When Guardianships And Conservatorships Become Necessary
Sometimes the ones we love are not able to handle their own finances or medical decisions. When you realize that your loved one needs financial matters handled or medical decisions made, but you do not have the authority, a guardianship and/or conservatorship may be necessary.
Our elder and special needs law attorneys can help establish both for yourself or the elder or special needs members of your family. But first, let us distinguish the difference between guardianship and conservatorship and their respective responsibilities.
Roles And Responsibilities
Legally, a guardianship means that a court appoints one person to provide care for someone else (known as the “ward”) because they cannot legally act on their own because they are underage or in some way mentally or physically incapacitated. Guardianships are specifically for matters related to an individual’s “person” and day-to-day care. This includes medical decisions, where the person lives and who provides the person with care. A guardian has the authority to access health information and make major decisions for the ward’s wellbeing. Certain medical procedures require advance court approval before the guardian can act.
Once empowered by the court, the guardian is in the position of an agent of that court. The guardian is responsible for making decisions that are in the ward’s best interest, with consideration given to what the ward needs and prefers in any circumstances. Guardians must file an annual 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.
A conservatorship is similar to a guardianship except it deals primarily with financial matters. A “conservator” is someone to whom a court has given legal authority to manage the financial affairs of another person who cannot do so on their own. If it has been shown that someone cannot manage their own finances, the court may appoint a conservator to protect that person’s wellbeing.
Reasons for which the person cannot handle their own finances may include medical conditions such as the effects of a stroke or mental disabilities such as dementia. When a court has confirmed that there is not a less restrictive alternative to a conservatorship, the court may appoint a conservator to complete tasks such as hiring caregivers, managing accounts, recovering stolen possessions of the person and in similar circumstances.
Fiduciary Duties Of The Conservator
As an agent of the court, the conservator must fulfill their fiduciary responsibility to conserve and manage the protected person’s estate. The conservator must be able to verify for the court that they have properly managed the estate. After receiving an 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 the money that has come into the estate and all the money that has been paid out of the estate. Verification of assets and expenditures are also filed. The court audits the accounts. Periodically, the conservator appears in front of the court to review the accounting. Certain transactions require advanced court approval, such as the sale of real property, changes to an estate plan or initiation or settlement of legal cases.
Understanding the process of being appointed a guardian or conservator can be challenging, and the work of adhering to the guidelines of guardianship and conservatorship must be clearly reviewed and followed. If you feel a loved one needs a guardian or conservator appointed to them, or that a current guardian or conservator is failing to fulfill their duties, reach out for a consultation with our elder and special needs lawyers. Minnesota law offers protections for the elderly and those with special needs.
Our attorneys can help you make the most of this protection to ensure that the people you love are well cared for and that all their needs are met. We review plans for IEP (Individualized Education Programs), assist in claiming medical assistance and perform other services that benefit the elderly and people with special needs.