Guardianship//conservatorship is a court appointment of an individual or organization who has legal authority to make personal (guardian) and/or financial (conservator) decisions for an incapacitated person who is unable to provide for their own basic needs or financial management even with support from others and/or technological assistance. Due to the severity and costs of this intervention, it should only be used when there is no other way to meet an incapacitated person’s needs.
In Minnesota, Public Guardianship is only for persons with developmental disabilities who have no one else in their lives to serve as guardian: in these cases, the Commissioner of MN Department of Human Services is appointed as public guardian; county social services staff are then delegated to carry out the duties of the public guardianship.
All other guardianships/conservatorships are private, regardless of who is appointed as guardian/conservator. Family members or others known to the person may be appointed as guardian/conservator, or an independent (also known as professional) guardian or conservator may be appointed. An independent guardian/conservator charges fees for their service and may be an individual or an organization.
Whoever serves as guardian or conservator takes on significant responsibility. Their actions may be reviewed by the judge, they must account for the money they spend, and they are responsible for involving the person in decision making as able. Guardianship and conservatorship can be the appropriate response for some circumstances, but it is never the “easy answer.”
- Not the end of the conversation. Under Minnesota’s bill of rights for wards and protected persons, guardians and conservators have the duty to consult the individual and consider their wishes when making choices. Services must be individually suited to the person’s needs. A guardian or conservator must remain open to input from the person they serve, even if they disagree strongly. (Minn. Stat. §524.5-120)
- Not unlimited. Minnesota law requires a person requesting an order for guardianship or conservatorship to explain what powers they are requesting, and why they are needed. Some decisions always require the court’s permission, and the individual retains any right not specifically granted to the guardian or conservator. (Minn. Stat. §524.5-120, Minn. Stat. §524.5-313 c4)
- Not forever. Minnesota law requires that whenever feasible, that orders for guardianship and conservatorship be tailored so that they will encourage the development of the ward’s maximum self-reliance and independence. Guardians must report to the court at least every year on the well-being of the individual they serve, and tell the court if the person’s needs have changed. Conservators must report to the court at least once a year reporting income and expenses. The judge can remove or change an order that does not line up with what that person needs. And the individual under guardianship or conservatorship can always ask the court to remove or change their order. (Minn. Stat. §524.5-310 c, Minn. Stat. §524.5-316, 524.5-317)
- Not an easy process. The duties of a guardian or conservator are very serious and are conducted under the court’s supervision. This means they must respond to questions the court asks, file timely reports on how money is being spent, and follow instructions or orders carefully.( Minn. Stat. §524.5-313, Minn. Stat. §524.5-316)