2019 ISSUE #12
Issue 12, 12/31/2019
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Articles in This Issue:
- SPECIAL ISSUE FOCUS: GUARDIANSHIPS IN 2020
- NEW GUARDIANSHIP LAWS TAKE EFFECT IN 2020
- DEMOCRATS URGE EARLY CAUCUS CHECK-IN & REGISTRATION
- FIRST ADVOCACY CALL ON JANUARY 17
SPECIAL ISSUE FOCUS: GUARDIANSHIPS IN 2020
Iowa legislators made some big changes to Iowa's guardianship laws in 2019. These changes took effect January 1, 2020 and have people asking a lot of questions.
Our friends at Disability Rights Iowa have written an article to help you understand how these changes may impact you. Before we start, we wanted to make sure you understand the difference between a guardianship and a conservatorship.
In both a conservatorship and guardianship, a court appoints a substitute decision-maker for a person who does not have the capacity to manage their own affairs. While guardianships are designed to assist with personal and health-related needs, conservatorships are designed to assist with financial needs. A guardian will typically make decisions about medical treatment, safety, and living arrangements; a conservator makes financial decisions.
There were 2,603 guardians appointed in Iowa during 2018, about half of which were for adults. As you will read below, a video is being produced to help you learn more about these changes and will be posted on our website as soon as it is available. The Iowa Developmental Disability Council's guardianship and conservatorship guide is also being updated and will be available soon. We hope this information will help you better understand these changes.
The Iowa Legislature starts on Monday, January 13, so we'll be switching gears and beginning our biweekly publication schedule on January 24. Happy New Year - we hope you've resolved to find new ways to advocate for the issues that are near and dear to you.
NEW GUARDIANSHIP LAWS TAKE EFFECT IN 2020
By Scott Lyon, Staff Attorney for Disability Rights Iowa
In the 2019 session, the Iowa Legislature unanimously passed House File 610, which changes many things about how guardianships and conservatorships in Iowa will be established or maintained. The changes to the law took effect January 1, 2020.
These reforms were years in the making, dating back to 2015 when the Iowa Supreme Court appointed a task force of over 70 attorneys, judges and citizens to review the law and make recommendations for reform in this area. The goal of the new law is to improve protections for people who are under guardianship or are alleged to lack decision making capacity, since appointing a guardian for an adult means stripping them of some of their basic rights and freedoms.
Here are a few things you should know about the new law if you are a guardian or a person who has a guardian.
The new law eliminates use of the term “Ward” and “Proposed ward.” It replaces “ward” with “protected person” and “proposed ward” with “respondent.”
Elimination of “Voluntary” Guardianships
The old law distinguished between “voluntary” and “involuntary” guardianships. A voluntary guardianship was where a person could sign a form agreeing they need a guardian and courts could appoint a guardian for that person without a hearing. This occasionally resulted in vulnerable people being coerced into consenting to guardianship and losing their rights without a hearing. Now, all new guardianships will require a hearing and a record of the reasons why the guardianship is necessary. A person can still ask the court for a guardian for him or herself, but a hearing must be held before a guardian is appointed. For people who have existing guardianships that were set up as voluntary before the changes to the law took effect, those guardianships will continue but may be subject to some other additional requirements discussed below.
Initial Care Plans
One intent of the new law is to get guardians to think in detail about what they plan to do for the protected person, and to make a plan for achieving those goals. To that end, guardians must file an initial care plan with the court containing information about how the guardian will use their decision making authority and what the guardian plans to do for the protected person. In response to some confusion about how existing guardianships would be affected, the Supreme Court issued an order stating that for guardianships in existence prior to 1/1/2020, “Guardians […] have continuing authority to perform acts concerning the protected person that were authorized prior to January 1, 2020 through the date of the guardian’s previously scheduled annual report.” The Supreme Court has also provided an Initial Care Plan form that is mandatory for use by guardians who are filing reports without assistance from an attorney. Currently serving guardians should plan to file this initial care plan with their next annual report.
