Responsibilities of a Guardian or Conservator

As loved ones grow older, they may not always be able to handle their finances or make decisions about their healthcare and welfare on their own. Guardians and conservators can both play a major role in the life of an incapacitated person. However, realizing that your loved one might need a guardianship or conservator can be emotionally overwhelming — and it’s important to know what legal steps you should take.

What is the Difference Between a Guardian and a Conservator?

Under Minnesota law, a guardian or conservator can be appointed when a person has been deemed legally incapacitated. While their roles might seem similar, they have very different responsibilities. Specifically, a guardian’s role is to care for a ward’s personal needs, while a conservator cares for the financial needs of the protected person and manages their estate. Both guardians and conservators must always act in the best interests of the person subject to guardianship or conservatorship and adhere to their wishes whenever possible.

Notably, a judge will always consider the least restrictive means available to help ensure the incapacitated person’s liberty interests are protected. Less restrictive alternatives to a guardianship or conservatorship can include the use of a healthcare directive, trusts, using banking tools, or establishing a power of attorney. However, these tools must be put into place prior to incapacity in order to be effective. A court might also consider a limited guardianship.

What are the Responsibilities of a Guardian?

A guardian is someone who is appointed by the court to provide for the care, comfort, maintenance, health, and safety of the incapacitated person. For instance, they must ensure that the incapacitated person has adequate food and shelter — and the appropriate medical care. They must also care for the incapacitated individual’s personal effects and assist their guardian with any recreational requirements.

Under Minnesota law, the responsibilities of a guardian can specifically include but are not limited to the following:

• Have custody and establish the place of abode of the person subject to guardianship
• Provide for the care, comfort and maintenance needs of the person subject to guardianship.
• Take reasonable care of the clothing, furniture, vehicles and other personal effects of the person subject to guardianship.
• Give any necessary consent to enable, or to withhold consent for, the person subject to guardianship to receive necessary medical or other professional care, counsel, treatment or service.
• Approve or withhold approval of any contract, except for necessities, which the person subject to guardianship may make or wish to make (only given if no conservator is appointed).
• Exercise supervision authority over the person subject to guardianship but may not restrict the ability of the person subject to guardianship to communicate, visit, or interact with others unless the guardian has good cause to believe the restriction is necessary to prevent significant harm to the person subject to guardianship
• Commencing protective proceedings if necessary to protect property
• Apply on behalf of the person subject to guardianship for any assistance, services, or benefits available to the person subject to guardianship through any unit of government (only given if no conservator is appointed).
• Establish an Achieving a Better Life Experience Act of 2014 account under section 529A of the Internal Revenue code (known as an ABLE account) for the person subject to guardianship.
• Start a lawsuit on behalf of and represent the person in all civil proceedings (only given if no conservator is appointed).

Importantly, a guardian is always subject to the control and direction of the court. A guardian is only granted the powers necessary to provide for the demonstrated needs of the person who is subject to the guardianship.

What are the Responsibilities of a Conservator?

While a guardianship has to do with safeguarding the incapacitated individual’s welfare, a conservatorship specifically deals with handling the protected person’s estate if they are unable to do so on their own. A conservatorship gives another person the authority to enter into contracts, pay bills, make prudent investments, file tax returns, and apply for government assistance on behalf of the incapacitated person.

The responsibilities of a conservator in Minnesota include the following:

• Filing an inventory report with the court within 60 days of being appointed
• Filing an annual accounting of the incapacitated person’s estate
• Signing the Annual Notice of Right to Petition to Restoration to Capacity and providing a copy to the ward

If the court appoints a conservator who can no longer serve in the role, a successor conservator may need to be appointed. In addition, if there is no conservator, the guardian has the power under Minnesota law to approve contracts, apply for government assistance, and commence lawsuits on behalf of their ward.

What Rights Does a Person Subject to a Guardianship or Conservatorship Have?

It’s essential to understand that a person who is subject to a guardianship has crucial legal rights. They may still control the things in their life that have not been ordered by the court to be the responsibility of the guardian or conservator. An incapacitated person also has the right to personal privacy and to choose who they want to talk or visit with.

Generally, an incapacitated person also has the right to vote, have children, and marry — although this might require court approval. In addition, a person subject to a guardianship must receive the medical treatment they need in a timely manner, and they may review a conservator or guardian’s plans to deal with their personal belongings.

Contact an Experienced Minnesota Guardianship and Conservatorship Attorney

If you are a guardian or conservator, it’s vital to understand your responsibilities to your ward. At Dave Burns Law Office, I provide reliable representation and committed counsel to guardians and conservators in Minnesota, in addition to handling a wide variety of matters in connection with guardianships and conservatorships. To learn more about how I can help, I welcome you to contact me at (612) 677-8351 or by emailing dave@daveburnslaw.com. I assist clients throughout the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul.