Iowa

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process
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I. Designation of Standby Guardian

A parent (or other person having "physical and legal custody of a minor") may file a petition for a standby guardian. The petition would instruct the court to act only if a particular event, or condition of mental or physical health, occurs. The parent would describe in the petition how the event or condition is to be proved. [Probate 633.560, referring to 633.591A] Thus, in Iowa there is great flexibility for a parent to decide the circumstances under which the standby guardianship would go into effect.

The petition must be "verified." Although there is no further requirement that the designation appear as an attested document, preference is given to any "qualified and suitable" person nominated as guardian in a will. [Probate 633.559] One can deduce that an attested document would add weight to the parent's choice. However, it is clear throughout Iowa law that any proceeding involving children requires the court to exercise its judgment as to the child's best interests. [e.g. Matter of Guardianship and Conservatorship of DDH, 538 N.W.2d 881 (1995)] Moreover, if a child to be served by a guardian is 14 years or older, that child's opinion will carry great weight with the court.

The parent may change guardians, or end the guardianship by petitioning the court to terminate it. [Probate 633.679]





II. Agreement of the Non-Custodial Parent

Parents, "if qualified and suitable" are preferred over all others as guardians. [Probate 633.559]. The guardian statutes do not describe how to locate or serve a non-custodial parent, nor how to determine whether a parent is "suitable." There are many cases that bear upon the issue of parental fitness, however, with a strong trend to support parental rights, for example, even if the parent is mentally retarded [In re Interest of Rohde, 503 NW 2d 881 (1993)] or very poor and a victim of domestic violence [Zvorak v. Beireis , 519 NW 2d 87 (1994)] Quite possibly a custodial parent would have to resolve the fitness or abandonment issue under the Juvenile or Domestic Relations Code prior to seeking guardianship.




III. Role of the Standby Guardian

There is no provision for concurrent decision-making under the standby guardianship provision. The Iowa law is very specific about the duties of a guardian. The court may select among the listed tasks to tailor them to a particular guardianship. The basic duties are to provide for "care, comfort, and maintenance," including training and education. [Probate 633.635]




IV. Court Process

The standby guardianship provision, through reference to the standby conservatorship law, describes the first steps to be taken: a "verified petition" for appointment of a guardian is filed, and the petition states that the court shall only act when the events or conditions described in it occur. [Probate 633.591A] Other details to be included in the petition are found in the general guardianship provisions: names, addresses, and so forth. [Probate 633.552] There is no further special process devoted to standby guardianship. It must be deduced.

One may assume that the task of reporting to the court that the events or conditions described in the petition could fall on the standby guardian. Those events or conditions have to be proved by clear and convincing evidence. [Probate 633.556] The petition itself describes how the event or condition is to be proved. [Probate 633.591A] Once again, Iowa law leaves much discretion with the petitioners. The guardian might wish to use a physician's statement to describe mental or physical incapacity, but would not be obligated to do so unless the petition listed that as the proper proof.

Notice must be given to the child, although it may be given to an attorney or in some other way, if the court allows. [Probate 633.554] The court may decide that the child is entitled to legal representation. [Probate 633.561]

Iowa law is firm that the court will make an independent decision based on best interests of the child. Best interests are established in the Probate Code through abundant case law, but there are very specific factors listed in the Juvenile Code, as part of the Termination of Parental Rights provisions. [Juvenile 232.116] Note that if the family is already under authority of the Juvenile Court, no guardianship action can take place in Probate Court without concurrence from the Juvenile Court judge. [Juvenile 232.3]

A guardianship ends when the child reaches maturity, or the court decides for any reason that it is no longer necessary. [Probate 633.675]

		Iowa Code Annotated Title XV. Judicial Branch and Judicial Procedures Subtitle 4. Probate – Fiduciaries Chapter 633. Probate Code Division XIII. Opening Guardianship and Conservatorship. Part 1. Opening Guardianship sec. 633.554, 633.556, 633.599, 633.560, 633.561, 633.591A, 633.635, 633.675; Juvenile 232.116, 232.3