HF 690

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to probate; providing for licensing of 
  1.3             certain guardians and conservators; providing for a 
  1.4             licensing board; limiting certain fees; changing 
  1.5             certain fiduciary requirements; requiring notices; 
  1.6             imposing a penalty; amending Minnesota Statutes 2002, 
  1.7             sections 525.539, subdivision 8; 525.56, subdivision 
  1.8             4, by adding subdivisions; 525.58, subdivision 1; 
  1.9             proposing coding for new law in Minnesota Statutes, 
  1.10            chapter 525. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 2002, section 525.539, 
  1.13  subdivision 8, is amended to read: 
  1.14     Subd. 8.  [PROFESSIONAL GUARDIAN OR CONSERVATOR.] 
  1.15  "Professional guardian or conservator" means a person who is 
  1.16  licensed under section 525.5391 and who acts as a guardian or 
  1.17  conservator at the same time for two or more wards or 
  1.18  conservatees who are not related to the guardian or conservator 
  1.19  by blood or marriage. 
  1.20     Sec. 2.  [525.5391] [GUARDIAN AND CONSERVATOR LICENSING.] 
  1.21     Subdivision 1.  [LICENSING BOARD.] The supreme court shall 
  1.22  prescribe by rule the qualifications of professional guardians 
  1.23  and conservators and shall appoint a guardian and conservator 
  1.24  licensing board to administer the rules, determine the 
  1.25  qualifications of applicants, and license professional guardians 
  1.26  and conservators. 
  1.27     The board consists of five members appointed for three-year 
  1.28  terms and until a successor qualifies.  The supreme court may 
  2.1   appoint a member to fill a vacancy for the remainder of the 
  2.2   unexpired term and may remove members at will.  The board must 
  2.3   keep a record of its proceedings.  The members of the board 
  2.4   shall elect the board chair and other necessary officers.  The 
  2.5   supreme court shall determine the amount of compensation for 
  2.6   board members and allowances for their expenses. 
  2.7      Subd. 2.  [APPLICATION; FEES.] A person seeking to provide 
  2.8   services as a professional guardian or conservator must apply to 
  2.9   the board in subdivision 1 for a license.  The board shall 
  2.10  specify the information required on the application and shall 
  2.11  make application forms available.  The board must complete the 
  2.12  background check required under section 525.545 before issuing a 
  2.13  license to a professional guardian or conservator.  An 
  2.14  application under this section must be accompanied by a fee in 
  2.15  an amount specified by the supreme court that will help defray 
  2.16  the administrative costs of the licensing program in this 
  2.17  section. 
  2.18     Subd. 3.  [PROHIBITION.] It is unlawful for a person to act 
  2.19  as a professional guardian or conservator without a license.  
  2.20  Violation of this subdivision is a misdemeanor. 
  2.21     Sec. 3.  Minnesota Statutes 2002, section 525.56, 
  2.22  subdivision 4, is amended to read: 
  2.23     Subd. 4.  [DUTIES OF GUARDIAN OR CONSERVATOR OF THE 
  2.24  ESTATE.] The court may appoint a guardian of the estate if it 
  2.25  determines that all the powers and duties listed in this 
  2.26  subdivision are needed to provide for the needs of the 
  2.27  incapacitated person.  The court may appoint a conservator of 
  2.28  the estate if it determines that a conservator is necessary to 
  2.29  provide for the needs of the incapacitated person through the 
  2.30  exercise of some, but not all, of the powers and duties listed 
  2.31  in this subdivision.  The duties and powers of a guardian or 
  2.32  those which the court may grant to a conservator include, but 
  2.33  are not limited to: 
  2.34     (1) The duty to pay the reasonable charges for the support, 
  2.35  maintenance, and education of the ward or conservatee in a 
  2.36  manner suitable to the ward's or conservatee's station in life 
  3.1   and the value of the estate.  Payments under this clause may be 
  3.2   made only after notifying the ward or conservatee of the 
  3.3   anticipated payment.  Nothing herein contained shall release 
  3.4   parents from obligations imposed by law for the support, 
  3.5   maintenance, and education of their children.  The guardian or 
  3.6   conservator has no duty to pay for these requirements out of 
  3.7   personal funds.  Wherever possible and appropriate, the guardian 
  3.8   or conservator should meet these requirements through 
  3.9   governmental benefits or services to which the ward or 
  3.10  conservatee is entitled, rather than from the ward's or 
  3.11  conservatee's estate.  Failure to satisfy the needs and 
  3.12  requirements of this clause shall be grounds for removal, but 
  3.13  the guardian or conservator shall have no personal or monetary 
  3.14  liability; 
  3.15     (2) The duty to pay out of the ward's or conservatee's 
  3.16  estate all just and lawful debts of the ward or conservatee and 
  3.17  the reasonable charges incurred for the support, maintenance, 
  3.18  and education of the ward's or conservatee's spouse and 
  3.19  dependent children and, upon order of the court, pay such sum as 
  3.20  the court may fix as reasonable for the support of any person 
  3.21  unable to earn a livelihood who is legally entitled to support 
  3.22  from the ward or conservatee.  Payments under this clause may be 
  3.23  made only after notifying the ward or conservatee of the 
  3.24  anticipated payment; 
  3.25     (3) The duty to possess and manage the estate, collect all 
  3.26  debts and claims in favor of the ward or conservatee, or, with 
  3.27  the approval of the court, compromise them, institute suit on 
  3.28  behalf of the ward or conservatee and represent the ward or 
  3.29  conservatee in any court proceedings, and invest all funds not 
  3.30  currently needed for the debts and charges named in clauses (1) 
  3.31  and (2) and the management of the estate, in accordance with the 
  3.32  provisions of sections 48A.07, subdivision 6, and 501B.151, or 
  3.33  as otherwise ordered by the court.  The standard of a fiduciary 
  3.34  shall be applicable to all investments by a guardian or 
  3.35  conservator.  A guardian or conservator shall also have the 
  3.36  power to purchase certain contracts of insurance as provided in 
  4.1   section 50.14, subdivision 14, clause (b); 
  4.2      (4) Where a ward or conservatee has inherited an undivided 
  4.3   interest in real estate, the court, on a showing that it is for 
  4.4   the best interest of the ward or conservatee, may authorize an 
  4.5   exchange or sale of the ward's or conservatee's interest or a 
  4.6   purchase by the ward or conservatee of any interest other heirs 
  4.7   may have in the real estate.  
