Modification and Termination of Guardianship and Conservatorship
by: Iowa Legal Aid
Why Modify a Guardianship or Conservatorship?
Sometimes a conservator or guardian may need to get more powers over the ward than the court originally granted. Sometimes the ward’s decision making may improve, lessening the need for someone else to make the ward’s decisions
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Changing (or modifying) a guardianship or conservatorship is similar to setting one up. A petition for “modification” is filed with the court. A hearing date is set. Interested persons may present facts at the hearing. The court must decide if a “limited” guardianship or conservatorship is right for the ward. The court must try to limit the powers of the guardian or conservator to those that are really needed.
When Does a Guardianship or Conservatorship End?
A guardianship or conservatorship ends (the statute uses the word “terminates”) when the ward dies or if the court says that the ward is able to make decisions. A ward can ask the court to end the guardianship or conservatorship. A ward can do this by filing a petition in court.
If the court ends the guardianship or conservatorship, all rights taken from the ward are returned. The ward is no longer considered “incompetent.”
Ending a guardianship or conservatorship is much the same as setting one up. A petition to end or terminate the guardianship or conservatorship is filed with the court. A hearing date is set. Notice of the hearing is given to all interested persons. The ward has to present evidence to show that the ward is competent. The burden of proof then shifts to those opposing the termination to show the court by clear and convincing evidence that the ward is incompetent.
A guardianship can end even if the ward is still disabled. The facts may show that the person now has the ability to take care of personal matters and/or manage property. A person who is able to care for self or property may be considered “competent” and not need a guardian. This may be true even if the person has a mental disability.
When a ward dies, the guardian or conservator can no longer make any decisions. The guardian or conservator still has to tell the court what he or she did before the death of the ward. The guardian or conservator has to file a final paper with the court saying what he or she did. The court has to approve the accounting or report before the guardianship or conservatorship case is ended.
What Happens When the Guardian or Conservator has to be Changed?
The court will need to replace a guardian or conservator who dies, is removed, or resigns. A guardian or conservator may be removed for mismanagement or improper actions.
If the ward still needs a guardian or conservator, the court can pick a new “successor” guardian or conservator. The process for picking a successor guardian or conservator is similar to the other legal proceedings described above. Often, the biggest problem is finding someone to act as the conservator or guardian. The court does not have a list of people. It is up to the people involved to offer someone as a successor guardian or conservator. Notice will be given to interested parties. A hearing may be needed to approve the successor guardian or conservator.
Funding was provided by the Iowa Developmental Disabilities Council.
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