HF 804

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 01:42am

A bill for an act
relating to probate; modifying provisions governing guardians and conservators;
amending Minnesota Statutes 2008, sections 524.5-102, subdivision 7, by
adding a subdivision; 524.5-304; 524.5-309; 524.5-310; 524.5-316; 524.5-317;
524.5-406; 524.5-409; 524.5-413; 524.5-414; 524.5-420; proposing coding for
new law in Minnesota Statutes, chapter 524.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 524.5-102, subdivision 7, is amended to
read:

Subd. 7.

Interested person.

"Interested person" includes:

(i) the ward, protected person, or respondent;

(ii) a nominated guardian or conservator, or the duly appointed guardian or
conservator;

(iii) legal representative;

(iv) the spouse, parent, adult children and siblings, or if none of such persons is
living or can be located, the next of kin of the ward, protected person, or respondent;

(v) an adult person who has lived with a ward, protected person, or respondent for a
period of more than six months;

(vi) an attorney for the ward or protected person;

(vii) a governmental agency paying or to which an application has been made for
benefits for the respondent, ward, or protected person, including the county social services
agency for the person's county of residence and the county where the proceeding is venued;

new text begin (viii) a representative of a state ombudsman's office or a federal protection and
advocacy program that has notified the court that it has a matter regarding the ward,
protected person, or respondent;
new text end

deleted text begin (viii) deleted text end new text begin (ix) new text end a health care agent or proxy appointed pursuant to a health care directive
as defined in section 145C.01, a living will under chapter 145B, or other similar document
executed in another state and enforceable under the laws of this state; and

deleted text begin (ix) deleted text end new text begin (x) new text end any other person designated by the court.

Sec. 2.

Minnesota Statutes 2008, section 524.5-102, is amended by adding a
subdivision to read:

new text begin Subd. 13a. new text end

new text begin Professional guardian or professional conservator. new text end

new text begin "Professional
guardian" or "professional conservator" means an individual or agency acting as guardian
or conservator for three or more individuals not related by blood or marriage.
new text end

Sec. 3.

new text begin [524.5-119] CENTRAL REGISTRATION OF GUARDIANS AND
CONSERVATORS.
new text end

new text begin The Supreme Court shall establish a statewide registration system for guardians
and conservators. Guardians and conservators appointed under sections 524.5-101
to 524.5-502 shall register with the Supreme Court. Registration data must include
the informational statement required in section 524.5-304. Registration data must be
accessible to the public online or through other means implemented by the Supreme Court.
The Supreme Court may require a registration fee to support the costs of administering
the registration system.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2011.
new text end

Sec. 4.

new text begin [524.5-120] BILL OF RIGHTS FOR WARDS AND PROTECTED
PERSONS.
new text end

new text begin The ward or protected person retains all rights not restricted by court order and these
rights must be enforced by the court. These rights include the right to:
new text end

new text begin (1) treatment with dignity and respect;
new text end

new text begin (2) due consideration of current and previously stated personal desires, medical
treatment preferences, religious beliefs, and other preferences and opinions in decisions
made by the guardian or conservator;
new text end

new text begin (3) receive timely and appropriate health care and medical treatment that does not
violate known conscientious, religious, or moral beliefs of the ward or protected person;
new text end

new text begin (4) exercise control of all aspects of life not delegated specifically by court order
to the guardian or conservator;
new text end

new text begin (5) guardianship or conservatorship services individually suited to the ward or
protected person's conditions and needs;
new text end

new text begin (6) petition the court to prevent or initiate a change in abode;
new text end

new text begin (7) care, comfort, social and recreational needs, training, education, habilitation, and
rehabilitation care and services, within available resources;
new text end

new text begin (8) be consulted concerning, and to decide to the extent possible, the reasonable
care and disposition of the ward or protected person's clothing, furniture, vehicles, and
other personal effects, to object to the disposition of personal property and effects, and to
petition the court for a review of the guardian's or conservator's proposed disposition;
new text end

new text begin (9) bodily privacy;
new text end

new text begin (10) unimpeded communication and visitation with persons of the ward or protected
person's choice;
new text end

new text begin (11) marry and procreate, unless court approval is required, and to consent or object
to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
new text end

new text begin (12) make a will, unless restricted by the court;
new text end

new text begin (13) petition the court for termination or modification of the guardianship or
conservatorship or for other appropriate relief;
new text end

new text begin (14) be represented by an attorney in any proceeding or for the purpose of petitioning
the court; and
new text end

new text begin (15) vote, unless restricted by the court.
new text end

Sec. 5.

