Elder Law: “FAQ about Guardianships and Conservatorships”

What is a “Conservator” or “Conservatorship”?  A “Conservator” is someone who handles your finances and cares for your estate when you have been found unable to do so for yourself. Unlike a Power of Attorney, however, a Conservator makes decisions instead of you rather than in addition to you – meaning, you lose your right to make your own financial decisions, and someone appointed as your Conservator makes those decisions on your behalf and “in your best interest.”

What is a “Guardian” or “Guardianship”?  Similarly to a “Conservator,” a “Guardian” makes decisions for your person (not your financial decisions). For example, where you live, health care decisions, clothing, food, to name just a few. Unlike a Health Care Directive, this person makes decisions instead of you rather than only when you are unable to make your own – meaning, you lose your right to make your own decisions (listed above, as a start) about your person and someone appointed as your Guardian makes those decisions on your behalf and “in your best interest.”

When and why would someone need one or both? Some individuals need one or both for their entire lives due to some sort of disability. Others need one or both temporarily due to some sort of injury from which they eventually recover. Still others gradually lose their ability to care for themselves and/or their finances over time (commonly, as we age). When an individual is unable to make these decisions, one or both is appointed to handle these important issues on the individual’s behalf, in their best interest, and for their own safety and security.

Who can be a Guardian or Conservator?  Often, family members will offer or are nominated for such appointments. But, there are also professional Guardians and Conservators, usually appointed by the court. Even a friend, other “interested party,” or capable volunteer can request appointment. But, all potential appointees must pass a criminal background check successfully, be willing to keep good records, and report to the Court as necessary.

Who decides who is appointed?  The Probate and Mental Health Court (although not all counties have this specialized court) by scheduling a hearing.  All parties, the Petitioner (the person requesting the appointment of one or both), the Respondent (the person who will have a Guardian or Conservator appointed on their behalf), and any appropriate/necessary witness(es) must attend (unless there is a good reason to be excused).  The Judge or Referee assigned to the hearing will make the decision to appoint or not, and decide who is to be appointed, if appropriate.

How does the Court make the decision?  Using a set standards and factors (established by law), the Court weighs the facts and circumstances of the Petitioner’s petition and the Respondent’s response to the petition by hearing evidence for both sides. After the Court hears the evidence, it decides only the least restrictive solution to protect the best interests, health, safety, finances, and well-being of the respondent, and only if deemed necessary based on the evidence presented.

How do I request one or both for my loved one?  By Petition to the appropriate Court. An attorney may be helpful in this matter and is recommended for many reasons. But, a Petitioner may proceed pro se (without an attorney).

What if someone has petitioned for one or both and I don’t agree with the need for one or both?  An individual may “object” to the Petition. Again, an attorney may be helpful in this matter as well, and is recommended. But, a Respondent may proceed pro se (without an attorney). This objection would be addressed at the hearing.

How might an attorney help? Some attorneys specialize in this area. They know the laws of Minnesota, have experience with this type of court proceeding and preparation for the hearing, and can assist in navigating through choices the Petitioner and/or the Respondent may have. In addition to advice and counsel, attorneys are able to take the lead in both court proceedings and prior or subsequent negotiations with the parties. If you cannot afford an attorney of your choice, the Court may appoint one for you.

ALL READERS:   This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.