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 is a guardian?
- Who is a conservator?
- Who are wards and protected persons?
- 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 protections are there under guardianship?
- What protections are there under conservatorship?
- Who pays for the cost of the guardianship?
- Who pays for the cost of the conservatorship?
- Are there alternatives to guardianship?
- Are there alternatives to conservatorship?
- Do I need to obtain guardianship for my adult child who has disabilities?
- Can my loved one receive governmental services even if he or she does not have a guardian?
- Who serves as a guardian or conservator?
- What do I do if I do not agree with my guardian or conservator?
- How do I become a professional guardian/conservator?
- Can MAGiC provide legal advice or case consultation?
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 is a guardian?
A guardian is someone who has been given legal authority by a court to make personal decisions for an individual who is incapable of making his or her own decisions. A ward 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 personal decisions in the case of guardianship. The court appoints a guardian when there is a need for personal decisions (medical, health, residential). The guardian acts as an agent of the court. The guardian has the responsibility to make decisions in the best interest of the ward, in consideration of the ward'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 protected person 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 protected person’s estate and is accountable to the court for the management of the estate.
Who are wards and protected persons?
Wards who have had guardians appointed are minors or incapacitated adults who are impaired to the extent that they are 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
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:
- The power to have custody of the ward and the power to establish a place of abode.
- The duty to provide for the ward’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements.
- The duty to take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects.
- The power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment or service.
- 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.
- The duty and power to exercise supervisory authority over the ward.
- 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:
- The duty to pay the reasonable charges for the support, maintenance, and education of the protected person.
- The duty to pay out of the protected person’s estate all just and lawful debts of the protected person.
- 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.
- The power to approve or withhold approval of any contract, except for necessities, which the protected person may make or wish to make.
- 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 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 guardian’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 with 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 protections are there under guardianship?
Guardians are under the court's supervision. Guardians must file an annual Guardian Report with the court, indicating any changes in the ward's situation, any limitations that have been placed on the ward's communication or visitation rights, the adequacy of the ward'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. In the event of mismanagement or theft, a claim can be made against the conservator's bond by petitioning the court.
What protections are there under conservatorship?
Conservators are under the court’s supervision. After appointment, a conservator is required to file with the court an inventory of the protected person’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. Verifications of assets and expenditures are also filed. The court audits the accountings. Periodically the conservator appears in front of the court to review the accounting. The accountings are public information and can be reviewed by any concerned person.
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.
Who pays for the cost of the guardianship?
Court costs, attorneys' fees for both the petitioner and the proposed ward/protected person, and any ongoing guardian fees are all paid from the protected person's estate. Guardians are allowed to charge a fee for their services. When the ward has no money to pay for guardianship services, the county court or social services department may have a policy regarding paying for some of these costs.
Who pays for the cost of the conservatorship?
Court costs, attorneys’ fees for both the petitioner and the proposed protected person, and any ongoing conservator fees are all paid from the protected person’s estate. Conservators are
allowed to charge a fee for their services. When the protected person has no funds to pay for conservator services, typically there is no need for conservatorship as there are no assets to
conserve and the protected person’s finances can be managed using a less restrictive alternative.
Are there alternatives to guardianship?
Informal assistance from trusted family and friends, 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 MN 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. Parents are often advised to seek guardianship in such circumstances, and are often told that they won’t be able to talk to their son or daughter’s medical providers, that they won’t be able to stop their offspring from entering a contract, that the adult child will no longer have access to governmental or educational services, or that they will be unable to be involved in their adult child’s life unless they are appointed legal guardian.
It is important to know that while all of the above may be true in some circumstances, in many situations, the reality is that parents and other relatives can remain active and involved, without the expense and hassle of seeking the court appointment of a guardian.
For example, if the adult child is agreeable, the parent can still accompany him or her to all medical appointments; better yet, have the adult child sign a Consent for the Release of Information, allowing professionals involved in the adult child’s care and services to openly communicate with the parents or other individuals of the person’s choosing.
Even better, the adult child could sign a Health Care Directive, appointing his or her parent, sibling, or other individual to be the health care agent. This would allow the agent to freely communicate with medical care providers, review the adult child’s medical records, and make health care decisions, including deciding where the adult child will live and receive care. Even a person with cognitive disabilities may still have sufficient ability to understand that signing the document means he or she is giving the named agent the authority to make medical decisions, now or in the future.
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 ward 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, some counties may require the parents to pay them.
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 receive services regardless of guardianship status.
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 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 the situation 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:
- 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.
- 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) the county's Common Entry Point (CEP) or Adult Protection (to find the CEP in your county, go to Related Links on this website [correct this link too]). 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.
- 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).
Additionally, a person hoping to become a professional guardian/conservator must be known to attorneys who represent petitioners in need of a guardian/conservator, as well as others in the medical, housing, and social services fields who may refer persons for guardianship/conservatorship.
Can MAGiC provide legal advice or case consultation?
No. MAGiC is a 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 peruse our website, including FAQ's, resource links, and educational sections and consult with your attorney. Nothing on our website should be considered as legal advice.
MAGiC appreciates your interest in guardianship issues, however, it is not our role to intervene or comment regarding specific guardianship cases or issues. Please do not contact MAGiC seeking legal advice or direction regarding your specific case. If you need help, we encourage you to contact your local court, county social services or attorney associated with the case.