With aging parents, teens living with disabilities coming of age, and adults suffering from traumatic brain or other injuries, guardianships, and conservatorships are increasingly common on today’s legal scene. The team at The Law Shop shares insights on what you can do to help those you love when they are unable to care for themselves on their own.
Guardianship and Conservatorship
In Iowa, guardianship is a legal proceeding that appoints a “guardian” on a full or limited basis to manage the care of another individual. In contrast, a conservatorship involves the appointment of a “conservator” to manage another’s financial matters. In both types of actions, the individual with intellectual and/or developmental disabilities is referred to as the “protected person.”
Who can initiate an action to establish guardianship or conservatorship?
In many cases, a loved one who wishes to serve as another’s guardian or conservator files a petition with the court to establish a guardianship and/or conservatorship. In other instances, the county attorney may assist the Iowa Department of Human Services in filing an action to establish a guardian and/or conservator for the protection of a dependent adult.
What options may be available to assist an individual without guardianship or conservatorship?
Iowa law requires that less restrictive options for the protected party be considered prior to the establishment of guardianship or conservatorship. Such options may include a power of attorney or a care contract.
What should I do if I have a child living with disabilities who is about to turn 18?
Iowa law now allows for the filing of a petition to establish a “standby” guardianship or conservatorship once a young person in need of ongoing assistance into adulthood reaches age 17½. This helps to avoid any gap period in the ability to provide assistance as the protected party legally becomes an adult.
What is the basic legal process for the establishment of guardianship and/or conservatorship?
The process is started by filing a petition with the court along with a report from a medical or mental health professional advising that 1) the individual in need of protection lacks the capacity necessary for managing such individual’s own “activities of daily living” or “ADL” (i.e. health and/or financial affairs); and 2) without the assistance of a guardian and/or conservator, illness or injury (physical, financial or otherwise) could occur.
Once a petition and report have been filed, a background check is completed on the proposed guardian and/or conservator and an attorney is appointed to represent the protected party. If the protected party disagrees either that assistance is necessary or that a certain individual should be appointed as guardianship or conservator, the court may appoint a “Court Visitor.” The Court Visitor is ordered to complete an investigation to assist the court in determining whether the appointment of a guardian or conservator is in the best interests of the protected party.
Finally, the court will hold a hearing to determine whether or not the petition for guardianship and/or conservatorship should be granted. If the petition is granted, the court will then issue “letters of appointment” to be used by the guardian or conservator as a means for proving his or her legal authority to act on behalf of the protected party when needed.
What are the responsibilities of a court-appointed guardian or conservator?
The court order appointing a guardian or conservator specifies the powers and duties of the relevant role to be exercised on behalf of the protected party, some of which may require prior court approval. In addition, once letters of appointment have been issued by the court, a guardian or conservator is responsible for the completion and filing of an Initial Care Plan as well as annual reports to the court thereafter.
In addition to assistance with guardianship and conservatorship matters, The Law Shop by Skogerson McGinn LLC offers a variety of legal services designed to help you and your family plan for the care of your own loved ones:
- Shop Evaluation – planning session with a TLS attorney to discuss your story and establish a legal plan that fits your specific needs and budget.
- Last Will and Testament – legal instrument for the distribution of property and care of dependents in the event of your death.
- Power of Attorney – a legal document giving someone else authority to act on your behalf in specified situations or in all legal or financial matters.
- Living Will – statement detailing your desires concerning medical treatment if you can no longer express informed consent.
- Individual or Family Trust – a legal instrument establishing a fiduciary relationship in which you give another the right to hold title to property for the benefit of you or a third party.
- Care Contract – private written agreement with an individual needing assistance to provide services at a reasonable hourly rate, such as grocery shopping, meal preparation, transportation to appointments, etc.
For more information in relation to your legal needs, simply go to www.lawshop.net and click on “Get Started.”
Address:: 413 Grant St. Van Meter, IA