Conservatorship, Guardianship and Power of Attorney

There is confusion over the definition of conservatorships, guardianships, and power of attorneys in North Dakota - more specifically - which legal document is best suited for certain situations. Here, we will attempt to explain each of the documents and their benefits.

Conservatorship

A conservatorship is a court action that makes someone responsible for a conservatee's legal decisions, finances, and property. A conservator is typically appointed when the court determines that a person cannot manage his or her own property and affairs for reasons such as: mental or  physical illness, disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, and/or disappearance. For a conservator to be appointed, there must typically be a finding by the court that the person in question lacks the mental capacity to manage his or  her legal and financial affairs.  

A conservator may be a friend, a family member, or a third-party corporation. Once appointed, a conservator has a fiduciary responsibility to the protected person and the conservator's duty to expend sums for the support, care, and benefit of the protected person. In re Conservatorship of Kinney, 495  N.W.2d 69 (ND 1993). That said, the conservator has broad powers under North Dakota Century Code ("N.D.C.C.") §30.1-29-24.  

Conservatorships are generally easier to obtain than a guardianship, but more difficult than a power of attorney.  

Guardianship

A guardianship, on the other hand, is when a person (the guardian) is responsible  for the care and affairs of another person. A guardian may be appointed for either a minor child or an  incapacitated adult. Guardians act as a provider and caregiver to their wards. The scope of a guardian's control reaches beyond finances and legal matters and into the day-to-day management of his or her ward. This includes ensuring that their ward has food, shelter, clothing, education (if a minor), and medical care. A guardian is typically appointed when an individual is in need of special protection. Establishing  guardianship for a minor is done with the "best interest" standard used in most custody proceedings. Establishing guardianship for an elderly or incapacitated adult requires a showing that the individual in question is no longer able to manage their daily affairs on their own.  

A guardian may be any competent person over the age of eighteen. Typically, courts elect to appoint a trusted friend or family member. Once appointed, North Dakota courts typically limit a guardian's reach to what is strictly necessary. N.D.C.C. §30.1-28-04 provides that courts shall exercise their authority in granting guardianships consistent with the maximum self-reliance and independence that the ward in question is capable of. This means that, any aspect of a ward's life that he or she could  possibly control, the Court will allow them to retain control of. The North Dakota Supreme Court has held that guardianship should only be sought as a last-resort for incapacitated adults, as the guardian  retains such drastic control over their ward's life. In re Guardianship of Braaten, 502 N.W.2d 512 (ND  1993). 

While guardianships may include the management of finances and property, they differ from  conservatorships in that they are much more involved and require a greater showing of incapacity than a conservatorship. North Dakota courts are unwilling to deprive anyone of personal freedoms, including the ability to manage every day aspects of their lives - unless it is made abundantly clear that the person is unable to do so and it is to their detriment to allow them to continue trying.  

Power of Attorney

A power of attorney is a document that allows the principal to designate an attorney-in-fact to manage his or her financial, legal, and medical affairs. Despite the confusing  terminology, an attorney-in-fact need not be an attorney but may be any competent person over the age of eighteen. Typically, attorney-in-facts are spouses, family members, or trusted friends.  

Power of attorneys permit the attorney-in-fact to sign the principal's name on all legal, financial,  and medical documents. Power of attorneys do not extend into day-to-day management of a person, but merely allows the attorney-in-fact to sign documents on behalf of the principal.  

Unlike a conservatorship or a guardianship, a power of attorney is not granted by the court. Instead, it is granted by the principal. A power of attorney may take effect at the time of signing or upon incapacity. However, the principal must be of sound mind at the time of signing. In the event that a principal is not of sound mind, as determined by a physician, a power of attorney may not be signed. Instead, a conservatorship or a guardianship will need to be pursued.  

If you have any questions about conservatorships, guardianships, and/or power of attorneys, the  Boppre Law Firm is here to help. Give our office a call today and schedule an appointment to determine what is best for you and your family. 

If you have any questions about conservatorships, guardianships, or power of attorney - feel free to give us a call at the Boppre Law Firm!