Minnesota Conservatorship Law

When a person cannot manage their own affairs, a court can allow someone to help. The two ways to do this are called guardianship and conservatorship. Guardianships are used when someone needs help with personal needs. Conservatorships are for financial affairs. The person who needs help does not have to be incompetent. Incompetent means someone cannot make their own decisions. In a guardianship or conservatorship, the person who needs help does not lose important rights, like the right to vote, unless the court has a good reason and makes a specific order.

In a guardianship the person who needs help is called the ward. The person helping is called the guardian. A guardian looks after the personal needs of the ward.

In a conservatorship the person who needs help is called the protected person. The person who helps is the conservator. A conservator looks after the financial affairs of the protected person.

Sometimes, the court will name both a guardian and a conservator to help. The court always looks for the least restrictive way to help the ward or protected person.

A conservator has power over the estate – They take care of money and property. They handle the income and pay the bills of the ward. They must tell the court – usually yearly – what money came in, how it was spent and why. They can be held responsible for doing the wrong things with the money. A conservator has no authority to make decisions regarding another individual’s personal affairs. Only a guardian has such power.

A guardian has power over the person – They make personal decisions for the protected person, such as medical care, or where the person will live.

Guardianship and/or conservatorship are efforts to protect those who are mentally ill, developmentally disabled, physically disabled or elderly who are unable to make some decisions about their lives by themselves. The law contains many safeguards and reporting provisions designed to prevent someone from abusing the powers of guardianship or conservatorship.

Conservators and guardians must act in the best interest of the ward or protected person. For example, a guardian cannot agree to medical care that they know is against the protected person’s beliefs. They cannot limit the protected person’s freedom unless it is needed to protect them from danger.

Conservators are named by a court. The court oversees their actions. They make the decisions and the protected person loses power to make decisions. With a power of attorney, you give someone written consent to act for you in financial or property matters, but you do not yourself lose the right to make those decisions. You don’t need to go to court to give a power of attorney. The court does not check on your agents actions.

When the court appoints you to be the conservator of an estate, you will:

  • Manage the conservatee’s finances;
  • Protect the conservatee’s income and property;
  • Make a list of everything in the estate;
  • Make a plan to make sure the conservatee’s needs are met;
  • Make sure the conservatee’s bills are paid;
  • Invest the conservatee’s money;
  • Make sure the conservatee gets all the benefits he or she is eligible for;
  • Make sure the conservatee’s taxes are filed and paid on time;
  • Keep exact financial records; and
  • Make regular reports of the financial accounts to the court and other interested persons.

Establishing a Conservatorship

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 personally 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.

What are the alternatives to a conservatorship or guardianship?

Revocable living trust. Through the establishment of a revocable living trust the individual can appoint a trustee to manage his or her financial affairs and thus can avoid the need for an appointment of a conservator of the estate. A person must be competent to establish a living trust.

Power of attorney for asset management. A power of attorney is a document in which the individual can delegate to an agent the power to make financial transactions on his behalf if he is unable to do so himself. However, the individual must be competent to execute a power of attorney, and the agent acting under the durable power of attorney is not subject to court review of his or her actions.

Health care directive. An individual can nominate an agent to make health care decisions on his behalf in a health care directive. These health care decisions can include the decision to withdraw or continue life support systems. The individual can also give specific instructions as to health care in the directive. As with a living trust and power of attorney for asset management, a person must be competent to execute a health care directive.

Joint tenancy property. While the joint tenant may make decisions regarding the property that is held in joint tenancy, there are significant risks that make this form of ownership a poor choice for the purposes of asset management. In particular, in a joint bank account, a joint tenancy allows either joint tenant to access the funds; thus one joint tenant can withdraw all the joint tenancy funds. Further, there can be adverse tax and estate planning consequences as a result of creating a joint tenancy.

For assistance, contact an experienced Minnesota litigation lawyer at the firm of Your Family Guardian Law Firm Law Office.  We represent clients throughout the Minneapolis-St. Paul metropolitan area including Edina, Plymouth, Bloomington, and St. Louis Park, Minnesota.  Contact us at 612-604-5146.