The words “guardianship” and “conservatorship” can often arise in conversations surrounding elder care, minor children, or individuals with disabilities. These words, while sometimes used interchangeably, are two different concepts under Minnesota law and serve two distinct purposes. Generally speaking, guardians are responsible for personal-needs decisions of an incapacitated individual (referred to under the law as a ‘ward’), while conservators are responsible for the financial decisions of an incapacitated individual (referred to under the law as a ‘protected person’). Guardianships and conservatorships can be limited in scope (emergency, public vs. private, general vs. limited), however specific requirements must be proven to a court before these restrictions or limitations can occur. Guardianship and conservatorship are helpful legal avenues for protecting and safeguarding an incapacitated individual and their estate, but they are also complex court processes to navigate and are not to be used simply when family or friends are frustrated with an individual or don’t like the individual’s decision(s).
Under Minnesota law, a guardianship is created when the court finds that an individual is incapacitated. A guardian is appointed to make the personal decisions for the incapacitated individual. Incapacity (in the context of guardianships) means that an individual is impaired to the extent that they cannot communicate or make responsible personal decisions and is unable to meet personal needs for medical care, nutrition, clothing, safety, shelter, etc. Powers and duties of a guardian can include custody and establishment of residence, provision of care, consent to medical treatment, and annual reporting of well-being, among others.
Conservatorships, on the other hand, are appropriate when a court finds evidence that an individual is incapacitated in certain areas and that the person’s property will be dissipated or wasted without appointment of a conservator. Conservatorships are specifically tailored towards financial decision-making, protection, and supervision. Powers and duties of a conservator can include the payment of reasonable expense for care, maintenance, and education, management of assets and debts, maintenance of an inventory list, and payment of tax, real estate, or insurance expenses or fees.
Once you’ve consulted with an attorney and decided that a guardianship or conservatorship is the most appropriate option for you or your loved one, the petition and appointment process must begin. A petition is filed with your county court to appoint an individual or agency as guardian and/or conservator. In both guardianship and conservatorship cases, the court must find four elements:
- The person is incapacitated,
- The person needs the supervision and protection of a guardian or conservator,
- There is no appropriate, less-restrictive alternative available, and
- The person chosen to act as guardian or conservator is in the best interest of the proposed ward or protected person.
After a petition has been filed, the court will conduct a hearing where it will review evidence and try to decide if the elements stated above have been met. If the court finds all elements have been met and a guardianship or conservatorship is the most appropriate and least restrictive option, it will appoint a guardian or conservator. After the appointment is made, the guardian or conservator takes on their specific rights and obligations, and is thereafter required to provide annual reporting to the court.
Guardianship and conservatorship can be a tricky maze to navigate, but with the assistance of an attorney you can evaluate all options and settle on a solution that best protects the personal and financial needs of you or a loved one. If you have questions on guardianship or conservatorship, reach out to the experienced attorneys at Blethen Berens who deal with guardianship, conservatorship, and other estate planning tools (Michael H. Boyle, Christopher M. Roe, Kimberly Literovich and many others). See our Estate Planning practice area for a list of all attorneys who specialize in guardianship, conservatorship and estate planning.
By Michael H. Boyle & Macy Anderson