Guardianships and Conservatorships
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.
Guardianship and Conservatorship: Roles and Responsibilities
A Guardianship is a legal arrangement where one person, (the “guardian”), is appointed by a court to care for another, (the “ward”), because of the ward’s inability to legally act on his or her own behalf due to mental or physical incapacity. 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 acts as an agent of the court. The guardian has the responsibility to make decisions in the best interest of the ward, with consideration given to the ward’s preferences and needs. 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 who has been given legal authority by a court to handle the financial affairs of an individual who is unable to handle them alone. The court will appoint a conservator when it has been determined that an individual is not able to manage his or her own finances due to, but not limited 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 necessary care, manage money or to recover stolen assets, and when there is no less restrictive alternative to 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. 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. 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/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. Reach out to us for a consultation today.