Disclaimer: This information is provided to the public in order to provide a general understanding of guardianships and its alternatives. This information should not be considered as a legal reference. If you have any legal questions dealing with guardianships, an attorney should be consulted.
Because guardianship and conservatorship deprive the ward or conservatee of civil rights and liberties, the laws requires that before a guardian or conservator is appointed, the court must find that no appropriate alternative to guardianship or conservatorship are less restrictive of the person’s civil rights and liberties. MS 525.551 subd. 5. Additionally, the less restrictive alternatives are generally preferable because they are less expensive to implement than a guardianship or conservatorship and can be often formalized more quickly. However, except for a protective proceeding, a person must be competent or capacitated to establish any these arrangements, and they do not have the supervision of the court to prevent abuses of the substitute decision-maker. Examples of less restrictive alternatives are:
- Case or care management
- Health care directives (formerly living wills)
- Living trusts
- Joint bank accounts
- Durable powers of attorney
- Representative payee
- Protective arrangements
Providing nursing assessment of actual or potential health needs of individuals and families, providing nurse care support to or restorative of life, health teaching and counseling, case finding and referred to other health services, and evaluating these actions. MS 148.171.
Health care directives (Formerly living wills)
A properly executed legal document by a principle with capacity to do so which may include health care instructions to direct health care providers, others assisting with health care, family members, and a health care agent. MS 145(c). May also include an appointment of a health care agent to make health care decisions for the person when in the a judgment of the person’s attending physician he or she lacks decision-making capacity.
Also known as a revocable trust, it is an alternative to a Will for the distribution of a person’s assets upon his or her death. It also provides for management of that person’s assets during his or her lifetime and for trustees to manage the person’s assets in the event the person is no longer able to do so.
A bank account established for the convenience only between the depositor (owner) and an agent so that the agent may write out checks on the account for the benefit for the depositor. The depositor must have capacity to establish this relationship and it is recommended that the account be subject to the duties of a power of attorney. Despite its title, a joint account belongs to the parties in proportion to the contributions made by each to the sums on deposit. MS 524.6.
A person who is a competent adult may, as principle, designate another as the person’s attorney-in-fact via a written power of attorney to act for the principle in the event he or she becomes incapacitated. Powers granted to the attorney in fact typically involved matters of the principle’s estate, including but not limited to banking, securities, and real estate transactions. MS 523
Designated by the federal government to provide budget setup, checkbook balancing, bill paying assistance each month, have signature authority for vulnerable person’s government benefits from one of the following government agencies:
- Social Security Administration
- Veterans Administration
- Railroad Retirement
- Office of Personnel Management
If it is established in a proper proceeding that a basis exists for the appointment of a guardian or conservator, the court, instead of appointing a guardian or conservator, may
(a) authorize, direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but or not limited to: payment, delivery, deposit or retention of funds or property; sale, mortgage, lease or other transfer of property, entry into an annuity contract, a contract for life care, deposit contract or a contract for training or education; or an addition to or an establishment of a suitable trust; or
(b) authorize, direct or ratify any contract, trust or other transaction relating to the protected person’s financial affairs or involving the protected person’s estate if the court determines that the transaction is in the best interest of the protected person. MS 525.54, subd. 7.
© 2004 Minnesota Association for Guardianship & Conservatorship