Minnesota Conservator

Minnesota Conservator

Minnesota Conservator

A Minnesota Conservator is appointed by the Court to manage the financial affairs of another person – known as a “protected person“.

A Minnesota Conservator typically has the power to:

  • enter into, or decline to enter into, a contract for the protected person,
  • pay the protected person’s bills,
  • invest the assets of the protected person, and
  • perform other financial functions for the protected person.

Minnesota Conservator and Guardian

Some persons need both:

  • a Minnesota Guardian of their person, and
  • a Minnesota Conservator of their estate,

and could therefore be both a ward, and a protected person.

Minnesota Conservator – Payments for Support

Neither a Minnesota Guardian nor a Minnesota Conservator has any duty or obligation to pay for any goods or service for the ward or protected person from the guardian’s or conservator’s own funds.

Instead, the Minnesota Guardian or Minnesota Conservator conservator would either:

  • use funds from the ward or the protected person’s estate, or
  • seek out federal, state, or county services to which the ward or protected person is entitled.

Minnesota Conservator’s Duties After Appointment

First Duty – Take Control and Possession of Property

The Minnesota Conservator’s first duty is to take control and possession of the Protected Person’s property by:

  1. Identifying the Protected Person’s Assets;
  2. Opening a Conservatorship Bank Account;
  3. Retitling the Protected Person’s Assets – where possible – into the name of the Conservatorship; and
  4. Investing all Conservatorship funds to make it productive of income – while simultaneously preserving asset principal.

(i) The Protected Person’s Power Over Property

From and after the date of a Minnesota Conservator’s appointment, the Protected Person has very little authority over his or her property – as identified in M.S. Section 524.5-422(a), which provides as follows:

Except as otherwise provided in paragraphs (c) and (d), the interest of a protected person in property is not transferable or assignable by the protected person.

(a) Exception – Tangible Personal Property Items

Minnesota Statutes (“M.S.”), Section 524.5-422 (c) identifies that certain tangible personal property items can be transferred by the Protected Person even after a Minnesota Conservator has been appointed, by providing as follows:

A person without knowledge of the conservatorship who

  • in good faith and
  • for security or substantially equivalent value

receives delivery from a protected person of tangible personal property of a type normally transferred by delivery of possession is protected as if the protected person or transferee had valid title.

Therefore, in order to prevent any such transfers of tangible personal property items, the Minnesota Conservator should:

  • make the existence of the conservatorship well known, and
  • deny the Protected Person access to valuable items of tangible personal property.
(b) Adverse Consequences Resulting From an Ineffective Attempted Transfer

Notwithstanding the Protected Person’s limited power to effectively transfer or assign his or her property, M.S. Section 524.5-422(a) identifies the consequences of any purported transfer of property by the Protected Person which is not effective, by providing in part as follows:

An attempted transfer or assignment by the protected person, although ineffective to affect property rights, may give rise to a claim against the protected person for restitution or damages

  • which, subject to presentation and allowance,
  • may be satisfied as provided in section 524.5-429.

While the Protected Person may be without power to make certain property transfers or assignments, any unsuccessful attempts to do so may still have adverse consequences for the Protected Person.

Therefore, the Minnesota Conservator must deny the Protected Person access to the means by which valuable assets can be transferred.

(ii) Taking Control and Possession of Property

Taking control and possession of the Protected Person’s property involves:

  • conducting a comprehensive search for all of the assets owned by the Protected Person, and
  • arranging for the transfer of title or possession of such assets to the Conservator.

(iii) Protected Person’s Minnesota Safe-deposit Box

The Minnesota Conservator has the right to:

  • open the Protected Person’s Minnesota safe deposit box,and
  • remove the contents of the box,

upon presenting to the safe deposit box company a certified copy of the Minnesota Conservator’s Letters of Conservatorship.

If the Minnesota safe deposit box had been rented by the Protected Person together with another person, such other person should be present when the box is opened.

(iv) Receiving Assets

The Minnesota Conservator should always provide a receipt to any third person from whom the Minnesota Conservator receives assets, describing completely all of the assets received – including any certificate numbers for stocks, bonds, savings certificates received.

(v) Open an Account

The Minnesota Conservator should immediately open a “fiduciary” interest earning checking account under the name of the Minnesota Conservator, as follows:

“[Name] as Conservator of the Estate of [Protected Person’s Name]”.

The Minnesota Conservator should provide the bank with a certified copy of the Letters of Conservatorship, as evidence of the Minnesota Conservator’s authority to act.

The Conservatorship account should use the Protected Person’s social security number for income tax reporting purposes, not the Social Security number of the Minnesota Conservator.

