Guardianship and conservatorship play two distinct roles in estate plans. These two words also have different meanings in Florida than they do in Minnesota. If you find yourself with questions about guardianship and conservatorship or otherwise in need of estate planning assistance, call Roulet Law Firm, P.A. at (763) 420-5087 (Minnesota) or (941) 909-4644 (Florida).
Context: The General Components of Effective Estate Plans
An effective estate plan protects your best interests and your wishes for your loved ones both before and after you die. For context, below is a list of the typical components of a comprehensive estate plan.
- A last will and testament (a will) is the traditional document for disposing of assets after death. Probating a will requires the participation of a court, which is expensive and time-consuming.
- A revocable living trust allows assets to pass smoothly to beneficiaries after the grantor’s death. The grantor can place property (including cash) in the trust, name themselves as beneficiary, and have assets pass to loved ones after death with no court involvement. Depending on the terms, the trust can distribute assets in a lump sum or periodically.
- A Durable Power of Attorney (POA) is a document that appoints a person designated by an incapacitated individual before incapacity, to handle the incapacitated person’s financial affairs. An aging mother, for example, might grant a durable power of attorney to her middle-aged son, to take effect only when she loses the capacity to manage her finances.
- A Living Will (Advance Healthcare Directive) states a person’s preferences for medical treatment decisions after they become incapacitated (in a coma, for example) and can no longer express their own preferences.
- A Designation of Pre-Need Guardian allows someone to designate a preferred guardian if they ever need one. Minnesota courts are less likely to honor the preference than Florida courts are. In both states, the best interests of the ward (the person whose interests the guardian protects) is the primary consideration.
- Beneficiary Designations: Life insurance, retirement accounts, payable-on-death accounts, and similar assets pass directly to named beneficiaries, thereby avoiding the time and expense of probate.
Remember that every estate plan is different, just as every individual’s circumstances and preferences are different.
Guardianship in Minnesota
Minnesota distinguishes between the terms “guardianship” and “conservatorship.” Courts appoint guardians for the “ward,” A ward must be someone who cannot manage their personal affairs and/or medical decisions. A ward might be a child, for example, or an incapacitated adult. In Minnesota, a guardian does not handle financial matters for the ward.
Guardianship in Florida
Like Minnesota, a court must appoint a guardian, whether the ward is a child or an incapacitated adult. Unlike Minnesota, a court can grant a guardian authority over the ward’s personal, medical, and financial decisions. If a Florida court wishes to grant a guardian authority over financial decisions alone (like a conservator in Minnesota), they will appoint that party “guardian of the property.”
Conservatorship in Minnesota
In Minnesota, a conservator is like a guardian, except that instead of making personal decisions for the ward, they make financial decisions. Just because a court named a guardian for a ward does not mean that they will also name a conservator. The reverse also applies–just because a court appoints a conservator for a particular ward does not mean they will also appoint a guardian. They might appoint both, but this is not inevitable.
Conservatorship in Florida
Under Florida law, “conservatorship” refers to a seldom-used arrangement. It applies when someone has gone missing for an extended period and owns assets that someone needs to manage. It rarely applies to estate plans. As mentioned above, the functional equivalent of a Minnesota conservatorship is a Florida guardian of the property. Roulet Law Firm, P.A. can help you establish a guardian of the property.
Procedure for Establishing Guardianship and Conservatorship
In both Minnesota and Florida, an interested party will petition the court for the establishment of a guardianship. In Minnesota, an interested party must petition the court for the appointment of a conservator. In both states the court will consult with experts, hold a hearing, and determine whether the proposed ward is incapacitated and needs a guardian/conservator.
Fiduciary Duties
Guardians and conservators must exercise their duties strictly for the best interests of the ward. Self-dealing by a guardian or conservator is taken very seriously, especially where physical or financial abuse is involved.
Court Oversight
In both Florida and Minnesota, guardians and conservators must file annual reports concerning the ward’s physical, emotional, and financial well-being. Minnesota might require a conservator to post a bond to guard against financial abuse of the ward’s funds. Minnesota conservators also have additional reporting obligations. Courts in both cases can intervene in cases of abuse.
Removal of a Guardian or Conservator
Both Florida and Minnesota prefer the least restrictive means of protecting a ward. A guardianship (in Florida or Minnesota) or a conservatorship (in Minnesota) will end when:
- The ward dies.
- The ward gains or regains capacity and petitions the court for an end to the guardianship or conservatorship.
- A guardianship and a conservatorship automatically ends, with no need for a court order, when a child turns 18. There is an exception if an interested party alleges that the child is otherwise incapacitated. In that case, a court order is necessary to end guardianship or conservatorship.
- The guardian or conservator commits acts of misconduct that justifies their removal and replacement. This would not end the guardianship or conservatorship. Instead, it would result in the replacement of the guardian or conservator.
The foregoing is only a brief summary. Guardianship and conservatorship law in Minnesota and Florida is complex and requires the assistance of legal counsel to navigate successfully.
An Estate Plan Can Continue Protecting Your Interests Long After You Pass Away
Whether you need a Minnesota estate planning attorney or a Florida estate planning attorney, the quality of your estate plan could affect the well-being of your loved ones decades after your passing. It’s better to begin estate planning earlier rather than later.You’re going to need an effective estate plan in place before you pass away or lose capacity, whether or not your estate plan includes guardianship and conservatorship. Call Roulet Law Firm, P.A. at (763) 420-5087 (Minnesota) or (941) 909-4644 (Florida) to schedule a consultation. Or you can fill out the contact form on this page and a member of our team will reach out to you to schedule your consultation.
