Setting up a conservatorship is a process that takes several steps and almost certainly requires the help of Minnetonka MN estate planning attorneys focusing on estate preparations. However, many people who have heard of the term are unfamiliar with what it actually means.
To understand how conservatorships work in Minnesota, we’re going to first look at what the difference is between a guardianship and a conservatorship. These terms are often used alongside each other but they have slightly different meanings that are important to understand if you’re wondering which is right for your needs.
Once we grasp the difference between guardianship and conservatorship we will look at the duties that a conservator has. Finally, we’ll look at how one goes about the process of establishing a conservatorship.
What’s the Difference Between Guardianship and Conservatorship?
These two roles are very similar but also paradoxically quite different. This is the reason that you see them mentioned together so often. They are both about helping to take care of another person, typically because they’re too young, they’re disabled or chronically ill, or they’re elderly and lack the capacity to manage their affairs.
In some cases, it is necessary to have an individual whose responsibility is to look after the personal care, custody, and control of another person. This is the role of the guardian. A guardian has the authority to make decisions like where a ward should live or what kind of medical treatment that a ward should get. They’ll take care of issues like food and social requirements. They have some control over the ward’s assets, such as their clothing or furniture and they are required to make reports to the court about the ward’s wellbeing on at least an annual basis.
A conservator, on the other hand, is focused on making the financial decisions for that person. To do so they are given the power to collect conserved assets, to pay whatever bills are due, to make investments on behalf of the individual, or to perform other financial functions. A conservator will usually be involved in some form of estate planning. But a conservator cannot act just according to their own will. They have certain duties they have to live up to that are there to ensure that they don’t take advantage of their position for their own gain.
What Duties Does a Conservator Have in Minnesota?
One of the most important duties that a conservator has is to seek court approval for transactions like the purchase or sale of real property, the gifting of assets, or any time they work on estate planning for the protected person. This is an incredibly important duty to keep in mind because it is what prevents the individual from abusing the protected person.
In addition to seeking the courts permission to act, a conservator has a duty to create an inventory of the protected person’s estate within sixty days of being appointed. This means they have to include real estate, furniture, clothing, mortgages, debts, bonds, plus any and all additional personal property.
The conservator needs to file an annual accounting with the court. They also have to keep up with and pay for the support, maintenance, and education of the protected person, pay their debts, and manage their estate.
What Rights Are Typically Granted in a Minnesota Conservatorship?
Many people cannot make decisions for themselves because of advanced age, a catastrophic injury or illness, or a mental incapacity or disorder. If this includes someone you love, consider speaking to a Minneapolis conservatorship attorney about setting up a conservatorship.
A conservatorship may also benefit Minnesota families who have aging loved ones with conditions – such as dementia or Alzheimer’s – that may seriously impair their mental capacity.
What exactly are conservatorships? Who in Minnesota should have conservatorships set up for them? What are a conservator’s duties and obligations?
What Are Conservatorships?
A conservatorship is established in this state when a court appoints someone who is age 18 or older – called a “conservator” – to manage the financial affairs of a minor or an incapacitated adult.
Conservatorships and guardianships are legally distinct, although the same individual may serve as both a conservator and as a guardian. An adult’s guardian generally oversees the adult’s health care and daily routine, while the guardian of a child has a role comparable to the role of a parent.
Conservators are responsible for protecting an individual’s finances, properties, and assets. When a Minnesota court receives a petition for conservatorship, a conservator may be named to make the financial decisions for someone who can’t make those decisions himself or herself.
What Are a Conservator’s Rights and Obligations?
A conservator may pay someone’s bills and taxes, but conservators must obtain court approval to purchase or sell someone’s real estate, to make certain investments, to give away someone’s assets, or to conduct any significant estate planning on a protected person’s behalf.
Within the first sixty days of being designated, a conservator in Minnesota must take an inventory of the protected individual’s estate and include that person’s bonds, mortgages, notes, debts, real estate, clothing, furniture, and the rest of the individual’s personal property.
After that first inventory, a conservator in Minnesota must submit annually a report that details all income and expenditures for the year as well as a list of current properties and assets.
When Do Conservatorships End?
A conservator ensures that the protected person’s support, maintenance, and education (if the protected person is a minor) are properly paid for. In many cases, the court may require the conservator to post a bond to help deter theft or misuse of the protected individual’s assets.
A conservatorship ends in the following situations:
- Upon the death of the protected individual
- At age 18, if the protected individual was a minor and is not disabled or incapacitated
- Upon an order from the court
If the protected individual passes away and no will is in place, it’s important to understand what happens when someone dies without a will in Minnesota. This can help guide the next steps for distributing their remaining assets.
Who May Be a Conservator?
