Iowa Code Section 633.635 Guardianship and Conservatorships

Guardianships and Conservatorships

Guardianships and Conservatorships are court authorized relationships which allow either a Guardian or a Conservator to assume certain responsibilities for their ward. Both are very restrictive and deprive a person of his rights, so the court does not enter either relationship easily. The district courts of Iowa sitting in probate have the jurisdiction of guardianship and conservatorship proceedings. Iowa Code section 633.10(3). A district judge has statewide jurisdiction to enter orders in probate matters not requiring notice or hearing. Iowa Code section 633.13. Venue is proper in the county in which the proposed ward resides. Iowa Code section 633.12.

Generally Guardians (or sometimes called Guardian of the Person) assume responsibility for the physical custody of and make decisions for their ward. Conservators (or sometimes called Guardian of the property) assume financial responsibility and manage the property of their ward. There are separate provisions under Iowa Code for appointment and administration of guardianships and conservatorships, but the same person can be appointed as both, and the petition can be combined. Iowa Code sections 633.627-628 (2009). If the petition is a combined petition, the cause is tried in the same manner as a petition for conservatorship. Clear and convincing evidence for determining incompetency is required for establishment of a guardianship.

Persons are qualified to be guardians or conservators:

    1. Any natural person of full age who is a resident of Iowa except those legally incompetent, chronic alcoholic, or spendthrift or those who the court determines to be unsuitable.

    2. A natural person who is a nonresident if a resident is also appointed. For good cause, the court may appoint a nonresident to serve alone.

    3. Banks and trust companies if authorized to act in a fiduciary capacity.

    4. Private nonprofit corporations organized under Chapters 504 or 504A if the corporation does not possess a proprietary or legal interest in an organization which provides direct services to the individual.

    5. The state or a local substitute decision maker as defined in Iowa Code section 231E.3.

There are different types of conservators and guardians and the court will specifically tailor the conservator’s/guardian’s powers and define their level of responsibility and authority. General has full authority unless court approval is required. Limited has power limited to the powers detailed. Temporary is limited to a specific time or purpose. Standby occurs only upon the occurrence of an event and has no authority until that event occurs.

The court must specifically consider whether a limited relationship is appropriate. The letter of appointment details the level of responsibility and authority.

The Iowa Probate Code (Iowa Code Chapter 633 (2009)) covers the establishment, administration, and termination of guardianships and conservatorships in Iowa.

Guardianships and Conservatorships terminate:

    1. If the ward is a minor, then when the ward reaches the age of majority

    2. Death of the ward. This is essential to realize since no activities of the guardian or conservator (unless court approved) can be taken after the death of the ward. For example, a conservator could be personally responsible for writing checks after the death of the ward. (An executor of an estate would be responsible after the death, not the conservator.)

    3. A court order that the person no longer needs a guardian or conservator either because the ward’s decision making is no longer impaired or for some other reason. A petition by the ward to terminate a guardianship is a prima facie showing that the ward has some decision making capacity. Once the prima facie showing is made, the guardian must then prove by clear and convincing evidence the ward’s incompetency with the burden being on the party petitioning for guardianship. In the Matter of the Guardianship of Hedin, 528 N.W.2d 567 (Iowa 1995). These holdings were applied to conservatorships in In Matter of Guardianship and Conservatorship of Teeter, 537 N.W.2d 808 (Iowa App. 1995). These holdings were codified under Iowa Code section 633.551 et. al.

Adjudication of incompetency is not an adjudication that the ward is of unsound mind. Iowa Code 633.636. Unsound mind is a term referring to one who from infirmity of mind is incapable of managing himself Competency is presumed until proven otherwise, Ware v. Eckman, 277 N.W. 725 (Iowa 1938), and is relative under Iowa law. There are several types of competency under Iowa law:

    1.Incompetent: “Whether the person possesses sufficient mind to understand in a reasonable manner the nature and effect of the act in which the person is engaged.” Iowa Code section 229.27(2) (2009). Persons are incompetent due to reason of mental illness. Iowa Code section 229.27. Competency hearings are conducted in the same manner as proceedings for the appointment of a guardian. Iowa Code section 229.27(3).

    2. Testimonial Competency: Less than needed to make a gift. Charles v. Brunsvold, 89 N.W.2d 344 (Iowa 1958). This is the competency needed to testify. Unless provided by rule or statute, a witness is competent. Ia. R. Evid. 5.601.

