Legal Guardianship Explained
A guardian is an individual appointed by the Iowa District Court to manage the personal and/or financial affairs of a person. If guardianship proceedings are commenced for a minor child, upon appointment, that individual becomes the child’s legal guardian. If guardianship proceedings are commenced for a disabled adult or elderly individual, that individual becomes the legal ward of the guardian upon appointment.
If appointed, a guardian of the person is charged with managing the personal affairs of the ward. Some responsibilities include: 1) providing appropriate care, treatment and supervision for the ward; 2) determining the living environment for the ward; 3) making decisions to who the ward associates with; 4) obtaining necessary services for the ward; 5) establishing the place of abode for the ward; and 6) establishing the education of the ward. See Iowa Code 633.635.
If appointed as a guardian of a minor child, the guardian’s authority is limited to those powers that a parent may delegate to a guardian of a minor child in accordance with the Iowa Probate Code. See I.C.A. 633.635.
If appointed as a guardian of the person for a disabled adult or elderly individual , the guardian’s authority is limited to those powers set out in Iowa Code 633.635. Iowa Code 633.636 states that "the district court may modify a guardian’s power of control over the ward or impose additional duties and powers on the guardian to promote the [ward’s] best interests. … An individual may be granted full or limited guardianship of the person." Section 633.637 states that "a guardian has full power to exercise all powers over the ward that would legally belong to the ward if the ward were an emancipated adult of sound mind" subject to the limitations set out in Section 633.635. A guardian is also required to file an annual report with the Court on the activities of the ward and/ or those actions of the guardian on behalf of the ward. See Iowa Code 633.641.
Under Iowa law, guardians are not entitled to compensation unless compensation is authorized by the will of a parent of the ward or a court order. A guardian may be reimbursed for reasonable expenses incurred on behalf of the ward. See Iowa Code 633.637.
Iowa Guardianship Types
While I often see clients with concerns about guardianship of minors, undergoing a guardianship over an adult – particularly ones with severe mental or physical disabilities – are becoming more common. This is due to the fact that oftentimes the family wants to avoid the long and costly process to become the representative over a person. Other times, it’s because the family doesn’t want to go through the guardianship process because everyone knows, even though you cannot say the word "guardianship" for some reason (see Code §633.556.1) at the bank, the IRS will know you have a guardianship which results in unwanted scrutiny by those agencies.
There is a difference between guardianship of a minor and a disabled adult, so let’s break down the differences.
For each type of guardianship, the availability of a standby guardian depends on whether or not there is a will or on the parent volunteer vouches for it. In other words, the person named as guardian of a child cannot appoint the new guardian without one of these items and if the volunteer stands up to the task of being the guardian.
So who can serve as guardian of a minor? Under Iowa law (Code §633.556.1), any person of full age or bank who has been requested by the parents or a guardian of the child to engage or assist in the education or physical control of the child is considered a volunteer. When this occurs, the volunteer may make medical decisions for this child and there is no requirement of bond or court approval.
Guardianship over adults is very similar to guardianship over minors, but more complex. Guardianship is necessary when you want the ability to control someone’s affairs and willfully removed their power of attorney away from them. It is also necessary when you think the other person will be able to change their mind later and you do not want to have to go through the guardianship process.
Here, if the adult is completely incapacitated, you may need to go through a full guardianship proceeding which requires a visiting investigator, a psychological evaluation of the person by a licensed psychologist or physician, and a court hearing. If there is an incapacity, this person will not be able to revoke the guardianship later.
If the incapacity is partial, the court may appoint a limited guardian, who has only the rights delegated to them by the court. However, the person named as limited guardian is not required to apply to the court at a later date to revoke the guardianship.
A plenary guardianship is actually the same as a full guardianship, which is the guardianship over all property or all personal affairs of an individual. Although no one should live forever, nothing in life is guaranteed. A testamentary guardian is simply a court appointment that may take effect on the death of the parent or guardian.
A temporary guardian is just that. It provides the person who applied for the temporary guardianship only the rights and powers delegated by the court that expire in 6 months or less.
Iowa Guardianship Eligibility
Not every person is eligible to serve as a guardian. Likely, such eligibility requirements seek to protect the ward from being appointed a guardian with questionable motives or professionalism. Upon motion by a party to the action or otherwise, the court may even suspend or remove an existing guardian. A Guardian’s bond helps guarantee the ward’s property against loss or misuse due to mismanagement or fraud. Given the long-reaching nature of guardianship proceedings, it is essential that those acting in the role of guardian are both capable and trustworthy.
