Is a guardianship or conservatorship needed?
Family members often take on informal decision-making roles for a person. A common example would be an adult son who assists his aging father with financial matters A bank may ask whether the father understands enough to make decisions. If he does not, the son may need a court order appointing him as guardian or conservator. Then he would have legal authority to make decisions for his father.
Who Needs a Guardian or Conservator?
People in different situations may need a guardian or conservator:
Some examples could include:
- A person with an intellectual or cognitive disability
- A person with a mental health condition
- A person who has experienced a stroke or a head injury which has resulted in a mental disability
- A person who has a disease such as Alzheimer’s which affects decision-making ability
Some people in these situations don’t need a guardian or conservator. Whether they need one depends on how well the person can make good choices about their health, safety, and personal needs. It also depends on how much help they get from family or friends. Sometimes, a power of attorney or informal help can be enough to take care of the person’s needs.
What are the Standards for Creating a Guardianship or Conservatorship?
To create a guardianship or conservatorship, the court must find clear and convincing evidence that:
- The person has barriers in decision making. Iowa law defines this as incompetent. This may be the word you hear used.
- The person needs the supervision and protection of a guardian or conservator.
- There are no appropriate less restrictive options.
The court will consider who else is available to help the person, such as friends or family.
How is Incompetency Determined?
The court decides if someone is incompetent. Under Iowa law, an incompetent person is someone who meets one or both of the following definitions:
a. To have a decision-making capacity which is so impaired that the person is unable to care for the person’s personal safety or to attend to or provide for necessities for the person such as food, shelter, clothing, or medical care, without which physical injury or illness may occur.
- Can the person keep themselves safe?
- Can the person take care of their needs such as a place to live, food to eat, clothes to wear, and going to the doctor when sick?
b. To have a decision-making capacity which is so impaired that the person is unable to make, communicate, or carry out important decisions concerning the person’s financial affairs.
- Can the person handle their money?
- Can the person decide how to spend their money?
- Can the person tell others what they want to do with their money?
- Can the person make sure that what they do with their money is what the person wants?
The court looks at a person’s functional limitations. Under Iowa law, “functional limitation” is defined as:
- the behavior or condition of a person which impairs the person’s ability to care for the person’s personal safety or to attend to or provide for necessities for the person.
- This means that the court looks at what the person does to take care of themselves in real life, not just what the person can do.
The court looks at three things in determining incompetence:
- Decisional Capacity
- Impairment
- Functional Capacity
Decisional Capacity. “Decisional capacity” means a person’s ability to understand and make decisions about his or her needs.
- Does the person know what they need?
- Can the person take care of needs like food, clothes, a place to live, and going to the doctor?
- Does the person know and understand the options available?
- Does the person understand the choices made and the good and the bad of those choices?
- Is the person able to express a choice?
Impairment. “Impairment” refers to the person’s diagnosed disability or medical condition which affects the person’s decision-making.
- What disabilities does the person have that might make it harder to make decisions and understand choices?
Functional Capacity. “Functional capacity” means a person’s ability to meet personal needs or take action to have needs met. The court looks at:
- how well the person can perform activities to meet their needs, and
- how much help is needed with decision-making.
Court-ordered Professional Evaluation
The court may order a professional evaluation of the person to help explain what the person can and cannot do for themselves. The court can choose to do this if it thinks having more information will help decide if the person is incompetent. The ordered report must include certain information:
- a description of the person’s cognitive and functional abilities
- “Cognitive” means anything related to thinking, learning, and understanding. It’s how our brain helps us remember things, solve problems, and make decisions.
- evaluation of the person’s mental and physical condition,
- prognosis for improvement
- “Prognosis” means predicting how someone will recover from an illness
- recommendation for treatment, support or habilitation plan.
The cost of the evaluation will be paid by the person. If the person is not able to pay, the county will pay the costs.
Issues to be Considered in the Evaluation
The evaluation will look at the person’s ability to make decisions to care for themselves. Some possible areas are:
- Medical: A physician or medical professional would do this. It would include diagnoses, medications and their side effects, and treatment and prognosis for the impairments.
- Behavioral: A psychologist, care provider, or other behavioral professional would do this assessment. This would address how behavior may affect a person’s ability to make decisions.
- Activities of Daily Living: A care provider (maybe a family member), service provider, occupational therapist, or physical therapist would do this. It would include activities of such as, getting dressed, cooking, personal hygiene care, household cleaning, budgeting money and paying bills, etc.
- Social History: The person, family members, or the service provider should complete this. It would include the person’s history of past and present decision-making skills.
- Intelligence: A psychologist or psychiatrist would do this. It would include the ability to make decisions for personal and financial needs.
For more information on guardianship and conservatorship, download a brochure here.