Founding Attorney
There often comes a point in time where you will need to make a decision regarding whether a loved one has become unable to manage his or her own affairs. It can be a difficult time and a difficult decision, but it can also be necessary to protect your loved one. In Minnesota, guardianships and conservatorships are established through legal proceedings in which a court appoints a person to take on decision-making powers for a protected person. The protected person is referred to as the “ward” or the “conservatee.” In order to establish a guardianship or conservatorship, the court must first determine that the protected individual is in fact incapacitated and unable to make decisions for himself or herself. This is not a task taken lightly by the court. Establishing a guardianship or conservatorship has powerful implications for the protected person. While a guardianship or conservatorship are both used to help protect a vulnerable person, there are some major differences between the two that should be understood.
What is the Difference Between a Guardianship and a Conservatorship?
The main differences between a guardianship and a conservatorship revolve around the duties and responsibilities of those appointed to the position of making decisions on behalf of the ward or conservatee. For instance, a guardian is appointed by a court in order to make decisions regarding the care and comfort of the ward. This means that the guardian is tasked with making decisions regarding the ward’s medical treatment and living arrangements. The guardian also has the ability to provide consent on behalf of the ward to receive necessary medical treatment or professional care.
In determining who should serve in the role of guardian for the ward, the court is allowed broad discretion. The preferences of the ward may be taken into account in some instances. Usually, the guard is a family member.
A conservator is appointed by a court to serve as a financial decision-maker for the conservatee. Generally speaking, a conservator has the power to:
- Collect and preserve assets of the conservatee
- Pay bills
- Make financial investments
- Perform other financial tasks
In some cases, the conservator is empowered to establish estate plans on behalf of the conservatee. The conservator must first, however, seek approval from the court before engaging in an estate plan on behalf of the protected individual. Court approval is also required should the conservator would want to buy or sell real estate on behalf of the conservatee or gift assets on his or her behalf.
In establishing a conservatorship, a general finding of incompetence is not, in fact, required. The protected individual does not have to be declared incompetent in regards to all aspects of life. A conservatorship can be merited upon demonstrating that the protected individual needs help effectively managing financial affairs. This limited finding is only necessary because the powers of a conservator are very limited. They are limited specifically to the managing and conserving of the protected individual’s assets and finances.
A guardianship or a conservatorship is not to be taken lightly. Appointing a guardian or a conservator effectively limits the protected person’s ability to make decisions on his or her own behalf. Should you want to protect a loved one, but do not want to go so extreme as to establish a guardianship or a conservatorship, you should explore less restrictive options first. This may include putting a power of attorney in place or establishing a revocable living trust. Advance directives can also be very effective.
Minnesota Trusts and Estates Attorney
If you have a loved one who is experiencing difficulty managing their own affairs or going about day to day life, talk to Unique Estate Law about your options. We are here to counsel you on how it may be best to legally protect your loved ones. Contact us today.