An individual who is at least 18 years old may be appointed as guardian in Iowa. Further, a guardian must be of sound mind and may not have been convicted of a felony or a serious misdemeanor involving moral turpitude. A guardian must also not have a history of substance abuse or actions resulting in its revocation or suspension in the last 3 years.
Any organization doing so under the authority of the court may act as a guardian in Iowa. An organization is one formed for a business or charitable purpose via a charter, certificate of incorporation, articles of association or similar document filed with and approved by the secretary of state.
Application for Guardianship
I. HOW TO APPLY FOR GUARDIANSHIP
Overview of Process
If you’re looking to obtain guardianship over an adult or a minor child, the first thing to understand is that these are complex legal matters that will benefit from the assistance of an experienced Iowa guardianship attorney. The second thing to know is that the process is far less intimidating than it may sound. You’ll follow a series of fairly straightforward steps, which involve filing a petition with the court. The step-by-step process is as follows: Step 1: Send an adult guardianship information request form to your local Clerk of Court office. Your local office can be found at: http://www.iowacourts.gov/For_the_Public/Find_a_Court/. Step 2: File the originals and copies of your petition and notice of hearing. There are two options for doing this: (a) You may file in person at your county courthouse, or, (b) file electronically through the Iowa eFile and Sealed Record System. Step 3: Make sure to ask the Clerk of Court to issue a notice of hearing on your petition. Step 4: Prepare a citation, send it to the adult being proposed as a ward for signature, and turn over the signed copy to the Clerk of Court. If the adult refuses to sign, have your attorney appear before the judge as soon as possible to discuss your options. Step 5: Publish a notice of the hearing request in your local newspaper. This is not necessary if your adult ward is mentally incompetent. Step 6: Attend all of the guardianship hearings. Keep in mind that the first is usually fairly short – although the judge may meet with your ward for some time, they won’t necessarily require you to do so as well. The judge will ask you to provide a brief synopsis of the situation, and if they’re satisfied they’ll approve the guardianship. The judge may also set a hearing to review the guardianship in the near future. It’s important to note that you may need some additional paperwork based on whether the proposed ward suffers from dementia, needs finances or apartment property protection, was recently injured in a car accident, has a CODS basis for a guardianship (e.g. drug abuse, alcohol issues, etc), is too young to marry or join the military, is a foundling, or is mentally incompetent. A licensed guardianship lawyer can help you navigate any additional paperwork, as needed.
Forms
The forms mentioned above include: 1. Adult Guardianship Information Brochure 2. Application for Guardianship 3. Notice of Hearing 4. Waiver of Notice of Hearing 5. Application for Appointment of a Guardian and/or Conservator 6. Waiver of Notice of Hearing on Application for Appointment of Guardian and/or Conservator 7. Acceptance of Appointment by Guardian 8. Acceptance of Appointment by Conservator 9. Letter of Offer 10. Waiver of the Right to Hearing Prior to Appointment of Guardian/Conservator 11. Waiver of Right to Contest Establishment of Guardianship 12. Waiver of Right to Contest Establishment of Conservatorship Additional documents you may consider include your last will and testament, power of attorney, and living will.
Ward Rights
Although the appointing of a legal guardian results in a loss of civil rights, the Iowa Code provides that a person under guardianship ("ward") retains a number of important rights. The revision of Chapter 633 to Iowa Code refers to these as "protected rights of the ward." Section 633.637 (4) states that "[t]he ward retains all civil rights except such as have been specifically granted to the guardian and denied by the court." Furthermore, under Section 633.635 , "[a]ll grants of guardianship are made subject to the following and other rights which may be granted or retained by the allowance of the ward’s pleadings or otherwise:"
The Iowa Association of Guardianship Supervisors (IAGS) produces a pamphlet titled "Legal Guardianship & You" that explains many of the rights retained by the ward. It also provides a website with additional resources, including the "Guardianship Bill of Rights" form to give to the ward, which broadly details most of the rights retained by the ward.
