What happens when an aging loved one cannot care for himself or herself any longer or a child with disabilities reaches adulthood, but cannot care for his or her own needs?
Under Minnesota law, 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. If the court finds that a person is "incapacitated", then the court may appoint a guardian and/or a conservator.
A guardian is someone who is appointed by the court to make legal decisions for someone who is unable to make decisions on their own. A conservator is someone appointed by the court to make financial decisions for someone who does not have the capacity to do so on their own. In order to become someone’s guardian or conservator you must first petition the court. Once you have petitioned the court, a legal action is started to determine whether or not guardianship/conservatorship is necessary, and to formerly appoint the guardian/conservator. Guardianship and conservatorships are not always the most appropriate option. It is important to consult with attorney about less restrictive options, and whether a guardianship/conservatorship is right for your family.
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 children'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 children's recommendation and articulate her desire to move.
Health Care Directives and Financial Powers of Attorney. 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 Payee. 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.
Determining whether to pursue a guardianship and/or a conservatorship can be a difficult decision. When you have questions and need answers, our attorneys are here to help.
When you are ready to speak to an attorney, you can contact us below or book an appointment online. Initial probate consultations are provided at no charge as a courtesy to you. If you'd like to speak to an attorney today, call our office at 507-288-5567. We look forward to working with you!