A guardianship is a legal charge given to an individual to be responsible for seeing the necessities of life are provided to a person who the court has deemed incapable legally of providing them for him or herself. A court appointed guardian makes sure the individual, known as the ward, has food, clothing, housing, medical care, social experiences and education, where appropriate.
Often when a person needs a legal guardian, the same incapacity impairs the individual’s ability to manage personal finances. Petitions for a conservatorship are often brought before the court at the same time as the guardianship petition, and the two proceedings are combined. A conservatorship is the legal charge given to a person to be responsible for managing the finances and assets of a partially or fully incapacitated person who cannot manage them for herself or himself.
A petition for guardianship or conservatorship is needed if the individual who is the proposed ward is unable to make decisions about his or her own care without very real risk of harm to that individual. The right for each of us to make our own decisions is such a valued and basic one that a court will only allow it to be taken away for very good, proven reasons, and even then starts with taking away the smallest amount of decision making necessary to care adequately for the person’s needs. In Iowa, this only occurs if a person’s decision making abilities are a major threat to his or her well-being.
The burden of proof of incompetence or incapability of a proposed ward rests fully on the individual seeking to be appointed guardian or conservator. The petitioner should seek the professional services of an Iowa attorney for these proceedings as soon as possible. An attorney will understand all facets of Iowa’s guardianship and conservatorship laws and understand what proof of incapacity will be necessary for a successful appointment.
Guardians are needed when adults have physical and/or mental problems that prevent them from taking care of themselves and their own basic necessities, and they do not already have a person legally authorized for this role in their lives. Guardians may also be needed when the ward is a minor, but the minor’s primary caretaker is not the child’s parent. In some instances, families and individuals can avoid the necessity of making such petitions to a court through adequate estate planning. An estate attorney will know all the eventualities for which a client needs to prepare when establishing an estate plan. A proper plan will include the executing of a medical power of attorney and a general durable power of attorney for an individual. The former appoints a trusted person to make medical and health care decisions for one in case of incapacity and the latter appoints a trusted person to manage one’s affairs. The advantage of preparing these documents and making these appointments before a real need arises lies in the individual’s ability to substantially dictate how and where he or she wishes to live, how to be treated in case of disability and other details. In contrast, a court appointed guardian may make decisions for a person that the person might not agree with if capable of deciding on his or her own. An individual’s own plan, when done according to state laws, may render it unnecessary for loved ones to be encumbered with the need to execute a petition in the event something happens suddenly to their loved one. Prepared by a person while he or she is still competent, such a standby or voluntary petition not only names who should serve as conservator and guardian, but what conditions or events will trigger the need to name these legal substitute decision-makers.
Attorneys help you develop and present evidence of incompetency and other arguments that are as persuasive as possible when petitioning the court to be a legal caretaker for either personal or financial care reasons for someone you know and about whose welfare you care. A competent lawyer will present the evidence necessary to prove the potential ward is in need of a legal guardian. Your legal representative also works with the court to set up the best possible legal arrangement for your ward and you as the guardian and/or conservator.
For minors, parents are preferred as guardians over other candidates. When minors are orphaned and the parents had the foresight to have an attorney prepare a will designating who they want their children’s guardians to be, their wishes are foremost. Guardians are sometimes also need for minors when the parents are abusive, unfit or the children are orphaned. In these cases, if a minor is fourteen or older, he or she may request whom they wish the court to consider for their guardian. Again, preparing ahead with the services of a qualified attorney saves much heartache during trying times.
Under the supervision of the court that appoints each, a conservator makes financial decisions and a guardian makes personal decisions for a ward found to be incapable legally of caring for himself or herself. As with any major legal decisions in life, the services of an attorney will assure that you receive the best legal result possible in a complicated situation.