Minnesota Statutes 2008, section 524.5-304, is amended to read:

524.5-304 JUDICIAL APPOINTMENT OF GUARDIAN: PRELIMINARIES
TO HEARING.

(a) Upon receipt of a petition to establish a guardianship, the court shall set a date
and time for hearing the petition and may appoint a visitor. The duties and reporting
requirements of the visitor are limited to the relief requested in the petition.

(b) A proposed ward has the right to be represented by counsel at any proceeding
under this article. The court shall appoint counsel to represent the proposed ward for
the initial proceeding held pursuant to section 524.5-307 if neither the proposed ward
nor others provide counsel unless in a meeting with a visitor the proposed ward new text begin makes
an informed decision in writing to new text end specifically deleted text begin waives deleted text end new text begin waive new text end the right to counsel. new text begin Before
appointment, the proposed counsel shall disclose to the court, the proposed ward, and
interested persons whether there are concurrent proceedings in which the counsel is the
attorney for the proposed guardian and whether there is a risk of a conflict of interest
under Rule 1.7 of the Rules of Professional Conduct so that the representation of the
prospect ward will be materially limited by counsel's concurrent responsibilities to the
proposed guardian. If there is a risk of a conflict of interest, the proposed counsel must
not be appointed, unless:
new text end

new text begin (1) the court determines that the proposed ward is able to give informed consent
to the representation and, if the proposed ward consents, the consent is confirmed in
writing pursuant to Rule 1.7; or
new text end

new text begin (2) the court determines that there is not a risk of a conflict of interest under Rule 1.7
requiring the appointment of different counsel.
new text end

Counsel must be appointed immediately after any petition under this article is served
under section 524.5-308. Counsel has the full right of subpoena. In all proceedings under
this article, counsel shall:

(1) consult with the proposed ward before any hearing;

(2) be given adequate time to prepare for all hearings; and

(3) continue to represent the person throughout any proceedings under section
524.5-307, provided that such appointment shall expire upon the expiration of the appeal
time for the order appointing guardian or the order dismissing a petition, or upon such
other time or event as the court may direct.

The court need not appoint counsel to represent the proposed ward on a voluntary
petition, and the court may remove a court-appointed attorney at any time if the court
finds that the proposed ward has made a knowing and intelligent waiver of the right to
counsel or has obtained private counsel.

(c) The visitor shall personally serve the notice and petition upon the respondent
and shall offer to read the notice and petition to the respondent, and if so requested the
visitor shall read the notice and petition to such person. The visitor shall also interview the
respondent in person, and to the extent that the respondent is able to understand:

(1) explain to the respondent the substance of the petition; the nature, purpose, and
effect of the proceeding; the respondent's rights at the hearing; and the general powers
and duties of a guardian;

(2) determine the respondent's views about the proposed guardian, the proposed
guardian's powers and duties, and the scope and duration of the proposed guardianship;

(3) inform the respondent of the right to employ and consult with a lawyer at the
respondent's own expense and the right to request a court-appointed lawyer; and

(4) inform the respondent that all costs and expenses of the proceeding, including
respondent's attorneys fees, will be paid from the respondent's estate.

(d) In addition to the duties in paragraph (c), the visitor shall make any other
investigation the court directs.

(e) The visitor shall promptly file a report in writing with the court, which must
include:

(1) recommendations regarding the appropriateness of guardianship, including
whether less restrictive means of intervention are available, the type of guardianship, and,
if a limited guardianship, the powers to be granted to the limited guardian;

(2) a statement as to whether the respondent approves or disapproves of the proposed
guardian, and the powers and duties proposed or the scope of the guardianship; and

(3) any other matters the court directs.

