Assigning the best guardian or conservator ensures that an individual’s best interests are prioritized. Gjesdahl Law helps their clients decide what type of guardianship or conservatorship is appropriate and provides guidance along the way. For guardian/conservator legal services in the greater Fargo area, get in touch today.
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When an individual is either too young to make certain legal decisions or is incapacitated to the extent that they can no longer care for their own interests, the court may appoint someone to make decisions on their behalf. That “someone” may be a guardian or a conservator.
A person in need of a guardian or conservator might not be able to meet personal needs or make sound decisions relating to medical care, personal care, diet and nutrition, shelter and safety, or take care of their own personal finances, even with help. A court may appoint a legal guardian and/or conservator to make decisions for another person in some, but not all, areas of that person’s life.
In a guardianship or conservatorship, the person who needs help does not lose certain important rights, like the right to maintain personal privacy, the right to be treated with respect, and the right to be treated as a unique individual with unique needs.
The attorneys at Gjesdahl Law help their clients in North Dakota decide what type of guardianship or conservatorship may be appropriate, as well as provide guidance in all stages of guardianship and conservatorship proceedings.
The court identifies and appoints a person be situated to serve the best interests of the ward or protected person.
In making the appointment, the Court considers the current guardian, kinship, locations, and the reasonable preference of the ward or protected person.
Guardians and conservators must also submit to a criminal history and maltreatment records background check unless they are a government entity, bank, or a parent of a person with diminished mental capacity.
Yes. There are two types of guardianship: a full guardianship and a limited guardianship. Under a full guardianship, the guardian is given the authority to make most decisions for you, including:
Under a limited guardianship, the guardian is given the authority to make only those decisions the ward is unable to make. For instance, a limited guardian may be given the authority to arrange for medical treatment but not decide where the ward will live.
Guardians and conservators must exercise their powers in the best interest of the ward or protected person. The powers and duties of a guardian or those which the court may grant to a conservator include, but are not limited to:
Powers and Duties of the Person:
Powers and Duties of the Estate:
A guardian is someone who has been given legal authority by a court to make personal decisions for an individual who is incapable of making his or her own decisions.
A ward is a person who has a guardian.
Guardianship is a legal arrangement under which a guardian, appointed by a court, has the legal right and duty to care for another, the ward. A guardian is appointed because of the ward’s inability to legally act on his or her own behalf due to minority or mental or physical incapacity. A guardian has the powers and duties over the ward’s person.
A conservatorship is similar to a guardianship except that the conservator, again appointed by the court, has powers and duties over the incapacitated person’s estate.
A conservator is someone who has been given legal authority by a court to handle the financial affairs of an individual who is unable to manage his or her own finances.
A protected person is a person who has a conservator.
The court will appoint a conservator when it determines someone can’t manage his or her own finances usually due to a medical condition such as a developmental disability, dementia, brain injury or stroke. The court appoints a conservator when there is a need to pay for care, manage money or recover stolen assets and when there is no less restrictive alternative than a conservatorship. The conservator acts as an agent of the court. The conservator is responsible to conserve and manage the protected person’s estate and accounts to the court for the management of the estate.
Guardians and conservators must exercise their powers in the best interest of the ward or protected person. The powers and duties of a guardian or those which the court may grant to a conservator include, but are not limited to:
Powers and Duties of the Person:
Powers and Duties of the Estate:
Any person may petition for the appointment of a guardian or conservator. The petition is filed in probate court in the county where the proposed ward or protected person lives. The court will appoint an attorney to represent the proposed ward or protected person if necessary. A court hearing is required and notice of it must be served at least 14 days before the hearing upon the proposed ward or protected person, and upon certain family members, and other interested parties.
The proposed ward or protected person must present at the hearing unless that person waives the right to appear in person or otherwise can’t be physically present. If the court finds that a guardian or conservator is needed, and no less restrictive alternative is appropriate, it will issue an order. The court may order the conservator of the estate to post a bond before “letters of conservatorship” are issued. Letters of guardianship or conservatorship are evidence of the guardian’s or conservator’s authority to act on behalf of the ward or protected person.
Within two months of appointment, a conservator of the estate must file with the court an inventory of the protected person’s real and personal property. A court order, after hearing and notice, is required before a conservator of the estate may sell, mortgage, or lease real property of the protected person. The guardian must give notice by mail to the ward and interested persons prior to the disposition of the ward’s clothing, furniture, vehicles, or other personal effects.
