How Guardianship And Conservatorship Protect Vulnerable Adults When They Cannot Protect Themselves

Guardianship & Conservatorship Protect Vulnerable Adults

A grandparent providing full-time care for a grandchild wants to enroll the child in school.

Parents of a 17-year-old with severe developmental disabilities want to ensure they can continue to make decisions on their child's behalf even after he turns 18.

Adult children of a parent with Alzheimer's want to be able to make medical and daily living decisions for their parent as the disease progresses.

These are all examples of situations in which legal conservatorship or guardianship is useful. Guardianship and conservatorship allow someone to make decisions on behalf of another person.

When a person isn’t able to make their own decisions in the eyes of the law that person is incapacitated. If you become incapacitated, who will make decisions for you? The Health Care Directive allows you to plan ahead for this condition. If you do not plan ahead, the courts will intervene and assign somebody to act on your behalf. There are two arrangements that can be made under these circumstances: Guardianship and Conservatorship.

Guardianship And Conservatorship Result From Court Action

In Minnesota, generally they are established through a legal action or court proceedings. The petitioner files a petition with the court requesting that a conservatorship or guardianship be established. The court orders the appointment of a conservator or guardian to act as a decision maker for the protected person or ward. There must be clear evidence that the protected person or ward is unable to make necessary decisions on his or her own behalf. This is a finding of incapacity. If the individual’s welfare is at risk due to the individual’s lack of judgment or decision making abilities the court will intervene. The petitioner does not need to be the proposed guardian. The petitioner can be another interested person, such as a family member or certain other persons.

What Is The Difference Between Guardianship And Conservatorship?

What is the difference between guardianship and conservatorship? It’s common to see them expressed as Guardianship of the Person and Conservatorship of the estate. The guardian generally makes decisions regarding:

General care, where to live and personal needs

Personal care and maintenance

Reasonable care of personal effects

Necessary consent for medical, professional care or services

Supervisory authority which may limit personal freedom

Some medical treatments require court review and approval and such decisions are not up to the guardian.

Conservatorship Is Also Concerned With Property.

A conservatorship is chosen when the court believes that the person’s property will be depleted and wasted without intervention. That person under conservatorship is called the protected person; whereas under guardianship they are called the ward. The protected person need not be incapacitated in every way, nor is there any finding of general incompetence. It is still possible for the protected person to marry, make a will and vote. A conservator of the estate must:

Pay reasonable support and maintenance from the protected person’s estate.

Pay any just and lawful debts from the protected person’s estate.

Manage the estate.

Collect all debts owed the protected person.

Invest all funds not currently needed according to law.

Approve or withhold approval of contracts, except for necessities.

Sell, exchange or purchase undivided interest in real estate with court approval.

The conservator acts as an agent of the court. The conservator has a fiduciary responsibility to conserve and manage the protected person's estate and is accountable to the court for the management of the estate. The conservator usually will be required to file annual financial reports with the court. 

Guardianship And Conservatorship Favor Family Members

A concerned family member, a close friend, a professional guardian or conservator, or private or public agency may be appointed by the court. Depending on any wishes of the incapacitated person and also on the availability of a willing person to accept this responsibility, the court has an order of priority for candidates to be appointed. A private guardian or conservator is a private citizen or a private agency staff person. A public guardian or conservator then is a staff person within the state or local county agency.

Who can serve as a guardian?

Although the law establishes a priority for who can be appointed, ultimately, the court determines who should be guardian based on the best interests of the ward. The guardian can be a family member, friend, professional guardian, social service agency, or other interested person. By statute, a guardian must submit to a criminal history and maltreatment record background check, with certain exceptions.

Who pays for the cost of the guardianship?

Court costs, attorneys' fees for both the petitioner and proposed ward, and any ongoing guardian fees are paid from the ward's estate. Guardians are allowed to charge fees for their services. When the ward has no money to pay for the guardianship services, limited services may be paid out of the ward's income or paid by the county.

Are there alternatives to guardianship?

Guardianship is generally considered the choice of last resort. Less restrictive alternatives such as a health care power of attorney/directive, a care/case management plan or the informal assistance of a family member or friend are preferred, assuming they meet the needs of the ward.

If you would like to talk to an attorney about becoming a guardian or having a guardian appointed in Minnesota, do not hesitate to give me a call

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