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Disclaimer: This information is published here in order to provide general information regarding 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, please consult with an attorney who is experienced in these matters. 

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 person subject to guardianship, because of the person subject to guardianship'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 powers over and duties to the person subject to guardianship with regard to personal care and safety. 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 Person Subject to Conservatorship’s estate. MS 524.5-418

Who is a guardian?

A guardian is someone who has been given legal authority by a court to make personal decisions for an individual who needs substitute decision-making supports with regard to personal decision (medical, health, and residential).  A Person Subject to Guardianship is a person who has a guardian.  The court will appoint a guardian when it has been determined that an individual is not capable of making decision to provide for the individual's needs for personal care, shelter, food, and safety, and when there is no less restrictive alternative that will meet the identified needs.    The guardian acts as an agent of the court.  The guardian has the responsibility to make decisions in the best interest of the Person Subject to Guardianship, in consideration of the Person's preferences and needs.

Who is a conservator?

A conservator is someone who has been given legal authority by a court to handle the financial affairs of an individual who is unable to manage his or her own finances. A Person Subject to Conservatorship is a person who has a conservator. The court will appoint a conservator when it has been determined that an individual is not able to manage his or her own finances usually due to a medical condition such as a developmental disability, dementia, brain injury or stroke. The court appoints a conservator when there is a need to pay for needed care, to manage money or to recover stolen assets and when there is no less restrictive alternative than a conservatorship. The conservator acts as an agent of the court. The conservator has a fiduciary responsibility to conserve and manage the Person Subject to Conservatorship’s estate and is accountable to the court for the management of the estate.

Who are Persons Subject to Guardianship/ Conservatorship?

A Person Subject to Guardianship is a minor or incapacitated adult who is impaired to the extent that they lack 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, safety, and for whom less restrictive alternatives are unavailable or insufficient to meet their needs for personal care and safety. MS 524.5-310. Persons Subject to Conservatorships 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, and for whom less restrictive alternative are unavailable or insufficient to meet their needs for financial management and protection. MS 524.5-401.

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

Guardians and conservators must exercise their powers in the best interest of the
Person Subject to Guardianship or Person Subject to Conservatorship.
Guardians and conservators are subject to the control and direction of the court at all
times and in all things. 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 Guardian of the Person:

  1. The power to have custody of the Person Subject to Guardianship and the power to establish a place of abode.
  2. The duty to provide for the Person Subject to Guardianship'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 Person Subject to Guardianship’s clothing, furniture, vehicles, and other personal effects.
  4. The power to give any necessary consent to enable the Person Subject to Guardianship 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 Person Subject to Guardianship may make or wish to make, if no conservator had been appointed for the Person Subject to Guardianship.
  6. The duty and power to exercise supervisory authority over the Person Subject to Guardianship, which limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services.
  7. The power to apply for government assistance on behalf of the ward, if no conservator has been appointed for the Person Subject to Guardianship.
  8. The power to establish (but not administer) an MN ABLE Account for the Person Subject to Guardianship.
  9. The power to institute suit on behalf of the person subject to guardianship and represent the person in certain legal proceedings, and to settle claims owed to the person only with Court approval. MS 524.5-313.

Powers and Duties of the Conservator of the Estate:

  1. The duty to pay the reasonable charges for the support, maintenance, and education of the Person Subject to Conservatorship.
  2. The duty to pay out of the Person Subject to Conservatorship's estate all just and lawful debts of the Person Subject to Conservatorship.
  3. The duty to possess and manage the estate, collect all debts and claims in favor of the Person Subject to Conservatorship and invest all funds not needed for debts, charges, and the management of the estate in accordance with the Prudent Investor Rule. The power to sue on behalf of the Person Subject to Conservatorship.
  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 Person Subject to Conservatorship.
  6. The power to establish an MN ABLE Account and administer it.
  7. The Power to revoke, suspend or terminate a previously executed power of attorney.
  8. The power to void certain transactions entered into by the Person Subject to Conservatorship.

