Does a Guardian Become the Alter-Ego of the Person Subject to Guardianship
Sometimes a guardian or conservator acts as if they are the “alter-ego” of the person subject to guardianship or conservatorship. The powers of a guardian or conservator are, however, not unlimited. For example, a guardian or conservator in Minnesota must consider the personal desires and preferences of the person subject to guardianship or conservatorship and not change a decision made before the guardianship or conservatorship was necessary. A guardian or conservator therefore does not become their “alter-ego.”
Bill of Rights for Persons Subject to Guardianship or Conservatorship
In Minnesota, there is a bill of rights for persons subject to guardianship or conservatorship (“bill of rights”). Minn. Stat. § 524.5-120. A guardian or conservator must give due consideration of current and previously stated personal desires and preferences. Id. In a court proceeding, Minnesota courts must “examine the bill of rights, determine the rights retained by the person in question, and enforce those retained rights.” Harris on behalf of Banks v. Gellerman, — N.W.2d —- (Minn. Ct. App. 2021). A guardian or conservator cannot simply substitute their desires and preferences for those of the person subject to guardianship or conservatorship.
Before the Bill of Rights
In Minnesota, the bill of rights for persons subject to guardianship or conservatorship first went into effect in 2009. It has long been the law in Minnesota, however, that a conservator “does not become the alter ego” of the person subject to conservatorship. Hagen v. Rekow, 91 N.W.2d 768, 771 (Minn. 1958). A conservator is not empowered to act for the person subject to conservatorship in matters involving the exercise of personal discretion so as to change a decision made before the conservatorship was necessary. Id. To the greatest extent possible, a guardian or conservator must honor the decisions of the person subject to guardianship or conservatorship.
A Conservatorship Order is Not a Written Power of Attorney
In a conservatorship, a court appoints a conservator to act on behalf of the person subject to conservatorship. In some ways, this is like a written power of attorney document, where one person (called a principal) gives another person (called an attorney-in-fact) authority to act on their behalf. A key difference, however, is that under a written power of attorney in Minnesota, the attorney-in-fact does become the alter-ego of the principal, with some exceptions. “In a statutory short form power of attorney, the language conferring general authority with respect to all other matters, means that the principal authorizes the attorney-in-fact to act as an alter ego of the principal . . . .” Minn. Stat. § 523.24, subd. 14. A written power of attorney contrasts with a conservatorship order, where the court cannot authorize the conservator to act as an alter-ego of the person subject to conservatorship.