Family members and qualified others may act as conservators. No certification or license is needed, although a background check will be conducted by the Minnesota Department of Human Services. Anyone who is interested and found acceptable by the court may be a conservator.
How Are Conservatorships Established?
A conservatorship is established when, with the help of a legal representation for conservatorship issues in Minneapolis, someone petitions the court to name a conservator for someone who needs the protection. The person who needs protection has the right to legal representation at a conservatorship hearing.
The petitioner must prove to the court with “clear and convincing” evidence that a conservatorship should be established. That can be a difficult task if the individual who needs the help disputes his or her need for it.
The court may reject the conservatorship petition, establish a general conservatorship, or set up a limited conservatorship. In other words, depending on the details of the court’s order, a conservator could have considerable or only limited authority over someone’s finances.
Throughout the entire legal process, the individual who is the subject of the proposed conservatorship has the right to a lawyer’s advice and representation, whether or not that individual can personally afford legal counsel.
What Does Minnesota Law Now Provide?
Changes to Minnesota’s conservatorship laws took effect in 2020. The revisions were made to protect the independence and basic rights of persons who may – or may not – need to have a conservatorship established for them.
To establish a conservatorship, the law now requires courts to spell out the reasons why a less restrictive alternative to conservatorship will not work for the individual in question.
A court must also consider whether “supported decision making” – an approach that allows a protected individual to retain greater independence – would meet that person’s needs more effectively.
What Are the Pros and Cons of Setting Up a Conservatorship?
Conservatorships in Minnesota are supervised by the court and offer a disabled or incapacitated person more legal protection than some of the alternatives. But conservatorships can also be quite complicated and time-consuming.
The record keeping and reporting must be detailed and precise, and if a conservator must have court approval for an investment or real estate transaction, additional attorney fees will be required and the investment or real estate transaction may be delayed.
If a conservatorship is the right answer for your family, a conservatorship lawyer will submit a conservatorship petition on your behalf and guide you through the legal process.
How Can You Plan in Advance?
When an adult, while still fully capable, has established a durable power of attorney for finances, that individual may not require a conservatorship. Instead, the representative or agent designated in the power of attorney document will fulfill the functions of a conservator.
A power of attorney for finances may be drafted and prepared with the help of an attorney. Your attorney may also be able to recommend other alternatives to conservatorship.
Before you establish a conservatorship, have an attorney answer all of your questions and address all of your concerns. Choose an attorney who regularly works with Minnesota families to establish conservatorships, guardianships, durable powers of attorney, and special needs trusts.
An incapacitated loved one deserves and needs the best. To learn more about setting up a conservatorship, to file a conservatorship petition, or if you need to challenge a conservator or a conservatorship, schedule a consultation – at once – with a Minneapolis conservatorship lawyer.
How Do You Establish a Conservatorship?
It takes a few steps in order to establish a conservatorship. This is another of those areas where the additional steps help ensure the court appoints the proper person as conservator..
The steps to establishing a conservatorship are:
- Hire a Good Attorney: This process only goes forward when you have an attorney, so make sure you research and hire the right one..
- Prepare Court Papers: Your attorney will prepare the necessary paperwork to establish the conservatorship.
Sign Paperwork: Go over the paperwork with your attorney and sign it. - File Papers: Your attorney files the paperwork with the court and the filing fee is paid.
Court Assigns Hearing Date: The court opens a file for the process and assigns a hearing date at least two weeks later (though this can be longer depending on the court calendar). - Attorney Provides Notice of Hearing: Formal notices of hearing are sent to individuals that are required to be notified about the hearing by law.
- Attorney Gathers Information/Documents: Any additional information and documentation that is necessary is gathered.
- Court Visitor Meets with Ward: A court visitor will go to the ward’s place of residence, read the required legal paperwork, interview them and prepare a visitor’s report prior to the hearing.
- Ward Meets with Attorney: The proposed ward is entitled to their own attorney, though they can waive this right if they choose. They can meet with their attorney prior to the hearing.
- Attorney Prepares for Hearing: Your attorney will prepare you for what to expect at the hearing. How much preparation is needed depends on the particular case.
- Hearing: The hearing itself is held and testimony is taken. This can be a contested or uncontested proceeding; a contested hearing will be much more involved than an uncontested hearing.
- Judge Makes a Decision: Having heard both sides, the judge then provides a decision about whether the conservatorship will be granted.
- Paperwork Issued: The court will issue papers to the conservator that grants them their authority.
- Meeting with Attorney About Duties: You and your attorney will meet again to discuss your duties and ensure that you fully grasp your obligations as a conservator.
Do I Really Need an Attorney?
You should have an attorney before filing for a conservatorship of an individual. Reach out to the talented attorneys at Stone Arch Law Office if you need help setting up a conservatorship in Minnesota.
