Many people have situations where a family member may need help with decisions or daily activities, such as paying bills or help with doctors. You may be told that a guardianship and conservatorship is needed. That may not be the case.
Your mom has become routinely forgetful. She has gotten lost returning from the grocery store. She is not paying her bills regularly.
Your son is 17 and has autism. He lives at home. He has done well in school. He will be turning 18 soon. You wonder what to do when he turns 18. Many helpful people may offer advice that he needs a guardian. You wonder if he really does.
What are guardianships and conservatorships?
Guardianships and conservatorships are court cases. The court makes a person or entity a decision-maker for another person (called the protected person). A guardian makes non-financial decisions. A conservator makes financial decisions.
A conservator is a person or organization appointed by the court to have the custody and control of the property of a person.
A guardian is the person or organization appointed by the court to have custody of a person. A guardian has the power to make those personal care decisions on behalf of a person that the court has given to the guardian. Some personal care decisions require prior court approval.
Guardianships and conservatorships can be costly. They can take away some or even all of a person’s right to makes decisions. A guardian or conservator must file reports each year. A guardian or conservator must keep records and ask for court approval for some actions.
Let’s look at alternatives that may be better.
Consider alternatives before trying a guardianship or conservatorship.
Supported decision-making may be all that is needed. It means finding tools and supports to help people understand and make their own choices. Many of the following examples involve supported decision-making. See the Standards and Principles of Supported and Substitute Decision-Making section for more information.
For personal needs:
Health – Durable power of attorney for health care:
A person may sign a paper that names another person to make health care decisions. This paper is a durable power of attorney for health care. The person named to make heath care decisions is the agent. The agent has the authority to make decisions about care, treatment, and health care services. The agent has authority to make decisions only if the person is unable to make health care decisions. That is usually decided by the attending physician. The person who signs this paper must understand what they are signing. The person who signs the paper is called the principal.
Living will:
A person may also sign a “living will.” A living will says that “life-sustaining procedures” should be withheld or withdrawn. The living will is only used if the signer’s condition is terminal and if the signer is not able to make treatment decisions. The person who signs this paper must understand what they are signing.
Community-based services:
A person may be eligible for a wide variety of community-based services. These services can help meet a person’s personal needs. The services include supported living services, home nursing, home health aides, homemakers, home-delivered meals, telephone service assistance, mental health services, transportation, employment supports, and other services. With these services in place, a guardian or conservator may not be necessary.
Case management services:
Case management is a service that can assess a person’s needs. A case manager can also coordinate and monitor services. Case management is available for some people with disabilities. This includes persons with an intellectual disability or mental illness and some older persons. Case management services can help people stay in their own homes.
For information on case management programs for older Iowans contact:
Your local Area Agency on Aging. Find your agency at https://hhs.iowa.gov/aging-services/aaas.
For information on case management for other needs (persons with brain injuries, intellectual disability, or chronic mental illness) contact:
The Iowa Department of Health and Human Services at 1-800-972-2017 or www.hhs.iowa.gov.
If community services are not enough:
Sometimes a person’s care needs can only be met in a nursing home, residential care facility, assisted living, or similar place. A person and their family and friends can help make this decision. That would be a voluntary decision.
For financial help:
Banking Options:
- A person may be able to take care of their financial needs with automatic bill payments, direct deposits, banking by mail, phone, or on-line banking.
- A person can add a trusted friend or family member to bank accounts. This is done by naming the person as a signatory on the account. Either person can take money from the account. Other banking options are also available.
The above options provide little third-party supervision.
Financial Powers of Attorney:
A person may sign a paper that names another person to act for them about money, income and bills. This paper is a financial power of attorney. The person named to make decisions is the agent. The agent has the authority to make decisions. The person who signs this paper must understand what they are signing. The person who signs the paper is called the principal.
- This power of attorney is in effect right away unless it says otherwise. The individual can continue to make their own decisions as long as they are able.
- The power of attorney is durable unless it says otherwise. Durable means the agent can make decisions and act when the principal is able to act or make decisions on their own, but also when they are no longer able to make decisions.
- The financial power of attorney agent is not authorized to make health care decisions for the principal.
The agent should be a trustworthy person. The agent should always do what is best for the principal and act in good faith. The power of attorney paper can say when it ends. The agent’s authority to act always ends when the principal dies or ends the power of attorney. It also ends if the agent resigns or is unable to act.
A financial power of attorney can give authority to the agent for all finances and property. It can also be limited to specific things. The financial power of attorney form is in Iowa Code Chapter 633B.
The principal can end a power of attorney at any time. This should be done in writing. Immediately notify any bank, brokerage firm, or other person or company involved.
The drawback of a financial power of attorney is that there is no required court supervision, bonding, or annual accounting. This increases the risk of theft or mismanagement.
Trusts:
A trust is when one person holds property for the benefit of another. The person who holds the property is called a trustee. The other person is the beneficiary. The property can be any kind of real or personal property. It could be money, real estate, stocks, bonds, collections, business interests, personal possessions, and other property. Trusts can be useful planning tools. They can be established and controlled by a competent person. If the person who established the trust becomes unable to manage their property, a new trustee can take over.
Sometimes, one person sets up a trust for the benefit of another.
- The person who creates the trust is called the GRANTOR (or settlor or trustor).
- The person or financial institution who holds and manages the property is called the TRUSTEE.
- Those who receive the benefits from the trust are called the BENEFICIARIES.
Trusts that can be changed or ended at any time by the grantor are called revocable. Trusts that cannot be changed or ended before the time set in the trust are called irrevocable.
There are several kinds of trusts that are used to plan for when someone is not able to make decisions. There are also other kinds of trusts that are used for different purposes. Special needs trusts are used to help people who use programs that restrict savings account limits. Talk to a trust attorney to learn more.
Social Security Representative Payee:
The Social Security Administration (SSA) can appoint a Representative Payee for those unable to manage their own Social Security benefits. This includes retirement, disability, or Supplemental Security Income (SSI) benefits. This can be done with or without the consent of the person receiving the benefits.
The Social Security Administration (SSA) has a process to set up a representative payee. This is a good alternative to conservatorship. It is good when Social Security or SSI is the only income and there is no other property to manage. A conservator must apply to become the representative payee to receive the Social Security or SSI checks directly.
Representative payees must use the Social Security and SSI benefits in the person’s best interest. Representative payees are responsible for taking care of the money they manage. If they use the money incorrectly, they can get in trouble. It can be hard to show that they did something wrong or locate the misused money. Be careful when choosing a representative payee. A payee may be a reliable relative or friend. A residential facility (nursing home or group home) where the person resides may be a payee.
The SSA requires annual reports for spending the benefits. The SSA may remove payees for misusing funds. There isn’t close monitoring of payees. A payee can only manage Social Security benefits and doesn’t have the right to handle other property or money.
The person can challenge the appointment of a representative payee. The representative payee appointment can be ended if the person can show they are able to manage their benefits again. A person can also ask to change their payee to someone else.
Standby Conservatorship or Guardianship
A court-supervised conservatorship or guardianship can be set up as a standby (if needed). A person can ask the court to appoint a conservator or guardian when certain conditions have been met. These could be specific events or if someone has a physical or mental health issue.
For more information on guardianship and conservatorship, download a brochure here.