How is a guardianship or conservatorship established?

Any interested 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 Person Subject to Guardianship or Person Subject to Conservatorship (also known as the "Respondent" when a guardianship or conservatorship has been requested but not granted), or in the county where the person may be found.   The court will appoint an attorney to represent the Person Subject to Guardianship or Person Subject to Conservatorship. MS 524.5-304 (b); 524.5-406 (b). A court hearing is required and notice must be personally served at least 14 days before the hearing upon the proposed Person Subject to Guardianship or Person Subject to Conservatorship and by mail upon the spouse, parents, adult children, stepchildren, 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, tribal government if applicable, 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 Person Subject to Guardianship or Person Subject to Conservatorship for more than six months, and a government agency paying or asked to pay benefits to the Person Subject to Guardianship or Person Subject to Conservatorship. MS 524.5-308; 524.5-404.

The proposed Person Subject to Guardianship or Person Subject to Conservatorship (also known as the "Respondent" at this stage) 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. After the hearing, the judicial officer will issue an Order which may grant or deny the petition for appointment of a guardian and/or conservator.  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 guardian’s or conservator’s authority to act on behalf of the Person Subject to Guardianship or Person Subject to Conservatorship.  After the COVID-19 pandemic, most hearings on guardianship and conservatorship matters take place via Zoom and physical presence in the courtroom is generally not required.

What are the requirements of guardians and conservators after appointment?

Generally speaking, the guardian and conservator is required to use the authority given to them by the Court to provide for the Person Subject to Guardianship and/or Conservatorships needs and to advocate for their best interests, including supporting and protecting the rights that remain with the Person Subject to Guardianship and Conservatorship.  MS524.5-120. Each guardian or conservator's duties and focus will vary based on the powers granted by the Court and the unique circumstances of the Person they serve.

Within two months of appointment, a conservator of the estate must file with the Court an inventory of the Person Subject to Conservatorship'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 Person Subject to Conservatorship. MS 524.5-418 A. Within 30 days of the anniversary of the appointment date, the conservator of the estate shall file an annual accounting with the Court.  MS524.5-420. The Court has established the MyMNConservator (MMC) system which conservators must use to submit their accountings.  The accountings are also reviewed and/or audited regularly by specialized court employees who report to the judicial officer or division in charge of the matter.

The guardian must give written notice by mail to the Person Subject to Guardianship and interested persons prior to the disposition of the Person’s clothing, furniture, vehicles, or other personal effects. MS 524.5-313 (c) (3).

Every guardian or conservator shall annually serve notice to the Person Subject to Guardianship and Person Subject to Conservatorship of a copy of the Bill of Rights for the Persons Subject to Guardianship and Conservatorship and notice of their 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 Person Subject to Guardianship's personal well-being with the court within 30 days of the anniversary date of the appointment.MS 524.5-308 (d). The Court has established the MyMNGuardian online system for this purpose, however in some circumstances the guardian may be permitted to submit these reports by completing them by hand and submitting them by mail or through the Court's e-filing system.

How are guardians supervised?

Guardians are subject to the direction and supervision of the Court at all times and in all things.   Guardians must file an annual Personal Well-Being Report with the court, indicating any changes in the Person Subject to Guardianship's situation, any limitations that have been placed on the Person's communication or visitation rights, the adequacy of the Person's care, number of guardian visits, and whether the guardianship is still necessary.

Concerns regarding the actions of a guardian can be addressed to the probate court that appointed the guardian or by filing a complaint of abuse or neglect of a vulnerable adult with the county's adult protection unit or the Minnesota Adult Abuse Reporting Center (MAARC).  See also: What do I do if I do not agree with my guardian or conservator.  

How are conservators supervised?