  4.8      Sec. 4.  Minnesota Statutes 2002, section 525.56, is 
  4.9   amended by adding a subdivision to read: 
  4.10     Subd. 6.  [LIMIT ON FEES.] A guardian or conservator may 
  4.11  charge an annual fee of (1) 1.25 percent of the net worth of the 
  4.12  estate on December 31 of the year before the fee is charged, or 
  4.13  (2) $250, whichever is greater.  Attorney fees, accountant fees, 
  4.14  and bond expenses are expenses of the guardian or conservator 
  4.15  and may not be charged to the estate of the ward or conservatee. 
  4.16     Sec. 5.  Minnesota Statutes 2002, section 525.56, is 
  4.17  amended by adding a subdivision to read: 
  4.18     Subd. 7.  [NOTICE CONCERNING ATTORNEY REPRESENTATION.] A 
  4.19  guardian or conservator must annually notify the ward or 
  4.20  conservatee in writing that any attorney employed by the 
  4.21  guardian or conservator represents the guardian or conservator 
  4.22  and not the ward or conservatee.  The notice must advise the 
  4.23  ward or conservatee of the possibility that the ward or 
  4.24  conservatee needs personal legal representation. 
  4.25     Sec. 6.  Minnesota Statutes 2002, section 525.56, is 
  4.26  amended by adding a subdivision to read: 
  4.27     Subd. 8.  [ANNUAL VISIT.] A guardian or conservator must 
  4.28  visit the ward or conservatee at least once each year. 
  4.29     Sec. 7.  Minnesota Statutes 2002, section 525.58, 
  4.30  subdivision 1, is amended to read: 
  4.31     Subdivision 1.  [ANNUAL ACCOUNT.] Except where expressly 
  4.32  waived or modified by the court, every guardian or conservator 
  4.33  of the estate annually shall file with the court within 30 days 
  4.34  of the anniversary date of the guardian's or conservator's 
  4.35  appointment a verified account covering the period from the date 
  4.36  of appointment or the last account.  The account must include a 
  5.1   detailed list of all expenditures from the estate including 
  5.2   fiduciary fees.  The guardian or conservator of the estate shall 
  5.3   give a copy of the annual account to the ward or conservatee 
  5.4   except where expressly waived by the court after a finding that 
  5.5   the ward or conservatee is so incapacitated as to be unable to 
  5.6   understand the account or there is a serious likelihood of harm 
  5.7   to the ward or conservatee.  The court or its designee shall 
  5.8   annually review the court file to insure that the account has 
  5.9   been filed and that the account contains the information 
  5.10  required by this section.  If an account has not been filed or 
  5.11  if the account does not contain the information required by this 
  5.12  section the court shall order the guardian or conservator to 
  5.13  file an appropriate account.  The examination and acceptance 
  5.14  shall not constitute an adjudication or determination of the 
  5.15  merits of the account filed nor shall it constitute the court's 
  5.16  approval of the account.  At the termination of the guardianship 
  5.17  or conservatorship, or upon the guardian's or conservator's 
  5.18  removal or resignation, the guardian or conservator or the 
  5.19  surety, or in the event of death or disability, the guardian's 
  5.20  or conservator's representative or surety shall file a verified 
  5.21  final account with a petition for the settlement and allowance 
  5.22  thereof.  Every account shall show in detail all property 
  5.23  received and disbursed, the property on hand, the present 
  5.24  address of the ward or conservatee and of the guardian or 
  5.25  conservator, and unless the guardian or conservator be a 
  5.26  corporation, the amount of the bond, the names and addresses of 
  5.27  all sureties thereon, that each unincorporated surety is a 
  5.28  resident of this state, is not under disability, and is worth 
  5.29  the amount in which the surety justified.