How adult guardianship and conservatorship work

Appointment requires more than missing planning documents

In Minnesota, for example, guardianship requires clear and convincing evidence of incapacity and identified needs that less restrictive means cannot meet. Missing planning documents alone do not satisfy this test.

Incapacity includes insufficient understanding or capacity for personal decisions and inability to meet needs for medical care, nutrition, clothing, shelter or safety, even with appropriate technology and supported decision making assistance.

The court must make findings specific to the person explaining why less restrictive alternatives do not work. Alternatives include appropriate technology, supported decision making, community or residential services and appointment of a health care agent. Other states differ.

The financial appointment has its own test

In Minnesota, for example, conservatorship requires separate findings about financial management, property or support needs, and less restrictive alternatives.

Clear and convincing evidence must establish inability to manage property and business affairs because of impaired information processing or decision making despite appropriate technological assistance, or because the person is missing, detained or unable to return to the United States.

A preponderance of evidence must establish property at risk of waste or dissipation without management, or a need for money for the person's support, care, education, health and welfare or for individuals entitled to the person's support.

That finding must also establish that protection is necessary or desirable to obtain or provide money. The person's identified needs must be unmet by less restrictive means, with specific findings explaining why alternatives do not work.

Alternatives include appropriate technology, supported decision making, a representative payee, trusts, banking or bill paying assistance, or appointment of a financial agent. The court may instead enter another appropriate order with appropriate findings, or dismiss the proceeding.

Appointment of a conservator or entry of another protective order is not a determination of incapacity. Other states differ.

The court controls the scope of authority

In Minnesota, for example, guardians and conservators remain under court control and direction. Their powers are limited to demonstrated needs, and powers not specifically granted to a guardian after a written finding remain with the person. Other states differ.

Real estate transactions need particular attention

In Minnesota, for example, conservatorship real estate may be sold, mortgaged or leased through a petition, notice, hearing and court order process.

The court may direct the transaction when personal property is insufficient for debts, estate charges or support, maintenance and education of the person, spouse and dependent children, or when the transaction is in the person's best interest.

A homestead transaction requires filed written spousal consent. A sale or lease also requires a report and court confirmation process. Here, a lease means one or more years unless context indicates otherwise.

Without a court order, an existing mortgage may be extended for five years or less only with the same prepayment privileges and interest no higher than the existing mortgage's lowest rate. Other states differ.

Reporting and conflicts remain subject to oversight

In Minnesota, for example, a conservator must file a detailed estate inventory within 60 days after appointment. It must include an oath or affirmation of completeness and accuracy as far as available information permits.

The conservator must retain administration records and make them available on reasonable request to the court, the person subject to guardianship or conservatorship, or their attorney.

A guardian reports in writing on the person's condition at least annually and whenever ordered. A conservator reports on estate administration annually unless the court directs otherwise, upon resignation or removal, upon termination and when otherwise directed.

Copies of these reports go to the person concerned and interested persons of record with the court.

A conservatorship estate transaction affected by a conflict between fiduciary and personal interests is voidable unless expressly authorized by the court after notice to interested persons.

Covered transactions include those entered into by the conservator, the conservator's spouse, descendant, agent or lawyer, or an enterprise in which the conservator has a beneficial interest. Other states differ.

The Department of Justice describes possible court responses to guardian abuse, including account restrictions, investigation, repayment orders, limited powers, replacement and termination. These are possibilities for a court with jurisdiction, not promised outcomes.

Recovery may depend on a bond, and some courts do not require bonding. The Department of Justice advises reporting suspected guardian mistreatment to adult protective services.

Ending an appointment also has safeguards

In Minnesota, for example, guardianship ends at death, expiration of its ordered duration or court order. Anyone interested in the person's welfare may petition when guardianship assistance or protection is no longer needed.

The court may modify powers when protection is excessive or insufficient, or capacity concerning support, care, education, health and welfare has changed enough to warrant modification.

Before termination, appointment safeguards apply unless the court orders otherwise for good cause. Once the petitioner establishes a prima facie case, termination and discharge follow unless continuation is proved in the person's best interest.

Adult conservatorship ends at death or court order. Anyone interested in the person's welfare may petition when conservator assistance or protection is no longer needed.

Appointment safeguards apply before termination unless the court orders otherwise for good cause. A prima facie case requires termination unless continuation is proved in the person's best interest. Termination leaves prior liability and accounting obligations intact.

At death, the conservator distributes probate property to the personal representative and nonprobate property to successors in interest. The final report and discharge petition are due within 30 days after distribution.

Hearing notice goes to interested persons and the personal representative. Final discharge requires approval of the report and satisfaction of other court conditions. Other states differ.

Two related terms

Conservatorship means court appointed management of a person's estate in the Minnesota example, subject to that state's financial appointment requirements. Other states differ.

Supported decision making, in Minnesota, for example, is help from people the individual chooses to understand potential personal and financial decisions and, consistently with the individual's wishes, communicate decisions already made. The individual makes the decisions, and other states differ.

EstatePlanner.com resources to open next

• How financial agents are chosen and held accountable

  Open this guide to focus your next discussion on financial agent selection and accountability alongside the court oversight described here.

• Who can manage a business and investments during incapacity

  Use this guide to frame questions about your business interests and investments before discussing the scope of a proposed court appointment.

• How health directives communicate treatment wishes

  Read this next for a separate discussion of treatment instructions and health care agents, especially if you are comparing an existing directive with a proposed guardianship.

• Incapacity planning documents and questions checklist

  Use this checklist to organize documents and questions for a conversation about alternatives to a court appointment and gaps in your current planning.

A perspective on starting the conversation

"So I would just encourage all the listeners, if they haven't had a conversation with their estate planning attorney, or they've put off estate planning like most Americans, just 'cause they don't want to think about it"

Common questions

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