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.).

What Do Courts Consider When Deciding Who To Appoint As Guardian or Conservator?

The guardianship and conservatorship statutes (Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413) require that the consider individuals or entities that have priority to serve as guardian or conservator.   But, when a court is considering the qualifications of the proposed guardian or conservator herself, what exactly do Judges consider?

According to the Minnesota Guardianship and Conservatorship Manual  published by the Conference of Chief Judges, the following should be considered by Minnesota Judges when determining who should serve as guardian and conservator:

  • Is the proposed guardian or conservator herself competent? (over 18, not under guardianship or conservatorship himself, have sufficient mental capacity himself to handle the duties)
  • Has the proposed guardian or conservator submitted to, and passed,  a background study?
  • What are the incapacitated person’s wishes for the choice of his or her guardian or conservator (if the person has sufficient mental capacity and understanding to reasonably express a preference; or there is evidence of what the person’s wishes were before he became incapacitated)?
  • Is there regular and appropriate interaction between the person and the proposed guardian or conservator?
  • Is there interest and commitment of the proposed guardian or conservator in advocating for the welfare and rights of the person?
  •   Does the proposed guardian or conservator maintain a current understanding of the person’s needs in all areas of the person’s life?

The standard that the Courts need to ultimately use in deciding who to appoint as guardian or conservator is a best interest standard:  what is in the best interest of the proposed ward or protected person.

For information about appointment of a guardian or conservator, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.