GUARDIANSHIPS & CONSERVATORSHIPS
Unfortunately, there are people in our lives who are unable to make decisions on their own due to a mental or physical disability. For these people, navigating some of life’s simplest of endeavors, such as cooking or finding a place to live, can be an extreme challenge but for the assistance of family, friends, or social service organizations. Whether it is the teenage child diagnosed with Autism who is turning 18 years old or an elderly parent suffering from the effects of Alzheimers, you must obtain the proper legal authority in order to assist someone who is unable to make responsible decisions for themselves.
A Guardianship or Conservatorship is a legal proceeding by which the Court appoints someone to have the legal power and authority over the personal or financial affairs of someone else. These powers are only conferred when someone is unable to make or communicate responsible decisions for themselves and only when there is no other less restrictive alternative available, such as the use of a power of attorney, health care directive, or trust instrument. In Minnesota, there is an important legal distinction between a Guardianship and Conservatorship. We offer professional attorney services for Guardianships and Conservatorships to help you through the process.
A Guardianship is a proceeding by which the Court appoints a Guardian to manage the ‘personal’ affairs of someone who is unable to do so for themselves (a Ward). The legal authority of a Guardian over the Ward’s person can include the authority to:
- Take custody of the Ward and establish the Ward’s place of abode
- Provide for the Ward’s care, comfort, and maintenance needs
- Take reasonable care of the Ward’s clothing, furniture, vehicles, and other personal items
- Give or withhold consent for medical or other professional care, counsel, treatment, or service
- Give or withhold consent over the Ward’s ability to enter into contracts
- Apply for assistance, services, or benefits available to the Ward from the government
- Exercise a general supervision authority over the Ward
A Guardian may be granted all or some of these powers depending on the Ward’s ability and need as determined by the Court.
A Conservatorship, on the other hand, albeit similar to a Guardianship, is a proceeding by which the Court appoints a Conservator to manage the ‘financial’ affairs of someone who is unable to do so for themselves (a Protected Person). The legal authority of a Conservator over the Protected Person’s finances can include the following:
- Manage the Protected Person’s finances to pay for the support, maintenance, education, and lawful debts of the Protected Person
- Collect all debts and claims in favor of the Protected Person
- Approve or withhold approval of any contracts, except for necessities, which the Protected Person may make or wish to make
A Conservator may be granted all or some of these powers depending on the Protected Person’s ability and need as determined by the Court.
The process of establishing a Guardianship or Conservatorship generally starts with a petition to the Court. Upon receipt of the petition, the Court will issue a Notice and Order for Hearing, which will list the time, date and location that a hearing on the petition will be conducted, except in cases of emergency where the Court grants a temporary emergency Guardianship and/or Conservatorship without the usual notice requirements. The Notice of Hearing is then served upon all interested persons, including the proposed Ward or Protected Person. Service of the Notice upon the proposed Ward or Protect Person must be made personally and is sometimes accomplished through a Court Visitor who is appointed by the Court to make an independent assessment of the proposed Ward or Protected Person. Otherwise, the petitioner must arrange for an independent third-party to personally deliver the Notice and Order for Hearing to the proposed Ward or Protected Person. Service of the Notice upon all of the other interested persons may be accomplished by US mail to their last known address at least 14 days prior to the hearing. The petitioner must then file an affidavit with the Court signifying that the Notice and Order for Hearing has been properly served on all of the interested persons.
At the initial hearing, if the petition is not being contested by an interested party, including the proposed Ward or Protected Person, and if there is sufficient evidence presented to establish the need for a Guardianship or Conservatorship, then the Court will usually order the appointment requested in the petition, provided that the proposed Guardian or Conservator is not disqualified from serving in that capacity and there are no other objections to their appointment. Otherwise, the proceeding becomes a contested matter and proceeds much like any other litigated matter, culminating with an evidentiary hearing or trial in which, after hearing all of the evidence presented, the Court determines whether a Guardianship and/or Conservatorship is warranted and necessary, who is to be appointed, and what powers they should be granted.
Once an appointment is made and a Guardianship and/or Conservatorship is established, there are certain reporting requirements that the appointed Guardian or Conservator must fulfill in addition to their charge to assist the Ward or Protected Person. A Guardian must file a Well-Being Report with the Court and provide the Ward with a notice of their right to restoration (their right to seek termination of modification of the Guardianship) on an annual basis. Upon their appointment, a Conservator must file with the Court (through an online system) a report of Protected Person’s assets and liabilities known as an initial inventory and then an account of the Protected Person’s income and expenses on an annual basis thereafter. Also, a Conservator may wish to petition the Court for approval of any larger or irregular transactions pertaining to the Protected Person’s finances. In fact, some transactions require Court approval, such as the sale of the Protected Person’s homestead.
We can assist you with everything from determining whether a Guardianship or Conservatorship is necessary, who should be appointed, and the best strategy for dealing with any objections or conflicts to initiating or defending a particular petition to making necessary changes to an ongoing Guardianship or Conservatorship to assisting with all of the post appointment reporting requirements. We have the expertise to handle any Guardianship or Conservatorship matter. Should you need any assistance with a Guardianship or Conservatorship matter, please call us to schedule a free initial consultation.