Disclaimer: This information is published here in order to provide a general understanding of guardianships, conservatorships, and the alternatives. This information should not be considered as a legal reference. If you have any legal questions dealing with any of these issues, an attorney should be consulted.

What is guardianship?
What is conservatorship?
Who are wards and protected persons?
Who serves as guardian or conservator?
What are the powers and duties of a guardian or conservator?
How is a guardianship or conservatorship established?
What are the requirements of guardians and conservators after appointment?
What do I do if I do not agree with my guardian or conservator?
How do I become a professional guardian/conservator?

What is guardianship?

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 due to minority or mental or physical incapacity. Black’s Law Dictionary 707 (6th ed. 1990). A guardian has the powers and duties over the ward’s person. MS 524.5-313

What is 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. MS 524.5-418

Who are wards and protected persons?

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. MS 524.5-310. 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 serves as guardian or conservator?

Whoever the court determines is in the best interests of the ward or protected person. The factors considered are the current guardian, kinship, and the reasonable preference of the ward or protected person. The court is required to act in the best interest of the incapacitated person when considering who to appoint as guardian or conservator. MS 524.5-309. Guardians and conservators must also submit to a criminal history and maltreatment records background check unless they are a government entity, bank, or a parent of a person with mental retardation. MS 524.5-118 subd. 1.

What are the powers and duties of a guardian or conservator?

Guardians and conservators must exercise their powers in the best interest of the ward or protected person. The powers and duties of a guardian or those which the court may grant to a conservator include, but are not limited to:

Powers and Duties of the Person:

  1. The power to have custody of the ward and the power to establish a place of abode.
  2. The duty to provide for the ward’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements.
  3. The duty to take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects.
  4. The power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment or service.
  5. The power to approve or withhold approval of any contract, except for necessities, which the ward may make or wish to make, if no conservator had been appointed for the ward.
  6. The duty and power to exercise supervisory authority
    over the ward.
  7. The power to apply for government assistance on
    behalf of the ward, if no conservator has been
    appointed for the ward. MS 524.5-313

Powers and Duties of the Estate:

  1. The duty to pay the reasonable charges for the support, maintenance, and education of the protected person.
  2. The duty to pay out of the protected person’s estate all just and lawful debts of the protected person.
  3. The duty to possess and manage the estate, collect all debts and claims in favor of the protected person and invest all funds not needed for debts, charges, and the management of the estate in accordance with the Prudent Investor Rule.
  4. The power to approve or withhold approval of any contract, except for necessities, which the protected person may make or wish to make.
  5. The power to apply for government assistance on behalf of the protected person. MS 524.5-418

How is a guardianship or conservatorship established?

Any person may petition for the appointment of a guardian or conservator. MS 524.5-303. A petition requesting appointment is filed in the probate court of the county of residence of the proposed ward or protected person. The court will appoint an attorney to represent the proposed ward or protected person if neither the proposed ward or protected person or others provide counsel. MS 524.5-304 (b); 524.5-406 (b). A court hearing is required and notice of it must be served at least 14 days before the hearing personally upon the proposed ward or protected person and by mail upon the spouse, parents, adult children, brothers and sisters, health care agent or proxy pursuant to a health care directive or living will, or if none of the aforementioned are alive or can be located, on the nearest kindred, the administrative head of any hospital, nursing home, or home care agency of which the person is a patient, resident, or client, any adult who has lived with the ward or protected person for more than six months, and a government agency paying or asked to pay benefits to the ward or protected person. MS 524.5-308; 524.5-404.

The proposed ward or protected person shall be present at the hearing unless that person waives the right to appear in person or is not able to attend by reason of a medical condition as evidenced by a written statement from a licensed physician. If after the hearing the court finds that a guardian or conservator is needed, and no less restrictive alternative is appropriate, then a court will issue an order. At the hearing, the court may order the conservator of the estate to post a bond before the letters of conservatorship are issued. Letters of guardianship or conservatorship are evidence of the guradian’s or conservator’s authority to act on behalf of the ward or protected person.

What are the requirements of guardians and conservators after appointment?

Within two months of appointment, a conservator of the estate must file in the court an inventory of the protected person’s real and personal property. MS 524.5-419. A court order, after hearing and notice, is required before a conservator of the estate may sell, mortgage, or lease real property of the protected person. MS 524.5-418 A. The guardian must give notice by mail to the ward and interested persons prior to the disposition of the ward’s clothing, furniture, vehicles, or other personal effects. MS 524.5-313 (c) (3).

Within 30 days of the anniversary of the appointment date, the conservator of the estate shall file an annual accounting with the court. MS 524.5-420. Every guardian or conservator shall annually serve notice to the ward and protected person of the right to petition for restoration of capacity, discharge of guardian or conservator, or modification of the orders of guardianship or conservatorship. MS 524.5-310 (e); 524.5-409 (e). The guardian shall annually file a report regarding the ward’s personal well-being with the court within 30 days of the anniversary date of the appointment. MS 524.5-308 (d).

What do I do if I do not agree with my guardian or conservator?

If you are concerned about the actions or decisions of a guardian or conservator, first talk with the guardian/conservator directly about your concerns and work toward a resolution.  Most issues are resolved through respectful communication.

