Iowa presents an instructive case study of the need to fix broken guardianship systems, challenges in doing so, and steps that can be taken to reform the system.
Nearly 23,000 adults are under guardianship and conservatorship in Iowa. Court-appointed guardians act as substitute decision-makers for adults with diminished decision-making capacity regarding their living arrangements and other personal affairs. Court-appointed conservators act as substitute decision-makers for their financial affairs.
The first step in a long effort to reform Iowa’s guardianship system began with a 2015 study reviewing over 4,000 guardianship and conservatorship case files that revealed serious problems with the system.
Recognizing the need for reform based in part on this study, Iowa’s Supreme Court established a Guardianship and Conservatorship Reform Task Force that year. This task force had 70 members representing all major stakeholders in the system. In 2017, the final report identified many systemic deficiencies, with 230 recommendations to address them.
In 2019, a comprehensive guardianship reform law was enacted based on the task force’s recommendations. The legislation passed both chambers unanimously on a bipartisan basis, despite opposition from powerful attorney organizations.
Court Monitoring Function
The law’s major focus was on courts’ ongoing responsibility to monitor guardianships and conservatorships. The goal of court monitoring is to ensure the well-being and protection of adults subject to guardianship, protection of the property of adults subject to conservatorship, and accountability of their guardians and conservators.
The court monitoring function is critically important given the vulnerability of adults subject to guardianship and conservatorship, and their need for protection.
There is evidence that adults with intellectual disabilities and Alzheimer’s and other dementias—who comprise the vast majority of Iowa’s adult guardianship and conservatorship population—are especially likely to become victims of abuse, neglect, and financial exploitation.
There also is evidence that abuse, neglect, and financial exploitation of such adults by their guardians and conservators is a significant problem.
The task force concluded that ineffective and inefficient court monitoring was a substantial problem. The following cases are good examples.
A judge appointed a mother and her daughter as the guardian and conservator for a relative with a disability. They stole more than $50,000 from him. According to his neighbors, the women “only checked on him once a month,” and “his neighbors would bring him canned goods because he always ran out of food.”
His case was only brought to the attention of the court when his neighbors made a report to the Department of Human Services.
In another case, two attorneys were co-conservators for several decades for a mentally ill veteran who had inherited valuable farmland and personal property.
They falsely claimed excessive hours and charged large annual fees of $178,000 for conservator services that did not require legal training, such as taking him shopping and attending his birthday parties. A judge who approved their fee requests for many years said he had relied on their integrity as lawyers to charge reasonable hours and fees.
Prior to the 2019 law, the main vehicle for court monitoring was a requirement that guardians and conservators submit annual reports to the court for review and approval.
The law strengthened court monitoring by requiring newly appointed guardians and conservators to submit initial plans to court for meeting the needs of the person under guardianship and conservatorship, as well as subsequent annual reports.
The law also strengthened court monitoring by prohibiting judges’ common practice of waiving the annual reporting requirement. Many guardians and conservators had to submit reports only every three years or five years. The annual reports required by the 2019 law was meant to provide more frequent and consistent oversight.
Better Reporting Needed
While the 2019 law did much to strengthen court monitoring, it did not provide uniform reporting requirements for all guardians and conservators. If an attorney does not represent them, they must use reporting forms that spell out specific information to be included in their reports to generate the information necessary for effective and efficient court monitoring.
But if an attorney represents them, they are not required to use these forms. As a result, guardians and conservators with attorneys have in effect lesser reporting requirements then those without attorneys.
Most importantly, some attorneys are still submitting reports on behalf of client conservators that lack the information necessary for judges to identify actual or potential misappropriation or misuse of funds.
A bill is pending in the legislature that would remedy this situation. The bill, like the original 2019 legislation, is opposed by some attorneys who object to its enhanced reporting requirements for guardians and conservators with attorneys.
Improve Resources, Education
Even if this bill becomes law, there remains the chronic problem of insufficient court resources to conduct the court monitoring function. And other provisions of the 2019 law have still not been fully implemented by judges, guardians, conservators, and attorneys.
Moreover, some recommendations have still not been implemented that necessitate types of actions other than legislative. For example, no action has been taken on task force recommendations calling for provision of education and assistance to guardians and conservators regarding compliance with reporting requirements and their other responsibilities.
Iowa has done much, but more must be done to truly reform its guardianship system to protect highly vulnerable adults and minors under guardianship and conservatorship.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Josephine Gittler is professor of law at University of Iowa College of Law.