Guardianship and Conservatorship
in Iowa
Issues of Substitute Decision-Making
July 2002
How to set up a Guardianship or Conservatorship
A person must first decide whether a guardianship or conservatorship is necessary. Usually a person will need the help of medical, social service, or other professionals or care givers to make this decision. The person trying to get the guardianship or conservatorship must be able to show that the person who may need a guardianship or conservatorship is incapacitated. It is not enough to know that a person has a mental diagnosis. There must be evidence that the mental diagnosis results in incapacity. In addition, there should be no other less restrictive alternatives available to meet the needs of the person. The person has the right to contest any guardianship or conservatorship proceedings.
How is a Guardian or Conservator Appointed?
In order to set up a guardianship or conservatorship, certain procedures need to be followed. An appropriate guardian or conservator must be found. A guardian or conservator may be a relative or other individual or agency. Once a guardian or conservator is found, a petition is made to the court setting out the reason for the guardianship or conservatorship.
A Petition for Appointment of a Guardian or Conservator is a legal form requesting that the district court appoint a person or corporation to act as guardian or conservator for a person in need of substitute decision-making. Any person may file a petition for the appointment of a guardian or conservator for an incapacitated individual. The person filing the petition is called the Petitioner. A person may petition to have himself or herself appointed as guardian or conservator or to appoint another family member, friend, or professional guardian or conservator. In Iowa, two or more people may be conservators or guardians of an incapacitated individual. Guardians or conservators should live in Iowa. A nonresident may be appointed if there is also an Iowa resident appointed or if the court finds good cause.
continued...
Funding for update of this information was provided by the Iowa Governor’s Developmental Disabilities Council.
A proposed ward or any person interested in his or her welfare may petition the court to establish a guardianship or conservatorship. A proposed ward may pick an individual to serve as guardian or conservator in a voluntary petition. Additionally, an adult of “sound mind” may execute a voluntary petition for the appointment of a guardian or conservator on a stand-by basis. Such a petition only goes into effect when a specific event happens or when a particular mental or physical condition exists.
How does a Guardianship or Conservatorship start?
Filing a proper petition with the clerk of court begins the process for establishing a guardianship or conservatorship. The contents of the petition will vary slightly depending upon whether a request is being made for the appointment of a guardianship of the person, a conservatorship of the estate, or both.
To establish a guardianship, a verified petition must be filed. That petition must contain the name, age, and post office address of the proposed ward. The petition must also state that the proposed ward is a person whose decision-making capacity is so impaired that the person is unable to care for the person’s personal safety or attend to or provide for necessities for the person such as food, shelter, clothing, or medical care without which physical injury or illness might occur. The name and post office address of the proposed guardian and a statement that that person is qualified to serve must be included. A statement must also be included that the proposed ward is a resident of Iowa or present in the state and that the proposed ward’s best interests require the appointment of a guardian in Iowa. The petition must also include the name and address of any person or institution having care, custody, or control of the proposed ward.
A petition for the appointment of a conservator requires similar information. However, a petition for the appointment of a conservator focuses on the proposed ward’s inability to manage financial affairs and requires additional information regarding the estimated value of the proposed ward’s assets.
It is possible to combine the petition for guardianship and conservatorship.
What are the Costs of Filing? When and How to File In Forma Pauperis
If a petitioner cannot afford to pay the filing fees, the petition may be filed in forma pauperis. An application and affidavit showing the inability to pay the fees must be filed with the court. The court may then allow the case to be filed without prepayment of the fees.
Normally, in the case of a conservatorship, the fees would be paid out of the ward’s assets. If the ward does not have enough assets, there normally is no need for a conservatorship. In the case of a guardianship, the statute provides that the ward or the ward’s estate shall be charged with the court costs of the guardianship. However, the court, upon application, may enter an order waiving payment of court costs if the ward is indigent. If the ward or the ward’s estate becomes financially capable of paying waived costs, the costs are to be paid immediately.
continued...
Notice to the Proposed Ward
Once the petition has been filed, the proposed ward must be served with notice before the court can proceed. Under Iowa law, a proposed ward must be served with the petition and an original notice under the same rules that apply to other civil lawsuits. The original notice will tell the proposed ward that there is a petition on file to set up a guardianship or conservatorship. The notice will also advise the proposed ward that he/she has 20 days to file a response.
In addition to the original notice and petition, the proposed ward must receive specific notification of guardianship or conservatorship powers. In the case of a guardianship, the proposed ward must be advised about what actions the guardian may take if appointed. The statute sets out specifically the guardian’s authority and duties which may be exercised without prior court approval and those which may be exercised only with prior court approval. The notice must also clearly advise the proposed ward of the right to counsel and the potential deprivation of the proposed ward’s civil rights. For conservatorships, the notice is similar.
The Proposed Ward’s Right to Representation
Under Iowa law, a proposed ward who is an adult and who is not a petitioner has the right to legal representation. The court is to make sure that all proposed wards who are entitled to representation receive notice of the right to representation and the right to be personally present at all court proceedings. The court is to make findings of fact, setting out how notice was given to the proposed ward.
