Search      Tips on Searching Find Legal Help On Guardianship Related Resources Guardianships for Children By: Iowa Legal Aid Can the School Make Me Get a Guardianship in Order to Enroll Children I Am Taking Care Of? By: Iowa Legal Aid Substitute Decision-Making By: Iowa Legal Aid more...

The following are the most frequently asked questions and answers parents have about guardianship or conservatorship.

Why would a parent need to be appointed guardian or conservator of his or her adult son and daughter?
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 for their children. This includes decisions such as: 1) where their child will go to school; 2) what medical care their child will receive; and 3) 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.  These include 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. The individual may have had disabilities since childhood, or become a person with disabilities as an adult.

If an adult lacks the "capacity" (ability) to make decisions, he or she may need someone (a substitute decision-maker) to make decisions for him or her. The person and family members, or friends may want to consider which substitute decision making options would be best.

These options include:  Power-of-Attorney for Finances, Durable Power of Attorney for Health Care, Social Security Representative Payeeship, Trusts, and many other formal and informal supports. The goal should be to preserve and protect the person's self determination and decision making independence as much as possible, and make sure his or her needs are met.

Two options that are used often are guardianships and conservatorships. These two options are discussed here. Careful assessment of the person's decision making abilities should be made before establishing any form of substituted decision making. When limiting or removing a person's legal or civil rights in any way, the least restrictive choice should always be used.

What is the difference between full guardianship and limited guardianship?
In a full guardianship, the guardian is given broad powers over the ward,  and makes all decisions for the person. Since most people have the ability to make some decisions (what clothes to wear, what recreational activities to participate in), this type of guardianship should not be used very often. Full guardianship is the most restrictive form of protection and should be sought only when there is no other less restrictive alternative.

In a limited guardianship, the guardian is only given decision making power in the areas of life where protection and supervision is necessary. Guardianship is used only for substitute decision making in specific areas necessary to meet the person's needs.

A limited guardianship assumes that the ward is able to make some decisions. There is no finding of general incompetence.

Why is limited guardianship recommended over full guardianship?
By law, a limited guardianship must be considered in all cases because it is less restrictive than full guardianship. See Iowa Code section 633.551(3).

What happens if a parent does not pursue conservatorship or guardianship when it is needed?
Finding the need for a guardianship or conservatorship is very important. Just because a parent disagrees with the decisions that an adult child makes, does not mean a guardianship is required. If a person is making decisions that could result in harm, a guardianship may be needed. Unless there is a guardianship, a parent's ability to make decisions for an adult child is limited. For example, if you are not your adult child's guardian, it may be hard to make decisions if the doctor does not believe your child has the ability to consent to ordinary medical treatment. The doctor might refuse to treat your child, and you would not have the legal power to make the treatment happen for your child.

What is the difference between a guardian and conservator?
A guardian of the person makes personal decisions, such as where to live, and what medical, educational, or professional services a person might need.

A conservator of the estate makes financial decisions. This is usually not necessary when a person is "indigent," or has little or no property or money.

What are the personal costs to me in obtaining guardianship or conservatorship?
Court fees and attorney fees can vary depending on the area of the state, who needs to be served with the court papers and whether the case is contested. The attorney and court costs for these procedures are typically paid for from the funds of the proposed ward. If a proposed ward is poor, the court may enter an order waiving payment of the court costs. The county will pay the fees charged by the ward's attorney, if the ward is poor. However, no payment from public funds is available for payment of the guardian's or conservator's attorney. As a result, the guardian's or conservator's attorney fees would be paid according to the agreement worked out between the guardian or conservator and the attorney.

Is a guardian or conservator responsible to provide services or pay for services or debts of the ward?
For example, would the ward have to come to live with the guardian or must the guardian pay for services if the ward is no longer eligible for benefits, entitlements or services?

A guardian or conservator does not have to pay for any services of the ward from the guardian's or conservator's personal funds. Services and debts are paid for out of the ward's own funds, as well as out of any governmental benefits that may be available.

The guardian or conservator should seek out federal, state, or county benefits, entitlements, and services to which the ward is entitled and make decisions about the service needs of the ward. The guardian does not have to pay for needed services.

The guardian or conservator does not have to act alone to decide which services or benefits are needed. The guardian or conservator can receive help to understand and get various benefits and services from case management, the central point coordinator employed by the county, providers and other advocates.

What are the ongoing legal duties and responsibilities as a guardian or conservator to the ward?
The guardian or conservator must: know about the ward's physical and mental condition; 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.

The guardian should be actively involved in the following:

• • plan for services (usually done with service providers, case managers, and funding personnel);
• make sure that the services meet the needs of the ward;
• make informed decisions by weighing the risks and benefits to the ward and the ward's wishes, if known.

The guardian must file an initial report within 60 days of being appointed. Also, the guardian is to report to the court every year. The report includes information about the ward's current mental and physical condition, the present living arrangement of the ward, a summary of the professional services provided to the ward, a description of the guardian's visits with and activities on behalf of the ward and whether the guardianship is still needed. See Iowa Code section 633.669.

