Conservatorship & Guardianship

If you have concerns about your adult child's judgment or decision-making skills, you should consider conservatorship and guardianship. This will allow you to continue to have the authority to make important decisions for their welfare.

What is the difference between a conservator and a guardian?

A conservator is appointed to make financial decisions for a person. This includes the ability to make purchases and pay bills. A guardian is appointed to make personal decisions for a person. This includes the ability to make medical decisions and deciding where the person will live. Many parents choose to become both a conservator and a guardian for their child; however, other persons can take on one or both of these responsibilities and become co-guardians and/or co-conservators.

Conservatorship and guardianship can be ended if the person can show he/she no longer needs assistance making personal and financial decisions.

What is the process to become a conservator/guardian?

A person becomes a conservator and/or guardian by a legal action through the court system. With the help of an attorney, it must be shown that the person needing protection is unable to make financial and personal decisions for themselves and needs a conservator/guardian to make these decisions for them. The potential conservator/guardian(s) will need to appear before the court with an attorney to ask for permission to be appointed.

Every year, within 30 days of the original appointment date, an annual well-being report must be notarized and sent to the court where guardianship was granted.

According to Chapter IV from the Guardianship and Conservatorship Manual from the Minnesota Judicial Branch, (revised 12/10):

1.  What type of people need Guardians or Conservators? Those who may be thought  to be in need of a guardian or conservator include many different types of people such as:

  • a person with a developmental disability;
  • a person who is mentally ill;
  • a person who has experienced a stroke or a head injury which may have resulted in a mental or physical disability;
  • a person who has a disease such as Alzheimer's; or who may be having diminished decision-making capacity.

It is important to recognize that although a person may fit into one of these categories, this does not mean that he or she is necessarily incapacitated and in need of a guardian or conservator. A person's need for decision making support or for a decision maker will vary and depend on his or her ability to make reasonable decisions. The availability of formal and informal support from family or friends or other resources, and adequate planning to assure that his or her needs are met. Guardianship or conservatorship and the need for support in decision?making have to be assessed for each person individually.

2.  What is the criterion for establishing a Guardianship or Conservatorship? The criteria for establishing a guardianship or conservatorship is based on the court making a finding that:

a.  the person is incapacitated,
b.  that the person needs the supervision and protection of a guardian or conservator,
c.  that there is no appropriate alternative which exists which is less restrictive of the person's civil rights and liberties, and,  
d.  that the person chosen to act as guardian or conservator is in the best interests of the proposed ward or protected person.

3.  How is incapacity determined? Determining incapacity requires assessing three factors: Impairment, Functional Capacity, and Decisional Capacity.

a.  Impairment. Impairment generally refers to a person's diagnosed disability or medical condition which may affect the person's decision-making skills. There is no statutory, or legal, definition of impairment, but it generally relates to a person's functional incapacity.

b.  Functional Capacity. Functional capacity means a person's ability to take action to meet personal needs, or demonstrated behavior which indicates he or she can take appropriate or necessary action to have needs met. It must be determined whether and how well the individual can perform activities to meet personal needs and how much assistance is needed with decision making.

c.  Decisional Capacity. Decisional capacity means a person's ability to understand, make, and communicate responsible personal decisions to make sure his or her needs are met. This is similar to informed consent evaluations:

  • Is the person aware of an unmet need or inability in managing personal needs?
  • Is the person aware of alternatives available to meet these needs?
  • Is the person able to express a choice?
  • Does the person understand and appreciate the choice made, and the risks and the benefits?

What assessments should be completed and who should complete them? In order to determine if a person is incapacitated, that person's skills and abilities to make and carry out decisions to meet his or her needs must be assessed in some way. Assessments should be multi-disciplinary, personalized, and comprehensive. Every attempt must be made to ensure that assessments are sensitive to the language, religion, gender, and cultural differences of the person being assessed, and they should involve, as much as possible, family and close friends of the adult.

The assessments should not focus solely on a person's cognitive abilities (such as I.Q.) but on the decisions to be made and the person's ability to understand what is required. A diagnosis of mental retardation or mental illness may not indicate the need for a guardianship or conservatorship, nor does dependency. Instead, look for how that person copes with living. It must also be recognized that at present, the procedures and standards for determining "competency" are uncertain and controversial.

a.  Medical. A medical assessment must be completed by a physician or medical specialist. This should include the person's diagnoses, a list of any medications which may affect decision making skills and abilities, and the results of testing to determine if there are treatable causes of the person's impairment.

b.  Behavioral. A behavioral assessment should be completed by a psychologist, care provider, or behavior specialist. This should include an assessment of any behaviors and necessary interventions which may affect the person's decision-making skills and abilities.

c.  Activities of Daily Living. An assessment of activities of daily living, such as getting dressed, cooking, personal hygiene care, household cleaning, budgeting money, paying bills, etc., should be completed by a care provider, social services provider, occupational therapist, or physical therapist. This should include an assessment of functional capacity to act on decisions to assure personal and financial needs are met.

d.  Social History. A social history should be completed by the person, his or her family, and a social services provider. This should include: a background of the person, what led to incapacity, what does the proposed ward or protected person and the family, if appropriate, think of guardianship or conservatorship, and the person's past and present decision-making skills.

e.  Intelligence. An intelligence test may be completed by a psychologist or psychiatrist. This should include an assessment of decisional capacity to understand decisions that need to be made to meet personal and financial needs.

 

 It is recommended that filing for guardianship begins 3 months prior to the person's 18th birthday.

A person under guardianship still has the right to vote, unless the court specifies that they cannot.

Need more information?

The Arc Guide to Guardianship

This guide shares information about guardianship and alternatives to guardianship, along with frequently asked questions.

Minnesota Association for Guardianship & Conservatorship (MAGIC)

The Minnesota Association for Guardianship & Conservatorship is a nonprofit organization founded in 1989 to explore substitute decision-making for vulnerable individuals.

Conservatorship and Guardianship in Minnesota Manual