If someone is unable to make their own legal or financial decisions, a conservator or guardian may be appointed by the court. A person may need a conservatorship or guardianship due to cognitive or mental health issues, certain kinds of disabilities, or as an elderly individual who may be suffering from progressive dementia or Alzheimer’s disease. Let us help guide you through which court process is right for the situation, or help to develop a less restrictive strategy, depending on the needs of the individual.
A conservatorship or guardianship is established through a legal action, or proceeding. In this proceeding, the court orders the appointment of a person (a conservator or guardian) to act as a decision-maker for another person (the protected person or ward). The court bases this decision on clear and convincing evidence that the protected person or ward has been found to be unable to make necessary decisions on his or her own behalf. A conservator is not the same as a guardian, because each role contains different roles and responsibilities.
A conservator is a person, institution or agency appointed by the court to manage the financial affairs of the protected person, known as a conservatee or protected person. The conservator typically has the power to contract, to pay bills, invest assets and perform other financial functions for the protected person.
The conservator has the authority and responsibility to properly handle the protected person’s property and income. The state of Minnesota requires the filing of an annual report disclosing the management of funds subject to the conservatorship.
A guardian is a person appointed by the court to make decisions on behalf of the protected person about health and welfare matters, such as decisions on where to live, assisting with medical decisions, consent to agree or refuse treatment, where to work/receive training, etc.
Generally speaking, a competent person such as a family member, friend or nonrelated professional can be a conservator or guardian if they are:
Over the age of 18
Not convicted of a felony
Able to post bond, if necessary
Not legally disabled
Conservators or guardians can also be public or private institutions if a relative or friend is not available, or in certain cases where such arrangements would not be deemed healthy or appropriate for the protected person.
A conservatee or ward is a minor or legally incapacitated adult who can receive a court-appointed conservator. A conservatee or ward must lack sufficient understanding or capacity to understand or make responsible decisions regarding their health, safety, welfare or exhibit the inability to make their own legal and financial decisions. A determination on the capacity of a person to make their own decisions is usually provided by a medical doctor or another qualified medical or mental health practitioner.
A conservatorship or guardianship is established through legal action in a district court. The person who files a petition with the court requesting that a conservatorship or guardianship be established is known as the petitioner.
The court will request an investigation into the need for conservatorship or guardianship. The court will base its decision on clear and convincing evidence that the conservatee or ward has been found unable to make important decisions on his or her behalf.
At a minimum, the following will need to be provided:
The nature and type of disability, and an explanation of how it impacts the person’s financial and personal decision-making
An analysis of the conservatee or ward’s medical and physical condition, education level, behavior and social skills
A qualified medical doctor’s or mental health practitioner’s opinion(s) about the need for conservatorship or guardianship and the supporting reasons
In Minnesota, the law encourages us to try other things before conservatorship or guardianship, depending on the situation, including:
Setting up a power of attorney
Naming a representative payee for Social Security benefits
Getting a case manager assigned by the county of residence
Contact An Attorney For Conservatorship/Guardianship Assistance Today
At Franz Hultgren Evenson, P.A., we establish close working relationships with clients, resulting in strong and effective representation. If someone you know is in need of the protection that a conservatorship or guardianship can provide, please contact us today or give us a call at 320-200-1267 to schedule an appointment with an experienced guardianship/conservatorship attorney. We will listen to your questions and concerns, and assist you in every step of the process.