighteen, people who are suffering from dementia/Alzheimer’s, people who have been in an accident, or people that are not making safe or appropriate decisions for themselves, medically or financially.
If someone has a power of attorney or a health care directive, these tools will allow an agent to make decisions for them when they do not have capacity. "Incapacitated person" means an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance. A health care directive or a power of attorney are less restrictive alternatives to a guardianship or conservatorship because the court does not have to be involved.
What are Guardianships and Conservatorships?
A guardianship is a court proceeding to appoint someone to make personal decisions for someone else, such as consenting to medical care, or choosing where the person will live. In a guardianship the person who needs help is called a “ward” or “respondent.”
In the case of conservatorship of the estate, an incapacitated person is an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and the Court will need to evaluate evidence that shows the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual.
Further, in both guardianship and conservatorship matters, it must also be shown that there is no other less restrictive way in which to assist the individual. Court intervention is considered a “last resort” as the courts are ultimately stripping away someone’s civil liberties and ability to make his or her own personal choices. This creates a high standard with less opportunity for abuse of discretion.
What is the difference between Conservatorship and Guardianship?
A guardian is appointed to make the personal decisions for the ward. The guardian has decision-making authority for matters such as choice of place to live, medical decisions, training and education, etc. A guardian can be given authority to approve or withhold approval of contracts, except for necessities, but this power is only given if there is no conservator of the estate.
A conservator is appointed to make financial decisions for the protected person. The conservator typically has the power to contract, to pay bills, invest assets, and perform other financial functions for the protected person. A conservatorship is tailored to transfer financial decision-making power to the conservator only in the areas of life where protection and supervision by a conservator has been proven necessary. A conservatorship does not assume, or presume, that the proposed protected person is incapacitated in all areas of his or her life. There is no evidence of, or finding of, general incompetence. The individual can still marry, make a will or vote unless specified by the court that the individual is incapable of doing so.
For both guardianships and conservatorships, the appointed guardian or conservator must report to the court (usually on an annual basis) as to the status and general wellbeing of the protected person, what money was received by the protected person, how it was spent and why. The guardian or conservator person must show that a guardianship or conservatorship continue to be necessary. The guardian and conservator may be held personally liable and responsible if that person is not making decisions in the best interests of the protected person, including spending the protected person’s money on anyone or anything that is not directly for the benefit of the protected person.
Guardianships and Conservatorships may be requested on an emergency, temporary, or long-term basis. However, a protected person retains the right to seek termination via a petition for restoration (a petition to establish why the guardianship or conservatorship is no longer necessary) at any time.
Contact an Attorney
If you have a family member or loved-one who you are concerned about, and think may need to be placed in a guardianship or conservatorship, contact Blahnik, Prchal & Stoll for advice and guidance. Our firm regularly represents individuals at all stages of guardianship and conservatorship proceedings. We will help determine if a proceeding should be commenced, or if there are less restrictive alternatives to a formal guardianship or conservatorship proceeding.