GuardianShip & Conservatorship
Conservatorship and Guardianship typically result from court proceedings in which the court appoints someone (a “conservator” or “guardian”) to manage another person’s financial affairs or personal care decisions. Generally, those proceedings are permitted only when a person becomes so incapacitated or impaired that he or she is unable to make financial or personal decisions and has no other viable option for delegating these duties to another (e.g., through a durable power of attorney, or living trust or some other means). Using these standards, conservatorships or guardianships might be established for people who are in a coma, suffering from advanced stages of Alzheimer’s disease, or have other serious injuries or illnesses. Guardianship attorneys or conservatorship attorneys specialize in establishing these unique legal relationships.
Under Minnesota law, conservatorships and guardianships are used to appoint a person when an individual is unable to make personal decisions or is unable to meet his or her financial needs, even with appropriate technological assistance. 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). A court must base 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 and the court makes a finding of incapacity or impairment. Once a court makes a finding of incapacity or impairment, the person no longer has the right to manage his or her affairs until proven capable.
How is a conservator appointed?
A conservator is appointed to make financial decisions for a protected person. The conservator typically has the power to collect all the conservated assets, pay bills, make investments and perform other financial functions, as well as engage in estate planning, including the right to amend or revoke the protected person’s will. However, the conservator must seek court approval for transactions such as the purchase or sale of real property, gifting of assets or engaging in estate planning for the protected person.
How is an official guardian appointed?
A guardian is appointed to perform duties related to personal care, custody and control. The guardian has the authority to make decisions such as where the ward will live and what medical treatment they will receive.