    3. Testamentary Competency: This is the competency required for signing a will. To have testamentary competency, the testator must understand the nature of the instrument, extent of his property, recognize the natural objects of his bounty, and know the disposition desired. In re Gruis’ Estate, 207 N.W.2d 571 (Iowa 1973).

    4. Gift Inter Vivos Competency: For a revocable transfer, the level of competency is the same as needed to execute a will (testamentary competency). Iowa Code 633A.1102(4)(a). For an irrevocable transfer, the level of competency required is the ability to understand the effect the gift may have on the future financial security of the donor and the donor’s dependents. Iowa Code section 633A.1102(4)(b).

    5. Contractual Competency: The contracting party must have sufficient mental capacity to understand the nature and terms of the contract. Guardianship of Collins, 327 N.W.2d 230 (Iowa 1982). A higher degree of mental competence is required for the transaction of ordinary business and the making of contracts than is necessary for testamentary disposition of property. Costello v. Costello, 186 N.W.2d 651 (Iowa 1971). Guardianships or conservatorships are determined by contractual incompetency, and the ward may still validly execute wills or give away property if they have the required competency. Iowa Code section 633.637; In re Hawk’s Guardianship, 288 N.W. 114 (Iowa 1939). Wards are contractually incompetent. Iowa Code section 633.3(23).

    6. Hospitalization of mentally ill: Iowa Code Chapter 229 provides procedures. The standard is that the applicant must show that the respondent suffers a “serious mental impairment” which is defined as the respondent lacking sufficient judgment to make responsible decisions with respect to his/her hospitalization or treatment, and who, without treatment is likely to either injure himself/herself, or inflict serious emotional injury on he/her family or others. Iowa Code sections 229.1(16) and 229.6. This does not raise a presumption of incompetency.

    7. Commitment of substance abusers: Iowa Code Chapter 125 provides procedures for voluntary and involuntary treatment of chronic substance abusers. A committed person has the right to “enjoy all legal, medical, religious, social, political, personal, and working rights and privileges…consistent with the effective treatment of the person and of the other persons in the facility.” Iowa Code section 125.92(4).

Notice for an Adult Ward is governed by the Rules of Civil Procedure. Iowa Code section 633.554(1)(a). In involuntary proceedings, an adult ward’s spouse must also be given notice. If there is no spouse, the proposed ward’s adult children must be given notice. Iowa Code 633.554(a0(b), I.R.C.P. 1.305. Notice for a minor ward or adult ward under a standby petition and the court determines that the proposed ward is entitled to representation, then notice can be given to the attorney appointed. Notice is also served on parents of the proposed minor ward and spouse of an adult ward (or adult children if no spouse).

The proposed ward has the right to representation and to be personally present at all hearings if an adult involuntary proceeding (a discretionary right if a minor or standby petition). Iowa Code section 633.561(2). The proposed ward must be given written notice of guardianship or conservatorship powers.

The Iowa Department of Elder Affairs has several pamphlets, booklets, and DVDs available on-line or can provide them to the conservator or guardian. The website is www.state.ia.us/elderaffairs .



Representative Payee:

Representative Payees are appointed by the federal government to administer particular federal benefits of someone who has been determined to be incompetent. When a representative payee is appointed, the beneficiary is no longer able to sign their checks or obtain the funds directly. The representative payee obtains the checks or funds and administers the funds on behalf of the beneficiary.

A representative payee must be appointed by the federal agency even if a conservator has been appointed or a financial power of attorney has been signed.

The federal agency appoints a representative payee upon a physician finding or interview with the payee that the beneficiary is not competent. The representative payee must submit reports to the federal agency. Representative payees are only responsible for that particular agency’s check, not for any other agency’s check.

Contacts with federal agencies:

Social Security Administration : 800-772-1213 www.ssa.gov/online.ssa-11.pdf

U.S. Department of Veterans Affairs:800-827-1000 www.va.gov

Office of Personnel Management: 202-606-1800 www.opm.gov

Railroad Retirement Board: 515-284-4344 www.rrb.gov

Department of Defense: 800-321-1080 www.defenselink.mil


Guardianship:

Iowa Code section 633.552(2) (2009) specifies 2 categories of persons who warrant guardianships:

1. Any person whose capacity to make decisions is so impaired that they are unable to care for their personal safety or attend to or provide for their necessities such as food, shelter, clothing, or medical care, without which physical injury or illness might occur.

