GUARDIANSHIP & CONSERVATORSHIP
When Guardianship and Conservatorship are Needed
Whether through illness, injury, or mental decline, anyone can require a guardian or conservator to care for them if they become mentally or physically incapacitated.
Children automatically qualify as not having the “capacity” to be in charge of their own financial affairs and decisions about their well-being. An adult may qualify as not having “capacity” if they become seriously ill or injured. At Viner Law Firm PC we can guide you through the often complex and emotional process of the probate court appointing a conservator or guardian for you or for your loved ones. Unless you have the proper estate planning in place that names the individual who will be your guardian or conservator in case of illness or injury, a probate judge will be deciding who is your guardian or conservator. At Iowa Estate Planning we can guide you through the often complex and emotional process of the probate court appointing a conservator or guardian for you or for your loved ones.
Obtaining Adult Guardianship or Conservatorship
Seeking appointment of a guardian or conservator for an adult is a serious undertaking. The law presumes that a person over age 18 can act for themselves unless shown otherwise. As a result, the probate court typically requires extensive proof that a guardian or conservator of an adult is warranted. The process begins with the interested party filing a petition in court that requests the court declare the adult essentially “incapacitated,” at least from the legal perspective. Many times, guardianship and conservatorship filings can lead to heated disputes between family members or close family friends who may claim they are better suited for the role. Regardless of who files the petition, guardianship and conservatorship will only be granted if the court determines there is enough evidence to show the person is legally “incapacitated” to the point where they can no longer make legal, financial, or healthcare decisions for themselves.
Guardian and Conservator Responsibilities
Depending on the extent of the person’s incapacity, a court-appointed guardian or conservator can be given near complete control over your life.
There are two areas of decision-making where a guardian or conservator has authority: decisions about your well-being and decisions about your finances. Decisions about well-being include determining your place of residence, your attending physicians, and your medical treatment. Decisions about your finances include how your home is paid for, what your income is used for, whether to pursue legal actions on your behalf, how to manage your assets, filing your insurance claims, and many other matters.
The Probate court will appoint an attorney to represent you in the Guardianship and Conservatorship so that you have a voice in court, even if you are incapacitated.
In different states, the guardian and conservator may have different roles than in Iowa.
Here are the responsibilities of each role in Iowa:
A guardian makes personal decisions, such as where the person should live, and what medical, educational, or professional services the person might need.
A conservator makes financial decisions.
FREQUENTLY ASKED QUESTIONS REGARDING GUARDIANSHIP AND CONSERVATORS
Is a guardianship the same as an adoption?
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No. There are distinct differences between a guardianship and an adoption. In a guardianship, the parents still have parental rights, whereas in an adoption the parents’ rights are permanently terminated.
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Can you have one without the other?
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They generally go together, but it is possible to have either a stand alone guardianship, or a stand alone conservatorship. Where both exist, the guardian and conservator is often the same person, although it is possible to have different persons in each role.
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Is the process time consuming and expensive?
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It is a formal and solemn legal process. For that reason, it admittedly is not inexpensive.
Austin Norden
HOMETOWN:
Bettendorf, IA
EDUCATION:
University of Iowa, B.A. 2015
University of Iowa, J.D. 2018
ADMITTED TO IOWA BAR 2018
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AREAS OF PRACTICE:
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Civil Dissolution of Marriage/Divorce
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Custody, Child Support, Name Change
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Criminal, OWI/DUI or DOT matters, Juvenile and Possession of a Controlled Substance
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ASSOCIATIONS:
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Iowa Bar Association