There are two arrangements that can be made if a person is unable to act on their own behalf: a Guardianship and a Conservatorship. When a person is unable to act on their own behalf, it means the person is incapacitated.
Minnesota Statutes say that incapacity is proven when the Petitioner (the person who is asking the court to appoint a conservator/guardian) can provide evidence to the court that:
- the proposed ward/protected person is unable to make responsible personal decisions, and;
- is unable to meet his or her needs.
What is a Guardianship?
A Legal Guardianship is a legal arrangement under which one person, a guardian who is appointed by a court, has the legal right and duty to care for another, the ward, because of the ward’s inability to legally act on his or her own behalf because they are a minor or because of mental or physical incapacity. Black’s Law Dictionary 707 (6th ed. 1990). Minnesota Statutes state that a guardian has the powers and duties over the ward’s person.
What is a Conservatorship?
A conservatorship is similar to a guardianship except that the conservator who has been appointed by the court has powers and duties over the incapacitated person’s estate.
Who needs Guardianship or Conservatorship?
A ward is a person who is under the custody or protection of another. Wards who have had guardians appointed are minors or incapacitated adults who are impaired to the extent lacking sufficient understanding or capacity to make or communicate responsible personal decisions and who have demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety. Minn. Stat. § 524.5-310.
In the case of guardianship of the person, and conservatorship an incapacitated person is:
”an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.” Minn. Stat. § 524.5-102, subd. 6).
Protected persons are those individuals who have had conservators appointed for them because they lack similar capacity and have demonstrated behavioral deficits regarding their estate or financial affairs. MS 524.5-401
Who is appointed guardian or conservator?
Whoever the court determines is in the best interests of the ward or protected person can be their Guardian of Conservator. The Court will consider the following factors:
- current guardian;
- kinship or familial relationship;
- the reasonable preference of the ward or protected person.
Minnesota Statute says that the court is required to act in the best interest of the incapacitated person when considering who to appoint as guardian or conservator. Minn. Stat. § 524.5-309. Guardians and conservators must also submit to a criminal history and a background check.
In order to apply for a for the appointment to be guardian or conservator a Petition must be filed in the probate court of the county of residence of the proposed ward or protected person. A court hearing is required. The proposed ward or protected person should be present at the hearing. If the court finds that a guardian or conservator is needed, then a court will issue an order granting the Petitioner guardianship or conservatorship or both. At the hearing, the court may order the conservator of the estate to post a bond before the letters of conservatorship are issued. This will provide assurance that the ward or protected persons property and funds are secured. Letters of guardianship or conservatorship are evidence of the guardian’s or conservator’s authority to act on behalf of the ward or protected person.
The Court will want to order the least restrictive alternative to appointing a guardian or conservator. That means that if a suitable alternative to appointing a guardian or conservator is available the Court may order use of that alternative instead. For example, if the goals of the appointment can be accomplished by setting up a trust or a joint bank account, the court will go that route in lieu of a full-blown guardianship or conservatorship.