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Probate and Estate Litigation Blog

Guardianships: how 'incapacity' relates to 'competency'

Last week's post discussed how a person who wishes to write a will in Minnesota must have the "competency" to do so. The post also explained that showing "competency" to write a will is fairly easy. All a Minnesota resident need be able to do is show that he or she has the ability to know that general value of his or her property and to whom or he or she might wish to give it.

Guardianships are proceedings that are often lumped together under the title "probate litigation." In Minnesota, a person can ask for the appointment of a guardian over a loved one's property should that loved one be "incapacitated." An "incapacitated" person, under Minnesota law, is someone who lacks the ability both to make personal decisions and decisions about his or her business affairs.

Moreover, before appointing a guardian, the court must also have evidence that the person's property is in danger of being dissipated and the guardianship is otherwise necessary. Once a guardian is appointed however, that person, or institution, has broad power to handle a person's property in the manner he or she sees fit.

Although most guardians in Minnesota probably would exercise their power responsibly, some may be tempted to use that power to benefit themselves or people who are close to them. It can be very frustrating for an heir to watch a guardian spend the heir's would be inheritance irresponsibly. Fortunately, a Minnesota resident facing this situation can seek out the assistance of an experienced Minnesota probate litigation attorney.

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