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Partner Guest Article: Iowa Department on Aging

Sunday, August 30, 2020

The Office of Public Guardian is a state government program. It is part of the Iowa Department on Aging. The Iowa Department on Aging supports accessible, integrated services to older adults, adults with disabilities and caregivers to assist them in maintaining their independence, dignity, autonomy, health, safety and economic well-being. The Office of Public Guardian does three things to support this mission:

  • We serve as guardian or conservator for older adults and adults with disabilities who need one if they don’t have anybody else who can be their guardian or conservator.
  • We teach people about guardianship and conservatorship and other types of decision-making supports. We help people understand when a person might need a guardian or conservator and when they don’t. We also help people learn about other ways to help people make decisions.
  • We help guardians, conservators and caregivers learn about their responsibilities and advocate for the people they care for.

 

What are Guardianship and Conservatorship?

Guardianship and conservatorship are kinds of substitute decision-making. Substitute decision-making means that one person can legally make decisions for another person. Guardians and conservators are chosen by the court. The person they make decisions for is called the “protected person.” Guardians make decisions about their protected person’s personal care. Conservators make decisions about their protected person’s money and property.

 

Why Would Someone Need a Guardian or Conservator?

Adults have the legal right to make their own decisions about things like where they live, how they spend their money, where they work or go to school, who they spend time with and what medical care they receive. Sometimes an adult might have trouble making decisions about things in their life. There are lots of different ways to help someone make decisions. If those ways don’t work and the person cannot make decisions about important parts of their life, they might need someone else to make decisions for them. If that is the case, someone might ask the court to name a guardian or conservator.

 

Does Everyone Who Has a Disability Need a Guardian?

No! It is a myth that people who have disabilities always need a guardian or conservator. Some people believe that a person with an intellectual disability, developmental disability, mental illness or dementia will need a guardian or conservator, but this simply isn’t true. Most adults with disabilities can make decisions. Some might need help making decisions, but that is true for adults without disabilities too. Some adults with disabilities just might need more help or different types of help. Guardianship and conservatorship should be the last resort. They should only be used if other types of help have not worked.

 

What Are Some Other Ways to Help a Person Make Decisions?

There are a lot of ways to help a person make decisions. We can put them into two categories. One is called “supported decision-making.” The other is called “substitute decision-making.” Supported decision-making means that a person has help to make decisions but, ultimately, they make their own decisions. Substitute decision-making means that someone else has the legal authority to make decisions for the person.

 

How Does Supported Decision-Making Work?

Supported decision-making helps a person make decisions. There are many ways a person might need help with decision-making. Other people can help them by doing things like:

  • Gathering information for them.
  • Explaining information in ways that are easier to understand.
  • Helping them think about the pros and cons of different options.
  • Helping them communicate their decisions.

People who help someone make and communicate decisions are called “supporters.” Anyone can be a supporter for someone they care about.

 

I Want Someone to Be My Supporter, but Places Will Not Give Them Information About Me. What Can I Do?

Privacy rules protect certain kinds of personal information. Privacy rules keep doctors, lawyers, banks, schools and government programs from sharing personal information that people might not want shared. This can make it hard for a supporter to get information about the person they are supporting. This is a common problem, but it is easy to overcome. The person who wants help can give these places permission to share information about the person with their supporter. One way to do this is to sign a paper called a “release of information” telling them what information they can share. Using a release of information makes it clear what information you want shared and what information you want kept private.

 

I Want Help Making Different Types of Decisions. Can I Have More Than One Supporter?

Yes! If a person needs help making many kinds of decisions, they might want to have more than one supporter. They can have as many supporters as they want. Sometimes it is helpful to form a team of supporters. This team could include family members, friends, service providers, case workers, religious leaders, employers or teachers and other important people in the person’s life. Even a guardian or conservator can be a supporter and be part of the team. Each supporter might help the person with certain kinds of decisions, or the team might work together to help the person make decisions. The team might work together to write up a plan so that everyone understands how each team member will help support the person.

 

How Does Substitute Decision-Making Work? 

Sometimes, a person is unable to make decisions even with the help of supporters. In these cases, it might be necessary for someone else to make decisions for them. A person who can legally make decisions for someone else is a substitute decision-maker. Some substitute decision-makers are chosen by the court or by a government program. Other substitute decision-makers are chosen by the person they will help.

 

If I Need a Substitute Decision-Maker, Can I Choose Who It Will Be?

Yes! There are a couple of ways this can be done.

 

Power of Attorney: A person can give someone else “power of attorney” to make decisions for them. There are two types of power of attorney used in Iowa: durable power of attorney for healthcare and general power of attorney. A person can use the durable power of attorney for healthcare to name someone who will make medical decisions for them if they are unable to make their own medical decisions. A person can use the general power of attorney to name someone to make decisions about their financial matters, such as money and property. The person who names someone else to make decisions is called the “principal.” The person who is named to make decisions for the principal is called the “agent.”

 

Standby Guardianship: A person can also use a “standby” guardianship or conservatorship. A standby guardianship is one that is set up before the person needs it. For example, it might be used by an older adult with dementia or a person with a medical condition that will get progressively worse. Right now, they can make their own decisions, but they know that will change in the next few months or years. They can ask the court to set up a standby guardianship. They can tell the judge who they want as their guardian or conservator. The judge will appoint the guardian or conservator but will not let them make decisions for the person just yet. The guardian or conservator will only be able to make decisions when the person is no longer able to make their own decisions. The judge will tell the guardian or conservator how to know when that happens.

 

Will a Substitute Decision-Maker Make All My Decisions for Me, or Can I Still Make Some Decisions for Myself?

It depends. Some substitute decision-makers can only make certain types of decisions. For example, the Social Security Administration can name a “representative payee” to manage Social Security and SSI benefits for a person who cannot manage their own benefits. This is a kind of substitute decision-making where the representative payee can only make decisions about the Social Security and SSI benefits. A power of attorney can be used to give an agent authority to make many kinds of decisions, or it can be used to give an agent authority to make just one or two kinds of decisions.

 

Guardians and conservators usually make many kinds of decisions for their protected person. Sometimes the court will only let a guardian or conservator make certain decisions for their protected person. This is called a “limited” guardianship or conservatorship. This happens when the protected person can make some kinds of decisions but not others. The court should only let the guardian or conservator make decisions the protected person is unable to make.

 

Guardians and conservators have a responsibility to help their protected person make as many decisions as possible. A good guardian or conservator will involve their protected person in making decisions. Even a person who cannot make complex decisions can usually make some day-to-day decisions, such as what to wear, what activities to do, what to eat or who to hang out with. They can also tell their guardian what things they like and don’t like and how they want their life to be. The guardian or conservator can use that information to guide their decisions.

 

How Do I Contact the Office of Public Guardian?

You can contact the Office of Public Guardian by calling the Iowa Department on Aging at 515-725-3333 or toll-free at 800-532-3213, or you can email opg@iowa.gov.