Establishing a Conservatorship in Minnesota
PROTECT YOUR LOVED ONE’S ASSETS — ESTABLISHING CONSERVATORSHIP IN MINNESOTA
In Minnesota, once an individual reaches the age of 18, he or she is considered a legal adult and is legally able to own and manage property. Most adults have full rights and responsibilities, and are legally entitled to manage and make decisions concerning their property, assets, or finances. However, there may become a time when a previously competent adult lacks the capacity to make decisions for themselves and is no longer able to manage their property or estate.
In spending time with your relative or loved one, you may notice that they are becoming forgetful, or are exhibiting signs of early onset dementia. Perhaps a spouse or neighbor is taking advantage of their condition by pursuing the opportunity to exert an undue influence over them and clear out their bank account. If you are concerned that your loved one’s assets, property or finances are being exploited, or that he or she lacks the capacity to manage his or her own estate, you may need to seek a conservatorship. This article will discuss the ways a conservatorship may be established in Minnesota, and the rights and responsibilities of all parties involved.
The Conservatorship Process
Certain individuals may petition the court for the appointment of a conservator to manage the protected person’s property and estate. These individuals include (1) the protected person themselves; (2) an individual interested in the estate, affairs, or welfare of the protected person; and (3) a person who would be negatively affected by a lack of effective management of the protected person’s property and business affairs. The petition must state and describe any impairment in the protected person’s ability to receive and evaluate information, as well as a general statement of the protected person’s property with an estimate of its value. Furthermore, the petition must set forth the reason why a conservatorship is in the protected person’s best interest, and the reasons why the proposed conservator should be selected. Lastly, in order to determine whether the proposed conservator is capable of managing the protected person’s estate, the petition must provide information about the proposed conservator’s background, professional licenses held, and criminal history.
Upon receipt of a petition to establish conservatorship, the court will set a date and time for a court hearing. The protected person has the right to be represented by an attorney, and the court will appoint an attorney to represent the protected person at all court proceedings, unless a court-appointed “visitor” meets with the protected person and the protected person makes an informed decision in writing to specifically waive his or her right to an attorney. The protected person’s attorney must consult with the protected person prior to any court hearing, be given adequate time to prepare for all hearings, and continue to represent the protected person throughout the entire conservatorship process. Additionally, after a preliminary hearing, and while the petition to establish conservatorship is pending, the court may make orders to preserve and apply the protected person’s property as may be required for the support of the protected person or his or her dependents.
The hearing on the petition for conservatorship is a court hearing that the petitioner, proposed conservator, and protected person typically participate in. The petitioner and the protected person may present evidence, subpoena witnesses and documents, examine witnesses, and otherwise participate in the hearing. Additionally, any other person may contest or object to the proposed conservatorship, and request permission to participate in the hearing. The court will likely grant the objector’s request upon a showing of good cause, and after determining that the best interest of the protected person will be served by allowing the objector to intervene.
If, after the hearing, the court finds that the individual (1) is unable to manage property and business affairs due to an impairment in their ability to receive and evaluate information or make decisions; (2) has property that will be wasted or dissipated unless management is provided; and (3) less restrictive means cannot meet the protected person’s needs, the court may appoint a conservator for the protected person. Unlike a guardianship, the appointment of a conservator is not a determination of the protected person’s incapacity, and the court must grant to the conservator only those powers necessitated by the protected person’s limitations and demonstrated needs.
Who may be Conservator?
Minnesota typically gives conservatorship priority to certain individuals over others, depending on their relationship with the protected person. In appointing a conservator, the court must consider individuals otherwise qualified in the following order of priority:
A conservator, guardian of the estate, or other similar fiduciary appointed or recognized by a court where the protected person lives;
A person nominated as conservator by the protected person, including in a durable power of attorney;
An agent appointed by the protected person to manage his or her property under a durable power of attorney;
The protected person’s spouse;
An adult child of the protected person;
The protected person’s parent;
An adult with whom the protected person has lived with for more than six months;
An adult who is related to the protected person by blood, adoption or marriage; and
Any other adult or a professional conservator.
