The guardianship and conservatorship statutes require that the court only impose a guardianship or conservatorship if less restrictive alternatives are not available and working. See Minn. Stat. 524.5-409(a) and 524.5-102, subdivision 6. The rationale behind this requirement is that a guardianship takes away very basic rights of the respondent and should, therefore, only be imposed as a last resort. If there are other options that will preserve the autonomy of the proposed ward, while still ensuring his/her safety, then those options must first be used.
So what are less restrictive alternatives that should be explored first?
- Power of Attorney
- Health Care Directive
- Joint bank accounts
- Representative payee for certain government benefitss
- Establishing a trust
- Involving the family in care conferences and care teams
The less restrictive alternatives that may work for one individual may not work for another. And, of course, by the time a guardianship is being considered, it may be too late for the respondent to put some of these items in place (because for the POA or HCD or creating a trust, a certain level of capacity is required in the first instance).
If you have questions about less restrictive alternatives to guardianship or conservatorship, contact experienced Minnesota Guardianship Attorney Cindi Spence Matt of Matt Legal Services.