(f) The county social service agency may create a screening committee to review a
petition involving an indigent person. The screening committee must consist of individuals
selected by the agency with knowledge of alternatives that are less restrictive than
guardianship. If the agency has created a screening committee, the court shall make its
decision after the screening committee has reviewed the petition. For an indigent person,
the court may appoint a guardian under contract with the county to provide these services.

new text begin (g) Before the initial appointment, and annually within 30 days after the anniversary
date of the appointment, the proposed guardian or guardian shall file an informational
statement with the court. The statement must be a sworn affidavit containing the following
information:
new text end

new text begin (1) the person's educational background and relevant work and other experience;
new text end

new text begin (2) the person's addresses and telephone numbers, including places of business or
residence where the guardian can be contacted;
new text end

new text begin (3) whether the person has ever been removed for cause from serving as a guardian
or conservator and if so, the case number and court location;
new text end

new text begin (4) any changes occurring that would affect the accuracy of information contained in
the most recent criminal background study conducted pursuant to section 524.5-118; and
new text end

new text begin (5) if applicable, the amount of reimbursement for services rendered to the ward that
the person has received during the previous year.
new text end

Sec. 6.

Minnesota Statutes 2008, section 524.5-309, is amended to read:

524.5-309 WHO MAY BE GUARDIAN: PRIORITIES.

(a) Subject to paragraph (c), the court, in appointing a guardian, shall consider
persons otherwise qualified in the following order of priority:

(1) a guardian, other than a temporary or emergency guardian, currently acting for
the respondent in this state or elsewhere;

(2) an agent appointed by the respondent under a health care directive pursuant to
chapter 145C;

(3) the spouse of the respondent or a person nominated by will or other signed
writing executed in the same manner as a health care directive pursuant to chapter 145C of
a deceased spouse;

(4) an adult child of the respondent;

(5) a parent of the respondent, or an individual nominated by will or other signed
writing executed in the same manner as a health care directive pursuant to chapter 145C
of a deceased parent; deleted text begin and
deleted text end

(6) an adult with whom the respondent has resided for more than six months before
the filing of the petition new text begin ; and
new text end

new text begin (7) any other individual, including a professional guardian new text end .

(b) The court, acting in the best interest of the respondent, may decline to appoint a
person having priority and appoint a person having a lower priority or no priority. With
respect to persons having equal priority, the court shall select the one it considers best
qualified.

(c) Any individual or agency which provides residence, custodial care, medical care,
employment training or other care or services for which they receive a fee may not be
appointed as guardian unless related to the respondent by blood, marriage, or adoption.

Sec. 7.

Minnesota Statutes 2008, section 524.5-310, is amended to read:

524.5-310 FINDINGS; ORDER OF APPOINTMENT.

(a) The court may appoint a limited or unlimited guardian for a respondent only if it
finds by clear and convincing evidence that:

(1) the respondent is an incapacitated person; and

(2) the respondent's identified needs cannot be met by less restrictive means,
including use of appropriate technological assistance.

(b) Alternatively, the court, with appropriate findings, may treat the petition as
one for a protective order under section 524.5-401, enter any other appropriate order, or
dismiss the proceeding.

(c) The court shall grant to a guardian only those powers necessitated by the ward's
limitations and demonstrated needs and, whenever feasible, make appointive and other
orders that will encourage the development of the ward's maximum self-reliance and
independence. Any power not specifically granted to the guardian, following a written
finding by the court of a demonstrated need for that power, is retained by the ward.

(d) Within 14 days after an appointment, a guardian shall send or deliver to the ward,
and counsel if represented at the hearing, a copy of the order of appointment accompanied
by a notice which advises the ward of the right to appeal the guardianship appointment in
the time and manner provided by the Rules of Appellate Procedure.

(e) Each year, within 30 days after the anniversary date of an appointment, a
guardian shall send or deliver to the ward new text begin and to interested persons of record new text end a notice
of the right to request termination or modification of the guardianship new text begin or for any order
that is in the best interests of the ward or for other appropriate relief, new text end and notice of the
status of the ward's right to vote.

Sec. 8.

Minnesota Statutes 2008, section 524.5-316, is amended to read:

524.5-316 REPORTS; MONITORING OF GUARDIANSHIP new text begin ; COURT
ORDERS new text end .

