Guardianship and Conservatorship are types of court proceedings in which the court appoints someone as “guardian” or “conservator” to manage another person’s health and personal care decisions or financial and legal decisions. If someone has suffered from an illness or injury that has limited their ability to handle their own personal affairs, a Guardianship or Conservatorship proceeding may be necessary to protect that individual’s health or financial well-being. The person who is incapacitated is known as the “protected person” or “ward”.
In order for a guardian or conservator to be appointed, the Court must find by clear and convincing evidence that the person 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.” The Court must also find that the person’s needs cannot be met by less restrictive means, including the use of appropriate technological assistance. Once a Court makes a determination of incapacity, the protected person no longer has the right to handle his or her own affairs unless that person is later proven capable to handle them. A great celebrity example of this is Britney Spears, who, in 2008 went under a Conservatorship with her father being appointed conservator of her estate. You can read more about her conservatorship here.
A guardian is charged with handling duties relating to the personal care, custody, and control of the protected person. A guardian has the duty to provide for the ward's care, comfort, and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements, and, whenever appropriate, training, education, and habilitation or rehabilitation. The guardian may also choose where the protected person will live as well as securing proper medical care and treatment for the protected person. As you can see, nearly all of the duties relating to the guardian revolve around the care of the protected person’s physical well-being.
On the other hand, a conservator is tasked with handling financial or legal decisions for a protected person. The conservator will collect all of the assets, pay bills, invest the assets, and handle any valid debts of the protected person. The conservator may also handle legal matters like estate planning for the protected person, real estate transactions, and sometimes even gifting of assets. All of the functions of a conservator relate to either legal or financial affairs for the protected person.
To protect the conservator’s estate, the Court will often make the conservator post a bond to secure the assets. This is essentially an insurance policy to make sure that the conservator does not abscond with the protected person’s property. Once appointed, a conservator must inventory the protected person’s estate within 60 days. Things like real estate, stocks, bonds, retirement accounts, clothing, furniture, insurance, and any other personal property, must be accounted for. The conservator must file annual accountings with the Court to show how the property is being managed and spent for the protected person’s benefit. Depending on the types of actions that the conservator is trying to take, the conservator may need court approval. Thing like selling real estate or changing an estate plan, may require court approval. A conservator’s duties are vast, and if you or your family is faced with a conservatorship, you should speak with a Minnesota conservatorship attorney who is experienced in these matters. A conservator’s duties continue until the protected person is proven capable of handling his or her own affairs, or until the protected person dies.
As mentioned above, a guardian has the duty to assure that provisions have been made for the protected person’s care and comfort, including food, health care and personal residence. The guardian must also file a report with the court demonstrating the protected person’s personal well-being, at least annually. The court has the authority to order this to happen more frequently if necessary.
The report must contain the current mental, physical, and social condition of the protected person; the living arrangements; the medical, educational, vocational, and other services provided to the protected person; and a recommendation as to the need for continued guardianship. A guardianship terminates upon death of the ward or order of the court.
There are some great resources provided by the State of Minnesota for Guardians and Conservators:
Conservatorship & Guardianship in Minnesota, published by the Minnesota Conference of Chief Judges.
Probate and Planning: A Guide to Planning for the Future, published by the Office of the Minnesota Attorney General.
You should name who you wish to have act as your guardian or conservator in a legal document such as a Health Care Directive (for guardian) or Power of Attorney (for conservator). You may also name a conservator or guardian in your will. Having the proper planning in place is critical to ensure that your wishes are followed. You should speak with a Minnesota guardianship attorney or a Minnesota conservatorship attorney to ensure that your plan is up to date and effective.
The only benefit of a conservatorship is that the protected person’s property is being supervised by a Court. Thus, it is less likely that the assets will be mismanaged or dissipated without someone noticing. Aside from the safeties it affords the protected person, there is not much else that is good when going through a conservatorship.
On the other hand, conservatorships are costly, time consuming, labor intensive, and they are lengthy. These proceedings can last many years and cost thousands of dollars in legal fees and court fees. In addition, having to receive court approval to handle certain transactions can lead to delays and missed opportunities to maximize assets. While court supervision lessens the likelihood of theft or mismanagement of assets, the reality is that government resources are sometimes spread too thin which can lead to a protected person being taken advantage of.
Having a properly drafted and executed revocable living trust can avoid the need for a conservatorship. If assets are properly funded into a revocable trust and the grantor of the trust later becomes incapacitated, the successor trustee of the trust (usually a spouse or family member) will be able to manage the trust assets on behalf of the incapacitated person. No conservatorship proceedings would be necessary in that scenario.
A durable power of attorney is a legal document in which an individual may delegate authority to an agent (known as an attorney-in-fact) to handle legal and financial transactions on the individual’s behalf if that person becomes incapacitated or is unable to do so. Powers of attorney are not subject to the court’s supervision like a conservatorship, so you must be very careful in selecting an agent. Here is a cautionary tale involving a superstar athlete and a power of attorney document that landed him in bankruptcy: Jack Johnson Bankruptcy
If you have a valid health care directive in place, you are able to nominate an individual to make decisions relating to your health care if you are unable to do so yourself. Having this document in place alleviates the need for a guardianship proceeding. Whomever you have nominated will have the authority handle decisions relating to your care and comfort. You can specify the type of care and treatment that you would like in these documents.
If you have any questions about guardianship or conservatorship in Minnesota, you should contact a knowledgeable Minnesota guardianship attorney who can provide you with specific advice to address your unique situation. Call our office today if you would like to speak to us about your case. Our office handles guardianship and conservatorship matters in Dakota County, Scott County, Hennepin County, Washington County, Carver County, Ramsey County and Anoka County. We serve residents of Burnsville, Eagan, Apple Valley, Prior Lake, Shakopee, Lakeville, Savage, Eden Prairie and the surrounding communities.