When a person cannot take care of himself or herself, the court can place the person under guardianship. The person under the guardianship is called a “ward,” and the ward loses the legally ability to act on his or her own behalf. A guardian is appointed by the court to have the legal right and duty to care for the ward with the powers and duties over the ward’s person. MS 524.5-313 To be appointed by the court, the proposed guardian brings a petition to the court and proves the ward is unable to function safely and needs a guardian.

A conservatorship is over the “estate” of the ward, that is all of money and property owned by the ward. MS 524.5-418 Often the petition for guardianship is for “Guardian and Conservator” because usually the ward needs both a guardian and a conservator, and one person can fill both roles.
These roles are separate just as the Power of Attorney for finances is separate from the Health Care Directive. These two documents are highly recommended for everyone over age 18 because the Power of Attorney and Health Care Directive, properly used, will replace the need for a court hearing. This is especially important for people who can see that they will need someone to help them, but incapacity can happen to anyone of us. The cost of a Power of Attorney and a Health Care Directive are about $100, compared to over $1000 for a court hearing.

Wards who have had guardians appointed are minors or incapacitated adults who are impaired to the extent lacking sufficient understanding or capacity to make or communicate responsible personal decisions and who have demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety. MS 524.5-310. Protected persons are those individuals who have had conservators appointed for them because they lack similar capacity and have demonstrated behavioral deficits regarding their estate or financial affairs. MS 524.5-401

The court appoints the guardian and/or conservator based on the Best Interests of the ward or protected person. The factors considered are the current guardian, kinship, and the reasonable preference of the ward or protected person. MS 524.5-309. Guardians and conservators must submit to a criminal history and background check unless they are a government entity, bank, or a parent of a person with mental retardation. MS 524.5-118 subd. 1. In Northeast Minnesota, an organization called Lutheran Social Services Guardianship Options provides professional guardian and conservator services for a fee. If there is no free or low cost family option, I do recommend LSS and I have worked for them.

At this time, there are no educational or licensure requirements for guardians/conservators in Minnesota. However, the National Guardianship Association (NGA) does offer a registered guardian (RG) program. Many find it helpful to seek training through educational opportunities offered through MAGiC and NGA (www.guardianship.org), as well as private study of the laws governing guardianship (MN Statutes 524.5-101 through 524.5-433), and related web sites, such as the state courts website, which includes forms and a guardianship/conservatorship informational manual (www.courts.state.mn.us) (Click “Forms” on top menu bar, then click “Guardianship/Conservatorship”, then scroll to relevant forms and guardianship manual).

Additionally, a person hoping to become a professional guardian/conservator must be known to attorneys who represent petitioners in need of a guardian/conservator to nominate, as well as others in the medical, housing, and social services fields who may refer persons for guardianship/conservatorship.

Guardian of the Person has the following:

1. The power to have custody of the ward and the power to establish a place of abode.
2. The duty to provide for the ward’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements.
3. The duty to take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects.
4. The power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment or service.
5. The power to approve or withhold approval of any contract, except for necessities, which the ward may make or wish to make, if no conservator had been appointed for the ward.
6. The duty and power to exercise supervisory authority over the ward.
7. The power to apply for government assistance on behalf of the ward, if no conservator has been appointed for the ward. MS 524.5-313

Conservator of the Estate has the following:

1. The duty to pay the reasonable charges for the support, maintenance, and education of the protected person.
2. The duty to pay out of the protected person’s estate all just and lawful debts of the protected person.
3. The duty to possess and manage the estate, collect all debts and claims in favor of the protected person and invest all funds not needed for debts, charges, and the management of the estate in accordance with the Prudent Investor Rule.
4. The power to approve or withhold approval of any contract, except for necessities, which the protected person may make or wish to make.
5. The power to apply for government assistance on behalf of the protected person. MS 524.5-418

Any person may petition for the appointment of a guardian or conservator. MS 524.5-303. A petition requesting appointment is filed in the probate court of the county of residence of the proposed ward or protected person. The court will appoint an attorney to represent the proposed ward or protected person if neither the proposed ward or protected person or others provide counsel. MS 524.5-304 (b); 524.5-406 (b). A court hearing is required and notice of it must be served at least 14 days before the hearing personally upon the proposed ward or protected person and by mail upon the spouse, parents, adult children, brothers and sisters, health care agent or proxy pursuant to a health care directive or living will, or if none of the aforementioned are alive or can be located, on the nearest kindred, the administrative head of any hospital, nursing home, or home care agency of which the person is a patient, resident, or client, any adult who has lived with the ward or protected person for more than six months, and a government agency paying or asked to pay benefits to the ward or protected person. MS 524.5-308; 524.5-404.

The proposed ward or protected person may be present at the hearing. If after the hearing the court finds that a guardian or conservator is needed, and no less restrictive alternative is appropriate, then a court will issue an order with a document called the “Letters of guardianship and conservatorship.” The court may order the conservator of the estate to post a bond before the letters of conservatorship are issued. Letters of guardianship or conservatorship document the guardian’s or conservator’s authority to act on behalf of the ward or protected person.

Within two months of appointment, a conservator of the estate must file in the court an inventory of the protected person’s real and personal property. MS 524.5-419. A court order, after hearing and notice, is required before a conservator of the estate may sell, mortgage, or lease real property of the protected person. MS 524.5-418 A. The guardian must give notice by mail to the ward and interested persons prior to the disposition of the ward’s clothing, furniture, vehicles, or other personal effects. MS 524.5-313 (c) (3).

Within 30 days after appointment date, the conservator of the estate shall file an annual accounting with the court. MS 524.5-420. Every guardian or conservator shall annually serve notice to the ward and protected person of the right to petition for restoration of capacity, discharge of guardian or conservator, or modification of the orders of guardianship or conservatorship. MS 524.5-310 (e); 524.5-409 (e). The guardian shall annually file a report regarding the ward’s personal well-being with the court within 30 days of the anniversary date of the appointment. MS 524.5-308 (d).

If a ward is concerned about the decisions of a guardian or conservator, first talk with the guardian/conservator directly about concerns and work toward a resolution. Most issues are resolved through respectful communication.

It is helpful to first write down the concerns to clarify what the issues are to help keep the conversation focused. If direct communication does not resolve the concerns, and if an Organization is serving as the guardian/conservator, inquire if they have a grievance procedure and follow that process.
A third party mediator may be of assistance. This could be a professional mediator (check the yellow pages of your local telephone phone directory) or an informal mediator or other third party. A ward may also contact an attorney.

The ward may raise concerns with the guardian/conservator’s attorney. This will likely result in a bill for the attorney’s time that is paid by the ward.

The ward has the right to contact the county probate court to request a change in guardian/conservator. If the current guardian/conservator does not agree to resign, the ward must prove to the court that the guardian/conservator has not acted in the best interest of the ward/protected person or that the ward has changed and no longer needs the services. This could be time-consuming and expensive.
Suspected abuse, neglect, or financial exploitation of a vulnerable adult should be reported to the county s Adult Protection (insert link here). A ward is considered a vulnerable adult. If the report meets the criteria, the Adult Protection staff will complete an investigation. Knowingly filing false reports to the County could result in civil penalties and punitive damages. However, a good faith reporter is immune from civil or criminal liability that may arise as a result of the report. If the matter is criminal or involves theft, the County should automatically refer it to the police if necessary. The ward has the right to report to both places.

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