HOW DO GUARDIANSHIPS AND CONSERVATORSHIPS WORK AND WHAT MECHANISMS ARE PUT INTO PLACE TO PREVENT ABUSE?
– Part 2 of 3 –
By: Dean Fankhauser | December 2022 |Probate, Guardianship & Conservatorship
How do guardianships and conservatorships work?
In part one of this three-part series on guardianships and conservatorships, I outlined what guardianships and conservatorships are. Now it is time to talk about how they work, why I refer to a guardian as a “court-appointed assistant” when I talk to clients about what a guardian is over an adult, and what mechanisms are put into place to prevent abuse by guardians and conservators. Just as I noted in the previous part of this series, this is focused on Iowa laws. Other states may have different laws regarding guardianships and conservatorships.
To start, I describe the guardian as an “assistant” because the duties, responsibilities, and authority of a guardian are supposed to be carried out and exercised in the least-restrictive way for the protected person. In the context of a guardianship, I describe the least restrictive exercise of a guardian’s authority as the guardian making decisions only after considering the wishes of the protected person and giving his/her wishes heavy significance. Generally, if the protected person is capable of giving input about a decision, and the decision is practical, reasonable, and not to the detriment of the protected person, then his/her wishes should be complied with. This is why I like to use the word “assistant” to describe a guardian’s role. Too many times, guardians think of their role as being the same as a parent/child role; but of course, in adult guardianships, the protected person is not a child and does not have the same status as a child regarding decision-making.
Unlike the least restrictive rule under guardianships, conservators have different obligations and duties. The list of duties and responsibilities for a conservator is expansive. For brevity, only a few will be highlighted in this article. First, a conservator has a duty to protect the wishes of the protected person’s estate plan if there is one, a duty of prudence and loyalty when determining investments and when selecting specific property for distribution, and a duty to follow instructions set forth by the protected person in a previously executed power of attorney, if there is one.
What mechanisms are put into place to prevent abuse?
To ensure the least restrictive decisions for the protected person are being made, the protected person has a right to an attorney during the entirety of the guardianship proceeding. What is more, there are certain actions the guardian must specifically get court approval for before acting. For example, if the protected person needs to be moved to a nursing home because of progressing dementia or some other reason, the guardian must request a hearing and convince a judge it is necessary for the protected person to make such a move. Ultimately, once given the authority by a judge, the guardian makes the final decision for the protected person about where he/she will live; but because the protected person is an adult, input should be considered and given heavy weight in making such a decision.
In addition to the requirement that the guardian obtain specific permission from the court on certain items, guardians are required to complete and file annual reports with the court and give a copy to the protected person and his/her attorney, any interested persons, and also make the reports available to the public in general for inspection. These reporting requirements ensure the protected person is not living in a manner too restrictive and is being cared for adequately. It is key for a guardian to remember the protected person is an adult and should have as much input as possible about all aspects of his/her life especially considering the protected person has a right to review all documents and request a judge to intervene if he/she is unhappy with the guardian for any reason, which request would be made through the protected person’s attorney.
In a conservatorship, the protected person has a right to an attorney (just like a guardianship), and a conservator has similar annual reporting requirements to the court. However, a detailed accounting of all transactions is required to be attached to the annual report and to be presented to the court for review. Just as with a guardianship, certain items require court approval, such as changing investments and making gifts on behalf of the protected person. Specific authority must be obtained from the court for the conservator to sell real estate of the protected person.
Stay tuned for Part 3 of this series on: “Guardianship and Conservatorship Alternatives.” If you have missed Part 1 of this series, check out “What Are Guardianships and Conservatorships?”.
WHERE CAN I FIND THE BEST ATTORNEY TO HELP ME WITH MY LEGAL MATTERS?
As always, the lawyers at Tigges, Bottaro & Lessmann, LLP Law Firm are centered on providing exceptional legal services to the people of Siouxland and the surrounding area. The attorneys pride themselves on being first-rate advocates, ensuring their client’s rights and interests are protected and each voice is always heard. Using their knowledge, expertise, and over 240 years collective experience, they aim to deliver the best results possible for their clients.
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