2. Minors.

To open a guardianship, a petition for appointment of a guardian must be filed stating which of the two above categories apply. The proposed ward must be a resident of or present in the state of Iowa and his/her best interests require the appointment of a guardian in Iowa. Any person may request the appointment of a guardian. Iowa Code section 633.552.

Guardianship Proceedings can be voluntary or involuntary. A voluntary petition is filed by the proposed ward who must be 14 years old or older. A designated guardian is automatically appointed if the court determines that is in the best interest of the applicant, Iowa Code section 633.557(1), and the court must consider the appropriateness of a limited guardianship. If the proposed ward is an adult, an order appointing a guardian may be obtained at the same time the petition is filed. If the proposed ward is a minor however, the minor may be entitled to the appointment of a guardian ad litem or counsel before the court hears the petition. Iowa Code section 633.561. I.R.C.P. 1.211. A voluntary petition eliminates the need for a jury trial since the facts are admitted. Neidermyer v. Neidermyer, 22 N.W.2d 346 (1946).

An involuntary proceeding is filed by a person other than the proposed ward. An involuntary petition of an adult ward guarantees a mandatory right to counsel. There is a discretionary right to counsel where the proposed ward is a minor or an adult under a standby petition.

Probate court has subject matter jurisdiction to decide the issue of sterilization of an adult woman in guardianship. Matter of Guardianship of Matejski, 419 N.W.2d 576 (Iowa 1988). An involuntary guardianship proceeding is tried as a law action, and either party is entitled to a jury trial upon proper demand. Iowa Code section 633.33. A jury trial is only allowed on the question of whether a guardian is necessary; the court in equity decides who to appoint as a guardian. In Matter of Guardianship and Conservatorship of Reed, 468 N.W.2d 819 (Iowa 1991). Voluntary proceedings are tried by the probate court as a proceeding in equity. Iowa Code section 633.33. The burden of persuasion remains with the guardian.

All orders and decrees of the probate court are final as to parties having notice and persons who have appeared without notice. Iowa Code 633.36. Final orders are appealable. All orders entered without notice or appearance are reviewable by the court at any time prior to the entry of the order approving the final report.

Preferences for appointment of guardians are: Parents of minor, qualified and suitable person nominated by a will executed by a custodial parent of a minor child. qualified and suitable person requested by a minor over 14 years of age, a person nominated by a parent in a standby petition for a minor, proposed adult ward’s choice set forth in a voluntary petition. The parents have a rebuttable presumption favoring the appointment of adults for a minor child. The best interests of the child govern. In Interest of Leehey, 317 N.W.2d 513 (Iowa App. 1982); Hulbert v. Hines, 178 N.W.2d 354 (Iowa 1970). The right of a surviving parent may be relinquished by abandonment. Carrere v. Prunty, 133 N.W.2d 692 (Iowa 1965).

In choosing guardian for orphaned children, the court does not choose the best caretaker, but attempts to keep the child within the family wherever possible. Matter of Guardianship and Conservatorship of Reed, 468 N.W.2d 819 (Iowa 1991). However, the court is not bound by views of family or preferences of ward. Guardianship and Conservatorship of Schmidt, 401 N.W.2d 37 (Iowa 1987). Security and stability in home are more important than intellectual stimulation, and age of persons claiming custody are to be considered. Painter v. Bannister. Economic factors can be considered, however, if one is less wealthy but still has reasonable financial security, economic element is not to be considered. In re Guardianship of Lehr, 87 N.W.2d 909 (1958). Religious faith is a consideration but is not controlling. In re Waite, 180 N.W. 159 (Iowa 1920).

Guardians must swear to an oath, and are not required to give bond unless the court finds that the best interests of the ward require a bond. Iowa Code sections 633.174 and 633.633. The clerk will issue a letter under seal of the court giving the powers authorized.

If the court appoints a guardian based on the mental incapacity of the ward, the court shall make a separate determination if the ward is competent to vote. The ward is incompetent to vote only upon determining the ward lacks sufficient mental capacity to comprehend and exercise the right to vote.

