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Guardians and conservators are appointed by the court to make medical financial, and other important decisions on behalf of an adult person. This adult person is called the Ward. Sometimes a guardianship or conservatorship will end during an ongoing legal proceeding, or the Ward will pass away during a legal action in which the Ward is the party.  Who takes authority to be able to start or continue lawsuits on behalf of the Ward when these relationships end?

Guardians and conservators are appointed by the court to make medical financial, and other important decisions on behalf of an adult person. This adult person is called the Ward. Sometimes a guardianship or conservatorship will end during an ongoing legal proceeding, or the Ward will pass away during a legal action in which the Ward is the party.  Who takes authority to be able to start or continue lawsuits on behalf of the Ward when these relationships end? This article will discuss:

  • What happens to a legal action if the guardianship or conservatorship ends?
  • What if the Ward dies while a case is ongoing??
  • What if a Ward wants the guardian or conservator to continue in their duties after death?

What happens to a legal action if the guardianship or conservatorship ends?

The guardianship or conservatorship could terminate, or end, if the court determines the reason for the conservatorship or guardianship has ended. Perhaps the person’s mental condition has significantly approved, or their health has otherwise approved. Also, a guardian or conservator could be replaced with another guardian or conservator.

Under the Iowa Rules of Civil Procedure, if a guardianship or conservatorship terminates, any action in which the Ward was involved in will not end.  Instead, the new guardian or conservator will be substituted, or the former Ward will continue their own behalf. While the right to start lawsuits, defend against lawsuits, and reasonably hire attorneys and pay attorney’s fees previously belonged to the guardian or conservator, the former Ward is not responsible for doing these things.  

What if the ward dies?

A guardianship or conservatorship could also end if the Ward dies. If this happens, the guardian or conservator’s authority will go the personal representative of the Ward’s estate.  

When someone dies, their property enters the probate process. If the person died with a will, the property will be distributed according to the terms of the will. If the person died without a will, the property passes according to a statutory process called intestacy. In either case, a personal representative is appointed by the court to manage the property with the deceased person’s estate. If the person died with a will, the personal representative is called an executor. If the person died without a will, the person is called an administrator.  

The personal representative is responsible for taking actions on behalf of the estate. This includes paying off the debts the deceased person owed and distributing that person’s property to the rightful person. The personal representative is also responsible for acting on behalf of the estate in any lawsuits against the deceased person which existed at the time of death, or any lawsuits brought against the estate. As a fiduciary, the personal representative is responsible for acting in the best interests of the estate. The personal representative can hire attorneys and pay reasonable attorney’s fees out of the estate. The personal representative can also sue on behalf of the state, so long as the lawsuit is reasonable.  

What if a Ward wants the guardian or conservator to continue in their duties after death?

A person may have a special relationship with their guardian or conservator, and has spoken to them at length about their interests and legal position in ongoing cases. If a Ward wants their guardian or conservator to continue serving as their representative in any legal action after their death, the Ward should be sure to include in their will that they want this person to serve as the executor of the estate. It is also possible to have multiple executors if the Ward only wants the executor to be responsible for the legal proceedings. It may be helpful to have an attorney draft this provision to ensure that the person’s wishes are carried out.  

Posted 
October 13, 2021
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