What is a guardianship?
A court proceeding where the court appoints a person (the guardian) to act as a substitute decision maker for someone (the ward) who is determined to be incapacitated.
What is incapacitated?
“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. See Minn. Stat. 524.5-102, subd 6.
What is the standard of proof?
Clear and convincing evidence that:
1) respondent is an incapacitated person; AND
2) that respondent’s needs cannot be met by less restrictive alternative, including use of appropriate technological assistance. see Minn. Stat. 524.5-310
Who may be guardian?
There are statutory priorities for order of appointment (current guardian, health care agent, spouse, adult child, parent, adult with whom respondent has resided for more than 6 months). Court, acting in best interest of respondent, can decline to appoint someone with priority. As between 2 people with equal priority, court determines who is best qualified. See Minn. Stat. 524.5-309
Can there be a limited guardianship?
Yes. Court shall only grant those powers necessitated by wards’s limitations and demonstrated needs and, whenever feasible, should make other orders that will encourage development of ward’s maximum self-reliance and independence. See 524.5-310(c) and 524.5-313(b) and (c).
What about Guardianships for minors?
There are also guardianship proceedings for the appointment of a guardian of a minor (for example, when a minor’s parents die). There are essentially two avenues for appointment of a guardian of a minor. One, the court confirms a nomination in a parent’s will. Two, the court appoints a guardian. These materials do not address those proceedings specifically. For more information see Minn. Stat. 524.5-201 et. seq.
What is a conservatorship?
A court proceeding where the court appoints a person (the conservator) to manage the estate/assets of someone (the protected person) because that person is determined by the court to be unable to receive and evaluate information to such an extent that the person’s assets are at risk of being wasted or lost. The protected person is not declared incapacitated like in a guardianship.
Do guardianships and conservatorships go hand in hand?
Not always, but typically. There are scenarios where a person would only need a guardian or a conservator. For example, if a person only has minimal assets and no real income, a conservatorship would not be necessary. Similarly, a person may have significant assets that need managing, but that person may be able to make and communicate their own decisions about healthcare, living arrangements, etc., so only a conservatorship would be necessary.
Are there alternatives to guardianships and conservatorships?
Yes! And those alternatives should be fully explored by the petitioner before filing a petition. Some alternatives include: a health care directive, power of attorney joint bank accounts, and systems/procedures that help the respondent accomplish activities of daily living. A guardianship can only be imposed by the court if there are no less restrictive alternatives available for the proposed ward/protected person.
How is a guardianship and/or conservatorship established?
A person (typically a family member) files a petition and other documents with the court setting forth the reason why a guardianship and/or conservatorship is appropriate, and asking the court to appoint someone as a guardian and/or conservator.
The court sets the matter for a hearing and notice of the hearing is provided to “interested persons”, who are defined by statute but who generally include family members. At the hearing, the petitioner presents evidence showing the court why a guardianship and/or conservatorship is necessary. If the court determines that there is appropriate evidence to support the petition, it will appoint a guardian or conservator.
What does a guardian do?
A guardian makes sure that the ward’s medical, care, comfort, living, food and social requirements are being met. A guardian does not have to personally take care of the ward. More often than not a guardian will hire providers to see that these needs are met for the ward.
Full guardianship powers include (but are not limited to):
● To have custody of ward and to establish the place of abode within or without the State;
● To provide for the Respondent’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements;
● To take reasonable care of the Respondent’s clothing, furniture, vehicles and other personal effects and, if property requires protection, apply for a conservator;
● To give any necessary consent to enable, or to withhold consent for, the necessary medical or other professional care, counsel, treatment or service;
● Exercise supervisory authority over the ward, in a manner which limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services;
● To approve or withhold approval of any contract, except for necessities, which the Respondent may make or wish to make (if there is no conservator); and
● To apply on behalf of the Respondent for any assistance, services, or benefits available to the Respondent through any unit of government (if there is no conservator).
See Minn. Stat. 524.5-313.
What does a conservator do?
A conservator makes sure the protected person’s finances are tended to. The conservator figures out what assets the protected person has and files an inventory listing those assets with the court. The conservator then pays the protected person’s bills and manages their money and other assets. Each year the conservator must file an accounting with the court showing what the conservator has used the protected person’s money for over the past year.
A conservator’s powers include (but are not limited to):
● To pay reasonable charges for the support, maintenance, and education of the Respondent in a manner suitable to the Respondent’s station in life and the value of Respondent’s estate;
● To pay out of the Respondent’s estate all just and lawful debts of the Respondent;
● To possess and manage the estate of the Respondent, collect all debts and claims in favor of the Respondent, or to compromise them, institute suit on behalf of the Respondent, or invest Respondent’s assets not currently needed for debts, charges, and management of the estate; and
● Exchange or sell an undivided interest in real property.
See Minn. Stat. 524.5-417