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What is guardianship?  


A legal arrangement under which one person, a guardian who is appointed by a court, has the legal right and duty to care for another, the ward, because of the ward’s inability to legally act on his or her own behalf due to minority or mental or physical incapacity. Black’s Law Dictionary 707 (6th ed. 1990). A guardian has the powers and duties over the ward’s person. MS 524.5-313
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What is conservatorship?


A conservatorship is similar to a guardianship except that the conservator who has been appointed by the court has powers and duties over the incapacitated person’s estate. MS 524.5-418
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Who is a conservator?


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 has been determined that an individual is not able to 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 needed care, to manage money or to 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 has a fiduciary responsibility to conserve and manage the protected person’s estate and is accountable to the court for the management of the estate.
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Who is a guardian?


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. The court will appoint a guardian when it has been determined that an individual is not capable of making personal decisions in the case of guardianship. The court appoints a guardian when there is a need for personal decisions (medical, health, residential). The guardian acts as an agent of the court. The guardian has the responsibility to make decisions in the best interest of the ward, in consideration of the ward's preferences and needs.
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Who are wards and protected persons?


The terms ward and protected persons are legal terms that recognize the individuals who are intended to receive Guardian or Conservator Services. Wards who have had guardians appointed are minors or incapacitated adults who are impaired to the extent lacking sufficient understanding or capacity to make or communicate responsible personal decisions and who have demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety. MS 524.5-310. Protected persons are those individuals who have had conservators appointed for them because they lack similar capacity and have demonstrated behavioral deficits regarding their estate or financial affairs. MS 524.5-401
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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. MS 524.5-309. 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 mental retardation. MS 524.5-118 subd. 1.
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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:

  1. The power to have custody of the ward and the power to establish a place of abode.
  2. The duty to provide for the ward’s care, comfort and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements.
  3. The duty to take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects.
  4. The power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment or service.
  5. 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.
  6. The duty and power to exercise supervisory authority
    over the ward.
  7. The power to apply for government assistance on behalf of the ward, if no conservator has been appointed for the ward. 
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Powers and Duties of the Estate:


  1. The duty to pay the reasonable charges for the support, maintenance, and education of the protected person.
  2. The duty to pay out of the protected person’s estate all just and lawful debts of the protected person.
  3. 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.
  4. The power to approve or withhold approval of any contract, except for necessities, which the protected person may make or wish to make.
  5. The power to apply for government assistance on behalf of the protected person. MS 524.5-418
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How is a guardianship or conservatorship established?


Any person may petition for the appointment of a guardian or conservator.MS 524.5-303.

A petition requesting appointment is filed in the probate court of the county of residence of the proposed ward or protected person. The court will appoint an attorney to represent the proposed ward or protected person if neither the proposed ward or protected person or others provide counsel.MS 524.5-304 (b); .524.5-406 (b).

A court hearing is required and notice of it must be served at least 14 days before the hearing personally upon the proposed ward or protected person and by mail upon the spouse, parents, adult children, brothers and sisters, health care agent or proxy pursuant to a health care directive or living will, or if none of the aforementioned are alive or can be located, on the nearest kindred, the administrative head of any hospital, nursing home, or home care agency of which the person is a patient, resident, or client, any adult who has lived with the ward or protected person for more than six months, and a government agency paying or asked to pay benefits to the ward or protected person. MS 524.5-308; 524.5-404.

The proposed ward or protected person shall be present at the hearing unless that person waives the right to appear in person or is not able to attend by reason of a medical condition as evidenced by a written statement from a licensed physician. If after the hearing the court finds that a guardian or conservator is needed, and no less restrictive alternative is appropriate, then a court will issue an order. At the hearing, the court may order the conservator of the estate to post a bond before the 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.

 

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