Such an account should be opened with a commercial bank that either:

  • returns the canceled checks to the Conservator on a monthly basis, or
  • otherwise provides copies of the front and back of the estate’s canceled checks in some manner – whether online, or in paper format.

All money and income received on behalf of the Protected Person should be deposited into the Conservatorship account.

Expenditures made for the Protected Person should generally be paid from the Conservatorship account directly to the goods or service provider (rather than as reimbursement to the Minnesota Conservator for the payment of such expense).

All canceled checks should be retained for filing with the Court as vouchers to substantiate the expenditures.

(a) Check Copies Are Essential

A fiduciary checking account which provides copies of the front and back of the estate’s canceled checks is essential to providing evidence that expenditures were made for the benefit of the Protected Person.

(b) Check Register

The Minnesota Conservator should separately record the details of each receipt and expenditure in a check register, which will be necessary in order to prepare the annual accounting reports.

(c) Conservatorship Broker Account

If the Protected Person’s financial assets are substantial, consideration should be given to holding such assets in a conservatorship securities brokerage account.

In any event, it is probably a good idea to retain a securities dealer or Bank as agent for the Conservatorship:

  • as a place to keep certain assets;
  • as an aid in record keeping – both for accounting purposes, and for income tax purposes; and
  • as an investment advisor.

The securities dealer or broker should be able to handle the re-registration of securities for the Conservator.

(vi) Required Signatures

If Minnesota Co-Conservators are appointed, every document signed on the Protected Person’s behalf – including checks – must have the signatures of both Minnesota Co-Conservators.

(vii) Obtain a Minnesota Safe Deposit Box

If appropriate, the Minnesota Conservator should consider obtaining a Minnesota safe deposit box in order to deposit valuable property and documents belonging to the Protected Person.

All stocks certificates and bonds belonging to the Protected Person should either be:

  • placed into the safe deposit box, or
  • deposited with a securities broker.

The Minnesota Conservator should retain in the safe deposit box all Certificates of Title evidencing ownership of any automobiles owned by the Protected Person.

(viii) No Commingling of Assets

The Minnesota Conservator must keep the Protected Person’s property separate from the Conservator’s property.

THE CONSERVATOR SHOULD NEVER PUT THE PROTECTED PERSON’S MONEY IN THE CONSERVATOR’S PERSONAL BANK ACCOUNT.

(ix) Conflict of Interest Transactions are Voidable

Any transaction involving the Protected Person’s assets which is subject to a conflict between the Minnesota Conservator’s fiduciary and personal interests is voidable, unless:

  • the transaction is expressly authorized by the court,
  • after notice to interested persons.

A transaction subject to a conflict between the Minnesota Conservator’s personal and fiduciary interests includes any sale, encumbrance, or other transaction involving the Protected Person’s assets entered into by:

  • the Minnesota Conservator,
  • the spouse, descendant, agent, or lawyer of a Minnesota Conservator, or
  • a corporation or other enterprise in which the Minnesota Conservator has a beneficial interest.

Second Duty – Prepare the Inventory

The Minnesota Conservator’s second duty is to prepare and file with the Court – within 60 days of appointment – an Inventory of all assets owned by the Protected Person at the time of the Minnesota Conservator’s appointment.

(i) The Protected Person’s Property

The Protected Person’s property may include:

  • cash and uncashed checks,
  • stocks, bonds, and other securities,
  • bank accounts and savings certificates,
  • partnership and LLC interests,
  • insurance policies,
  • promissory notes receivable,
  • furniture, clothing, jewelry,
  • automobiles,and
  • real estate.

(ii) Valuation of Property

The Inventory of the Protected Person’s property should include subtotals for the following asset categories:

  • Real estate,
  • Furniture and household goods,
  • Wearing apparel,
  • Corporate stock,
  • Bank Accounts, Certificates of Deposit, Receivables,and
  • All other personal property owned by the Protected Party.

The Minnesota Conservator shall initially determine the fair market value of all assets listed in the Inventory.

However, if appraisers are appointed by the Court, the value of certain assets will be determined by the Court appointed appraisers.

(iii) Consequences for Failing to File the Inventory

If the Minnesota Conservator fails to file an Inventory in a timely manner, the Court may remove the Minnesota Conservator from office.

Therefore, the Minnesota Conservator’s attorney should be requested to provide assistance in preparing the Inventory, and filing it with the Court.

Third Duty – Transferring Title to Assets

The Minnesota Conservator’s third duty is to transfer assets from the Protected Person to the conservatorship.

1. Savings Certificates & Certificates of Deposit

Saving certificates and certificates of deposit should be re-registered into the name of the Conservatorship – in a manner that does not result in:

  • the loss of interest, or
  • the payment of an early termination penalty.

