The Order and Letters, a Guardian and Conservator’s Authorization to Act:

What documents give the Guardian and/or Conservator of an individual the power to act?

  • The Order Appointing Guardian and/or Conservator
  • The Letters of Guardianship and/or Conservatorship (often referred to as “the Letters”)

The Order is the document where the Court makes specific Findings about the factual basis for the need for a guardianship or conservatorship.  It is the Order that sets forth the specific powers and authority that the Guardian and/or Conservator has with regard to the ward or protected person.  Typically the Court will “check” certain boxes on the Order, indicating which statutory provisions the Guardian or Conservator has authority under.  In cases where a full guardianship is necessary, the Court will check the box indicating that all the powers under Minnesota Statute are necessary, and will then also explain why a limited guardianship is not appropriate.  A form Order Appointing Guardian and Conservator can be found on the Minnesota Judicial Branch website.  For further guidance on the full scope of each statutory power that is checked by the Court, one would look to the statute itself, as well as case law interpreting the statute.  If help is needed understanding the full scope of a Guardian or Conservator’s powers, you should consult with an experienced guardianship and conservatorship attorney.

The Letters are the document which provide “proof” that the Guardian and/or Conservator has the authority to act.  A form Letters of Guardianship and Conservatorship can be found on the Minnesota Judicial Branch website.

After being appointed, the Guardian or Conservator obtains certified copies of the Order Appointing and of the Letters.  In combination, these are the documents which give the Guardian/Conservator the ability to act on behalf of the ward/protected person.  The Guardian or Conservator will need to present these documents to individuals or entities that the Guardian interacts with on behalf of the ward (for example, nursing homes, medical providers, banks, etc.).

Protective Arrangements and Single Transactions under Minn. Stat. 524.5-412

What if your loved one needs some help, but for some reason a full blown guardianship or conservatorship isn’t appropriate?  This scenario may come into play in any number of situations.  Perhaps your loved one only has one main asset, and he or she was in the process of transferring it to a trust or annuity when disaster struck, living him or her without the ability to complete the transaction on his own.  Perhaps your loved one put some planning in place by creating a health care directive (a less restrictive alternative to guardianship), but is in need of someone to assist her with the sale of her home, so she can use the funds to stay in a nursing home.

If you only need a very narrowly defined area of help for your loved one, and want to avoid a full blown guardianship or conservatorship, Minnesota Statute 524.5-412 allows the court to issue a protective order, which creates a protective arrangement or single transaction.

Some highlights of Minnesota Statute 524.5-412:

  • It is a less restrictive alternative to a guardianship or conservatorship, so if a narrowly fashioned protective arrangement or single transaction will work, the Court must implement it.
  • It is a court fashioned remedy, so the court must have a basis for issuing the order, typically by having listened to testimony at a hearing.
  • Notice of the petition and hearing still needs to be given to Interested Persons.

The full text of Minn. Stat 524.5-412 provides:

(a) If a basis is established for a protective order with respect to an individual, the court, without appointing a conservator, may:

(1) authorize, direct, or ratify any transaction necessary or desirable to achieve any arrangement for security, service, or care meeting the foreseeable needs of the protected person, including:
(i) subject to the procedural and notice requirements of section 524.5-418, the sale, mortgage, lease, or other transfer of property;
(ii) purchase of an annuity;
(iii) making a contract for lifetime care, a deposit contract, or a contract for training and education; or
(iv) addition to or establishment of a suitable trust, including a trust created under the Uniform Custodial Trust Act; and
(2) authorize, direct, or ratify any other contract, trust, will, or transaction relating to the protected person’s property and business affairs, including a settlement of a claim, upon determining that it is in the best interest of the protected person.
(b) In deciding whether to approve a protective arrangement or other transaction under this section, the court shall consider the factors listed in section 524.5-411, paragraph (e).
(c) The court may appoint an agent to assist in the accomplishment of any protective arrangement or other transaction authorized under this section. The agent has the authority conferred by the order and shall serve until discharged by order after report to the court; provided, however, that if a conservator is appointed, only the conservator has the power to sign all real estate deeds.

With the stringent reporting requirements for a full blown conservatorship, having the Court consider and implement a protective arrangement or single transaction, in order to protect your loved one may be the best way to go.  If you have questions about protective arrangements, guardianships or conservatorships, contact Cindi Spence Matt, an experienced guardianship attorney.

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