When is a Guardianship/Conservatorship necessary?
A guardianship/conservatorship should only be entertained if the individual’s judgment or decision making is a threat to his or her general wellbeing or there is a potential for unintended waste of assets.
The evidence must show that the individual cannot make necessary decisions on his or her own behalf, in other words the court can make finding of “incapacity.” Incapacity is defined as being unable to meet one’s own needs, whether personal or financial.
What is a Guardianship/Conservatorship?
In a guardianship the person who needs help is called a “ward,” and the person who is legally responsible for that person is called a “guardian.” A guardian looks after the personal needs of the ward. A guardian has the power to make personal decisions for the protected person, such as medical care, or where the person will live.
In the case of conservatorship of the estate, an incapacitated person is:
"an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, (Minnesota Statute § 524.5-102, subdivision 6) and the Court will need to evaluate evidence that shows the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual.
Further, in both guardianship and conservatorship matters, it must also be shown that there is no other less restrictive way in which to assist this individual. Court intervention is considered a “last resort” as the courts are ultimately stripping away someone’s ability to make their own personal choices. This creates a high standard with less opportunity for abuse of discretion.
What is the difference between Conservatorship and Guardianship?
A guardian is appointed to make the personal decisions for the ward. The guardian has decision making authority for matters such as choice of place to live, medical decisions, training and education, etc. A guardian can be given authority to approve or withhold approval of contracts, except for necessities, but this power is only given if there is no conservator of the estate.
A conservator is appointed to make financial decisions for the protected person. The conservator typically has the power to contract, to pay bills, invest assets, and perform other financial functions for the protected person. Conservatorship is tailored to transfer financial decision-making power to the conservator only in the areas of life where protection and supervision by a conservator has been proven necessary. A conservatorship does not assume, or presume, that the proposed protected person is incapacitated in all areas of his or her life. There is no evidence of, or finding of, general incompetence. The individual can still marry, make a will or vote unless specified by the court that the individual is incapable of doing so.
For both guardianships and conservatorships, the appointed person must report to the court (usually on an annual basis) as to the status and general wellbeing of the protected person, what money was received by the protected person, how it was spent and why. The appointed person must show that a guardianship and/or conservatorship continue to be necessary. The guardian and conservator may be held responsible if he or she is not making decisions in the best interests of the protected person, including doing anything frivolous with the protected person’s money.