A conservator must:

• protect and preserve the property and money of the ward;
• invest funds prudently;
• account for the property and money of the ward;
• collect all debts and claims owed to the ward.
  See Iowa Code section 633.641.
• Depending upon the duties placed on the conservator by the court order, the conservator can, without prior court approval:
• 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.
  See Iowa Code section 633.646.

With the approval of the court and unless otherwise limited by court order, a conservator shall have the following powers:

• invest funds;
• agree to leases;
• make payments to or for the benefit of the ward;
• compromise or settle a claim;
• apply any portion of income or assets for the support of any person for whose support the ward is legally liable.
  See Iowa Code section 633.647.

The conservator must file an inventory of the ward's property within 60 days of the conservator's appointment. In addition, the conservator must report to the court every year. The report shall include:

• the amount of funds on hand at the close of the last accounting;
• all amounts received from any source;
• all disbursements made;
• any changes in investments;
• amount of the bond and name of the surety;
• residence of the ward;
• and general physical and mental condition of the ward.
  See Iowa Code section 633.670.

What is the scope of authority of a guardian or conservator?
The court will grant the conservator or guardian only the specific powers necessary to protect and supervise the ward. The guardian or conservator should exercise that power in a way that will maximize the ward's self-reliance and independence. The guardian or conservator must also exercise that power consistent with the authority granted by the court.

Guardian
A guardian may make decisions about:

• care, comfort, and maintenance (food, clothing, shelter, health care, social and recreational activities, training, education);
• giving necessary consents for and ensuring that the ward receives needed professional care;
• taking reasonable care of personal property;
• ensuring the ward receives necessary emergency medical services.

A guardian may have the following powers with prior court approval:

• changing the ward's permanent residence to one more restrictive of the ward's liberty;
• arranging the provision of major elective surgery or any other nonemergency major medical procedure (certain dental and health procedures are specifically excluded from this requirement);
• consent to the withholding or withdrawal of life-sustaining procedures.

Conservator

A conservator must:

• protect and preserve the property and assets of the ward;
• invest funds prudently;
• account for the assets of the ward;
• collect all debts and claims in favor of the ward.

A conservator shall have the following powers, unless a court limits them:

• 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.

A conservator shall have the following powers, if the court approves:

• enter into leases;
• make payments to or for the benefit of the ward;
• compromise or settle a claim;
• apply any portion of the ward's income or assets for the support of any person for whose support the ward is legally liable.
  See Iowa Code section 633.647.

Can co-conservators or co-guardians be appointed?  If so, how many can there be?
Co-guardians can be appointed. There are no legal restrictions about the number of co-guardians that can be appointed by the court for a single person. Normally one and no more than two co-guardians should be appointed. This is because with more people it is difficult to get decisions made and come to an agreement. The guardians will have to work together. How well will they be able to do this? Generally, both conservators or guardians will have to agree on an action. However, the court could direct that decisions could be made by one or the other of the guardians or conservators.

A person who is not a resident of Iowa can be a guardian. A non-resident guardian would usually be required to serve with a resident guardian. However, the court can decide, for good cause shown, that the nonresident may serve alone. See Iowa Code sections 633.63 and 633.64.

When does guardianship or conservatorship end?

Modification
At times a ward may not need as much decision making help. It is possible to modify a guardianship to allow the ward to make more decisions for himself/herself. It is also possible that a guardian may need to get more powers from the court than when the guardianship was first set up.

In either case, the court in a proceeding to modify must make specific findings when deciding whether the powers of the guardian should be increased or decreased. This decision must be based on the evidence presented and support the powers given to the guardian.

Termination
A guardianship ends when the ward dies or when a minor reaches the age of majority. A guardianship may also end when the court decides that the ward is no longer incompetent or that the guardianship is no longer necessary for any other reason.
See Iowa Code section 633.675.

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

Background Information

• Do you handle guardianship or conservatorship cases? If, yes, how many cases do you take a year?
• When was your most recent case?
• In which counties do you work?
• What other information can you provide about your qualifications and experience?
• Are you familiar with the legal, health, and other issues of people with the same type of disability as the proposed ward?

Fees/Costs

• How do you bill your fees? Hourly, flat fee, percentage of income or assets?
• Can you provide an estimate of the cost for your services to set up a guardianship/conservatorship?
• Do you provide a written agreement describing your fees, billing, and services?

Resources 
The yellow pages of phone books under Attorneys

Lawyer referral service of the Iowa State Bar Association: 1-800-532-1108

Legal Hotline for Older Iowans: provides advice and referral for Iowans 60 years of age and older: 1-800-992-8161, Des Moines area 515-282-8161

Iowa Legal Aid provides legal assistance to low-income Iowans in all Iowa counties: call 1-800-532-1275.

These materials are a general summary of the law. They are not meant to completely explain all that you should know about guardianship and conservatorship. You should see a lawyer to get complete, correct and up-to-date legal advice.

Funding for this information was provided by the Iowa Governor's Developmental Disabilities Council.