All areas of responsibility not stated by the court to be supervised by the guardian are retained by the ward. Iowa Code section 633.635(4). These areas of responsibility may be later modified by the court. Guardians may be granted the following powers (check the appointment letter for powers):

    1. Not subject to court approval:

            a. Provide for care, comfort and maintenance of the ward, including training and education to maximize the ward’s potential.

            b. Taking reasonable care of ward’s clothing, furniture, vehicle, and personal effects.

            c. Assisting ward in developing max self-reliance and independence

            d. Ensuring ward receives necessary emergency medical services

            e. Ensuring ward receives professional care, counseling, treatment or services as needed.

            f. Any other powers or duties court specifies. Iowa Code section 633.635(1).

    2. Subject to court approval:

            a. Changing ward’s permanent residence if the new residence is less restrictive of the ward’s liberties.

            b. Arranging provision of major elective surgery or other nonemergency major medical procedure.

            c. Withholding or withdrawing life-sustaining procedures in accordance with Iowa Life Sustaining Procedures Act.

A duly appointed guardian has custody of a minor ward. Guardianship of Carrick v. Stoddard, 98 N.W.2d 315 (1959). The court cannot appoint a guardian of a minor ward and give physical custody to a third party, but may give temporary custody while guardianship continued. Zvorak v. Beireis, 519 N.W. 2d 87 (Iowa 1994). Regulation and control by the court of guardian’s custody and control of minor ward includes matter of visitation. Patten v. Patrick, 276 N.W.2d 390 (Iowa 1979). Matter of Guardianship and Conservatorship of Ankeney, 360 N.W.2d 733 (Iowa 1985).

Adoption does not terminate the guardianship or authority of the probate court to ensure the child’s best interests are served. Matter of Guardianship of Nemer, 419 N.W.2d 582 (Iowa 1988).

Reporting requirements of Guardians:

    1. Initial report within 60 days of appointment.

    2. Annual report within 90 days of close of reporting period unless waived by court for good cause.

    3. Final report within 30 days of termination of guardianship unless court extends for good cause.

Judges must review and approve reports of guardians. If requested the reports must be served on the attorney appointed to represent the ward and other parties. Forms for guardian are included in Iowa Supreme Court Probate Rule 7.11. Reports must include:

    1. Current mental and physical condition of ward

    2. Present living arrangement of ward, including a description of each residence where ward resided during reporting period.

    3. Summary of medical, educational, vocational, and other professional services provided for the ward.

    4. Description of guardian’s visits with and activities on behalf of the ward

    5. Recommendation as to need for continued guardianship

    6. Other information requested by court or useful in opinion of guardian.

Guardians are not personally liable for actions or omissions made in the official discharge of their duties except for breach of duty imposed by the Iowa Probate Code or willful or wanton misconduct in the official discharge of their duties. Iowa Code section 633.633A.

Guardians may be removed for failure to qualify as a fiduciary, failure to perform any duty, and termination of Iowa residence. Any person interested in the estate may file a petition for removal. Removal ultimately rests in the sound discretion of the court. In re Cannon’s Guardianship, 1 N.W.2d 217 (1941).

Conservatorship:

The purpose of a conservatorship is to provide for the protection of property of a ward and the conservation of such property for his/her benefit. See Perry v. Roberts, 22 N.W. 85 (1928). Iowa Code section 633.641. Iowa Code section 633.566(2) (2009) specifies 2 categories of persons warranting conservatorships:

    1. Persons whose decision-making capacity is so impaired that they are unable to make, communicate, or carry out important decisions concerning their financial affairs. This does not require incapacity such that would lead to physical injury or illness.

    2. Minors.

Any person may request the appointment of a conservator. Iowa Code section 633.566.

Conservatorships may be voluntary or involuntary proceedings. A voluntary proceeding is one filed by the proposed ward, and a designated conservator is automatically appointed without further notice if the court determines that an appointment is in the best interest of the applicant. A voluntary petition by an adult, usually results in the order appointing a conservator at the same time a petition is filed. A voluntary petition by a minor may entitle the minor to representation by counsel or appointment of a guardian ad litem before the court hears a petition.

