With all the recent media attention about guardianships and conservatorships, it is important for people to understand what guardianships and conservatorships are, how they work, the mechanisms put into place to prevent abuse by guardians and conservators, and alternatives to guardianships and conservatorships. For this reason, we will be doing a three-part blog series covering these four topics. After you have read the three-part series, you will have a good understanding of the issues around guardianships and conservatorships and will be able to educate your friends and family about them, debunk some common misconceptions, and maybe even determine whether one or both is necessary for your family in order to help assist and protect a loved one and ensure he/she receives proper care.
To start out the series, we need to answer the questions: “What is a guardianship?” and “What is a conservatorship?” As you read and watch media coverage about guardianships and conservatorships, keep in mind different states across the United States have differing guardianship and conservatorship laws. In this series, you will be reading about guardianships and conservatorships over adults as it relates to Iowa. Other states’ laws may be similar in concept, but some states refer to guardianships and conservatorships together as conservatorships and their operation may be slightly different. In Iowa, guardianships and conservatorships are two separate things with different purposes. One can exist without the other.
What is a Guardianship?
To answer this question, we need to look to the Iowa Probate laws, which are generally found at Iowa Code §633. When talking to my clients about what a guardianship is, I often describe a guardianship as a proceeding in which the court appoints a court-appointed assistant called a guardian to assist a protected person with their needs. The protected person is the person whom the guardian assists. The protected person is also sometimes referred to as a ward. Of course, this is not the dictionary definition of guardianship, but I think it gives the folks I speak with a better understanding of the purpose of a guardianship (rather than the strict legal definition) and helps to explain the proper mind-set for a guardian. I will explain why later in this blog.
“Protected Person (or Ward)” is an adult for whom a conservatorship has been issued. Iowa Code §633.3.
Guardianship is not a defined term under the Iowa Code, but “guardianship proceeding” is defined under Iowa Code §633.701(7) as “a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.” Iowa Code §633.701(5) defines a “guardian” as “a person appointed by the court to make decisions regarding the adult under the provisions of [Iowa Code Chapter 633].” See why I like my explanation better? Looking at these two definitions together, I came up with the “court-appointed assistant” part of my description, but you may be thinking “an assistant does not ‘make decisions,’ so that part does not work, Fankhauser.” In the next part of this series on guardianships and conservatorships, I will explain why a guardian is more of an assistant than an authoritarian.
“Guardian” is a person appointed by the court to have the custody of the person of the ward under the provisions of this probate code. Iowa Code §633.3.
What is a Conservatorship?
To answer this question, just like we did in our guardianship section, we look to the Iowa Probate laws. A conservatorship (much like our previous discussion of guardianships) is not a defined term, but the term conservator is a defined term, and it means “a person appointed by the court to have the custody and control of the property of an adult under the provisions of this chapter.” The definition of conservator comes from Iowa Code §633.701(2). The protected person is a person for whom a conservatorship has been issued. The protected person is also sometimes referred to as a ward in conservatorships just like a guardianship. The basis for appointment of a conservator for an adult is that the decision-making capacity of the protected person is so impaired he/she is unable to make, communicate, or carry out important decisions concerning his/her financial affairs.
“Conservator” is a person appointed by the court to have the custody and control of the property of a ward (“protected person”) under the provisions of this probate code. Iowa Code §633.3.
Stay tuned for Part 2 of this series on: “How Do Guardianships and Conservatorships Work and What Mechanisms Are Put Into Place To Prevent Abuse By Guardians and Conservators?”
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