This might include clarifying the role and limits placed on the guardian/conservator; finding a compromise that both parties can live with; or developing plans to address the problem and reevaluate later.  It may be helpful to first write down your concerns, clarifying in your own mind what the issues are to help keep the conversation focused when you talk to the guardian/conservator.  If it is an Organization serving as the guardian/conservator, inquire if they have a grievance procedure and follow that process.

Sometimes the problem is based on a breakdown of communication or has become too emotion-laden to deal directly with the guardian/conservator.  In this instance, a third party mediator may be of assistance.  This could be a professional mediator (check the yellow pages of your local telephone phone directory, or go to Related Links on this website) or an informal mediator or other third party.

You may want to raise your concerns with the guardian/conservator’s attorney if you feel you are getting nowhere with the guardian/conservator.  Remember, this action will likely result in a bill for the ward/protected person for the attorney’s time. If you don’t know who this is, contact the probate court to find the name of the guardian/conservator’s attorney, also called “the attorney of record.”

Sometimes issues simply cannot be resolved, and the parties have to agree to disagree.  However, in rare circumstances, there may be an irreparable breakdown, such that the guardian/conservator can no longer be effective in helping the ward/protected person.  The ward/protected person has the right at any time to contact the county probate court to request a change in guardian/conservator, though this is generally ill advised before attempts to resolve the problem with the existing guardian/conservator.

You may decide you want a new guardian/conservator appointed and while this may be appropriate in some situations, remember that:

  • If the current guardian/conservator does not agree to resign, you will have to prove to the court that the guardian/conservator has acted improperly, or not in the best interest of the ward/protected person before the court will remove the person and appoint a different guardian/conservator.  This could be time-consuming and expensive.


  • A new guardian/conservator will still be in charge and responsible for court-appointed areas of decision-making.  If the nature of the concern is about having a guardian/conservator in the first place, it may make more sense to continue trying to work with the existing guardian/conservator rather than go through the expense and hassle of seeking a successor guardian/conservator.

Violations of the MAGiC Standards, state statute, or abuse, neglect or financial exploitation actions by professional guardians/conservators require specific action:
  1. Contact the county probate court with your concerns. The court may re-involve the original court-appointed attorney, send out the visitor to further investigate, forward the concern to Adult Protection, simply file the complaint and address it later if more issues arise, or take other action, at its discretion.

  2. File a complaint about suspected abuse, neglect, or financial exploitation of a vulnerable adult with the county s Common Entry Point (CEP) or Adult Protection (to find the CEP in your county, go to Related Links on this website). Every ward/protected person is considered a vulnerable adult. You do not need to conduct your own investigation of maltreatment. You do need to have a reasonable belief that it is occurring, and if your report meets their criteria, the Adult Protection staff will complete an investigation. Knowingly filing false reports to the Common Entry Point (reports made in retaliation or anger or otherwise in absence of belief of wrongdoing by the guardian/conservator) could result in civil penalties and punitive damages. However, a good faith reporter is immune from civil or criminal liability that may arise as a result of the report.

  3. If the matter is criminal or involves theft, you may make a police report, but you do not have to if you have already filed a report with the Common Entry Point, as they should automatically refer it to the police if necessary. You can report to both places if you desire.

How do I become a professional guardian/conservator?

A person is appointed guardian/conservator by the probate court after a court hearing on a petition which alleges that the respondent is an incapacitated person and in need of a guardian and/or that the person is unable to manage their estate, and in need of a conservator. It is the petitioner who nominates the guardian/conservator. The petitioner is someone who becomes aware of the need for such action, usually a family member or professional care provider. If in the court hearing, the court finds that a guardian/conservator is necessary and that the nominated person is the most suitable and best qualified among those willing and able to serve, the court would appoint the nominated guardian/conservator. It is important to note that the majority of guardianship and conservatorship petitions seek the appointment of family members or others known to the respondent.

Payment is dependent on a number of circumstances, including whether the guardian/conservator is a professional or a family member; whether the person under guardianship has an estate, and the policies of the county in which the guardianship/conservatorship is established. Unless employed by an agency serving in this capacity, professional guardians/conservators are independent contractors. Persons interested in pursuing work as a professional guardian/conservator should recognize that it can take a number of years to find themselves with the size and type of caseload that will allow them to count on this as a reliable source of full or part-time income. Depending on the county in which they work, professional guardians/conservators may be able to charge an hourly rate for their work with some clients; however it is important to remember that not all clients will require more than an hour or two of billable time in a given month, that there is much time in a professional's day that is unbillable, and that when clients reach status of financial indigency, the responsibility to serve continues, even without the former rate of pay.

At this time, there are no educational or licensure requirements for guardians/conservators in Minnesota. However, the National Guardianship Association (NGA) does offer a registered guardian (RG) program. Many find it helpful to seek training through educational opportunities offered through MAGiC and NGA (www.guardianship.org), as well as private study of the laws governing guardianship (MN Statutes 524.5-101 through 524.5-433), and related web sites, such as the state courts website, which includes forms and a guardianship/conservatorship informational manual (www.courts.state.mn.us) (Click “Forms” on top menu bar, then click “Guardianship/Conservatorship”, then scroll to relevant forms and guardianship manual).

Additionally, a person hoping to become a professional guardian/conservator must be known to attorneys who represent petitioners in need of a guardian/conservator to nominate, as well as others in the medical, housing, and social services fields who may refer persons for guardianship/conservatorship.

 

© 2006 Minnesota Association for Guardianship & Conservatorship