Conservatorships and guardianships are designed to assist vulnerable, incapacitated, or impaired persons in making decisions. Many people do not know the difference between conservatorships and guardianships and often conflate the two. There are also a variety of powers established by law that apply to conservators and/or guardians, so it is important that those who may be a subject of a conservatorship or guardianship, as well as those seeking to be appointed one, fully understand the rights and responsibilities involved.
A guardian is appointed by the court to make personal decisions for the person subject to the guardianship, who is often called the “protected person.” The guardian is authorized make decisions on behalf of the protected person, such as where they live, what medicine they take, who their doctor is, what school they go to, where they can be employed, etc. The protected person can be either a minor or an incapacitated adult. Protected persons must lack sufficient understanding or capacity to make or communicate responsible personal decisions, and must be unable meet personal needs for medical care, nutrition, clothing, shelter, or safety. The Court may appoint a guardian after the person requesting to be guardian files a Petition to Establish Guardianship and after a final hearing by the Court. Note: becoming the legal guardian/custodian of a minor child is not the same as being appointed the guardian of a protected person, who could also be a minor.
The main duties of a guardian are to ensure the protected person has care and comfort, including food, health care, and social opportunities. The guardian also has the power to take reasonable care of the protected persons property, including clothing, furniture, and other personal items. If the guardian wanted to sell the protected person’s personal property, they must file a notice of intent with the court. Each year, the guardian must file a report of the protected person’s well-being with the Court, which must contain the current medical, physical, and social conditions; the living arrangements and address; the medical, educational, or vocational services being provided; and a recommendation as to the need for a continued guardianship. The full list of powers of a guardian can be found here: https://www.revisor.mn.gov/statutes/cite/524.5-313 .
A conservator is appointed to make financial decisions for the person subject to the conservatorship, who, again, is often called the “protected person.” In this situation, a protected person may be an individual who lacks capacity and has demonstrated an inability to make decisions regarding their financial affairs or estate. The conservator has the power to enter into contracts, pay bills, invest assets, amend or revoke a will, and perform other financial duties for the protected person. The conservator must seek court approval for transactions like purchasing or selling property, gifting assets, or estate planning.
A conservator’s main duties are to inventory the protected person’s estate and to file an annual accounting with the court showing all of the property received and disbursed each year. Also within the conservator’s power is the duty to pay all debts and bills on behalf of the protected person. They must also disburse the protected persons assets to support them. The full list of powers of a conservator can be found here: https://www.revisor.mn.gov/statutes/cite/524.5-417 .
How to obtain:
To obtain a guardianship or conservatorship on behalf of a protected person, you must file a Summons and Petition to Establish Guardianship or Conservatorship. For a guardianship, you must prove that the protected person is incapacitated, and the protected person’s needs cannot be met by less restrictive means. For a conservatorship, you must prove that the protected person is unable to manage property and business affairs due to an impairment, and that this is resulting in the protected person’ property being wasted or dissipated unless management can be provided. As with guardianship, for a conservatorship you must also show that the protected person’s needs cannot be met by less restrictive means.
How to terminate/remove:
A guardianship or conservatorship can be terminated if either 1) upon the death or the guardian, conservator, or protected person; or 2) the protected person gains capacity. If the guardian or conservator is abusing their power, becomes incapacitated or disabled, violates the trust, or fails to perform a duty imposed upon them by the law, the Court may remove them as guardian or conservator upon a petition by any person. If the guardian or conservator contests the removal, a hearing will be held. If the guardian or conservator is removed, a new one will be appointed unless either of the above-mentioned conditions for termination are met.
Overall, this is a very broad overview of guardianships and conservatorships. There are many nuances and details for the guardianship and conservatorship process, and each requirement must be stringently met in order to successfully appoint or remove one. If you are seeking to obtain or remove a guardian or conservator on behalf of a potential protected person, contact the family law attorneys at Heimerl & Lammers today.