If the proposed ward has a property right in Iowa, whether or not the proposed ward is a resident of the state, the Iowa courts have jurisdiction to appoint a conservator in Iowa. In re Skinner’s Guardianship, 300 N.W. 1 (Iowa 1941). Venue is proper in the county in which a proposed ward resides and in the county in which property is located if the proposed ward is a nonresident. Iowa Code 633.12.

Conservatorships for Minors are required for unmarried persons under the age of 18 who own or receive property, with a few statutory exceptions. Iowa Code 633.574. These exceptions include:

    1. Procedure in lieu of conservatorship: If a conservator has not been appointed and money or property not exceeding $25,000 is to be provided to the minor, the property may be paid to a custodian under the Uniform Transfer to Minors Act. Written receipt of custodian constitutes an acquittance of person making payment or delivery. Iowa Code 633.574.

    2. Small Legacies Exception: Allows custodians under Uniform Transfer to Minors Act to receive payment of $25,000 or less due a minor from an estate or trust without formal conservatorship proceedings. Iowa Code sections 633.108 and 633A.4706.

    3. Uniform Transfers to Minors Act (UTMA): Allows irrevocable transfers of qualifying property to custodians on behalf of minors. Qualifying property includes: money, securities, life or endowment insurance policies, powers of appointment, present rights to future payments under contracts, real estate, interests in other types of property. Property evidenced by title cannot be transferred to custodian. Iowa Code Chapter 565B. Custodianships continue until minor reaches age of 21.

    4. Payments to minor under personal service contract: If a contract for the minor’s personal services has been made and services performed, full payment can be made to the minor and minor’s parent or guardian cannot recover a second time. Iowa Code section 599.4.

    5. Bank and financial services accounts: Banks, savings and loans, and credit unions may receive deposits from minors and deal with the minor in respect to his/her deposit account with the consent of a parent, guardian, or conservator. Iowa Code sections 524.805(5), 533.13(2) and 534.302(4).

Conservatorships for Adults: Standard for establishing a conservatorship is in Iowa Code sections 633.551, et. al. The Iowa Court of Appeals has held that spending money foolishly or giving money to a child is not sufficient to find incompetency of a level requiring a conservator. A rating of incompetence by the Veterans Administration is prima facie evidence of the necessity for appointment of a conservator. Iowa Code section 633.617.

Notice: Except where the ward is the petitioner, notice shall also be served on the ward’s spouse (or adult children if no spouse). Iowa Code section 533.568 (1)(b). If the proposed ward is a minor and entitled to representation, notice to the attorney appointed to represent the ward is notice to the proposed ward, and parents of the proposed ward must also be served. Iowa Code section 633.568(2). Notice of Conservatorship Powers must also be provided to the proposed ward.

When a proposed ward is receiving benefits from the U.S. Veterans Administration, the administrator of veterans affairs shall be a party in interest in any proceeding for conservatorship. Iowa Code section 633.615. Notice to the Veterans Administration office must be provided in writing not later than 15 days prior to the hearing. Bond is required for the conservator is the conservator administers money paid by the Veterans Administration. Iowa Code section 633.622.

Powers of Conservator:

    1. Without court approval: manage ward’s principal, income, and investments, sue and defend any claim by or against the ward, sell and transfer personal property, and vote at corporate meetings.

            a. Statutory authority to enforce support obligation toward ward. Matter of Guardianship and Conservatorship of Cerven, 334 N.W.2d 337 (Iowa App. 1983).

            b. Statutory authority to initiate and prosecute personal injury action on behalf of ward without prior court approval. Matter of Conservatorship of Holmberg, 483 N.W.2d 9 (Iowa App. 1992).

            c. To continue to hold any investment or other property originally received by conservator, and also any increase thereof (notwithstanding the provisions of the Uniform Prudent Investors Act, Iowa Code sections 633A.4301-4309) pending the timely filing of the first annual report.

            d. Powers cease upon death of the ward

    2. With court approval: Invest ward’s funds, execute leases, make payments to or for benefit of ward, support ward’s legal dependents, compromise or settle any claim, elect for the ward who is a surviving spouse to take against the will and to occupy the homestead, exercise the right to disclaim on behalf of the ward, and other activities determined by the court to be in the ward’s best interests.

         a. Powers continue as long as required court approval is obtained.

        b. Any sale, mortgage, etc. of property of the estate may be void or voidable if a guardian ad litem is not appointed to defend the ward in the hearing. In the Matter of Guardianship and Conservatorship of Jordan v. Remer, 616 N.W.2d 553 (Iowa 2000).

