Minnesota Guardianship Lawyers & Attorneys
A Guardianship or Conservatorship involves a court proceeding in which a judge grants someone the power to have legal control over the personal and/or financial affairs of an individual when that individual is no longer able to make or communicate decisions about his/her personal and/or financial needs, and when there are no other less restrictive means available to provide for those needs.
A guardian is someone who is appointed by the court as the guardian of the “person” for a particular individual. The Court proceeding is typically initiated by a petition filed with the court stating that a particular individual is unable to make or communicate responsible decisions concerning his/her “person.”
A guardian may be an individual or an entity, and if requested, could be a combination of two or more individuals or entities appointed as co-guardians.
Upon court appointment, a guardian will have the legal authority to act on behalf of the “person” of the individual, or “ward.” The powers and duties of the guardian are similar to those of a parent over a child but will be specifically set forth in the court’s order. Such powers and duties may include:
- Provide for the ward’s care, comfort and maintenance needs
- Have custody of the ward and establish the ward’s home
- Take reasonable care of the ward’s clothing, furniture, vehicles and other personal items
- Give any necessary consent to enable or withhold consent for the ward to receive necessary medical or other professional care, counsel, treatment or service
- Exercise supervision authority over the ward
- Apply for assistance, services or benefits available to the ward from the government
After appointment, a guardian must prepare and file a personal well-being report with the court each year.
A conservator is someone who is appointed by the court as the conservator of the “estate” for a particular individual. The court proceeding is typically initiated by a petition filed with the court stating that a particular individual is unable to make or communicate responsible decisions concerning his/her “estate” or financial affairs.
A conservator may be an individual or an entity, and if requested, could be a combination of two or more individuals or entities appointed as co-conservators.
Upon court appointment, a conservator will have the legal authority to act on behalf of the estate of the individual or “protected person.” The powers and duties of the conservator will be set forth in the court’s order, and may include the power and duty to:
- Use the protected person’s assets 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 contract except for necessities, which the protected person may make or wish to make
After appointment, a conservator must prepare and file an accounting with the court each year and attend periodic hearings.
Guardianships / Conservatorships FAQ
Q: How does a Guardianship or Conservatorship usually start?
A: A Guardianship or Conservatorship proceeding is usually started by a family member who files a petition with the court stating the reasons why a guardian or conservator is needed and the name of the person(s) best able to act as guardian or conservator.
Q: What happens next?
A: The court will then schedule a hearing and require notice of that hearing be sent to various family members. The court will appoint a neutral party to visit with the proposed ward (for Guardianships) or proposed protected person (Conservatorships). After the meeting the court visitor will file a report with the court.
Q: Is a Guardianship or Conservatorship always necessary?
A: Not always. There may be other, less restrictive means of accomplishing what a Guardianship or Conservatorship could do. Less restrictive means should always be explored. For instance, the individual may have once executed a Power of Attorney granting someone the power to take care of financial matters. However, if the individual is now a vulnerable adult due to diminished capacity and subject to undue influence, a Power of Attorney will not be able to prevent someone from financially exploiting the individual. The appointment of a conservator may be a better alternative because the conservator would be the only person to have access to the protected person’s assets and is under court supervision.
Q: What happens if someone objects to a petition for a Guardianship/Conservatorship?
A: If there is an objection filed with the court, the court will schedule a hearing and the objector and the petitioner may present evidence in support of their respective positions.
Q: Who is usually appointed to act as Guardian/Conservator?
A: Typically, a family member will ask to be appointed as Guardian/Conservator. However, there are also professional organizations that will serve as Guardians/Conservators.