Within 30 days of the anniversary of the appointment date, the conservator of the estate must file an annual accounting with the court. Every guardian or conservator must annually serve notice to the ward and protected person of the right to petition for restoration of capacity, discharge of guardian or conservator, or modification of the orders of guardianship or conservatorship. The guardian must annually file a report regarding the ward’s personal well-being with the court within 30 days of the anniversary date of the appointment.
Guardians are under the court's supervision. Guardians must file an annual Guardian Report with the court, indicating any changes in the ward's situation, any limitations that have been placed on the ward's communication or visitation rights, the adequacy of the ward's care, number of guardian visits, and whether the guardianship is still necessary.
Concerns regarding the actions of a guardian can be addressed to the probate court that appointed the guardian or by filing a complaint of abuse or neglect of a vulnerable adult with the county's adult protection unit. In the event of mismanagement or theft, a claim can be made against the conservator's bond by petitioning the court.
Conservators are under the court’s supervision. After appointment, a conservator is required to file with the court an inventory of the protected person’s assets. Every year thereafter, the conservator files an accounting to the court which lists all of money that has come into the estate and all the money that has been paid out of the estate. Verifications of assets and expenditures are also filed. The court audits the accountings. Periodically the conservator appears in front of the court to review the accounting. The accountings are public information and can be reviewed by any concerned person.
Concerns regarding the actions of a conservator can be addressed to the probate court that appointed the conservator or by filing a complaint of abuse or neglect of a vulnerable adult with the county’s adult protection unit.
Court costs, attorneys' fees for both the petitioner and the proposed ward/protected person, and any ongoing guardian fees are all paid from the protected person's estate. Guardians and conservators are allowed to charge a fee for their services. When the ward has no money to pay for guardianship or conservatorship services, the county court or social services department may have a policy regarding paying for some of these costs.
Informal assistance from trusted family and friends, appointment of a health care agent in a Health Care Directive, private or county case/care managers can all be effective ways to assist the person needing help without the burden and expense of guardianship.
Informal assistance from trusted family and friends, powers of attorney, trusts, authorized representatives for economic assistance applications, automated bill payments or banking services, and representative payees for Social Security, Veteran Administration or railroad retirement income can all serve as effective alternatives to conservatorship. Your county may have other options for money management for people with low income.
While both North Dakota and Minnesota law provides a process for obtaining guardianship for a child with a developmental disability who is about to turn 18, this is not always necessary. Parents are often advised to seek guardianship in such circumstances, and are often told that they won’t be able to talk to their son or daughter’s medical providers, that they won’t be able to stop their offspring from entering a contract, that the adult child will no longer have access to governmental or educational services, or that they will be unable to be involved in their adult child’s life unless they are appointed legal guardian.
In many situations, though, the reality is that parents and other relatives can remain active and involved, without the expense and hassle of seeking the court appointment of a guardian.
For example, if the adult child is agreeable, the parent can still accompany him or her to all medical appointments; better yet, have the adult child sign a Consent for the Release of Information, allowing professionals involved in the adult child’s care and services to openly communicate with the parents or other individuals of the person’s choosing.
Even better, the adult child could sign a Health Care Directive, appointing his or her parent, sibling, or other individual to be the health care agent. This would allow the agent to freely communicate with medical care providers, review the adult child’s medical records, and make health care decisions, including deciding where the adult child will live and receive care. Even a person with cognitive disabilities may still have sufficient ability to understand that signing the document means he or she is giving the named agent the authority to make medical decisions, now or in the future.
If it is believed that guardianship is the only way to ensure the adult child’s care and safety needs are met, contact an attorney who specializes in guardianship. For a proposed ward who does not financially qualify for Medical Assistance, the adult child’s own assets will be required to pay the costs of establishing and maintaining the guardianship. If the adult child does not have sufficient assets to pay for these costs, some counties may require the parents to pay them.
Yes. There is a common misperception among professionals conducting assessments to determine eligibility for county or state programs, or for admission to a care center, that an incapacitated or disabled person must have a guardian to receive services. This is not accurate. Incapacitated persons and persons with disabilities receive services regardless of guardianship status.
Whoever the court determines is in the best interests of the ward or protected person. The factors considered are the current guardian, kinship, and the reasonable preference of the ward or protected person. The court is required to act in the best interest of the incapacitated person when considering who to appoint as guardian or conservator. Guardians and conservators must also submit to a criminal history and maltreatment records background check unless they are a government entity, bank, or a parent of a person with diminished mental capacity.
If you are concerned about the actions or decisions of a guardian or conservator, first talk with the guardian/conservator directly about your concerns and work toward a resolution. Many issues may be resolved through respectful communication.