Duties of the Conservator:

    1. Has the authority to and must take possession of the ward’s real and personal property.

    2. Must protect and preserve the estate of the ward, to invest it prudently, to account for it, and at termination, to deliver the assets of the ward to the person entitled

    3. Not commingle property of the ward and property of the conservator. In re Stude’s Estate, 162 N.W. 10 (Iowa 1917).

    4. Must exercise diligence as a reasonably prudent person would ordinarily employ in the conduct of his/her own affairs. In re Moore’s Guardianship, 288 N.W. 880 (Iowa 1939).

    5. Self dealing is only permitted with consent of the court after notice to all interested persons and only if the conservator derives no profit from such dealing. In the Matter of Guardianship and Conservatorship of Jordan v. Remer, 616 N.W.2d 553 (Iowa 2000).

    6. Prior to investment of funds, the conservator should first report to the court for approval. Stocks are not mentioned as authorized investments in Iowa Code sections 633A.4301-4309, only federal, state, and municipal bonds, corporate mortgages, etc, so conservators should obtain court approval of investments in stocks or other types of investments.

    7. Report to DHS, assets and income of ward receiving medical assistance under Iowa Code Chapter 249A. Iowa Code section 633.641.

    8. Deliver to the court any purported will of the ward.

Jury trial is allowed on the question of whether a conservator is necessary. The court in equity decides who to appoint. Matter of Guardianship of Reed. The burden is on the petitioner to appoint a conservator, and the appointment must be supported by clear and convincing evidence. Iowa Code section 633.551(1).

Conservators must subscribe to an oath and unless a corporate fiduciary or exempted by the court must execute and file with the clerk of court a bond in the amount equal to the value of the personal property plus the estimated gross annual income of the estate. Iowa Code sections 633.169-171. Banks are not required to post bond unless otherwise ordered.

In addition to temporary, standby and limited conservatorships, there is also a conservatorship for absentees. When a person owns property in Iowa but his/her whereabouts are unknown and there has been no provision for management of the property, a conservatorship for property of the absentee may be ordered. Iowa Code section 633.580.

There is a presumption of fraud for all contracts, transfers, and gifts made by the ward after the filing of the petition following appointment of the conservator unless the ward retained authority under a limited proceeding. One who deals with a ward is bound by constructive notice of the judgment on the ward’s disability. Reeves v. Hunter, 171 N.W. 567 (Iowa 1919). Appointment of a conservator for guarantor, which appointment was known to obligee, served to revoke then continuing accommodation special guaranty, making it thereafter of no legal force and guaranty did not cover note executed subsequent to appointment. Union Trust and Sav. Bank v. State Bank, 188 N.W.2d 300 (Iowa 1971).

Title to the ward’s property remains with the ward, subject to conservator’s possession, and court’s control for purposes of administration, sale, or other disposition. Iowa Code section 633.639. Possession of all the ward’s property is vested in the conservator. Iowa Code section 633.640. The conservator must pay taxes and collect income from the ward’s property.

Reporting requirements:

    1. Initial Inventory: a conservator must file with the court an initial inventory within 60 days of the conservator’s appointment. Iowa Code section 633.670(1).

    2. Supplemental inventory: When additional property comes into the possession of the conservator or to the knowledge of the conservator, a supplemental inventory must be filed within 30 days. Iowa Code section 633.670(1).

    3. Annually within 90 days of the close of the reporting period unless waived by the court for good cause. Suplee v. Stonebraker, 195 N.W.2d 678 (Iowa 1972).

    4. Within 30 days of removal as conservator

    5. Upon conservator’s filing a resignation and before such resignation is accepted by the court.

    6. Within 60 days of the termination of conservatorship.

Contents required in the report are contained in Iowa Code section 633.671. Accounting must be in as much detail as possible, even if details are not current and difficult to obtain. Matter of Conservatorship of Peters, 447 N.W.2d 412 (Iowa App. 1989).

The ward must receive notice when a conservator submits a final report. Matter of Guardianships and Conservatorships of Timm, 464 N.W.2d 694 (Iowa App. 1990).

Taken from: http://www.robertpetersonlaw.com/guardianships-and-conservatorships.html