If the proposed ward is entitled to representation and is indigent or incapable of requesting counsel, the court shall appoint an attorney to represent the proposed ward. The costs of the attorney for an indigent ward shall be paid by the county in which the proceeding is pending.
The attorney appointed to represent the ward has a number of duties. The attorney appointed to represent the ward must:
- ensure that the proposed ward has been properly advised of the nature and purpose of the proceeding;
2. ensure that the proposed ward has been properly advised of the ward’s rights in a guardianship proceeding; including personally interviewing the proposed ward; and
3. file a written report stating whether there is a return of service on file and indicating that the attorney has complied with the other requirements.
The attorney must also do the following:
1. represent the proposed ward; and
2. ensure that the guardianship procedures meet the requirements of Iowa law.
continued...
If an order establishing a guardianship is entered, the attorney must:
1. inform the proposed ward of the effects of the order entered for the appointment of the guardian;
2. advise the ward of the his or her rights to petition for modification or termination of the guardianship; and
3. advise the ward of the rights they still retain.
After a guardianship has been established, the court may again appoint an attorney to represent the ward in any other proceedings in the guardianship case if the court determines it would be in the ward’s best interest to have legal representation.
In a case involving the establishment of a conservatorship, the proposed ward is entitled to representation in a similar manner.
Preparing for the Hearing
The hearing itself is similar for both guardianship and conservatorship cases. In the case of a combined petition, the hearing will normally be held on both requests at the same time. If the case is uncontested (that is, no one objects), the hearing may be relatively informal and take place in the judge’s office. In such cases, the hearing will consist of the statements of the attorneys involved and the appropriate written documentation.
The case may be contested if the proposed ward or some other interested person thinks there is no need for the appointment of a guardian or conservator or that the proposed guardian or conservator will not act in the best interests of the ward.
Who Must Contact Witnesses and Gather Evidence?
The petitioner or the petitioner’s attorney must make sure that all witnesses are ready to testify and that all other documentation is filed with the court. The rules of evidence apply to these hearings. There is a legal presumption that the proposed ward is competent. The burden of proof is on the petitioner. The petitioner must show by clear and convincing evidence that the ward is incompetent.
How is Evidence Collected for the Hearing?
Before the hearing, the petitioner should consult with the attorney and assist in collecting evidence that will support the need for the guardian or conservator. This evidence should include specific examples of past behaviors of the proposed ward which will show the incapacities the petitioner is trying to demonstrate. This might include the latest psychological report, any medical reports, current service or care plans, and any other current assessments.
The petitioner is responsible for getting all of these reports and bringing them to the hearing. It is also helpful to bring someone along who can support the petitioner’s statements, such as a social worker.
continued...
Should the Proposed Ward Attend the Hearing?
The proposed ward should be at the hearing and has a right to be personally present at all proceedings. It is possible for the proposed ward to waive the right to appear in person. In some cases, the proposed ward’s medical condition may make it impossible for the ward to appear. It is strongly encouraged that the proposed ward attend the hearing.
For some individuals, significant behavior problems may be disruptive in the courtroom. Even in these cases, it may be appropriate to have the proposed ward attend the hearing. Allowing the judge to observe the person may help support the petitioner’s case. If the proposed ward is unable to attend the hearing or waives the right to attend the hearing, the court should be provided with appropriate documentation.
The Hearing
If the case is contested, there will be a hearing or trial on the petition. At this proceeding, the petitioner has the obligation of presenting evidence to the court to establish the need for the guardianship or conservatorship. Usually, the court will decide the case without a jury. However, under Iowa law, a person contesting the establishment of a guardianship or conservatorship is entitled to a jury. After the petitioner has presented evidence, the ward will have an opportunity to present evidence. Additionally, other interested parties may be present and present evidence as well.
Once all the evidence has been heard, there are several possible outcomes:
1. The court may grant full guardianship or conservatorship.
2. The court may decide that the person does not need a full guardianship or conservatorship and may establish a limited guardianship or conservatorship setting forth the specific powers that the guardian or conservator has.
3. The court may determine that the individual does not need a conservator or guardian and dismiss the petition.
What is a Bond and When is it Necessary?
A bond is a promise by a bonding company that protects the ward from mismanagement by the conservator of the estate. In the event of such mismanagement, the court may decide that the bond will reimburse the estate for the missing money, and the company that issued the bond can recoup the money from the conservator.
If a conservator of the estate was appointed, the court may require him or her to file a bond which reflects the value of the estate. Each year, the conservator must continue to pay the bond premium. Conservators can get a bond from any bonding company. Bonds are not required for guardianships of the person.
After the Hearing
After the hearing, the court will enter a written order. If the court orders the establishment of a guardianship or conservatorship, additional action must be taken. If the court dismisses the petition, it is possible for the petitioner to appeal.
continued...
If the guardianship or conservatorship is established, the ward has 30 days to appeal the order. If the ward appeals, a stay may be entered suspending the guardian’s or conservator’s powers during the appeal process.