Frequently Asked Questions

DISCLAIMER

This F.A.Q. section is intended to serve as a brief summary and does not attempt to cover all aspects of substitute decision making. If you have questions regarding your specific circumstances, please contact a local attorney with elder law experience or establishing guardianship for people with intellectual disabilities. Please do not contact PPI staff members seeking legal advice or direction concerning a specific case.

This page was developed for the GAIN (Guardianship Association of Iowa Network) website by GAIN. GAINwebsite is www.iowaguardianship.org.

The National Guardianship Association's website is www.guardianship.org.

Guardianship Questions

What is a guardianship?

A court-authorized relationship whereby one person (guardian) assumes responsibility for the physical custody of another (ward). A guardian is appointed to assist someone whose decision making capacity is so impaired that the person is unable to care for his/her personal safety or to attend to or provide for necessities for their person such as food, shelter, clothing or medical care, without which physical injury or illness might occur.

Who can be served by a guardianship in Iowa?

Guardianships are intended for individuals in one of the two following categories: (1) A person whose decision making capacity is so impaired that the person is unable to care for his or her personal safety or to attend to or provide for necessities for himself or herself, such as food, shelter, clothing, or medical care, without which physical injury or illness might occur; or (2) a minor (under the age of 18 years). Iowa Code 633.552.

Are there alternatives to guardianship?

Before a court grants a guardianship, the judge is required to consider and rule out any less restrictive alternatives. Iowa Code 633.566. A guardianship results in a significant loss of rights for the ward, as such, it is important to ensure that no less-restrictive alternatives would be sufficient before turning beginning a guardianship proceeding. These alternatives include community services, assistance from family and friends, powers of attorney, advance directives, or a limited guardianship.

How are guardianships established?

Any person may file a petition for the appointment of a guardian. The petition must include the name, age and address of the proposed ward; that the proposed ward requires a guardian (requirements); the name and post office address of the proposed guardian, and that such person is qualified to serve in that capacity; that the proposed ward is a resident of the state of Iowa or is present in the state, and that the ward’s best interests require the appointment of a guardian; and the name and address of the person or institution, if any, having care, custody or control of the proposed ward.
After filing the petition, proper notice must be served. If the proposed ward is an adult, the proposed ward must be served an original notice; unless the proposed ward is the petitioner, the proposed ward’s spouse must also be served; if the proposed ward has no spouse, adult children must be served; if the proposed ward is a minor OR an adult under a standby petition and the court determines that the proposed ward is entitled to representation, notice in the manner of original notice given to the appointed attorney is considered notice to the proposed ward.
If the petition is for an involuntary guardianship (as opposed to a voluntary guardianship) of an adult, the proposed ward is entitled to the appointment of representation. If the proposed ward is a minor or an adult under a standby petition, the court decides whether representation is necessary. The court shall appoint an attorney to represent the proposed ward upon the filing of the petition. The court will provide notice of the appointment of counsel and the date for hearing.
The court will also set a hearing on the petition and provide notice to all parties. At this hearing, it is up to the petitioner to prove by “clear and convincing evidence” that the appointment of a guardian is necessary. During this hearing, the court should consider whether a limited guardianship is appropriate.
If the court agrees that a guardianship is necessary, the court will issue letters of appointment to the guardian and notification of guardianship powers to the ward (most likely, all parties will receive copies of each).

What different types of guardianship are recognized in Iowa?

Iowa law recognizes four types of guardianships:

General or full (plenary). The guardian has the authority to make all personal care decisions on behalf of the ward, except those that require prior court approval. Iowa Code 633.635.
Limited. The guardian only has those specific powers that are set out in the court order. Iowa Code 633.551(3), 633.556(2), 633.635(4).
Standby. The person may be currently able to handle his or her affairs but anticipates a time where a guardian may be necessary, and appoints a specific person to serve as guardian if the need arises. It only takes effect upon the occurrence of an event specified in the petition. Iowa Code 633.560.
Temporary. The terms of the guardianship are specific to time and purpose. Iowa Code 633.558.

Who pays for the cost of the guardianship?

The ward or the ward’s estate shall be charged with the court costs of a ward’s guardianship, including the guardian’s fees and the fees of the attorney for the guardian. The court may, upon application, enter an order waiving payment of the court costs in indigent cases. However, if the ward or the ward’s estate becomes financially capable of paying any waived costs, the costs shall be paid immediately. Iowa Code 633.673.

What liability will I have as a guardian?

Under Iowa law, guardians are not held personally liable for actions or omissions taken or made in the official discharge of the guardian’s duties, except where the guardian breaches his or her fiduciary duty imposed by the court OR the guardian’s action or omission amounts to willful or wanton misconduct in the official discharge of his or her duties. Iowa Code 633.633A.

Further, the fact that you are serving as a guardian does not in itself make you personally liable for damages for the acts of the ward. Iowa Code 633.633B.

What are the requirements of a guardian after appointment?

In addition to ensuring the ward is properly cared for per (the powers and duties of a guardian), the guardian is required to file the following reports throughout the duration of the guardianship relationship:

An initial report within sixty days of the guardian’s appointment;

An annual report, within ninety days of the close of the reporting period;

A final report within thirty days of the termination of the guardianship.

