If an adult lacks capacity to make decisions on their own behalf, the court will appoint a substitute decisionmaker: A "guardian" for decisions regarding well-being, and “conservator” for decisions regarding finances. Guardianships and conservatorships are legal relationships between a competent adult (the "guardian" or “conservator”) and a person who is unable to manage their own affairs (the "protected person").
Some important aspects of guardianships and conservatorships:
- Read the court order. The court can authorize you to make legal, financial, and healthcare decisions for the protected person. Depending on the terms of the appointment and state law, you may have to seek court approval for certain decisions.
- Fiduciary duty. A guardian or conservator has a "fiduciary duty” to the protected person; thus, they are legally required to act in the best interest of the protected person and carefully manage the protected person's assets. It is imperative that you keep your personal finances separate from the protected person’s finances. It is equally important to maintain detailed records of everything received, spent, or otherwise distributed.
- File reports on time. The court order should specify what reports must be filed. The first report is an inventory of the protected person's property and a prospective financial plan. You are required to file yearly reports detailing what you spent and received on behalf of the protected person and any changes in the protected person’s health and/or living situations. After the protected person dies or the guardianship or conservatorship ends, the court will require a final report.
- Consult the Protected Person. You should include the protected person in your decision-making whenever feasible, and work to determine the protected person’s wishes and intentions.
- Don't limit social interaction. Guardians and conservators may not limit a protected person’s interaction with family and friends unless such interaction would cause substantial harm.
If you are current a guardian or conservator, or want to explore options for a loved one, consult with one of our attorneys at Pearson Bollman Law. Either Attorney Chad Eichorn in our West Des Moines office, or Alec Modrick in our Bettendorf and Cedar Rapids offices would be happy to sit down with you, give us a call to schedule a free initial consultation at 515-727-0986.
The attorneys at Pearson Bollman Law practice in the areas of estate planning, probate/trust administration, special needs trusts, guardianships and conservatorships, and elder law, which includes Medicaid and VA Pension Planning. If you have any questions please call us at 515-727-0986.