HF 2156

1st Unofficial Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to civil law; providing for certain 
  1.3             conservator's transactions; amending Minnesota 
  1.4             Statutes 2004, sections 524.5-417; 524.5-423. 
  1.5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.6      Section 1.  Minnesota Statutes 2004, section 524.5-417, is 
  1.7   amended to read: 
  1.8      524.5-417 [GENERAL POWERS AND DUTIES OF CONSERVATOR.] 
  1.9      (a) A conservator shall be subject to the control and 
  1.10  direction of the court at all times and in all things. 
  1.11     (b) The court shall grant to a conservator only those 
  1.12  powers necessary to provide for the demonstrated needs of the 
  1.13  protected person. 
  1.14     (c) The court may appoint a conservator if it determines 
  1.15  that all the powers and duties listed in this section are needed 
  1.16  to provide for the needs of the protected person.  The court may 
  1.17  also appoint a conservator if it determines that a conservator 
  1.18  is necessary to provide for the needs of the protected person 
  1.19  through the exercise of some, but not all, of the powers and 
  1.20  duties listed in this section.  The duties and powers of a 
  1.21  conservator include, but are not limited to: 
  1.22     (1) the duty to pay the reasonable charges for the support, 
  1.23  maintenance, and education of the protected person in a manner 
  1.24  suitable to the protected person's station in life and the value 
  1.25  of the estate.  Nothing herein contained shall release parents 
  2.1   from obligations imposed by law for the support, maintenance, 
  2.2   and education of their children.  The conservator has no duty to 
  2.3   pay for these requirements out of personal funds.  Wherever 
  2.4   possible and appropriate, the conservator should meet these 
  2.5   requirements through governmental benefits or services to which 
  2.6   the protected person is entitled, rather than from the protected 
  2.7   person's estate.  Failure to satisfy the needs and requirements 
  2.8   of this section shall be grounds for removal, but the 
  2.9   conservator shall have no personal or monetary liability; 
  2.10     (2) the duty to pay out of the protected person's estate 
  2.11  all lawful debts of the protected person and the reasonable 
  2.12  charges incurred for the support, maintenance, and education of 
  2.13  the protected person's spouse and dependent children and, upon 
  2.14  order of the court, pay such sum as the court may fix as 
  2.15  reasonable for the support of any person unable to earn a 
  2.16  livelihood who is legally entitled to support from the protected 
  2.17  person; 
  2.18     (3) the duty to possess and manage the estate, collect all 
  2.19  debts and claims in favor of the protected person, or, with the 
  2.20  approval of the court, compromise them, institute suit on behalf 
  2.21  of the protected person and represent the protected person in 
  2.22  any court proceedings, and invest all funds not currently needed 
  2.23  for the debts and charges named in clauses (1) and (2) and the 
  2.24  management of the estate, in accordance with the provisions of 
  2.25  sections 48A.07, subdivision 6, and 501B.151, 524.5-423, or as 
  2.26  otherwise ordered by the court.  The standard of a fiduciary 
  2.27  shall be applicable to all investments by a conservator.  A 
  2.28  conservator shall also have the power to purchase certain 
  2.29  contracts of insurance as provided in section 50.14, subdivision 
  2.30  14, clause (b); 
  2.31     (4) where a protected person has inherited an undivided 
  2.32  interest in real estate, the court, on a showing that it is for 
  2.33  the best interest of the protected person, may authorize an 
  2.34  exchange or sale of the protected person's interest or a 
  2.35  purchase by the protected person of any interest other heirs may 
  2.36  have in the real estate, subject to the procedures and notice 
  3.1   requirements of section 524.5-418; 
  3.2      (5) the power to approve or withhold approval of any 
  3.3   contract, except for necessities, which the protected person may 
  3.4   make or wish to make; and 
  3.5      (6) the power to apply on behalf of the protected person 
  3.6   for any assistance, services, or benefits available to the 
  3.7   protected person through any unit of government. 
  3.8      (d) The conservator shall have the power to revoke, 
  3.9   suspend, or terminate all or any part of a durable power of 
  3.10  attorney of which the protected person is the principal with the 
  3.11  same power the principal would have if the principal were not 
  3.12  incapacitated.  If a durable power of attorney is in effect, a 
  3.13  decision of the conservator takes precedence over that of an 
  3.14  attorney-in-fact. 
  3.15     (e) Transaction set aside.  If a protected person has made 
  3.16  a financial transaction or gift or entered into a contract 
  3.17  during the two-year period before establishment of the 
  3.18  conservatorship, the conservator may petition for court review 
  3.19  of the transaction, gift, or contract.  If the court finds that 
  3.20  the protected person was incapacitated or subject to duress, 
  3.21  coercion, or undue influence when the transaction, gift, or 
  3.22  contract was made, the court may declare the transaction, gift, 
  3.23  or contract void except as against a bona fide transferee for 
  3.24  value and order reimbursement or other appropriate relief.  This 
  3.25  paragraph does not affect any other right or remedy that may be 
  3.26  available to the protected person with respect to the 
  3.27  transaction, gift, or contract. 
  3.28     (f) After the filing of the petition, a certificate of the 
  3.29  district court certified to that fact may be filed for record 
  3.30  with the Minnesota secretary of state in the same manner as 
  3.31  provided in section 336.9-501.  The certificate shall state that 
  3.32  a petition is pending and the name and address of the person for 
  3.33  whom a conservator is sought.  If a conservator is appointed on 
  3.34  the petition, and if the conservatorship order removes or 
  3.35  restricts the right of the protected person to transfer property 
  3.36  or to contract, then all contracts except for necessaries, and 
  4.1   all transfers of personal property, tangible or intangible, 
  4.2   including, but not limited to, cash or securities transfers at 
  4.3   banks, brokerage houses, or other financial institutions, or 
  4.4   transfers of cash or securities, made by the protected person 
  4.5   after the filing and before the termination of the 
  4.6   conservatorship shall be voidable. 
  4.7      Sec. 2.  Minnesota Statutes 2004, section 524.5-423, is 
  4.8   amended to read: 
  4.9      524.5-423 [SALE, ENCUMBRANCE, OR OTHER TRANSACTION 
  4.10  INVOLVING CONFLICT OF INTEREST.] 
  4.11     Any transaction involving the conservatorship estate which 
  4.12  is affected by a conflict between the conservator's fiduciary 
  4.13  and personal interests is voidable unless the transaction is 
  4.14  expressly authorized by the court after notice to interested 
  4.15  persons.  A transaction affected by a conflict between personal 
  4.16  and fiduciary interests includes any sale, encumbrance, or other 
  4.17  transaction involving the conservatorship estate entered into by 
  4.18  the conservator, the spouse, descendant, agent, or lawyer of a 
  4.19  conservator, or corporation or other enterprise in which the 
  4.20  conservator has a beneficial interest.  Notwithstanding a 
  4.21  conflict between the conservator's fiduciary and personal 
  4.22  interests, if the protected person is a parent, child, or 
  4.23  sibling of the conservator, the court has discretion to allow a 
  4.24  transaction of beneficial interest to the conservator, as long 
  4.25  as the conservator can prove that this transaction is primarily 
  4.26  in the best interest of the protected person.  
  4.27     [EFFECTIVE DATE.] This section is effective July 1, 2005, 
  4.28  and shall include all proceedings open or pending on that date.