Guardianship and Conservatorship

When a person is incapacitated and can’t manage their own affairs, a court can name someone to help. Incapacitated means the person is so impaired that they don’t have the understanding or ability to make or communicate good and safe personal decisions. They can’t meet personal needs for medical care, food, clothing, shelter or safety, or take care of finances, even with help. A court decides if someone is incapacitated.

A person is not automatically incapacitated because they have a certain diagnosis like Alzheimer’s Disease or because they have a developmental disability. The court reviews a lot of things besides a diagnosis when deciding if someone is incapacitated or not.

The court may decide to give a guardian or conservator power to make decisions in some but not all areas of a person’s life. This is called a Limited Guardianship or Conservatorship. A full Guardianship or Conservatorship is usually considered a last resort when no other supports have effectively helped a person.

In a guardianship or conservatorship, the person who needs help does not lose important rights, like the right to vote or the right to personal privacy, unless the court has a good reason and makes a specific order. 

• In a guardianship the person who needs help is called the person subject to guardianship. (used to be called the ward) The person helping is called the guardian. A guardian looks after the personal needs of the person subject to guardianship.

• In a conservatorship the person who needs help is called the person subject to conservatorship. (used to be called the protected person) The person who helps is the conservator. A conservator looks after the financial affairs of the person subject to conservatorship.

Sometimes, the court names a guardian and a conservator to help. The court looks for ways to help the person subject to guardianship or conservatorship with the least amount of limits possible.

Guardianships and conservatorships are very serious and are only set up if there is a good reason. Minnesota law encourages people to try other, less restrictive things before filing for guardianship or conservatorship. Some things people might try are:

• setting up a health care directive. See our fact sheet Health Care Directives.

• setting up a power of attorney. See our fact sheet Power of Attorney.

• naming a representative payee for social security benefits, or

• getting a case manager to help.
   

A person asking the court for guardianship has to explain what other things they tried and why they didn’t or won’t work.

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

• A conservator has power over the estate – They take care of the person’s money and property. They handle the income and pay the bills.
   

The guardian or conservator don’t have to pay for these things out of their own money. They use the person subject to guardianship or conservatorship’s money. But they must tell the court – usually yearly – what money came in to the person subject to guardianship or conservatorship, how it was spent and why. They can be held responsible for doing the wrong things with the money.

Guardians and conservators must talk with the person subject to guardianship or conservatorship and follow their wishes as much as possible. Guardians and conservators must act in the best interest of the person subject to guardianship or conservatorship.

For example, a guardian can’t agree to medical care that they know is against the person subject to guardianship’s beliefs. They cannot limit the freedom of the person subject to guardianship unless it is needed to protect them from danger.

The person subject to guardianship or conservatorship has legal rights. There may be some limits depending on the orders from the court. But in general, they have the right to:

• Be treated with respect. This includes respecting medical preferences and religious beliefs.

• Get needed medical treatment in a timely manner.

• Control the things in life that have not been ordered by the court to be someone else’s responsibility.

• Have a guardian or conservator who meets their needs.

• Ask the court if they want to change where they live or keep someone from moving them.

• Decide what should be done with personal belongings like clothes, furniture, vehicles. They also have the right to ask the court to review a guardian or conservator’s plans to deal with their personal belongings.

• Personal privacy.

• Choose who they want to talk to or visit with (unless there is reason to believe that that the visit may cause harm to safety or health).

• Marry. But they might need court approval.

• Have children. A person subject to guardianship or conservatorship has the right to consent or object to sterilization.

• Ask the court to end or change the guardianship or conservatorship.

• Be represented by an attorney in any proceeding, including helping them to ask the court for changes.

• Vote.

• Make a Health Care Directive and appoint a health care agent. See our fact sheet Health Care Directives.

A person files a request (called a Petition) to ask the court to name them or someone else as a guardian or conservator for a person who needs help. The person who needs help must be given notice of the Petition. The person who needs help has the right to a lawyer. If they can’t afford a lawyer, the court can order the county to pay for one.

The person filing the Petition must show “clear and convincing” evidence that a guardianship or conservatorship is needed. This can be hard if the person who needs help doesn’t agree. If the court grants guardianship or conservatorship, then the court order will specify the protections that the ward or protected person needs. The order could give the guardian or conservator full powers but it also may be limited to certain areas of need.

There are forms to ask the court to set up a guardianship or conservatorship for someone who needs help at www.mncourts.gov.        

The court decides who is appointed as the guardian or conservator. The court might choose:

• a guardian that is currently helping the person in this state or another state

• an agent appointed by the person in a health care directive or Power of Attorney

• the spouse or another person nominated in a will

• an adult child of the person

• the parent of the person, or

• someone whose job is to serve as a professional guardian or conservator
   

For the most part, paid caregivers like medical care providers or nursing home residences cannot be appointed as the guardian or conservator.

If it makes sense for 2 people to be appointed as guardian or conservator, for example two adult children of a senior with advanced dementia, then the court may appoint two co-guardians or co-conservators.

Yes. The guardian or conservator is always under the authority of the court, and a person subject to a guardianship or conservatorship can ask the court to order them to do something differently.

A a person subject to a guardianship or conservatorship has a right to a lawyer in any guardianship or conservatorship proceeding. If a person knows who their court appointed lawyer is they can contact them for help. A person can also call or write to the probate court to ask for a hearing and ask that a lawyer be appointed to help them.

Yes. The court can end the guardianship or conservatorship if the person subject to guardianship or conservatorship shows the court that they no longer need help or protection. Usually, a doctor, social worker or therapist needs to testify that the person subject to guardianship can handle his or her own affairs. If the court agrees, court supervision ends and the person subject to guardianship or conservatorship is free to make their own decisions.

For more information, there is a Guardianship and Conservatorship video from the Minnesota Judicial Branch.

here is also a Minnesota Judicial Branch Guardianship and Conservatorship Manual. 

Volunteers of America has a project that works to reduce guardianships and conservatorships and replace them with “supported decision making.” This is an alternative that is less limiting and can give the person more power to make their own choices and decisions. For more information go to: https://www.voamnwi.org/center-excellence-supported-decision-making.