Supported Decision Making Q&A
Frequently asked questions
What is guardianship and conservatorship?
Guardianship and conservatorship are court processes, which result in the appointment of an individual/organization who has legal authority to make personal (guardian) or financial (conservator) decisions for an incapacitated person who is wholly unable to provide for their own basic needs or financial management. Due to severity and costs of this intervention, it should only used where there is no other way to meet a person's needs. In Minnesota, Public Guardianship for older adults does not exist. All guardianships/conservatorships are private, regardless of who is appointed as guardian/conservator. Family members or others known to the person may be appointed as guardian/conservator, or an independent (also known as professional) guardian or conservator may be appointed. An independent guardian/conservator charges fees for their service and may be an individual or an organization.
What are less restrictive alternatives?
Less restrictive interventions must be considered and ultimately ruled out prior to pursuing guardianship/conservatorship to ensure there is no other way to provide for the care, safety, and financial management of the person with questionable capacity. Less restrictive alternatives to guardianship and conservatorship include:
- The person makes decisions with the support of trusted others, follows the recommendations of others, or suggests their own ideas to provide for their needs and safety.
- Having family or close friends increase their involvement to meet the person's needs.
- Use of a Health Care Directive (formerly known as power of attorney for health care or living well) and/or Supported Decision Making Agreement development to identify people who can help the person with decision making.
- Working with a county case manager or private care manager to recommend, arrange, and monitor services.
- Trustworthy family or close friends help ensure bills are paid, checks are deposited, etc.
- Banking tools such as automatic payment of regular bills, direct deposit of income checks, and joint accounts enable a trusted person to pay bills.
- Representative payee to manage governmental income benefits
- Power of Attorney
Many of the alternatives to guardianship/conservatorship require the person's cooperation and some cognitive capacity. In addition, these alternatives require caution due to the potential for financial exploitation.
What is Supported Decision Making?
"Supported Decision Making is a recognized alternative to guardianship where people with disabilities use trusted friends, family members, and professionals to help them understand the situations and choices they face, so they may make their own decisions without the 'need' for a guardian" (Blanck & Martinis, 2015). Supported Decision Making (SDM) is built around the concept that all people need at least occasional help to make decisions, and that even though someone cannot make decisions independently, they may still be able to participate in decision-making. SDM is a person-centered intervention where a person is empowered to make decisions with the support of trusted family/friends/professionals, rather than others making decision for the person. MN law states that a guardian cannot be appointed if a person's needs can be met with supported decision making assistance.
Minnesota Department of Human Services, in partnership with WINGS MN, has produced a series of training videos about Supported Decision Making; we encourage you to view them: Introduction and Guide to Supported Decision Making in Minnesota. For more information, visit the National Resource Center on Supported Decision Making.
How do I know if the person I'm concerned about might benefit from a guardian/conservator?
When needed, guardianship and/or conservatorship are excellent options to assist and protect an incapacitated person who is unable to make informed personal or care decisions or who is unable to manage their finances. However, there are many other alternatives to attempt before using guardianship or conservatorship. Guardianship and conservatorship are the most intrusive, complicated and expensive ways to assist the person to meet their needs, and involve removing many of the person's legal rights. Initiating a petition to the court for guardianship and/or conservatorship should be the last resort used. Guardianship and conservatorship are controlled by state statute, involve both you and the person appearing in court for a hearing where your loved one's incapacity must be proven with clear and convincing evidence and lead to ongoing court supervision and statutory protections that typically last the lifetime of the person. Retaining an attorney with experience in guardianship and less restrictive alternatives to initiate this process is highly recommended. An attorney is often needed throughout the existence of the guardianship and conservatorship. The guardianship/conservatorship process can place you and the person in an adversarial legal position and may be emotionally and financially costly. Please contact our staff regarding the person's situation to discuss guardianship/conservatorship and other effective alternatives to help ensure the person's needs are met in the most effective, least restrictive way.
My family member has just been diagnosed with Alzheimer's disease, and I've been told I should get guardianship/conservatorship authority. What should I do?
Decisions about the need for guardianship or conservatorship are complex and should never be based purely on a diagnosis of Alzheimer's, developmental or any other disease or disability. Guardianship or conservatorship is rarely needed and is usually too restrictive of an intervention. There are many ways to ensure that someone with a disability or age-related illness has their needs met without the use of guardianship or conservatorship. Learning that your family member has Alzheimer's disease can be a difficult point in life. Fortunately, there are options for support. Our team can help connect those with Alzheimer's disease and their families and caregivers to information, services and assistance. Please contact the Guardianship Information Line to discuss your unique situation and how we can assist and support you and your family.
My child has intellectual or psychiatric disabilities and is going to turn 18 soon, do I need to seek guardianship?
Decisions about the need for guardianship or conservatorship are complex and should never be based purely on a diagnosis of a disease or disability. Guardianship or conservatorship is often not needed in situations where someone has an intellectual or psychiatric disability. There are many ways to ensure that someone with an intellectual or psychiatric disability has their needs met without the use of guardianship or conservatorship. Our team can help connect those with intellectual or psychiatric disabilities and their families and caregivers to information, services and assistance. Please contact the Guardianship Information Line to discuss your unique situation and how we can assist and support you and your family.
What is a professional guardian/conservator?
A professional guardian or conservator is a person not related by blood or marriage to the person with a guardian or conservator and who receives financial compensation to carry out the statutory responsibilities given by the court to the guardian or conservator. Professional guardians and conservators may also be corporations or institutions such as banks. Professional guardians and conservators may be appointed by the court as neutral decision makers in situations where there are no family or friends to serve, when there is severe and irresolvable conflict within the family, or when family members have personal reasons for deciding not to serve as the legal decision-maker for a loved one. Professional guardians and conservators are held to high standards by the court and the public. Their background, qualities, experience and areas of expertise vary. Most guardians and conservators are not professionals, but rather family members or friends. With approval by the court, non-professional guardians and conservators may also be entitled to payment for activities related to their statutory responsibilities.
There are many issues to consider when deciding to serve as the guardian or conservator, or determining whether it would be in your loved one's best interest to have a professional guardian/conservator. If a guardianship/conservatorship is necessary, and you decide to serve in this legally defined role, assistance is available to support you in carrying out your responsibilities. Please contact our staff to discuss your situation and to learn more about what questions to consider and what resources are available when deciding whether to become your loved one's guardian/conservator, or work with a professional guardian or conservator.
My family member or client has been the victim of abuse or financial exploitation. Does he/she need a guardian?
The court appointment of a guardian or conservator may or may not be the best remedy for protection against, or response to, abuse or financial exploitation. There are many interventions to consider depending on the circumstances involved. In all cases, it is important that any abuse or neglect be reported to the MN Adult Abuse Reporting Center at 1-844-880-1574 for possible investigation and to mobilize the unique resources of the county for the protection of the vulnerable adult. Please contact the Guardianship Information Line for further information, consultation, advice and resources.
How do I know if I should call the Center for Excellence in Supported Decision Making or County Adult Protective Services?
The MN Adult Abuse Reporting Center is where reports of suspected physical, emotional or financial abuse of a vulnerable adult, or neglect by the caregiver of a vulnerable adult, can be reported for investigation and the development of a protective plan under the Minnesota Vulnerable Adult Act. Any concerns about a vulnerable adult's neglect of their own needs for food, medical care, shelter and financial management should also be reported to the MAARC. When in doubt, call the Guardianship Information Line to discuss the concerns you have, help you develop an appropriate action plan and refer you to the MAARC when appropriate.
- For more information, contact us
- Phone: 952-945-4174 or 1-844-333-1748