Setting up a conservatorship is a process that takes several steps and almost certainly requires the help of an experienced attorney. 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?
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.
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.