(a) A guardian shall report to the court in writing on the condition of the ward at
least annually and whenever ordered by the court. new text begin A copy of the report must be provided
to the ward and to interested persons of record. new text end A report must state or contain:

(1) the current mental, physical, and social condition of the ward;

(2) the living arrangements for all addresses of the ward during the reporting period;

(3) the medical, educational, vocational, and other services provided to the ward and
the guardian's opinion as to the adequacy of the ward's care; and

(4) a recommendation as to the need for continued guardianship and any
recommended changes in the scope of the guardianship.

(b) new text begin A ward or interested person of record may challenge statements or conclusions
regarding the condition of the ward that are contained in the report and may petition the
court for an order that is in the best interests of the ward or for other appropriate relief.
new text end

new text begin (c) new text end The court may appoint a visitor to review a report, interview the ward or
guardian, and make any other investigation the court directs.

deleted text begin (c) deleted text end new text begin (d) new text end The court shall establish a system for monitoring guardianships, including the
filing and review of annual reports. new text begin If an annual report is not filed within 60 days of the
required date, the court shall issue an order to show cause.
new text end

Sec. 9.

Minnesota Statutes 2008, section 524.5-317, is amended to read:

524.5-317 TERMINATION OR MODIFICATION OF GUARDIANSHIP new text begin ;
COURT ORDERS new text end .

(a) A guardianship terminates upon the death of the ward or upon order of the court.

(b) On petition of any person interested in the ward's welfare the court may terminate
a guardianship if the ward no longer needs the assistance or protection of a guardian. The
court may modify the type of appointment or powers granted to the guardian if the extent
of protection or assistance previously granted is currently excessive or insufficient or the
ward's capacity to provide for support, care, education, health, and welfare has so changed
as to warrant that action. new text begin The court may make any other order that is in the best interests
of the ward or may grant other appropriate relief.
new text end

(c) Except as otherwise ordered by the court for good cause, the court, before
terminating a guardianship, shall follow the same procedures to safeguard the rights of
the ward as apply to a petition for guardianship. Upon presentation by the petitioner
of evidence establishing a prima facie case for termination, the court shall order the
termination and discharge the guardian unless it is proven that continuation of the
guardianship is in the best interest of the ward.

Sec. 10.

Minnesota Statutes 2008, section 524.5-406, is amended to read:

524.5-406 ORIGINAL PETITION: PERSONS UNDER DISABILITY;
PRELIMINARIES TO HEARING.

(a) Upon the filing of a petition for a conservatorship or other protective order for a
respondent for reasons other than being a minor, the court shall set a date for hearing and
the court may appoint a visitor. The duties and reporting requirements of the visitor are
limited to the relief requested in the petition.

(b) A respondent has the right to be represented by counsel at any proceeding under
this article. The court shall appoint counsel to represent the respondent for the initial
proceeding held pursuant to section 524.5-408 if neither the respondent nor others provide
counsel, unless in a meeting with a visitor, the proposed respondent new text begin makes an informed
decision in writing to new text end specifically deleted text begin waives deleted text end new text begin waive new text end the right to counsel. new text begin Before appointment,
the proposed counsel shall disclose to the court, the proposed protected person, and
interested persons whether there are concurrent proceedings in which the counsel is
the attorney for the proposed conservator and whether there is a risk of a conflict of
interest under Rule 1.7 of the Rules of Professional Conduct so that the representation
of the proposed protected person will be materially limited by counsel's concurrent
responsibilities to the proposed conservator. If there is a risk of a conflict of interest,
the counsel must not be appointed, unless: new text end

new text begin (1) the court determines that the proposed protected person is able to give informed
consent to the representation and, if the proposed protected person consents, the consent is
confirmed in writing pursuant to Rule 1.7; or
new text end

new text begin (2) the court determines that there is not a risk of a conflict of interest under Rule 1.7
requiring the appointment of different counsel.
new text end

Counsel must be appointed immediately after any petition under this part is served
pursuant to section 524.5-404. Counsel has the full right of subpoena. In all proceedings
under this part, counsel shall:

(1) consult with the respondent before any hearing;

(2) be given adequate time to prepare for all hearings; and

(3) continue to represent the respondent throughout any proceedings under section
524.5-408, provided that such appointment shall expire upon the expiration of the appeal
time for the order appointing conservator or the order dismissing a petition, or upon such
other time or event as the court may direct.

