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 sees that the protected person’s support and maintenance (and education if the protected person is a minor) is paid for. In many cases, a conservator may be required to post a bond to deter any theft or misuse of the protected individual’s assets. A conservatorship ends:
- 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
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 Minneapolis conservatorship lawyer, 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.