The primary difference between a guardianship and a conservatorship is the level of responsibility of the person providing assistance; a guardian provides for or helps manage personal care for a person (“ward”), whereas a conservator provides for or helps manage financial matters for a ward.
In some situations, a ward only needs either a guardianship or a conservatorship, but not both. When both a guardian and conservator are required, these roles might be filled by the same person or by different people or professionals. You can also have more than one person in each role who can work together to provide for the ward’s needs.
Choosing the right guardian or conservator is essential; you want to ensure the person in these roles is trustworthy, proactive, and capable. Working with an estate planning attorney can get you started in the right direction.
Discover more about the difference between guardianships and conservatorships below as well as how a lawyer can help.
What Does a Guardian Do?
In Minnesota, a guardian provides oversight or assistance involving the care of personal needs for a ward. In some instances, that could mean the ward lives with the guardian and the guardian provides day-to-day care such as clothing, feeding, and, in the case of a minor child, parenting the ward.
Of course, guardians may also help a ward without living with them. They can help set up living accommodations or education opportunities or make major medical decisions on the ward’s behalf.
How Does Someone Become a Guardian?
Guardians can be nominated directly in your will document. For example, parents may nominate an individual they trust to act as guardian for their minor children; that guardianship would be created if the parents passed away or were incapacitated. You can do the same for a dependent adult.
If you plan to name someone as the guardian for your children or dependent adult, talk to them first and ensure they’re willing and able to take on this responsibility. Then make sure you discuss with your estate planning attorney the best way to make your intentions clear.
Another way for someone to become a guardian is through court appointment. Interested parties can petition the court to appoint them (or someone else) as a guardian of a ward if they believe the individual is unable to care for themselves properly.
What Does a Conservator Do?
In Minnesota, conservators are primarily concerned with the financial needs of an individual. They don’t typically make decisions about education or healthcare or provide day-to-day care. Instead, they work to ensure financial responsibilities are handled.
A conservator may:
- Manage someone’s financial accounts
- Make investments on behalf of a person
- Buy or sell property on behalf of the ward
- Pay the ward’s bills
- File tax returns and required annual reports
- Create budgets or financial plans for the ward and provide oversight to ensure the plans are followed
Conservators can work on behalf of minor children, dependent adults, or other adults who have been deemed unable to make their own financial decisions.
How Does Someone Become a Conservator?
Conservatorships are set up in the same manner as guardianships. You can make proactive plans for conservators for your minor children or dependent adults in your estate plan. Courts can also appoint conservators when someone petitions them to do so and the court agrees that there is a need for this level of intervention.
How Does Minnesota Provide Protections for Wards?
Minnesota law does provide some protections for wards who have guardians or conservators. Guardians and conservators are fiduciaries, which means the people in these roles have legal obligations to act in the best interest of their wards.
For example, a conservator may be allowed to make investments on behalf of a ward. However, they can’t purposefully make risky investments simply because they aren’t working with their own money. They must be able to demonstrate that they were making decisions with the interests of the ward in mind at all times.
If someone does not act in the best interest of their ward and it’s brought to the court’s attention, the court can remove that person as guardian or conservator and appoint a new person or professional. Conservators may also need to file annual financial reports to demonstrate they are managing a person’s assets well, and Minnesota requires court-appointed guardians and conservators to sign up with the Guardian and Conservator Registry.
What Can an Estate Planning Lawyer Do to Help?
A lawyer experienced in guardianship and conservatorship matters can provide professional guidance through the process of setting up these relationships.
When you work with a lawyer to set up a guardianship or conservatorship for your minor children or adult dependents, you have the luxury of proactive planning and the time to consider your options and make decisions you think are best for your loved ones. You can also set the wheels in motion for guardians or conservators for yourself if you’re ever incapacitated in the future.
Contact Stone Arch Law Office today to learn more about how we can help.