What Is Adult Guardianship?
A guardianship is the legal designation given to an individual by the Court, after a formal petition and hearing, which grants certain powers and duties necessary to care for a loved one, adult child, or other individual in need. The powers and duties, which are discussed in detail in the next section, include the ability to work with medical and health providers of an adult child or loved one as well as various other powers and responsibilities which can serve as a safety net for those whom are vulnerable.
A guardianship in Minnesota may be appropriate where an adult child, loved one, or other individual in need has a disability preventing them from being able to make day-to-day decisions regarding their own personal care, and preventing them from independently meeting their own basic needs such as food, shelter, and clothing. This can include children transitioning into adulthood with developmental or cognitive disabilities, individuals who have experienced a traumatic brain injury, and guardianships for seniors who are no longer capable of independently managing decision-making regarding their own healthcare, finances, or basic needs.
For a parent, the transition of a child with a disability from a minor to an adult can often seem superficial and premature, but Minnesota and the Federal Government afford all of the rights and responsibilities of an adult to an individual once they reach the age of eighteen which can make a parent’s access to medical information, participation in medical decisions, and ability to serve as a safety net in other areas of their child’s life, more difficult. An attorney experienced in the area of guardianship law can assist you determining which powers and duties are necessary to continue to protect your child through their transition into adulthood and to foster their continued development toward independence wherever possible.
For a family member or family friend, the sudden need for a legal status not previously required to care for the needs of a parent or elder loved one is sometimes an uncomfortable proposition. But, where someone is in increasing need of assistance to remain safe and healthy, a guardianship can serve as an extremely helpful tool in meeting those needs. An attorney experienced in the area of guardianship law can assist you determining which powers and duties would be most appropriate given the unique circumstances of your parent or elder loved one as well as guide you through the sometimes complicated process of establishing and exercising the guardianship to care for a parent or elder loved one.
In Minnesota, it is important that potential guardians know that although a guardianship does shift certain rights of a person in need to another individual or individuals, a guardianship must only be granted if it is the least restrictive alternative to achieving the needs of the protected person. In addition, guardianship powers, once granted, must be used in the least restrictive manner to achieve the needs of the person in need. Simply being granted powers under a guardianship does not require you to exercise those powers unless it is needed. It is always the goal of a guardianship to offer a supportive bridge to a person in need which can assist them toward reaching independence, where possible.
What are the Powers of Adult Guardianship?
- Medical Decisions and Information
- An adult’s medical information is protected by law and may not be shared with other individuals unless the adult has given permission for that information to be shared with specific individuals. Medical information does not merely mean access to medical files but it also pertains to an individual’s ability to attend medical appointments and speak to medical professionals about children and loved ones.
- The ability to make medical decisions for an adult child with a disability or loved one with a disability can be a crucial guardianship power where an individual is simply unable to participate meaningfully or requires assistance or guidance in making decisions about their own medical treatment.
- The Power to Determine Where the Ward Lives
- An adult guardianship including this power provides a parent or other third party the ability to choose the home or living arrangement of their child or loved one.
- Ability to Enter into Contracts on Behalf of a Ward or Protected Person
- An adult guardianship including this power provides a guardian the ability to enter into contracts on behalf of an adult child or loved one. This also means that if the protected person enters into a contract without the guardian’s consent, the guardian will likely be able to undue that contractual agreement, depending on the type of contract and within a certain timeframe.
- The Ability to Exercise Supervisory Authority
- This ability is wide reaching and centers around the responsibility of the guardian to look after the health and safety of the protected person in all aspects of their life.
- [ If you have questions about this particular power, please contact an attorney.]
- The Power to Apply for Government Assistance
- Applying for and maintaining government programs is incredible useful tool for a guardian. There are many hoops to jump through and a decent amount of paperwork involved in the application process for government assistance, such as social security and medical assistance, as well as the maintenance of those programs once in place. A guardianship including this power will be critical for anyone assisting an individual that cannot accomplish the task on their own.
- The Duty to Take Care of the Ward’s Clothing, Furniture, Vehicles, and Other Personal Effects
- The duty to take care of the protected person’s personal property is just that, a duty. A guardianship inclduding this power can be helpful in circumstances where a child, loved one, or other individual is vulnerable to the loss of their personal belongings to others.
- [ If you have questions regarding this power or how to maintain or remove personal property of a protected person, please contact an attorney. ]
- The Duty to Provide for the Ward’s Care, Comfort and Maintenance Needs, Including Food, Clothing, Shelter, Health Care, Social and Recreational Requirements
- The duty to provide for a Ward’s care, comfort, and maintenance is a general duty to take care of the overall health and safety of the protected person.
How Can a Guardianship Attorney Help Me?
An experienced guardianship attorney can help you think through the most appropriate guardianship powers, assist you in establishing the guardianship through the court, and represent you in and out of court where any conflict occurs as a result of you seeking guardianship or acting as a guardian.
In addition, the court maintains oversight of guardians, which have duties and responsibilities to the Ward as well as duties and responsibilities to report to the court and other interested parties. Some of these duties to report occur annually, and some arise as a result of an event or a need relating to the health, safety or general well-being of the ward. An experienced guardianship attorney can help guardians navigate their legal duties and responsibilities.
The attorneys at Arctos Law have the experience and knowledge necessary to help you navigate your options, help establish the best legal arrangement for your family or loved one and guide you through the legal requirements of your role as a guardian.
What is the Difference Between Guardianship and Conservatorship?
- A Guardianship deals specifically with the “person” of the protected person. This means that the primary concern of guardianship powers and duties are the personal health and safety of the protected person.
- A Conservatorship deals specifically with the estate and financial assets of the protected person. This means that the primary concern of the conservatorship powers and duties is the financial well being and maintenance of the protected person.
- Generally, if a conservatorship is needed, a guardianship and conservatorship are petitioned for at the same time. An attorney will be able to determine which are needed.