Guardianship and Conservatorship in Iowa

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Parents are the natural guardians for their minor children (persons age 17 years old and younger). As natural guardians, parents make a variety of decisions on behalf of their children. This includes decisions such as, where their child will go to school, what medical care their child will receive, and in what activities their child will participate. This natural guardianship ends, however once their child reaches the age of majority, or adulthood (age 18 years). At that age, all children become legal adults with the right to make their own decisions.

As an adult, a person is granted certain legal and civil rights, including the right to vote, to marry, and to sign contracts. Some individuals may lack the ability to make decisions for themselves in order to meet their personal needs and manage their finances.

If an adult does lack the capacity to make such decisions on his/her own behalf, he/she may need the support of some type of substitute decision maker. In those cases the person’s parents, other family members, or friends may want to consider which substitute decision making alternatives would be appropriate for the person. Frequently used decision making alternatives include guardianship and conservatorship.

A person appointed by the court to have the custody or the person of the ward. This type of substitute decision making can cover all or only some matters relating to a person’s medical care, nutrition, clothing, shelter or residence, and other matters regarding the person, as opposed to the person’s finances. A guardianship can be full or general, covering all aspects of the personal life, or be limited to only some areas of the person’s life.

A person appointed by the court to handle the property of a ward. This type of substitute decision making can cover all or only some matters relating to a person’s finances, property, and real estate. A conservatorship can be full or general, covering all aspects of the person’s finances, or be limited to only some areas of the person’s finances.

The guardian or conservator must: maintain a current understanding of the ward’s physical and mental status; be familiar with the ward’s needs and wishes; and be available to carry out all of the powers and duties granted by the court.

In order to carry out these responsibilities the guardian should be actively involved in the following:

• Planning for services (usually done in conjunction with service providers, case managers, and funding personnel).
• Ensuring that the services that are provided meet the needs of the ward.
• Making informed decisions by weighing the risks and benefits to the ward and the ward’s preferences, if known.

A guardian may make decisions regarding:

• Care, comfort, and maintenance (food, clothing, shelter, health care, social and recreational, training, education).
• Giving necessary consents for and ensuring that the ward receives needed professional care.
• Taking reasonable care of personal effects.
• Ensuring the ward receives necessary emergency medical services.

A conservator must:

• Protect and preserve the estate.
• Invest funds prudently.
• Account for the assets of the estate.
• Collect all debts and claims in favor of the ward.

Unless otherwise limited by court order, a conservator shall have the power to:

• Collect income and enforce or defend any claim by or against the ward.
• Sell and transfer personal property that is perishable or for which there is an established market.
• Vote at corporate meetings.
• Continue to hold any investment or property originally received until the timely filing of the first annual report.

This is something a family should use to provide for family members, even when very little property or assets are involved. The smaller the estate, the greater the need for a well-planned will or other alternative since each dollar lost to taxes or other expenses becomes much more critical. An individual receiving government assistance may become ineligible to continue receiving assistance by inheriting cash or property so the planning must be done to ensure continued services.

SELECTING AN ATTORNEY:

Before a petitioner selects an attorney to represent him/her it is useful to gather information about the attorney. Below are some questions that may be helpful when selecting an attorney for a guardianship or conservatorship petition.

Background Information:

1. Do you handle guardianship or conservatorship cases? If yes, how many cases do you take per year?
2. When was your most recent case?
3. In which counties do you work?
4. What additional related information can you provide regarding your qualifications and experience?

Are you familiar with or have a background in legal, health, and other issues of people with the type of decision making incapacity of the proposed ward?

Fees/Costs:

1. How do you bill your fees? Hourly, flat fee, percentage of income or assets?
2. Can you provide a general estimate of the cost for your services to obtain a guardianship/conservatorship?

Do you provide a written agreement describing your fees, billing, and services?

Resources:

1. The yellow pages of phone books under "Attorneys"
2. Lawyer referral service of the Iowa State Bar Association: 1-800-532-1108
3. Legal Services Corporation of Iowa 1-800-532-1503