GUARDIANSHIP AND CONSERVATORSHIPS ALTERNATIVES – Part 3 of 3 –

By: Dean Fankhauser | February 2023 |Probate, Guardianship & Conservatorship

In parts I and II of this three-part series on guardianships and conservatorships, I outlined what guardianships and conservatorships are and how they work, as well as some mechanisms which have been put into place to prevent abuse. With the recent media coverage of guardianships and conservatorships, people are often asking: “What are alternatives to guardianships and conservatorships?” In this third part, I will explain the most commonly used alternative to guardianships and conservatorships. Just as I noted in the previous part, this is focused on Iowa laws, but your state may have similar options or even more options than Iowa.

Powers of Attorney

Powers of attorney are documents created by a principal, who is the person needing assistance or delegating their authority to make decisions. Powers of attorney must be properly executed by a Principal who is conscious and aware of the fact that they are executing a power of attorney. For reference purposes, the laws regarding powers of attorney are found at Iowa Code chapter 633B.

Powers of Attorney for Health Care in lieu of Guardianship/Conservatorship

A Power of Attorney for Health Care is a lesser restrictive option to a guardianship and conservatorship, if the Principal has capacity to execute it. A Power of Attorney for Health Care allows another person (the “Agent”) to make health care decisions on behalf of a person (the “Principal”) if the Principal’s attending physician or psychologist, a judge, or an appropriate governmental official determines the Principal is incapacitated and otherwise unable to make health care decisions for himself/herself.

Typically, Powers of Attorney for Health Care decisions contain a release of health care-related information so an Agent who is making decision on behalf of the Principal can be fully informed about the correct decision. Special releases of information are required within the document for HIV/AIDS-related information, substance abuse and mental health-related information, and genetic information.

Commonly, Powers of Attorney for Health Care include a Living Will provision, which is a declaration related to life sustaining procedures wherein the Principal can make known his/her wishes related to services like artificial nutrition and artificial hydration. Many people wish to make these wishes known because if they are in a constant vegetative state (where a recovery is unlikely to a reasonable degree of medical certainty), the Principal does not have the authority to make such a decision because the Principal has already declared his/her wishes.

In addition to the common provisions contained within a Power of Attorney for Health Care noted above, many Powers of Attorney for Health Care include provisions related to organ donation, as well as a section for specific or unique instructions the Principal wishes to make known to the Agent or entity relying upon the Power of Attorney for Health Care. Within the Power of Attorney for Health Care, the Principal can nominate a Guardian and Conservator as a backup measure for the Principal in the event the Powers of Attorney are not adequate and a guardianship and conservatorship proceeding becomes necessary.

Statutory Power of Attorney in lieu of Guardianship/Conservatorship

A Statutory Power of Attorney is another lesser restrictive option to a guardianship and conservatorship. As with a Power of Attorney for Health Care, the Principal must have capacity to execute it. A Statutory Power of Attorney allows another person (the “Agent”) to make decisions regarding the Principal’s property and assets. In this type of Power of Attorney, the Agent’s authority becomes effective immediately upon execution of the Statutory Power of Attorney by the Principal. If the Principal wishes the Statutory Power of Attorney to become effective upon a triggering event, it must specifically state so within the document. Commonly, the Principal will include instructions stating the Statutory Power of Attorney does not become effective until the Principal’s attending physician, psychologist, a judge, or an appropriate governmental official determines the Principal is incapacitated an otherwise unable to make decision regarding his/her property or finances.

Statutory Powers of Attorney require specific grants of authority, which are indicated by the Principal within the document. For Example, the Principal can authorize the Agent only to manage the Principal’s checking and savings accounts but not the Principal’s IRA or stock portfolio. The agent can also authorize the sale of real estate within the Power of Attorney documents. Generally, the Agent may not make a gift to himself or use the Principal’s property his/her benefit unless express permission is so given. The Principal can even authorize the Agent to amend or otherwise revoke trusts as deemed appropriate by the Agent, but it is not required.

In addition to common provisions contained within a Statutory Power of Attorney, sometimes Statutory Powers of Attorney will include specific or unique instructions the Principal wishes to make known to the Agent or entity relying upon the Statutory Power of Attorney. Just as with the Power of Attorney for Health Care, the Principal can nominate a Guardian and Conservator within the power of attorney document in the event the Powers of Attorney are not adequate and a guardianship and conservatorship proceeding becomes necessary. As a protective measure for the Principal who delegates his/her authority to an Agent under a Power of Attorney, an interested party may seek an accounting from the Agent and may file a lawsuit to compel said accounting.

Other options are available for Guardianship and Conservatorship alternatives such as Medicaid, social security, and other benefit payees. For more information regarding Guardianships and Conservatorships and their alternatives, please contact our knowledgeable attorneys.

Be sure to check out Part 1 and Part 2 of this series on: “What Are Guardianships and Conservatorships?” and “How Do Guardianships Work and What Mechanisms Are Put Into Place To Prevent Abuse?”

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