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What Parents Need to Know About Becoming Their Son's or Daughter's Guardian or Conservator
by: Iowa Legal Aid
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 which 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, family members, or friends may want to consider which substitute decision making options would be best.
Two options that are often used are guardianships and conservatorships. These two options are discussed in the following material. 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.
Some other less restrictive options include: Power-of-Attorney for Finances, Durable Power of Attorney for Health Care, Social Security Representative Payee, Trusts, and 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 while making sure his or her needs are met.
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. Most people have the ability to make some decisions (what clothes to wear, what recreational activities to participate in). 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 where protection and supervision is required to meet a 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.
Is a guardianship or conservatorship needed over my adult child?
Deciding if there is a 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. Without a guardianship, a parent’s ability to make decisions for an adult child in need is limited. For example, a doctor might refuse to treat your adult child because of the child’s lack of capacity to understand the treatment. Without a guardianship a parent may be unable make a necessary decision for the child’s well being.
What is the difference between a guardian and conservator?
A guardian makes personal decisions, such as where the person should live, and what medical, educational, or professional services a person might need.
A conservator makes financial decisions.
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, as well as who needs to be served with the court papers and whether the case is contested (in dispute). The attorney and court costs for these procedures are typically paid from the funds of the proposed ward. If a proposed ward cannot afford to pay, the court may enter an order waiving payment of the court costs. Also the county will pay the fees charged by the ward’s attorney, if the ward cannot afford to pay.
However, no payment from public funds is available for payment of the guardian’s or conservator’s own 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 to the ward 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 out of the ward’s own funds, as well as out of any governmental benefits that may be available.
The guardian or conservator should make decisions about the needs of the ward and seek out federal, state, or county benefits and services that the ward is entitled to receive.
The guardian or conservator does not have to act alone to decide which services or benefits are needed. The guardian or conservator can get help 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:
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Plan for services (usually done with service providers, case managers, and funding personnel);
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Make sure that the services meet the needs of the ward;
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Make informed decisions by weighing the risks and benefits to the ward while considering 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 the ward as well as activities on behalf of the ward and whether the guardianship is still needed.
A conservator must:
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Protect and preserve the property and money of the ward;
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Invest funds prudently;
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Account for the property and money of the ward;
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Collect all debts and claims owed to the ward.
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:
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The amount of funds on hand at the close of the last accounting;
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All amounts received from any source;
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All disbursements made;
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Any changes in investments;
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Amount of the bond and name of the surety;
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The residence of the ward;
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The general physical and mental condition of the ward;
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And such other information necessary to show the condition of the affairs of the conservatorship.
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 the power in a way that will maximize the ward’s self-reliance and independence.
What specific decisions or actions may a guardian or conservator need to make or carry out?
Guardian
A guardian may make decisions about:
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Care, comfort, and maintenance (food, clothing, shelter, health care, social and recreational activities, training, education);
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Giving necessary consents for and ensuring that the ward receives needed professional care;
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Taking reasonable care of personal property;
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Ensuring the ward receives necessary emergency medical services and professional care, counseling, treatment or services as needed.
With prior court approval a guardian may have the following powers and make decisions about:
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Changing the ward’s permanent residence to one more restrictive of the ward’s liberty;
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Arranging for major elective surgery or any other nonemergency major medical procedure (certain dental and health procedures are specifically excluded from this requirement);
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Consenting to the withholding or withdrawal of life-sustaining procedures.
Conservator
A conservator must:
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Protect and preserve the property and assets of the ward;
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Invest funds prudently;
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Account for the assets of the ward;
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Report to the Department of Human Services the assets and income of the ward if the ward is getting medical assistance through the state.
Unless limited by the court, a conservator shall be able to:
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Collect income and enforce or defend any claim by or against the ward;
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Sell and transfer personal property that is perishable or for which there is an established market;
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Vote at corporate meetings;
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Receive additional property from any source;
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Continue to hold any investment or property originally received until the timely filing of the first annual report.
With court approval, a conservator may:
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invest funds belonging to the ward;
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enter into leases;
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make payments to or for the benefit of the ward;
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compromise or settle a claim;
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apply any portion of the ward’s income or assets for the support of any person for whose support the ward is legally liable.
Can co-conservators or co-guardians be appointed? If so, how many can there be?
Co-guardians or co-conservators 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. If the co-guardians or co-conservators disagree it may be difficult to make decisions. The court could direct that decisions be made by one or the other of the guardians or conservators. However, using one guardian or conservator avoids this situation.
A person who is not a resident of Iowa can be a guardian or conservator. A non-resident would usually be required to serve with a resident guardian or conservator. However, the court can decide, for good cause shown, that the non-resident may serve alone.
When does guardianship or conservatorship end?
Can a guardianship or conservatorship be changed after it is set up?
It is possible to modify or change a guardianship to allow the ward to make more decisions for himself or herself. It is also possible to make changes if the guardian needs authority to make more decisions for the ward. In either case, a court proceeding is required to increase or decrease the powers of the guardian or conservator. This decision must be based on evidence presented and must support the powers given to the guardian.
How does a guardianship or conservatorship end?
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 other reasons.
How do I select an attorney to help set up a guardianship or conservatorship?
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
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Do you handle guardianship or conservatorship cases? If, yes, how many cases do you take a year?
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When was your most recent case?
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In which counties do you work?
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What other information can you provide about your qualifications and experience?
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Are you familiar with the legal issues, health issues, and other issues concerning people with the same type of disability as the proposed ward?
Fees/Costs
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How do you bill your fees? Hourly, flat fee, percentage of income or assets?
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Can you provide an estimate of the cost for your services to set up a guardianship/conservatorship?
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Do you provide a written agreement describing your fees, billing, and services?
Resources for finding an attorney
The yellow pages of phone books under Attorneys
Lawyer referral service of the Iowa State Bar Association: www.iowafindalawyer.com
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.
Funding was provided by the Iowa Developmental Disabilities Council.
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