When the time comes for you to decide whether someone you love needs someone else to take control of their personal affairs, it helps to understand what a guardianship and conservatorship in Minnesota mean. A guardianship or conservatorship is established through a legal proceeding when the court appoints a person (a conservator or guardian) to act as a decision maker for the protected person, also referred to as the conservatee or ward. First, the court must make a finding that the individual is incapacitated, meaning the individual is unable to make decisions for himself or herself. As the implications of making this determination are serious, a guardianship or conservatorship “should only be sought if the individual’s judgment or decision making is a major threat to the individual’s welfare,” according to Minnesota law.
There are differences between a guardianship and a conservatorship in Minnesota.
A guardian is appointed to make personal decisions such as where to live and medical decisions. Courts have broad discretion in determining who would be best to serve as guardian. They generally look first at a spouse, adult child, parent, brother or sister to take on this responsibility. However, the court can take the preferences of the ward into consideration. A guardianship can be terminated under certain circumstances but generally will not be terminated unless the court agrees.
A conservator is appointed to make financial decisions, such as entering into contracts, paying bills, and making investments. A conservatorship is usually tailored to transfer financial decision-making power to the conservator, but only when protection and supervision are obviously necessary. The protected person does not have to be determined incapacitated in all areas of life. So there is no general finding of incompetence. Instead, a conservator is appointed on a showing that the person needs assistance managing his or her financial affairs. Therefore, the conservator does not have complete power over the person’s assets, but is limited to managing and conserving those assets.
Guardianships and conservatorships should not be sought simply because a person makes a decision that other people do not understand or agree with. Nor should they be sought because of a particular disability or medical diagnosis. A balance needs to be maintained between helping adults to make their own decisions and allowing them to maintain as much autonomy as possible.
Are there any alternatives?
It is important to understand that appointment of a guardian or conservator often strips the person of the ability to make decisions. If a less restrictive alternative is available that can provide needed protection, it should be considered first in order to avoid a guardianship or conservatorship. Some examples include durable financial powers of attorney, revocable living trusts, protective orders, joint bank accounts, or advance directives for health care. In reality, there are a wide variety of formal and informal tools available to protect a person’s assets while preserving their future wishes. As with most aspects of elder law and estate planning, the best choice of alternatives depends on each individual’s needs and preferences. With advance estate planning, the appointment of a guardian or conservator may be avoided.