Conservators are subject to the direction and supervision of the Court at all times and in all things.  After appointment, a conservator is required to file with the Court an inventory of the Person Subject to Conservatorship's assets. Every year thereafter, the conservator files an accounting to the Court which lists all of money that has come into the estate and all the money that has been paid out of the estate. The Court employs dedicated specialist to review, verify, and audit the accountings submitted by the Conservator, and the resulting reports are provided to the Court for further action as appropriate. Periodically the conservator appears in front of the court to review and approve filed accountings. The accountings are public information and can be reviewed by any concerned person. In the event of mismanagement or theft, a claim can be made against the conservator's bond by filing an appropriate petition with the Court.

Concerns regarding the actions of a conservator can be addressed to the probate court that appointed the conservator, or by filing a complaint of abuse or neglect of a vulnerable adult with the county’s adult protection unit or the Minnesota Adult Abuse Reporting Center (MAARC).  See also: What do I do if I do not agree with my Guardian or Conservator.

Who pays for the cost of the guardianship?

Court costs, attorneys' fees for both the petitioner and the proposed Person Subject to Guardianship and/or Conservatorship, and any ongoing guardian fees are all paid from the Person Subject to Guardianship and/or Conservatorship's estate.  Guardians are allowed to charge a fee for their services.  When the Person Subject to Guardianship has no money to pay for guardianship services, the county court or social services department may provide funding for some of these costs.

Who pays for the cost of the conservatorship?

Court costs, attorneys’ fees for both the petitioner and the proposed Person Subject to Conservatorship, and any ongoing conservator fees are all paid from the Person Subject to Conservatorship's estate. Conservators are allowed to charge a fee for their services. When the Person Subject to Conservatorship has no funds to pay for conservator services, typically there is no need for conservatorship as there are no assets to conserve and the Person Subject to Conservatorship's finances can be managed using a less restrictive alternative such as a Representative Payee for Social Security Benefits.

Are there alternatives to guardianship?

Informal assistance from trusted family and friends, supported decision-making, appointment of a health care agent in a Health Care Directive, private or county case/care managers can all be effective ways to assist the person needing help without the burden and expense of guardianship.

Are there alternatives to conservatorship?

Informal assistance from trusted family and friends, powers of attorney, trusts, authorized representatives for economic assistance applications, automated bill payments or banking services, and representative payees for Social Security, Veteran Administration or railroad retirement income can all serve as effective alternatives to conservatorship. Your county may have other options for money management for people with low income.

Do I need to obtain guardianship for my adult child who has disabilities?

While Minnesota law provides a process for obtaining guardianship for a child with a developmental disability who is about to turn 18, this is not always necessary.  An 18 year old with a diagnosed disability has the same legal rights as an 18 year old with no disability diagnoses, unless proven otherwise.  This means that young adults with disabilities can also execute powers of attorney and healthcare directives, and can provide effective consent to share information with their parents and with their health care providers and school systems.  This of course will vary depending on the individual and their needs and capabilities.  While these alternatives are not appropriate for everyone, it is important to know that in many situations, parents and other support can remain active and involved without the expense and hassle of seeking the Court's appointment of a guardian, and without stripping rights from their young adult child.

If it is believed that guardianship is the only way to ensure the adult child’s care and safety needs are met, contact an attorney who specializes in guardianship.  For a proposed Person Subject to Guardianship who does not financially qualify for Medical Assistance, the adult child’s own assets will be required to pay the costs of establishing and maintaining the guardianship.  If the adult child does not have sufficient assets to pay for these costs, the Court may provide limited funds to pay for attorney fees to establish guardianship.

Can my loved one receive governmental services even if he or she does not have a guardian?

Yes.  There is a common misperception among professionals conducting assessments to determine eligibility for county or state programs, or for admission to a care center, that an incapacitated or disabled person must have a guardian to receive services.  This is not accurate.  Incapacitated persons and persons with disabilities may receive services regardless of guardianship status.

Can my loved one be admitted to a nursing home or assisted living facility without having a guardian appointed?

Yes.  See above.  A nursing home or assisted living facility may require that someone has the authority to support the resident with legal decision-making and consent for care, but this can be done using a power of attorney and health care directive.

