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Conservatorships and Least Restrictive Options

Conservatorships and Least Restrictive Options

February 15, 2019

By Johnson/Turner Legal

Everyone wants to work hard to protect those that we love.  We help our children learn and grow, and we help support our spouses or partners.  As our parents or disabled siblings age, we may need to take additional steps to help them, as well.  One way to help is to obtain conservatorship.  Conservatorship means that you have gone to court and obtained a court order stating that you are responsible for another adult’s financial affairs or personal care decisions.  These types of orders are usually only issued when the proposed subject of the order (called the conservatee or ward) is so incapacitated that he or she is unable to take care of him or herself.  Typically the court will grant conservatorships in situations where, for example, the proposed ward is in a coma, is suffering from advanced Alzheimer’s or dementia, or has another type of incapacitating illness.  These types of orders by their very nature will severely restrict the rights of the proposed ward.  As a result, it is important that the least restrictive alternative is explored when creating a conservatorship.

Minnesota statutes 5245-310(a) and 5245-409 (1)(a)(3) both discuss the requirement that the potential conservator explore alternatives before requesting a conservatorship or guardianship of another adult.  For example, the proposed ward may have a hard time handling financial matters, but is still completely capable of attending to his or her physical needs, such as bathing and getting around the house.  In such a situation, the conservatorship request should be carefully tailored to go to the least restrictive alternative of only having control over the conservator’s finances.  This sort of conservatorship in this situation would not, for example, allow the conservator to force the ward into a residential nursing facility, as the ward would maintain control over his or her physical person.  If the proposed ward is capable of doing so, it is usually beneficial to discuss the options with him or her.  The proposed ward may have specific ideas on the areas where he or she requires assistance.  The court will want to see that the least restrictive alternative has been used, and where the ward is capable of participating in the decision making process, it is important that he or she has been consulted.

If you have questions about conservatorship, call us today at (320) 299-4249.  We can talk with you about your family and what we can do to help you.


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