In my second article of this series, I talked about additional estate planning for Disabled Children/Adults. Our next article in this series today will cover guardian/conservatorships. Sometimes there may be no other alternative for a disabled individual than to have a court appoint a guardian and/or conservator.
A guardianship and/or a conservatorship is the legal proceeding in a state court where a person is appointed as guardian or a conservator to exercise some or all of the legal rights of an incapacitated person called the “Ward” or “Protected Person.” We’ll use the term Ward to mean both for this article. Each term holds a very different meaning even though most people use the terms interchangeably.
Let’s take guardian first. A guardian is a person appointed by the court to make healthcare and personal decisions on behalf of the Ward who cannot make these types of decisions themselves because of any injury, illness or disability. A guardian’s role can be very limited or cover all the powers granted under Minnesota statute. Depending on the person’s level of need, the court will make a decision on the amount of decision making the Ward will have vs. the guardian. The court will determine if the guardian should have custody of the Ward, establish a place to live for the Ward, exercise supervision authority, provide for their care, comfort and maintenance needs. The guardian may also be tasked with taking care of the Ward’s clothing, furniture, vehicles and other personal effects. The guardian may be required to give the necessary consent for medical or professional care, counsel, treatment or service for the Ward. Finally, the guardian may apply on behalf of the Ward for any assistance, services or benefits available to the Ward through any unit of government. Essentially, any non-monetary decisions are considered as part of the guardianship process.
The other piece of this process is a conservatorship. It is possible to have only a guardianship or only a conservatorship or you may need both. A conservator is a person appointed by the court to take care of someone’s finances when he or she cannot make these types of decisions because of an illness, injury or disability. A conservator may also have a very limited role or a broad role. The court again will determine the necessary level of involvement for the Ward and the conservator. The conservator’s powers include the ability to pay reasonable charges for the support, maintenance and education of the Ward, pay lawful debts on behalf of the Ward, manage their estate, exchange or sell real estate on their behalf, approve or withhold any contracts and they also can apply on behalf of the Ward for any assistance, services or benefits available to the Ward through any government unit.
Who can be a guardian or conservator? Most often the party that starts the process with the court for a guardianship and/or conservatorship is a spouse, adult child, close relative, social worker, etc. However, any person with useful knowledge could start the process. Family is most often the preferred choice. You want to have someone who knows and is familiar with the Ward so that they can provide or lineup the best care possible. If there are no appropriate family options, there are professional guardians and/or conservators that for a fee will act as the court appointed guardian/conservator for a Ward.
Once appointed as the guardian and/or conservator for a Ward, there are annual reporting requirements, court hearings, possible bond requirements, background study which are all reviewed by various parties to ensure the Ward is receiving the appropriate level of care and that the Ward’s finances are being managed properly for their benefit. It can be a daunting process for any family. However, those families that have been caring for a disabled child since birth and who are now subject to court and state supervision, it can feel very invasive and frustrating. Be sure to work with someone who is familiar with the process if you have to head down this path.
Please send me an email at email@example.com with any topic suggestions or requests you may have. Although we cannot give you legal advice through the column, we can provide some general information that may be helpful for you to know. Our purpose is to educate and we hope that you can take something new away from this column each time you read it.