Nevertheless, if the court determines that it is in the protected person’s best interest to do so, the court may decline to appoint a person having conservatorship priority and appoint a person having lower priority or no priority at all. If two individuals have equal priority (i.e. two adult children), the court will select the person it considers to be best qualified.
Powers and Duties of Conservator
Once an individual is appointed as conservator, they are subject to the control and direction of the court at all times. As stated above, the court must only grant a conservator those powers necessary to provide for the demonstrated needs of the protected person. If the court determines that all of the powers and duties prescribed by statute are needed to provide for the needs of the protected person, the court may give the conservator all of the statutory powers. If, however, the court determines that a conservator is needed to provide for the needs of the protected person through the exercise of some, but not all, of the statutory powers and duties, the court may elect to give the conservator limited powers and duties. The duties and powers the court may grant to a conservator include:
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 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 institute a lawsuit on behalf of the protected person;
The power to approve or withhold approval of any contract which the protected person may make;
The power to apply on the protected person’s behalf for any government benefits; and
The power to revoke, suspend, or terminate the protected person’s durable power of attorney.
Despite the powers and duties which are often granted to a conservator, certain transactions a conservator wishes to make need to first be approved by the court. These include the conservator’s ability to:
Make gifts;
Convey, release, or disclaim interests in property;
Exercise or release a power of appointment;
Create or amend a revocable or irrevocable trust;
Change beneficiaries under insurance policies;
Exercise any right to exempt property and an elective share in the estate of the protective person’s deceased spouse;
Change beneficiaries under a retirement plan;
Exercise the power to create, terminate, or alter the beneficiaries (and their interest) of a payable on death account, transfer on death account, or joint tenancy; and
Make, amend, or revoke the protected person’s will.
Emergency and Temporary Conservators
If the court finds that complying with the often drawn out process described above would likely result in the immediate loss, waste, or dissipation of the protected person’s assets or income unless management is provided, and no other person appears to have authority and willingness to act in the circumstances, the court may appoint an emergency conservator (upon the submission of an emergency conservatorship petition). An emergency conservatorship is often necessary when the protected person has a substantial amount of money or assets that are in imminent jeopardy of being wasted by a wrongdoer. Importantly, an emergency conservatorship only lasts for 60 days, so it is a good idea to submit a general conservatorship petition in addition to an emergency conservatorship petition (to extend the length of the conservatorship). Similar to a general conservatorship, the court will appoint a lawyer to represent the protected person in the emergency conservatorship hearing, and all the procedures, powers, and duties described above apply to an emergency conservatorship.
Additionally, if the court finds that a conservator is not effectively performing his or her duties and that the security and preservation of the protected person’s assets require immediate action, the court may appoint a temporary substitute conservator for the protected person for a specified period not to exceed six months. The temporary substitute conservator generally has the same powers and duties as the previous conservator, and the authority of the previously appointed conservator is suspended.
Terminating or Modifying a Conservatorship
There are numerous ways in which conservatorships may be terminated or modified in Minnesota. First, a conservatorship terminates upon the death of the protected person or upon order of the court. Second, any person interested in the protected person’s welfare may petition the court to terminate the conservatorship if the protected person no longer needs the assistance or protection of a conservator. If the petitioner adequately establishes that termination is necessary, the court will terminate and discharge the conservator, unless it is proven that continued conservatorship is in the best interest of the protected person.
The court may also modify the type of appointment or powers granted to the conservator if the extent of protection or management previously granted has become excessive, insufficient, or if the protected person’s ability to manage their estate and business affairs has changed as to warrant modification.
MINNESOTA CONSERVATORSHIP ATTORNEYS
The conservatorship process can be long, stressful, and, in the case of a contested conservatorship, filled with intra-familial drama. If you or a loved one are in need of good advice and representation from a team of compassionate lawyers who care about your situation, contact the attorneys at RAM Law PLLC at (651) 468-2104 to schedule your free initial consultation.