Litigation Options for Breach of Fiduciary Duties by a Conservator

A conservator is a person appointed by the probate court to manage a person’s financial affairs or estate. For a conservator to be appointed, the court must determine that the person lacks the capacity to manage his or her own finances and also has demonstrated the inability to make decisions regarding his or her own financial affairs or estate.

When the court appoints a conservator for an individual, that individual becomes a protected person under Minnesota law. The conservator is closely supervised by the probate court and required to file periodic reports with the court. The responsibilities of conservators and processes for court supervision are provided for in great detail by Minnesota statutes.

Duties of a Conservator

Appointing a person to manage another person’s financial affairs is a very serious matter. To ensure that the rights and interests of protected persons are fully safeguarded, Minnesota statutory law governing conservators and conservatorships is complex. The law provides that a conservator is “subject to the control and direction of the court at all times and in all things.”

Duties and powers of the conservator are spelled out by the probate court when the conservator is appointed. Generally, they include the authority and responsibility to provide for the demonstrated needs of the protected person, such as:

• Paying reasonable charges for support, maintenance, and education;
• Using governmental benefits or services to which the protected person is entitled instead of personal funds of the protected person, when possible and appropriate;
• Paying all lawful debts and reasonable charges for support, maintenance, and education of the protected person’s spouse and dependent children;
• Managing the estate, collecting debts and claims in favor of the protected person, and investing funds not currently needed;
• Approving or withholding approval of any contract, except for necessities, which the protected person makes or wishes to make;
• Applying on behalf of the protected person for government assistance, benefits, or services;
• Revoking , suspending, or terminating all or part of a durable power of attorney made by the protected person;
• Petitioning the court to invalidate financial transactions or gifts made by the protected person within two years prior to appointment of the conservator, on the basis that the protected person was incapacitated or under duress, coercion, or undue influence.

The statute provides that the standard of a fiduciary is applicable to all investments made by a conservator. That means the conservator owes a fiduciary duty to the protected person to exercise the highest standard of care.

Petitioning Probate Court When a Conservator Breaches Fiduciary Duties

There are several different options available if a conservator is not fulfilling the duties assigned by the court and provided by statute, depending on the circumstances.

At the Time of the Conservator’s Annual Report to the Court

Each year, the conservator is required to file a full financial report with the court. When the financial report is filed, the protected person or an interested person may file a statement with the court disputing account statements and may also petition the court for any relief that is in the best interests of the protected person. For these purposes, an interested person includes:

• A nominated or appointed guardian or conservator;
• The protected person’s legal representative;
• The spouse, parent, adult children and siblings, or if none of those persons is living or can be located, the next of kin of the protected person;
• An adult who has lived with the protected person for more than six months;
• An attorney for the protected person;
• A government or social services agency providing benefits or to which application for benefits has been made;
• A health care agent appointed pursuant to a health care directive, living will, or other similar enforceable document;
• Any other person designated by the court.

If a petition disputing the conservator’s report or requesting other relief is filed, the court has the authority to appoint a visitor to review the report or plan and make any investigation that the court considers appropriate.

At Times Other than Filing of the Annual Report

If a conservator fails to file the required annual report, the protected person or an interested person may petition for removal of the conservator. More importantly, concerns about a conservator’s conduct or failure to perform fiduciary or other duties can be raised with the probate court at any time.

The protected person or an interested person (as defined above) may petition the court for removal of a conservator at any time on the basis that removal would be in the best interest of the protected person or for other good cause. If the conservator does not agree to resign, the petitioner will have to prove that the conservator acted improperly or not in the best interest of the protected person, in order for the court to remove the conservator.

In any case where a petition is filed, the court may appoint a visitor to conduct an investigation and report back to the court. The court may also involve the original court-appointed attorney who represented the protected person when the conservator was appointed. The probate court has the authority to take any action considered appropriate under the circumstances, including removal of the conservator.

Conservatorship Breach of Duty Litigation Requires Experienced Legal Counsel

In any matter involving appointment or removal of a conservator, or any petition regarding a conservator’s breach of fiduciary duties or other responsibilities, having experienced legal counsel to represent and guide you is essential. The laws are very complex. Without skilled, knowledgeable legal counsel, your chances of prevailing in court could be compromised.

Probate litigation is a central part of my practice at the Dave Burns Law Office. As a member of the Minnesota Association for Guardianship and Conservatorship (MAGiC) and the Hennepin and Ramsey County Guardianship and Conservatorship Panel, I have years of experience with the local courts, as well as extensive knowledge of law and procedures governing conservatorships. I represent all parties conservatorship matters, including contested and uncontested petitions for conservatorship and claims of failure to perform duties and breach of fiduciary duty by conservators.

Most importantly, I understand the emotional and procedural difficulties that families and individuals with cognitive deficits often face when trying to address care and legal issues. When you become a client, my dedication and commitment is to strenuously and capably advocate for your rights and interests, while treating your family — and especially the individual involved — with the compassion and sensitivity that you and your loved one deserve.

If you are facing a conservatorship issue in probate court, I welcome you to contact me at (612) 677-8351 or by emailing dave@daveburnslaw.com. I work with clients throughout the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul.