National Elder Law Month – Guardianships and Conservatorships

An often-overlooked part of a person’s estate plan is planning for incapacity. Most people think of “death” and making sure they have a will and/or trust. However, equally important is planning for what would happen if you were to become incapacitated or incompetent during your lifetime. That is where documents such as a power of attorney and health care directive come into play. These documents can direct agents you designate in the documents to handle your financial and medical affairs during your lifetime, if you were unable to do so. But what happens if you don’t have incapacity documents; then who is “in charge”? That is where a guardianship and/or conservatorship can come into play.

Guardianships and conservatorships are court proceedings whereby an individual or fiduciary service is appointed as your guardian and/or conservator due to your inability to properly handle your financial and/or medical affairs. If you have incapacity documents in place, those designated agents have the ability to make those decisions for you without the involvement of the court. If you do not have those documents and you were to become incapacitated or incompetent, then a guardianship/conservatorship proceeding may become likely.

In Minnesota, guardianships and conservatorships are separate matters. A person could be subject to just a guardianship, or just a conservatorship, or both. In other states the words “guardianship” or “conservatorship” may be used interchangeably. A guardianship is needed when someone is unable to manage their personal well-being – i.e., they no longer can take care of their medical needs, they are unable to make proper decisions as to where they should live, they can’t live alone or they are a danger to themselves, among other reasons. A conservatorship is when someone is unable to handle their financial affairs – they cannot properly pay their expenses, they do not understand the concept of money, they cannot properly apply for benefits on their own, i.e. they need someone to manage their money. Guardianships and conservatorships are also used if someone is being taken advantage of, or is subject to fraud, threats, undue influence and pressure.

The process for a guardianship/conservatorship is someone (family member, friend, interested party) petitions the court to be appointed as that person’s guardian and/or conservator. As stated previously, these are two separate matters in Minnesota. Sometimes a person may need help financially (they are being taken advantage of by a child, for example), but they are still able to live on their own and take care of themselves – in this case they may only need a conservatorship. Once a petition is filed the court will schedule a hearing. The person possibly subject to the guardianship/conservatorship will have a court-appointed attorney assigned to represent them and they will also meet with a court visitor, both of whom submit reports to the court as to whether a guardianship and/or conservatorship is needed. Once the court hearing is held, if no objections are presented, the guardian/conservator will be appointed.

Guardianships and conservatorships provide protection to the person subject to the court matter. The “negative” of a guardianship/conservatorship if you want to call it that, is that the process is costly and takes a significant amount of time. In addition, the guardian/conservator will have to file yearly reports with the court, and if they are the conservator file annual accountings. The guardian/conservator has a duty to report to the court on a yearly basis and keep accurate records of all actions they take as the guardian/conservator. It’s important to remember that the court and the departments overseeing guardianships/conservatorships are there to protect the person subject to the guardianship/conservatorship – they need to make sure that person’s best interests are being met. If a guardian/conservator fails at those duties, the court could remove them from the position.

It’s important to discuss with your family members whether they have their incapacity documents in place in hopes that if an incapacity/incompetency situation arises, their interests could be protected and met through a power of attorney and health care directive, rather than having to go through the costly and timely guardianship/conservatorship process. It’s important to note that even if you have a power of attorney and health care directive document there are still situations where there may still be a need to pursue a guardianship/conservatorship, however having named agents in those documents is telling the court “this is who I would want as my guardian and conservator” if that situation arose; you are not then leaving it up in the air as to who you would have preferred in those roles and leaving that decision up to others. So in essence, make sure you have your incapacity documents prepared and executed; however, if you don’t there is a court process in place to protect your needs.