Changes to Annual Reporting Requirements
Under the old law, courts could and frequently did set the reporting period for guardianships at three or five years, or in some cases waived reporting requirements entirely. This led to a lack of a reliable record of decisions made and actions taken by the guardian on behalf of the protected person, which can be a problem if there’s ever a question about the protected person’s history or the guardian’s conduct. The new law requires annual reports on every guardianship – waivers or extended reporting periods are no longer permitted. Although existing guardians will now have to file reports annually, it is not clear whether those who previously had a waiver should do so before the end of the year, or just beginning with their next scheduled report. A guardian in this situation can call the clerk of court in the county where their guardianship is established and ask how the court would like them to proceed. As with the initial care plan, the Supreme Court has also issued a form for annual reporting.
As of January 1, 2020, all new prospective guardians will have to undergo a background check for criminal history, sex offender, and abuse registries prior to appointment. Courts have discretion to review the results of a background check when deciding whether to appoint a guardian – there is nothing that automatically disqualifies a person from serving. This requirement does not affect guardians who were appointed prior to January 1, 2020 – those guardians do not have to complete a background check.
Finally, the new law now requires conservators (but not guardians) to post bond or a bond alternative. A bond is similar to insurance, where a bonding company charges a premium to guarantee that it will reimburse the protected person or their estate in the event of misuse of the person’s assets by the conservator. In the past, courts frequently waived conservatorship bonds which meant the protected person often had no way to recover money if a conservator stole from them, since bad acting conservators tend to not have much money of their own that could be sought in a judgment after that fact. This subject is more complex than this article is capable of addressing, but all guardians need to know is that bond or a bond alternative is not a requirement in guardianships, only in conservatorships.
These are just a few of the changes that will affect how adult guardianships in Iowa are established or maintained. Other changes to the law will have different effects on guardianships for children, as well as conservatorships for children or adults. Those subjects are beyond the scope of this article.
There is some misinformation and misconceptions about the new law. For those interested in learning more about the new law, a video for guardians containing accurate information about the new guardianship and conservatorship laws will be available later this month from the Institute on Guardianship and Conservatorship, a collaborative effort of the University of Iowa and Drake University law schools. If you are interested or have questions, you can contact the Institute via email at firstname.lastname@example.org.
This information is not legal advice. Individuals should contact an attorney for advice on their specific situation before proceeding.
DEMOCRATS URGE EARLY CAUCUS CHECK-IN & REGISTRATION
Democratic party leaders are encouraging Iowans who want to participate in the Democratic caucus to register to vote now in order to avoid delays and long lines. Turnout at the caucuses is expected to be very big, and registering new voters or changing parties at the caucuses can cause big backlogs. So do yourself (and your fellow caucus-goers) a favor and register early.
You do not need to re-register if you are already a registered voter. Call you county auditor if you have questions.
Democratic caucus-goers can also check in early to their caucus for the first time ever, through the Iowa Democrats' website. Interested persons have until Friday, January 17, 2020, to complete the early check-in process. You can find your caucus location at this site, as well as check in early (but you still need to be there, in line or in the building by 7 p.m.). Republicans do not expect as large of turnout and do not have an early check-in process - but we will let you know if that changes.
FIRST ADVOCACY CALL ON JANUARY 17
This year, we will be hosting monthly call-ins during the legislative session to give advocates with disabilities a chance to ask questions about the issues being discussed at the Capitol, the legislative process, or about advocacy in general. We'll start each call with a quick update, and leave the rest of the time for you to ask questions. Our first call is at Noon on Friday, January 17 - join us then to find out what is in the Governors' budget and the priorities she outlined in her Condition of the State speech.
To join by phone: (646) 558-8656 or (669) 900-9128
When asked, enter the following webinar ID: 100 147 285
To join by computer or iPhone/Android device:
Please click this URL to join. https://capture.zoom.us/j/100147285