Guardianship and Conservatorship for Incapacitated or Incompetent Adults: Considering the Least-Rest

In our earlier post on guardianship and conservatorship for minor children, we discussed how to go about nominating a guardian and conservator for your children. But what happens when disability, incapacity, or incompetence renders an adult incapable of managing his or her own affairs?

Though guardianships have been around for quite some time, the first guardianship law in Minnesota appeared in 1958. The original purpose of guardianship, and later, conservatorship, was to protect the person and property of individuals who were unable to manage their own affairs. Minnesota distinguishes the roles of guardian and conservator: A guardian is appointed to protect the person of the ward and a conservator is appointed to protect the property of the protected person. Guardians and conservators may be appointed on an emergency, limited, or permanent basis. Guardianships and conservatorships automatically terminate upon the death of the person or upon the person’s restoration to capacity by the court.

Under Minnesota Statute section 524.5-102, subdivision 6, an “incapacitated person” is an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance. A person is declared incapacitated only if a court appoints a guardian under Minnesota statutes section 524.4-303. A determination of incapacity is not needed for the appointment of a conservator.

Before petitioning the court for guardianship or conservatorship, careful consideration should be given to whether or not there are one or more least-restrictive alternatives available. The goal here is to encourage the least possible interference with the respondent’s rights. The court may appoint a guardian and/or conservator if the court finds, among other things, that no appropriate alternatives to guardianship or conservatorship exist.

These less restrictive alternatives may include:

• A Personal Plan. A proposed ward may formulate and implement his or her own plan. Meet Nancy, a 90-year old woman who lives by herself and is finding it more and more difficult to keep up at home and care for herself. Nancy may recognize that she needs to live in a more structured setting, such as an assisted living facility, and agree that moving is in her best interest. Nancy’s ability to articulate that she needs help tends to indicate at least limited capacity and probably negates the need for a guardianship.

• A Third-Party Plan. A proposed ward may also agree to a plan formulated by someone else. In the previous example, Nancy decided that she would move into an assisted living so that she had more support. In this example, Nancy can’t articulate that perhaps she needs additional help, but responds positively to her son’s recommendation that she move into an assisted living facility. This is, again, a fairly unusual alternative in guardianship cases since it presumes that Nancy has at least limited capacity to agree to her son’s recommendation and articulate her desire to move.

• Health Care Directives and Financial Powers of Attorney. We recommend that our estate planning clients execute a health care directive and a power of attorney as part of a comprehensive estate plan. Assuming a person has capacity to execute valid documents, having a health care directive and power of attorney in place can often serve to eliminate the need for a guardianship or conservatorship. A health care directive is a legal document in which a competent adult designates and empowers one or more persons to make medical decisions on his or her behalf when he or she is unable, in the judgment of the treating physician, to make or communicate health care decisions. A health care directive may set out a person’s preferences regarding alternative agents, specific instructions to the agent or agents, limitations on the rights of the agent or agents to review medical records, limitation on the nomination of the agent as guardian, and any anatomical gift under the state. A health care directive generally remains in effect until it is revoked. A power of attorney is a legal document in which a competent adult designates and empowers one or more persons to make financial decisions on his or her behalf. Powers of attorney typically include broad powers, including the authority to pay bills, sell or mortgage real estate, and make investment decisions. A durable power of attorney remains in effect even if the person who made the document becomes incapacitated or incompetent.

• Representative Payees. A representative payee may be named in situations where Social Security or veteran’s benefits are a respondent’s only income. In cases where a representative payee has been named, the benefits would be made payable directly to the third party representative payee instead of the disabled person. This arrangement requires that the Social Security recipient or veteran be disabled.

• Multi-Party Accounts. Many older adults name a trusted child on their bank accounts as a form of convenience. The child then has access to the funds to pay bills and assist mom or dad with their finances. Although this is a common practice, what many people do not understand is that by naming a child as a joint owner on a bank account, that child, as the surviving joint owner, is entitled to any remaining funds in the account upon mom or dad’s death. Naming a child as a joint owner also makes the older adult’s assets vulnerable to a child’s creditor claims.

There are many options to consider prior to petitioning for guardianship or conservatorship. For more information, contact one of our attorneys directly or check our attorneys’ availability and schedule an appointment online anytime. You can also call the office at (507) 288-5567.