The court need not appoint counsel to represent the respondent on a voluntary
petition, and the court may remove a court-appointed attorney at any time if the court finds
that the respondent has made a knowing and intelligent waiver of the right to counsel
or has obtained private counsel.

(c) The visitor shall personally serve the notice and petition upon the respondent
and shall offer to read the notice and petition to the respondent, and if so requested, the
visitor shall read the notice and petition to such person. The visitor shall also interview the
respondent in person, and to the extent that the respondent is able to understand:

(1) explain to the respondent the substance of the petition and the nature, purpose,
and effect of the proceeding;

(2) if the appointment of a conservator is requested, inform the respondent of the
general powers and duties of a conservator and determine the respondent's views regarding
the proposed conservator, the proposed conservator's powers and duties, and the scope and
duration of the proposed conservatorship;

(3) inform the respondent of the respondent's rights, including the right to employ
and consult with a lawyer at the respondent's own expense, and the right to request a
court-appointed lawyer; and

(4) inform the respondent that all costs and expenses of the proceeding, including
respondent's attorney fees, will be paid from the respondent's estate.

(d) In addition to the duties set out in paragraph (c), the visitor shall make any other
investigations the court directs.

(e) The visitor shall promptly file a report with the court which must include:

(1) recommendations regarding the appropriateness of a conservatorship, including
whether less restrictive means of intervention are available, the type of conservatorship,
and, if a limited conservatorship, the powers and duties to be granted the limited
conservator, and the assets over which the conservator should be granted authority;

(2) a statement as to whether the respondent approves or disapproves of the proposed
conservator, and the powers and duties proposed or the scope of the conservatorship; and

(3) any other matters the court directs.

(f) While a petition to establish a conservatorship or for another protective order
is pending, after preliminary hearing and without notice to others, the court may make
orders to preserve and apply the property of the respondent as may be required for the
support of the respondent or individuals who are in fact dependent upon the respondent,
and may appoint an agent to assist in that task.

Sec. 11.

Minnesota Statutes 2008, section 524.5-409, is amended to read:

524.5-409 FINDINGS; ORDER OF APPOINTMENT.

(a) The court may appoint a limited or unlimited conservator for a respondent only
if it finds that:

(1) by clear and convincing evidence, the individual is unable to manage property
and business affairs because of an impairment in the ability to receive and evaluate
information or make decisions, even with the use of appropriate technological assistance,
or because the individual is missing, detained, or unable to return to the United States;

(2) by a preponderance of evidence, the individual has property that will be wasted
or dissipated unless management is provided or money is needed for the support, care,
education, health, and welfare of the individual or of individuals who are entitled to the
individual's support and that protection is necessary or desirable to obtain or provide
money; and

(3) the respondent's identified needs cannot be met by less restrictive means,
including use of appropriate technological assistance.

(b) Alternatively, the court, with appropriate findings, may enter any other
appropriate order, or dismiss the proceeding.

(c) The court, whenever feasible, shall grant to a conservator only those powers
necessitated by the protected person's limitations and demonstrated needs and make
appointive and other orders that will encourage the development of the protected person's
maximum self-reliance and independence.

(d) Within 14 days after an appointment, the conservator shall send or deliver to the
protected person, if the protected person has attained 14 years of age and is not missing,
detained, or unable to return to the United States, and counsel if represented at the hearing,
a copy of the order of appointment accompanied by a notice which advises the protected
person of the right to appeal the conservatorship appointment in the time and manner
provided by the Rules of Appellate Procedure.

(e) Each year, within 30 days after the anniversary date of an appointment, a
conservator shall send or deliver to the protected person new text begin and to interested persons of record new text end
a notice of the right to request termination or modification of the conservatorship new text begin or for
any order that is in the best interests of the protected person or for other appropriate relief new text end .

(f) The appointment of a conservator or the entry of another protective order is not a
determination of incapacity of the protected person.

Sec. 12.

Minnesota Statutes 2008, section 524.5-413, is amended to read:

524.5-413 WHO MAY BE CONSERVATOR; PRIORITIES.