What are the powers and duties of a guardian?

Under Iowa law, guardians have the following powers:

Provide for the care, comfort and maintenance of the ward, including the appropriate training and education to maximize the ward’s potential;
Taking reasonable care of the ward’s clothing, furniture, vehicle and other personal effects;
Assisting the ward in developing maximum self-reliance and independence;
Ensure that the ward receives necessary emergency medical services; and
Ensuring the ward receives professional care, counseling, treatment, or services as needed.
Note that there are (other powers) that the guardian must seek court approval in order to exercise.

What decisions may I need to make that require prior court approval?

Under most general or plenary guardianships, you will be permitted to make almost all personal health care decisions. However, Iowa Code 633.635(2) states that the following decisions may only be made upon court approval:

Changing the ward’s permanent residence if the proposed new residence is more restrictive of the ward’s liberties than the current residence;
Arranging the provision of major elective surgery or any other nonemergency major medical procedure;
Consenting to the withholding or withdrawal of life-sustaining procedures in accordance with the Iowa Code;
Restricting visitors to the ward.

Do wards have any rights under a guardianship?

Yes. Unless otherwise addressed by the court, the ward retains the rights to vote, marry, request termination of the guardianship, and be present at all guardianship proceedings.

Can GAIN provide legal advice or case consultation?

No. GAIN is a membership organization which strives to provide general information to members and the public about guardianship, conservatorship, and less restrictive alternatives to provide a general understanding about these issues through this website. However, we are unable to provide legal or case advice. If you have any legal or practical questions regarding how to manage an existing guardianship/conservatorship, please peruse our website, including FAQ’s, resource links, and Educational sections and consult with your attorney. Nothing on our website should be considered as legal advice.

GAIN appreciates your interest in guardianship issues, however, it is not our role to intervene or comment regarding specific guardianship cases or issues. Please do not contact GAIN seeking legal advice or direction regarding your specific case. If you need help, we encourage you to contact your local court, county social services or attorney associated with the case.

Conservatorship Questions

What is a conservatorship?

A court-authorized relationship whereby one person assumes the responsibility for the financial affairs and property of another. A conservator is appointed to assist someone who has a decision making capacity which is so impaired that the person is unable to make, communicate, or carry out important decisions concerning the person's financial affairs.

Who can be served by a conservatorship in Iowa?

Conservatorships are intended for individuals in one of the two following categories: (1) A person whose decision making capacity is so impaired that the person is unable to make, communicate, or carry out important decisions concerning the person’s financial affairs; or (2) a minor (under the age of 18 years). Iowa Code 633.552.

Are there alternatives to conservatorship?

Before a court grants a conservatorship, the judge is required to consider and rule out any less restrictive alternatives. Iowa Code 633.570. A conservatorship results in a significant loss of rights for the ward, as such, it is important to ensure that no less-restrictive alternatives would be sufficient before turning beginning a conservatorship proceeding. These alternatives include bill pay services, representative payee, powers of attorney, and a limited conservatorship.

How are conservatorships established?

Any person may file a petition for the appointment of a conservator. The petition must include the name, age and address of the proposed ward; that the proposed ward requires a guardian (requirements); the name and post office address of the proposed guardian, and that such person is qualified to serve in that capacity; the estimated present value of the real estate, the estimated value of the personal property, and the estimated gross annual income of the estate; whether any money is payable, or to become payable, to the proposed ward by the United States through the United States department of veterans affairs; the name and address of the person or institution, if any, having care, custody or control of the proposed ward; and that the proposed ward resides in the state of Iowa, is a nonresident, or that the proposed ward’s residence is unknown, and that the proposed ward’s best interests require the appointment of a conservator in the state of Iowa.

After filing the petition, proper notice must be served. If the proposed ward is an adult, the proposed ward must be served an original notice; unless the proposed ward is the petitioner, the proposed ward’s spouse must also be served; if the proposed ward has no spouse, adult children must be served; if the proposed ward is a minor OR an adult under a standby petition and the court determines that the proposed ward is entitled to representation, notice in the manner of original notice given to the appointed attorney is considered notice to the proposed ward.

If the petition is for an involuntary conservatorship (as opposed to a voluntary conservatorship) of an adult, the proposed ward is entitled to the appointment of representation. If the proposed ward is a minor or an adult under a standby petition, the court decides whether representation is necessary. The court shall appoint an attorney to represent the proposed ward upon the filing of the petition. The court will provide notice of the appointment of counsel and the date for hearing.

The court will also set a hearing on the petition and provide notice to all parties. At this hearing, it is up to the petitioner to prove by “clear and convincing evidence” that the appointment of a conservatorship is necessary. During this hearing, the court should consider whether a limited conservatorship is appropriate.

If the court agrees that a guardianship is necessary, the court will issue letters of appointment to the conservator and notification of conservatorship powers to the ward (most likely, all parties will receive copies of each).

What different types of conservatorships are recognized in Iowa?

