Who is a guardian?
A guardian is someone who has been given legal authority by a court to make personal decisions for an individual who is incapable of making his or her own decisions. A ward is a person who has a guardian. The court will appoint a guardian when it has been determined that an individual is incapacitated, which means the person is not capable of making personal decisions, has behaviors that demonstrate inability meet personal needs (such as food, clothing, shelter, health care, and safety), and that there are no less restrictive ways to address those incapacities. The guardian acts as an agent of the court. The guardian has the responsibility to make decisions in the best interest of the ward, in consideration of the ward’s preferences and needs. A Guardian must exercise their powers in the best interest of the ward of the protected person.
Who is a conservator?
A conservator is someone who has been given legal authority by a court to handle the financial affairs of an individual who is unable to manage his or her own finances. A protected person is a person who has a conservator. The court will appoint a conservator when it has been determined that an individual is not able to manage his or her own finances usually due to a medical condition such as a developmental disability, dementia, brain injury or stroke; when there is a need to pay for needed care, to manage money or to recover stolen assets and when there is no less restrictive alternative than a conservatorship. The conservator acts as an agent of the court. The conservator has a fiduciary responsibility to conserve and manage the protected person’s estate and is accountable to the court for the management of the estate.
Are there alternatives to guardianship?
Yes. Informal assistance from trusted family and friends, supported decision making, appointment of a health care agent in a Health Care Directive, working with private or county case/care managers can all be effective ways to assist the person needing help without the burden and expense of guardianship. See Less Restrictive Alternatives tab for more information.
Are there alternatives to conservatorship?
Yes. Informal assistance from trusted family and friends, use of powers of attorney, trusts, authorized representatives for economic assistance applications, automated bill payments or banking services, and representative payees for Social Security, Veteran Administration or railroad retirement income can all serve as effective alternatives to conservatorship. See Less Restrictive Alternatives tab for more information.
I do not agree with the guardian/conservator. What should I do?
If you are concerned about the actions or decisions of a guardian or conservator, first talk with the guardian/conservator directly about your concerns to try to work toward a resolution. Most issues are resolved through respectful communication; it may be helpful to enlist the help of trusted friend or professional to have this conversation.
This might include clarifying the role and limits placed on the guardian/conservator; finding a compromise that both parties can live with; or developing plans to address the problem and reevaluate later. It may be helpful to first write down your concerns, clarifying in your own mind what the issues are to help keep the conversation focused when you talk to the guardian/conservator. If it is an Organization serving as the guardian/conservator, inquire if they have a grievance procedure and follow that process.
Additionally, a third-party mediator may be of assistance. This could be a professional mediator, an informal mediator, or other third party. The Office of Ombudsman for Long Term Care or the Office of Ombudsman for Mental Health and Developmental Disabilities should be contacted and is a great resource for the person under guardianship.
You may want to raise your concerns with the guardian/conservator’s attorney if you feel you are getting nowhere with the guardian/conservator. Remember, this action will likely result in a bill for the ward/protected person for the attorney’s time. If you don’t know who this is, contact the probate court to find the name of the guardian/conservator’s attorney, also called “the attorney of record.”
In rare circumstances, there may be an irreparable breakdown, such that the guardian/conservator can no longer be effective in helping the ward/protected person. The ward/protected person has the right at any time to contact the county probate court to request a change in guardian/conservator, though this is generally ill advised before attempts to resolve the problem with the existing guardian/conservator.
I heard it takes a long time to get a guardian appointed. What if there is an emergency?
