Are you looking at the least restrictive measures?
This article is aimed at those persons directly petitioning the court for the appointment of a guardian and/or conservator over a person in need. Often, the person petitioning the court is an attorney. However, in some cases, family members, county agencies, and other third-parties will also petition the court for guardian and/or conservator appointment.
What does Minnesota law tell us?
Minnesota Statutes 524.5-310(a) and 524.5-409, subd. 1(a)(3) explains that parties must first research alternatives before petitioning for a guardianship/conservatorship.
It is important for any person who is petitioning the court to sort-out potential alternatives first. One scenario that may come up is that a person may have very few assets and very little income. Obviously, in this scenario, a conservatorship may be unnecessary. However, if there is real estate to be sold, a conservatorship is a must.
Prior to filing a petition, the petitioner should first gather facts. It is very important that the practitioner know the facts of why an alleged guardianship/conservatorship is necessary because, in fact, it might not be necessary. There might be less restrictive measures that could be taken.
Least Restrictive Alternative
Foremost, it is important that protected person (ward) come up with their own plan of what is best for them. This ward may need help or advice, but, after all, this is their life. For example, would living in a alternative-care facility or nursing-home be a good alternative? Of course, the ward may not be able to express their wishes. If a person cannot express their opinions because of incapacity, can a third-party be consulted so that this third-party can formulate a plan for the ward?
In my practice, I have worked with third-party professionals who are either court-appointed or simply private-pay appointed. The court does not necessarily need to be involved. As stated above, if the ward is incapacitated, family members could be consulted to also make decisions.
Health Care Directives
One very obvious answer to health care decision on behalf of a ward is a health care directive. These documents are easy to prepare with minimal effort. Likewise, a psychiatric health care directive may also be used. Experienced estate planning attorneys can help with these documents.
Representative Payee
As to financial matters, if social security, veteran’s benefits, or some other government benefit is received, the ward could appoint a representative payee. Much like the professional discussed above, there are fiduciary service entities that will take on the representative payee role – for a fee.
Powers of Attorney
Similar to the healthcare directive, the ward (if he/she has capacity) can appoint someone as their power-of-attorney (POA). Once again, a private-pay, third-party fiduciary service could help an individual who simply needs help from time-to-time with their finances.
Powers or attorney also good because they are relatively inexpensive to prepare and use. A durable power of attorney will also allow the POA to act on behalf of the ward, even if the ward is incapacitated.
Trusts
The ward can also work with his/her estate planning lawyer to establish a trust. An independent, third-party trustee could be appointed. Once again, the third-party fiduciary entity could be the trustee. Or, perhaps a family member could be the trustee. There are options. Guardianship lawyers and family members should remember to be careful when using any of these methods. Serving as a fiduciary for a ward is no easy task. It is something that should be thoroughly considered by responsible and conscientious caregivers.
MN Guardianship & Conservatorship Lawyers
Joseph M. Flanders has years of experience working on estate planning, probate, powers of attorney, healthcare directives, and other matters for clients of all walks-of-life. If you are a loved-one are in need of good advice from a lawyer who care, contact the firm at Flanders Law Firm LLC, telephone number 612-424-0398. We always offer a free initial consultation.
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