Duties of a Guardian
A guardian may be given specific powers and responsibilities by an order or will. In addition to the specific authority given to a guardian, there are several general responsibilities guardians have that apply under Iowa law. Caretaking: The physical caretaking of a ward can fall into many categories including medical care, housing, education, communication, social interaction, and recreation, among others. Guardians also often coordinate services for a ward like counseling, medical treatment, or nursing care. Failing to make care decisions that are in the best interest of the ward could result in the actions of the guardian being reviewed by a judge. Financial Management: The authority of a guardian can include the responsibility for managing finances of the ward. This includes keeping account records, collecting income, paying bills, and filing required income tax returns for the ward. If a guardian is not able to fulfill their duties in this area, distribution of the responsibility could occur and even a ward could be able to gain control if they can prove to a judge they possess the necessary skills and capabilities.
Termination of Guardianship
Termination of guardianship in Iowa is generally achieved through a motion, filed with the district court that appointed the guardian. In situations where the ward is a minor child, both parents have several options; they may seek to terminate the guardianship, request that it be modified, or ask the court to restore full parental rights.
When the ward passes away, the guardianship automatically terminates. A guardianship may also terminate when the ward reaches 18 years of age or upon the granting of full emancipation. Both of these last two scenarios would result in a petition to the court, as would a request to terminate a guardianship for other reasons.
If a guardian no longer wishes to continue in that capacity, he or she may file a motion with the court, notifying it of the desire to resign as the ward’s guardian. Even if the court grants this petition, the authority of the guardian continues until a new guardian is appointed by the court.
In either case, the court may decide to hold a hearing. A reasonable amount of prior notice would be required in the case of a hearing, typically at least five days. In some cases, a judge may be able to approve or deny the motion without a hearing.
The reasons for a motion to terminate a guardianship may include other "good cause," perhaps something relating to theʹbest interests of the concerned party or an issue regarding the guardianʹs ability to serve. Among the reasons for termination of a guardianship that are considered "cause" are: a guardianship that has become "inadvertently unwieldy," when there is a provision for termination of the guardianship, a decision on guardianship over a child in a state originating with another court, a request that the guardian of a minor declaim his intention to be considered as the minorʹs guardian, or a request to voluntarily withdraw.
If no good cause exists for the termination of the guardianship, it goes without question that the court will deny the petition to terminate, unless the parties wish to seek out alternative arrangements.
Reasons for terminating a guardianship of a minor may include: the minor has reached the age of majority, the parents are again united and have taken full responsibility for the minor, the court changes residence for the parent and minor or the minor has reached living age, the minor is adopted, whereupon parental rights would be restored and the guardianship would terminate, or the parentʹs inability to assume responsibility for the minor due to serious health issues.
In the case of an adult, commonly cited reasons for termination of guardianship include: the adult is able to demonstrate self-sufficiency, that the adult has gained the ability to manage personal affairs, medical issues and more, the responsible party may be gone or otherwise unreachable or the person is deceased.
When it comes to a guardianship of an incapacitated person, it may be a good idea to seek legal assistance, as having legal counsel can only benefit you and the ward. There can be numerous and complex issues surrounding a termination, and mistakes can be costly. There is also the potential for issues of liability or mistakes made in the course of carrying out the responsibilities of a guardian, so having help from someone who knows Iowa guardianship law can mean that you get the right information and assistance from the start.
FAQs
What does it mean to be a legal guardian and a legal ward?
The word "guardianship" describes the legal relationship in which you have been appointed the guardian of another individual. The individual who is under a guardianship is referred to as the "ward."
Do I need a lawyer to obtain guardianship?
In most cases, no.
Can my child (or ward) still be involved in the decision-making process?
That depends on the questions and the developmental and intellectual capacity of your child. As much as possible, it is important to include the ward in the decision making. As a rule, guardians should take the time to explain what is being asked and involve the ward in the decision-making process to the extent reasonably possible.
I already have a financial power of attorney, do I need a guardianship?
Yes . Financial powers of attorney will NOT give you the authority to make medical decisions for someone or to had over medical information.
What if my child disagrees with me?
The guardian has the responsibility to make appropriate decisions for the ward and the ward is obligated to accept the decisions that are appropriate. If it is reasonable to accommodate the ward’s wishes, the guardian should attempt to do so. However, the guardian is not obligated to make decisions contrary to the best interest of the ward even if it may undermine the ward’s self-determination.
What if my child is reluctant to sign the legal paperwork?
No one may be forced to become a legal guardian. In situations where the child is reluctant to sign, it is a good time to consult an attorney. There may be other alternatives available that would meet the needs.