If the court finds that compliance with the normal procedures to get a guardian appointed will likely result in substantial harm to the person’s health, safety, or welfare, and that no other person appears to have authority and willingness to act in the circumstances, the court, on petition by a person interested in the respondent’s welfare, may appoint an emergency guardian whose authority may not exceed 60 days and who may exercise only the powers specified in the order. Immediately upon receipt of the petition for an emergency guardianship, the court shall appoint a lawyer to represent the person in the proceeding, and reasonable notice of the time and place of a hearing on the petition must be given to the person and any other persons as the court directs. Appointment of an emergency guardian, with or without notice, is not a determination of the respondent’s incapacity. Because many of the due process protections associated with appointing a general guardian are compressed, most Courts are very reluctant to utilized the emergency guardianship process. Issues such as the need to have someone discharged from a hospital are not considered emergencies..
Does the Court prefer to appoint professional guardians/conservators instead of family?
Minnesota statute establishes a priority list of potential guardians/conservators. From highest priority to lowest: a previously appointed guardian/conservator; health care agent appointed under a health care directive (guardian) or attorney-in-fact under a power of attorney; the person’s spouse; adult children; parent; sibling; adult with whom the person has lived for six months or more who is not a paid provider. The proposed guardian/conservator must submit to a background check including: criminal history, substantiated maltreatment of a vulnerable adult or child, and must report any history of bankruptcy, professional license sanctions, and any financial judgements against them.
Deciding Whether Person Needs Guardian FAQS
Is guardianship required for a person with an intellectual or developmental disability once that person turns 18?
No: Guardianship is not required by MN law or policy to receive county, state, or federal services, to sign an IEP, or to move into to a residential home. Families and individuals are often told this, even by professionals, but that is a mistake of professionals, not a statement of law.
Does a person living with Alzheimer's Disease or other forms of dementia need a guardian?
Decisions about the need for guardianship are complex and should never be based purely on a diagnosis of Alzheimer’s or any other disease or disability. Guardianship is rarely needed in situations where someone has Alzheimer’s disease if there are supports available and the person is not resisting help. There are many ways to ensure that someone with dementia has their needs met without the use of guardianship. Depending on the person’s stage in the disease process and their individual abilities to express their preferences and wishes, many alternatives can be considered such as appointing a health care agent who can ensure necessary services are received. A trusted family member or other support person can talk with the person and medical team about signing a release of information so the supporter can continue to be involved in conversations about medical care.
Is Guardianship/Conservatorship necessary for a person with a disability to prevent financial exploitation?
Unfortunately, even people under guardianship/conservatorship may be financially exploited. This intrusive court action should not be pursued simply because of something that may happen; instead, support and protective tools may be utilized to address vulnerabilities to financial exploitation, such as representative payee, a trustee, or attorney-in-fact under a power of attorney, or utilizing banking tools such as on-line monitoring to enable a trusted family member to monitor financial transactions. Another approach would be developing systems where the person has access small amounts of cash on hand, reducing the risk of giving away or losing substantial sums of money, or utilizing debit or store gift cards. It may be advisable for a person with authority to do so to contact the credit reporting agencies to flag credit requests to stop others from attempting to take out credit cards on the person’s name.
Is a guardian needed for a vulnerable adult to be placed in a facility such as a memory care assisted living?
No. Requiring a guardian be appointed for admission to a care setting is discriminatory, removes a person’s basic decision-making rights, and is not required by law. Of course, ensuring that a payer source is available and accessible to a facility is important, and often can be achieved through obtaining rep payee or establishing a fiduciary, such as a trustee, attorney-in-fact under a power of attorney, or a conservator. Additionally, engaging with family or other supports of the individual to sign admission papers and consents is helpful when decisional capacity is in question.
Does a person under a commitment require a guardian?
Not necessarily. Often the desired outcomes when a person is under commitment can be achieved by considering other options that are listed in the less restrictive alternatives tab. Ideally, the person under commitment will receive appropriate mental health care or treatment to stabilize, be discharged from the commitment. Once stable, the person should complete a health care directive, including an advance psychiatric directive, so there is a decision maker in place should the person become unstable again in the future.
If a person has a disability and can’t make decisions independently, does that person need to have a guardian appointed to make decisions for him/her?