2. Corporate Stock and Bonds and Municipal Bonds

The Minnesota Conservator should write to the designated transfer agent for any securities owned by the Protected Person, and request that title to such securities be re-registered into the name of the Conservatorship – using the Protected Person’s Social Security number.

3. Mutual Funds

The Minnesota Conservator(s) should send the most current mutual fund statement to the fund’s transfer agent, along with:

  • any required “stock or bond power“,
  • a certified copy of the Letters of Conservatorship, and
  • a cover letter requesting re-registration of the ownership of the fund.

Usually, mutual fund shares are held in “street name” or “on account“.

However, if the Minnesota Conservator has possession of any actual mutual fund certificates, the Minnesota Conservator would have to send in the actual certificate to the transfer agent.

4. U.S. Savings Bonds / Certificated Bonds and Notes

U.S. Savings Bonds Series E, EE, H or HH, and all Government Bonds and Notes dated prior to 1986, will be evidenced by an actual certificate.

If the Protected Person has any such securities, the Minnesota Conservator should take the bond certificates to a local bank, along with a certified copy of the Letters of Conservatorship(one for each issue).

The bank should be able to handle the transfer of the bonds to the Conservatorship.

CAUTION: Do not change the designated beneficiary of any bonds or certificates when having the title re-registered on any asset.

Series E or EE Bonds and Savings Certificates or Certificates of Deposit commonly have such a designation.

5. Jewelry, Valuable Collections

The Minnesota Conservator should deposit valuable jewelry, stamp and coin collections, and any other valuable small objects owned by the Protected Person, into the Conservatorship safe deposit box, unless it is determined that it would be more appropriate to leave such property with the Protected Person – such as a wedding ring.

The Minnesota Conservator may want to take photographs of all of the Protected Person’s valuable personal property for insurance purposes.

6. Real Estate

It may be advisable to record a certified copy of the Letters of Conservatorship in the County real estate records for each parcel of real estate owned by the Protected Person, in order to prevent any unauthorized sale or mortgaging of the real property.

If the Protected Person’s house is vacant, the Minnesota Conservator should consider:

  • having the locks changed, and
  • arranging to have the property patrolled until it is sold.

7. Automobiles / real estate / household items

With respect to automobiles, real estate and household effects, the Minnesota Conservator should verify that such property is properly insured against fire, theft, and other hazards, as well as against liability to third parties (including worker’s compensation claims of household workers).

If the Protected Person owns an automobile, the Minnesota Conservator should ensure that no unauthorized person drives the vehicle.

8. Life Insurance and Annuities

The Minnesota Conservator should take possession of any Life Insurance and Annuity Policies, and place them in the safe deposit box.

The Minnesota Conservator should also write to the local agent of any Insurance or Annuity Company,

  • enclosing a certified copy of the Letters of Conservatorship, and
  • requesting disclosure of the amount of any cash value of each policy as of the date of the appointment of a Conservator.

9. Medical Insurance and Suppliers

With respect to Medical Insurance for the Protected Person, the Minnesota Conservator should:

  • verify that all premiums have been paid to date; and
  • review the policy in order to understand the extent of coverage, and the claims procedures.

The Minnesota Conservator should notify all medical suppliers who provide goods or services to the Protected Person of the existence of the Conservatorship.

Conclusion – Minnesota Conservator

If you require assistance with respect to any Minnesota Conservator issues, please contact attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Copyright 2016 – All Rights Reserved

No claim to the text of statutory provisions, or judicial decisions.

 Gary C. Dahle – Attorney at Law

2704 Mounds View Blvd., Mounds View, MN 55112

Licensed in Minnesota and North Dakota

Phone:  763-780-8390     Fax: 763-780-1735

gary@dahlelaw.com

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 Legal Disclaimer

Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota conservators involve many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with legal counselGary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

Accessing the web site of Gary C. Dahle, Attorney at Law – http://www.dahlelaw.com or https://dahlelawguardianships.com may be held to be a request for information. However, the mere act of either providing information to Gary C. Dahle, Attorney at Law, or taking note of information provided on http://www.dahlelaw.com or https://dahlelawguardianships.com do not constitute legal advice, or the establishment of an attorney/client relationship. Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation.

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Minnesota Guardianship and Conservatorship Links

Minnesota Conservatorships for Adults – https://dahlelaw.com/minnesota-conservatorships-adults/

Minnesota Guardianship and Conservatorship Statutes – Minors: https://www.revisor.mn.gov/statutes/?id=524.5-101

Minnesota Guardianship and Conservatorship Statutes – Adults: https://www.revisor.mn.gov/statutes/?id=524.5-601

Pacer Center: http://www.pacer.org/

National Institute of Mental Health: https://www.nimh.nih.gov/index.shtml

The Alzheimer’s Foundation of America: https://alzfdn.org/