This might include clarifying the role and limits placed on the guardian/conservator; finding a compromise that both parties can live with; or developing plans to address the problem and reevaluate later. It may be helpful to first write down your concerns, clarifying in your own mind what the issues are to help keep the conversation focused when you talk to the guardian/conservator. If it is an Organization serving as the guardian/conservator, inquire if they have a grievance procedure and follow that process.
Sometimes the problem is based on a breakdown of communication or the situation has become too emotion-laden to deal directly with the guardian/conservator. In this instance, a third party mediator may be of assistance. This could be a qualified mediator or other third party.
You may want to raise your concerns with the guardian/conservator’s attorney if you feel you are getting nowhere with the guardian/conservator. Remember, this action will likely result in a bill for the ward/protected person for the attorney’s time. If you don’t know who this is, contact the probate court to find the name of the guardian/conservator’s attorney, also called “the attorney of record.”
Sometimes issues simply cannot be resolved, and the parties must agree to disagree. However, in rare circumstances, there may be an irreparable breakdown, such that the guardian/conservator can no longer be effective in helping the ward/protected person. The ward/protected person has the right at any time to contact the county probate court to request a change in guardian/conservator, though this is generally ill advised before attempts to resolve the problem with the existing guardian/conservator.
You may decide you want a new guardian/conservator appointed and while this may be appropriate in some situations, remember that:
A guardianship or conservatorship of an incapacitated adult will probably last as long as she lives. It could be ended, however, if she regains the ability to make decisions. A financial conservatorship might be ended if she no longer has any assets to deal with.
Although the guardianship or conservatorship itself will probably continue as long as your family member lives, the person serving as guardian or conservator might change. This could happen if the guardian or conservator dies, moves away, or otherwise can no longer serve in such capacity. A judge could also replace the guardian or conservator with someone else if they repeatedly make poor decisions or neglects his duties. A family member or any other interested person could request a change by filing papers with the court detailing the reasons the guardian or conservator should be replaced.
A conservator is not financially responsible for poor judgment in handling financial matters. The conservator would only be held personally responsible if it were shown to a judge that the conservator was stealing or otherwise committing fraud, or had recklessly risked the person's assets.
If you or other family members think the conservator is consistently making bad decisions for your family member -- either financially or in terms of her personal care -- you can file court papers that raise these issues and have a judge decide whether the conservator should be replaced.
Here are some advantages and disadvantages to setting up a guardianship or conservatorship for someone:
Advantages
Disadvantages
In general, two things must combine to make a guardianship or conservatorship appropriate. One, the person must be physically or mentally incapable of making important decisions for herself. The other circumstance is that she doesn't already have legal documents (such as a living will and a power of attorney for finances) that cover decisions about her personal and financial matters.
A guardianship or conservatorship requires the filing of formal legal papers, followed by a court hearing in front of a judge. Legal pleadings must clearly spell out her physical or mental condition and her inability to make decisions. Family members might have to be notified and given a chance to file their own paperwork with the court, either supporting or contesting the proposed guardianship/conservatorship or the proposed guardian/conservator. The proposed ward must be given a chance to contest the guardianship or conservatorship if she can and wants to. For all of this, you'll likely need the help of a lawyer with guardianship and conservatorship experience.
It's not always easy to determine whether someone is capable of making decisions. In some cases, it's obvious that a guardian and conservator is necessary -- for example, for a person who's unconscious or semiconscious, or who has advanced Alzheimer's or other forms of dementia. But many other people have physical or mental limitations that diminish but don't totally erase their decision-making capacity. In that case, a judge must weigh opinions and options.
Normally, you or another family member who acts as your family member's guardian or conservator would not be paid for performing those duties, although expenses are reimbursed out of her funds. A professional conservator would be paid, and it's up to the judge to decide how much.
In some circumstances, the job of being conservator is very time-consuming and seriously restricts other work the conservator could do. In that case, a special request to the judge can be made for payment to a family member who's acting as conservator.
Yes. There are two types of guardianships, a full guardianship and a limited guardianship. Under a full guardianship, the guardian is given the authority to make most decisions for you including:
Under a limited guardianship, the guardian is given the authority to make only those decisions which you are unable to make. For instance, a limited guardian may be given the authority to arrange for medical treatment but not decide where you will live.
Yes. You and your closest relatives must be notified in writing. If you do not want this to happen, you can challenge the action. As a proposed ward or protected person, you still have certain legal rights. These rights include, but are not limited to:
In addition, the ward or protected person maintains certain legal rights even after a guardianship or conservatorship is implemented. There may be some limits depending on the orders from the court, but in general, a ward or protected person has the right to:
