Someone who is mentally impaired, whether from age or infirmity, may start to show signs of needing assistance in their personal affairs. If, for example, your parent or loved one starts leaving food cooking on the stove, getting lost when away from home, forgetting to eat or take their medication, it is probably time to consider whether they are in need of a guardian. Don’t let it reach the point that your parent or loved-one becomes a real hazard to themselves or others. In some cases, your loved one’s needs can be taken care of informally by family or friends, which would be the preferred solution.
However, sometimes more formal control or management of a person’s affairs is necessary due to lack of access to their finances, their vulnerability to being exploited or their refusal to accept appropriate care. Guardianship is one method of taking over management of a person’s affairs. It is not, however, the easiest or least expensive method.
What type of guardianship do I need?
Generally speaking, a guardian is a person appointed by the court to manage the affairs of an incapacitated person (or a minor, in some cases). Guardians can either manage the person or the estate. A guardian of the person oversees the physical health and well-being of the person or “ward;” whereas a guardian of the estate manages that person’s finances. This type of guardian is also referred to as a Conservator.
To establish a conservatorship in Minnesota, a petition must be filed asking the court to appoint someone. First, a doctor must certify that the person for whom the legal proceeding is sought is actually disabled or incapacitated. The alleged incapacitated person, as well as others, have the right to challenge the proceeding. Once appointed, the guardian/conservator is authorized to make certain decisions for the person. Many of those decisions must first be approved by the court, such as selling a home or placing the person in a nursing home.
Power of attorney may be a better option.
While guardianship and/or conservatorship is a necessary process for some, it is something to avoid if possible. Because of the serious nature of being found incapacitated and the resulting loss of individual rights, guardianships and conservatorships should often be an option of “last resort.” The best way to avoid guardianship and/or conservatorship is to prepare a durable power of attorney for health care and property. The documents required to execute a power of attorney are not as complicated, and the process is much less expensive. More importantly, the agent is chosen by the person rather than the courts, and the named agent(s) are authorized to take action without supervision or approval by the court.
Ideally, powers of attorney should be executed well in advance of any signs of diminished capacity. If your aging relative seems to be slipping a little and powers of attorney have not already been executed, consult a lawyer as soon as possible. They may still be able to sign powers of attorney if they have sufficient cognitive abilities to meet the requirements of legal capacity (which is not a very high standard). If not, then guardianship or conservatorship may be the only course of action available.
