Legal Memorandum: Power of Attorney in MN

Issue: Under a court-mandated conservatorship does the named agent under a conservatee’s previous executed powers of attorney continue to have the powers enumerated in the powers of attorney in Minnesota?

A valid power of attorney remains in effect even though a court appoints a conservator or co-conservators, unless the court expressly revokes the power of attorney.  See In re Wingate, 627 N.Y.S.2d 257 (1995) (a conservator or guardian may not revoke a power of attorney but a court may revoke or alter it); In re Wellman, 174 Ill. 2d 335, 675 N.E.2d 272 (1996) (a court may revoke a durable power of attorney); In re Scott, 882 S.W.2d 295 (Mo. Ct. App.  1994) (court specifically terminated power of attorney when it appointed a conservator); see also In re Mabry, 281 Ill. App. 3d —, 666 N.E.2d 16 (1996) (a guardian of the person or estate has no power over property subject to the agency absent a court order expressly directing it to exercise powers of the principal under the agency).  But see In re Rochester Gen. Hosp., 601 N.Y.S.2d 375 (Sup. Ct. 1993) (guardian may make decisions where the agent under a power of attorney is unable or unwilling to fulfill duties).  In Minnesota, the only difference between a guardian and a conservator is that a guardian is vested with all powers and duties for care of an incapacitated person while a conservator may exercise only some powers and perform some duties for the care of an incapacitated person.  In re Guardianship of Kowalski, 382 N.W.2d 861 (Minn. Ct. App. 1986).

However, the appointed agent, acting under a power […]