(a) Except as otherwise provided in paragraph (d), the court, in appointing a
conservator, shall consider persons otherwise qualified in the following order of priority:

(1) a conservator, guardian of the estate, or other like fiduciary appointed or
recognized by an appropriate court of any other jurisdiction in which the protected person
resides;

(2) a person nominated as conservator by the respondent, including the respondent's
most recent nomination made in a durable power of attorney, if the respondent has attained
14 years of age and at the time of the nomination had sufficient capacity to express
a preference;

(3) an agent appointed by the respondent to manage the respondent's property under
a durable power of attorney;

(4) the spouse of the respondent;

(5) an adult child of the respondent;

(6) a parent of the respondent; deleted text begin and
deleted text end

(7) an adult with whom the respondent has resided for more than six months before
the filing of the petition new text begin ; and
new text end

new text begin (8) any other individual, including a professional conservator new text end .

(b) A person having priority under paragraph (a), clause (1), (4), (5), or (6), may
designate in writing a substitute to serve instead and thereby transfer the priority to the
substitute.

(c) The court, acting in the best interest of the protected person, may decline to
appoint a person having priority and appoint a person having a lower priority or no
priority. With respect to persons having equal priority, the court shall select the one it
considers best qualified.

(d) new text begin In any proceeding where the value of the estate of the proposed protected person
is expected to be at least $50,000, the court shall require the conservator to post a bond.
new text end

new text begin (e) new text end Any individual or agency which provides residence, custodial care, medical care,
employment training, or other care or services for which they receive a fee may not be
appointed as conservator unless related to the respondent by blood, marriage, or adoption.

Sec. 13.

Minnesota Statutes 2008, section 524.5-414, is amended to read:

524.5-414 PETITION FOR ORDER SUBSEQUENT TO APPOINTMENT.

(a) A protected person or an interested person may file a petition in the appointing
court for an order:

(1) requiring bond or collateral or additional bond or collateral, or reducing bond;

(2) requiring an accounting for the administration of the protected person's estate;

(3) directing distribution;

(4) removing the conservator and appointing a temporary or successor conservator;

(5) modifying the type of appointment or powers granted to the conservator if
the extent of protection or management previously granted is currently excessive or
insufficient or the protected person's ability to manage the estate and business affairs
has so changed as to warrant the action; or

(6) new text begin acting in the protected person's best interests or new text end granting other appropriate relief.

(b) A conservator may petition the appointing court for instructions concerning
fiduciary responsibility.

(c) On notice and hearing the petition, the court may give appropriate instructions
and make any appropriate order.

(d) The court may, at its own discretion, waive the notice or hearing requirements
for the relief requested in a petition filed under this section.

Sec. 14.

Minnesota Statutes 2008, section 524.5-420, is amended to read:

524.5-420 REPORTS; APPOINTMENT OF VISITOR; MONITORING new text begin ;
COURT ORDERS new text end .

(a) A conservator shall report to the court for administration of the estate annually
unless the court otherwise directs, upon resignation or removal, upon termination of
the conservatorship, and at other times as the court directs. An order, after notice and
hearing, allowing an intermediate report of a conservator adjudicates liabilities concerning
the matters adequately disclosed in the accounting. An order, after notice and hearing,
allowing a final report adjudicates all previously unsettled liabilities relating to the
conservatorship.

(b) A report must state or contain a listing of the assets of the estate under the
conservator's control and a listing of the receipts, disbursements, and distributions during
the reporting period.

(c) new text begin A protected person or an interested person of record may challenge account
statements regarding the administration of the estate that are contained in the report and
may petition the court for any order that is in the best interests of the protected person and
the estate or for other appropriate relief.
new text end

new text begin (d) new text end The court may appoint a visitor to review a report or plan, interview the protected
person or conservator, and make any other investigation the court directs. In connection
with a report, the court may order a conservator to submit the assets of the estate to an
appropriate examination to be made in a manner the court directs.

deleted text begin (d) deleted text end new text begin (e) new text end The court shall establish a system for monitoring of conservatorships,
including the filing and review of conservators' reports and plans. new text begin If an annual report is
not filed within 60 days of the required date, the court shall issue an order to show cause.
new text end