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Guardians & Conservators

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.

Someone who may need 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 deciding what type of guardianship or conservatorship may be appropriate, as well as providing guidance in all stages of guardianship and conservatorship proceedings.

Common Questions About Guardians & Conservators

Who serves as guardian or conservator?

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.

Are there different types of guardianships?

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:

  • where you live;
  • medical treatment;
  • legal matters;
  • financial matters;
  • educational and vocational matters.

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.

What are the powers and duties of a guardian or conservator?

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:

  • The power to have custody of the ward and the power to establish a place of abode.
  • The duty to provide for the ward’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements.
  • The duty to take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects.
  • The power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment or service.
  • The power to approve or withhold approval of any contract, except for necessities, which the ward may make or wish to make, if no conservator had been appointed for the ward.
  • The duty and power to exercise supervisory authority over the ward.
  • The power to apply for government assistance on behalf of the ward, if no conservator has been appointed for the ward.

Powers and Duties of the Estate:

  • The duty to pay the reasonable charges for the support, maintenance, and education of the protected person.
  • The duty to pay out of the protected person’s estate all just and lawful debts of the protected person.
  • The duty to possess and manage the estate, collect all debts and claims in favor of the protected person and invest all funds not needed for debts, charges, and the management of the estate in accordance with the Prudent Investor Rule.
  • The power to approve or withhold approval of any contract, except for necessities, which the protected person may make or wish to make.
  • The power to apply for government assistance on behalf of the protected person.

Additional Guardians & Conservators Questions & Answers

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:

  • The power to have custody of the ward and the power to establish a place of abode.
  • The duty to provide for the ward’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements.
  • The duty to take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects.
  • The power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment or service.
  • The power to approve or withhold approval of any contract, except for necessities, which the ward may make or wish to make, if no conservator had been appointed for the ward.
  • The duty and power to exercise supervisory authority over the ward.
  • The power to apply for government assistance on behalf of the ward, if no conservator has been appointed for the ward.

Powers and Duties of the Estate:

  • The duty to pay the reasonable charges for the support, maintenance, and education of the protected person.
  • The duty to pay out of the protected person’s estate all just and lawful debts of the protected person.
  • The duty to possess and manage the estate, collect all debts and claims in favor of the protected person and invest all funds not needed for debts, charges, and the management of the estate in accordance with the Prudent Investor Rule.
  • The power to approve or withhold approval of any contract, except for necessities, which the protected person may make or wish to make.
  • The power to apply for government assistance on behalf of the protected person.

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:

  • If the current guardian/conservator does not agree to resign, you will have to prove to the court that the guardian/conservator has acted improperly, or not in the best interest of the ward/protected person before the court will remove the person and appoint a different guardian/conservator.  This could be time-consuming and expensive.
  • A new guardian/conservator will still be in charge and responsible for court-appointed areas of decision-making.  If the nature of the concern is about having a guardian/conservator in the first place, it may make more sense to continue trying to work with the existing guardian/conservator rather than go through the expense and hassle of seeking a successor guardian/conservator.

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

  • Lets family members know that someone is making decisions;
  • Gives clear legal authority to deal with third parties;
  • Provides a process to have a judge approve major decisions;

Disadvantages

  • Costly to set up, requiring a lawyer, legal papers, and a court hearing;
  • Time-consuming, including extensive ongoing paperwork;
  • Can be humiliating for an older adult who is still somewhat capable;
  • Can be emotionally difficult if family members disagree about who should be guardian and conservator;

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.

  • If she hasn't prepared a power of attorney for finances, she might need a conservator of the estate.
  • If she doesn't have a medical directive or living will, she might need a guardianship to make healthcare decisions.
  • Even if she has a medical directive, she might still need a guardianship to decide health matters that aren't covered in the medical directive (if the medical directive doesn't already name an agent to make those decisions).
  • Even if she has a power of attorney for both health care and finances, she might need a guardianship to make decisions about her personal life -- where she's to live, for example, or who's allowed to spend time with her.

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.

  • If she can communicate, a judge may want to speak directly to her, or have a special court officer do so, in addition to reading reports from doctors and family members. The judge or court investigator will ask whether she understands the court proceedings, whether she wants a conservator, and whether she feels she can make her own decisions.
  • If, after a preliminary investigation, it's still not clear whether she needs a conservator, or who that conservator should be, the judge may appoint a separate lawyer to represent her in the court proceedings.
  • The judge might appoint a conservator but limit the conservator's authority to certain decisions only, with other decisions requiring a further court hearing.

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:

  1. where you live;
  2. medical treatment;
  3. legal matters;
  4. financial matters;
  5. educational and vocational matters.

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:

  • The right to have (and participate in) the guardianship and conservatorship hearing; 
  • The right to consult an attorney;
  • The right to have your attorney present during the hearing;
  • The right to bring witnesses to testify for you.
  • The right to have your own doctor testify;
  • The right to have your attorney ask questions of the witnesses against you.

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:

  • Be treated with respect.  This includes respecting about medical preferences and religious beliefs;
  • Get needed medical treatment in a timely manner;
  • Control the things in life that have not been ordered by the court to be someone else’s responsibility;
  • Have a guardian or conservator who meets their needs;
  • Ask the court if they want to change where they live or keep someone from moving them;
  • Decide what should be done with personal belongings like clothes, furniture, vehicles.  They also have the right to ask the court to review a guardian or conservator’s plans to deal with their personal belongings;
  • Personal privacy;
  • Choose who they want to talk to or have visit them (unless there is reason to believe that that the visit may cause harm to safety or health);
  • Marry and have children.  A ward or protected person has the right to consent or object to sterilization;
  • Ask the court to end or change the guardianship or conservatorship;
  • Be represented by an attorney in any proceeding, including helping them to ask the court for changes;
  • Vote;
  • Make a Health Care Directive and appoint a health care agent;