Who serves as guardian or conservator?

The court must consider all proposed guardians in a matter and select a guardian who the Court believes will serve in the best interests of the Person Subject to Guardianship Person Subject to Person Subject to Guardianship and/or Conservatorship. The  Court will consider the current guardian (if any); the reasonable preference of the Person Subject to Guardianship and/or Conservatorship and existing nominations such as through a health care directive; and kinship Person Subject to Guardianship Person Subject to Conservatorship. The court is required to act in the best interest of the incapacitated person when considering who to appoint as guardian or conservator, and while it must consider the priority of each person proposed to serve as guardian, the court has discretion to choose the most qualified person to serve. 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 a developmental disability who has raised the person in the family home up until the time the petition is filed. MS 524.5-118 subd. 1.

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 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 Person Subject to Guardianship and/or Conservatorship.  The Person Subject to Guardianship and/or Conservatorship 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 be directed to use the Court’s Complaint process for guardianship.  You can find out more information on this process, and a form to use for submitting a complaint, by going to the Court’s Help Topics page for Guardianship:  Minnesota Judicial Branch - Guardianship | Minnesota Judicial Branch (mncourts.gov).  Click on “Complaint Process” and after you’ve reviewed the information there you can click on the link for the complaint form and submit your concerns.  This process can take several months because the complaint service is understaffed, but the process is very thorough and conducted by a neutral court employee.

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 Person Sujbect to Guardianship and/or Conservatorship before the court will remove the person and appoint a different guardian/conservator.  This could be time-consuming and expensive.
  • It is likely that 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 court 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 MN Adult Abuse and Reporting Center (MAARC at 1-844-880-1574) or Minnesota Adult Abuse Reporting Center's website.  Every Person Subject to Guardianship 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 (reports made in retaliation or anger or otherwise in absence of belief of wrongdoing by the guardian or 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 MAARC, 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?

At this time, there are no educational or licensure requirements for guardians/conservators in Minnesota. However, the National Guardianship Association (NGA) and the Center for Guardianship Certification (CGC), offers a certification program which provides credentials that demonstrate a guardian’s commitment to ongoing education, training and best practices in guardianship and conservatorship. Many professional guardians and conservators are now National Certified Guardians (NCG).  A person providing professional guardianship services should seek training and 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).  A guardianship training program is sometimes offered through Volunteers of America, and their website contains other helpful resources and information:  Guardianship & Supported Decision Making | Volunteers of America Minnesota and Wisconsin (voamnwi.org)

In most cases, 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, care provider or social worker. 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, and an overwhelming majority of guardianships in Minnesota are handled by non-professionals.

Payment for services 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 assets or income available to pay for professional services, 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, and that they may incur expenses for professional liability insurance and legal services. 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 absent further order of the Court.

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

Minnesota is a diverse state with many different cultures, languages, faith systems and traditions – Minnesota needs more professional guardians who reflect this diversity to better serve vulnerable adults in our state – MAGiC welcomes the opportunity to include and support guardians and other professionals who represent the BIPOC (Black, Indigenous and Persons of Color) and LGBTQIA+ communities, and strives to support diversity, equity and inclusion in service to its members and to Minnesota.

Can MAGiC provide legal advice or case consultation?

No.  MAGiC is a volunteer-led membership organization which strives to provide general information to members and the public about guardianship, conservatorship, and less restrictive alternatives to provide a general understanding about these issues through this website.  However, we are unable to provide legal or case advice.  If you have any legal or practical questions regarding how to manage an existing guardianship/conservatorship, please contact your local court administration, peruse our website, including FAQ's, resource links, and educational sections, and consult with your attorney.

Guardianship and conservatorship are specialized legal proceedings and an experienced attorney can provide education and advanced problem-solving to reduce stress and expense in these matters.  If you are looking for an attorney who focuses on guardianship and conservatorship matters, you may browse our membership directory for attorney members who you may contact directly for professional services.

Nothing on our website should be considered legal advice.