Not necessarily: many people are willing to have help making decisions, and can be very successful with support from trusted others in decision making. Few people, even those without disabilities, make decisions completely independently; we all turn to trusted others to help in making decisions that are too complicated for us to make on our own. This is called supported decision making, and empowering and encouraging people with disabilities to make decisions with the support of trusted others should be tried.
I have been told that doctors won’t talk to me as a parent once my child turns 18; do I need to obtain guardianship?
Maybe not. Even a person with a disability can sign a Release of Information, if the person understands the form when someone explains it to them; this will allow health care professionals to talk to supporters, and involve them in decision making. (if a person’s physical disability prevents them from being able to sign, an x or witnessed verbal consent is suitable.) Ideally, the person will complete a Health Care Directive, appointing a health care agent to be able to participate in medical discussions and decisions in the future if the person can no longer make decisions at all. Even a person with significant disabilities may still be capable to appointing a health care decision-maker or supporter, or at least be able to consent to the involvement of a trusted family member or friend.
Is guardianship required for a person with disability to prevent the person from making bad choices?
Guardianship does not remove all risk. Rarely can guardianship effectively prevent a person from ever making any bad choices, short of placing a person in an overly-secure living environment which removes all risk, but also, places excessive restrictions and security through well-meaning desire to remove all chance of harm. Instead, persons with disabilities should receive guidance, coaching, and support to learn to recognize risk and maximize independence at levels reasonable to the person’s disability. The person and their support team (families, professionals, trusted others of their choosing), can work together to identify areas of risk and vulnerabilities, and develop plans to avoid trouble spots and ways to address the trouble when it does arise. No one is exempt from making bad choices; we all do it, and we all learn from our mistakes. We should work with persons with disabilities to address bad choices the same way we work with our family members who don’t have disabilities when they make bad choices.
When a vulnerable adult is refusing necessary care, service, or treatment and is putting themselves in an unsafe situation, should a guardianship be pursued?
If the person is at risk of serious harm, calling the Minnesota Adult Abuse Reporting Center (MAARC) at 1-844-880-1574 is the first step (and 911 if emergency or crime). Considering guardianship in situations like this is complicated. One must determine whether the appointment of a guardian would even be able to fix the situation. Consider whether the guardian would be able to ensure the person’s safety; if the remedy requires the person’s cooperation to accept the necessary services consider the likelihood of the person cooperating. Guardianship is often seen as a way to solve issues such as these, but rarely is it able to “solve the problem.” Creative problem solving, weighing risks and benefits, as well as a person- centered team approach (involving doctors, psychiatrists, social workers, friends, family, etc.) can often be effective tools to mitigate risk to the individual.
The person I’m concerned about has been the victim of abuse or financial exploitation. Does he/she need a guardian?
Not necessarily. The court appointment of a guardian or conservator may or may not be the best remedy for protection against abuse or financial exploitation. There are many interventions to consider depending on the circumstances involved. In all cases, it is important that any abuse or neglect be reported to the MN Adult Abuse Reporting Center (MAARC) at 1-844-880-1574 for possible investigation and to mobilize the unique resources of the county for the protection of the vulnerable adult. Please contact our staff for further information, consultation, advice and resources.
Can a person with a disability receive governmental services even if he or she does not have a guardian?
Yes. There is a common misperception among professionals conducting assessments to determine eligibility for county or state programs that an incapacitated or disabled person must have a guardian to receive services. This is not accurate. Incapacitated persons and persons with disabilities can receive services regardless of guardianship status and may give verbal or written consent for a trusted supporter to act as authorized representative. When an incapacitated person is unable to appoint an authorized representative, counties may allow a person who can act responsibly for the incapacitated person to act as an authorized representative.
Disclaimer: This information is provided to the public in order to provide a general understanding of guardianships and its alternatives. This information should not be considered as a legal reference. If you have any legal questions dealing with guardianships, an attorney should be consulted.