Iowa law recognizes five types of conservatorships:

General or full (plenary). The guardian has the authority to make all financial management decisions on behalf of the ward, except those that require prior court approval. Iowa Code 633.646, Iowa Code 633.647.
Limited. The conservator only has those specific powers that are set out in the court order. Iowa Code 633.551(3), 633.570(2), 633.572(2).
Standby. The person may be currently able to handle his or her affairs but anticipates a time where a conservator may be necessary, and appoints a specific person to serve as conservator if the need arises. It only takes effect upon the occurrence of an event specified in the petition. Iowa Code 633.591, 633.596.
Temporary. The terms of the conservatorship are specific to time and purpose. Iowa Code 633.573, 633.585.
Foreign. Where there is no conservatorship, nor any application pending in this state, the duly qualified foreign conservator of a non-resident ward may, upon application, be appointed conservator of the property of such person in this state. Iowa Code 633.603.

Who pays for the cost of the conservatorship?

The court will not approve the annual report of a conservator until the court costs which have been docketed have been paid or provided for. The court may, upon application, enter an order waiving payment of the court costs in indigent cases. However, if the ward or the ward’s estate becomes financially capable of paying any waived costs, the costs shall be paid immediately. Iowa Code 633.672.

What liability will I have as a conservator?

Under Iowa law, conservators are not held personally liable for actions or omissions taken or made in the official discharge of the conservator’s duties, except where the conservator breaches his or her fiduciary duty imposed by the court OR the conservator’s action or omission amounts to willful or wanton misconduct in the official discharge of his or her duties. Iowa Code 633.633A.

Further, the fact that you are serving as a conservator does not in itself make you personally liable for damages for the acts of the ward. Iowa Code 633.633B.

What are the requirements of a conservator after appointment?

In addition to ensuring the ward’s estate is protected and preserved and fulfilling all other (powers and duties of a conservator), the conservator is required to file the following reports throughout the duration of the guardianship relationship:

An initial inventory report within sixty days of the conservator’s appointment;
An annual report, within ninety days of the close of the reporting period;
A final report within thirty days following the date of removal;
Upon filing resignation and before the resignation is accepted by the court; and
Within sixty days following the date of termination.

What are the powers and duties of a conservator?

Under Iowa law, conservators have the following powers:

Collect, receive, receipt for any principal or income, and to enforce, defend against or prosecute any claim by or against the ward or the conservator; to sue on and defend claims in favor of, or against, the ward or the conservator;
To sell and transfer personal property of a perishable nature and personal property for which there is a regularly established market;
To vote ate corporate meetings in person or by proxy;
To receive additional property from any source;
To continue to hold any investment or other property originally received by the conservator, and also any increase thereof, pending the timely filing of the first annual report.

Note that there are (other powers) that the conservator must seek court approval in order to exercise.

What decisions may a conservator need to make that require prior court approval?

Under most general or plenary conservators, you will be permitted to make almost all financial management decisions. However, Iowa Code 633.647 states that the following decisions may only be made upon court approval:

To invest the funds belonging to the ward;
To execute leases;
To make payments to, or for the benefit of, the ward in any of the following ways:
Directly to the ward;
Directly for maintenance, welfare and education of the ward;
To the legal guardian of the person of the ward; or
To anyone who at the time shall have the custody and care of the person of the ward.
To apply any portion of the income or of the estate of the ward for the support of any person for whose support the ward is legally liable;
To compromise or settle any claim by or against the ward or the conservator; to adjust, arbitrate or compromise claims in favor of or against the ward or the conservator;
To make an election for the ward who is a surviving spouse;
To exercise the right to disclaim on behalf of the ward;
To do any other thing that the court determines to be the best interest of the ward and the ward’s estate.

Do wards have any rights under a conservatorship?

Yes. Unless otherwise addressed by the court, the ward retains the right to vote and to sign a will because the appointment of a conservator does not constitute an adjudication that the ward is of unsound mind. Under a limited conservatorship, the ward has all powers and authorities not granted to the conservator in the order.

Can GAIN provide legal advice or case consultation?

GAIN appreciates your interest in conservatorship issues, however, it is not our role to intervene or comment regarding specific conservatorship cases or issues. Please do not contact GAIN seeking legal advice or direction regarding your specific case. If you need help, we encourage you to contact your local court, county social services or attorney associated with the case.

Power of Attorney Questions

What does it mean for a power of attorney document to be “durable”?

If a power of attorney document is durable, the document either becomes effective or remains effective upon the disability of the principal, as opposed to termination upon disability.

What makes a power of attorney document “durable”?

Both a power of attorney for health care and a power of attorney for financial decisions is durable if it contains the words, “this power of attorney shall not be affected by the disability of the principal” or “This power of attorney shall become effective upon the disability of the principal”, or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s disability. Iowa Code 633B.1.

DISCLAIMER

This F.A.Q. section is intended to serve as a brief summary and does not attempt to cover all aspects of substitute decision making. If you have questions regarding your specific circumstances, please contact a local attorney with elder law experience. Please do not contact GAIN members seeking legal advice or direction concerning a specific case.

Permanent Planning, Inc.