HF 1396

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to guardians and conservators; changing certain requirements and
procedures; amending Minnesota Statutes 2006, sections 245.91, by adding
subdivisions; 245.94, subdivisions 1, 3, 4; 524.5-316; 524.5-502.

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

Section 1.

Minnesota Statutes 2006, section 245.91, is amended by adding a
subdivision to read:

new text begin Subd. 3a. new text end

new text begin Conservator. new text end

new text begin "Conservator" means a conservator as defined in section
524.5-102, subdivision 3.
new text end

Sec. 2.

Minnesota Statutes 2006, section 245.91, is amended by adding a subdivision
to read:

new text begin Subd. 4a. new text end

new text begin Guardian. new text end

new text begin "Guardian" means a guardian as defined in section 524.5-102,
subdivision 5.
new text end

Sec. 3.

Minnesota Statutes 2006, section 245.94, subdivision 1, is amended to read:

Subdivision 1.

Powers.

(a) The ombudsman may prescribe the methods by which
complaints to the office are to be made, reviewed, and acted upon. The ombudsman may
not levy a complaint fee.

(b) The ombudsman may mediate or advocate on behalf of a client.

(c) The ombudsman may investigate the quality of services provided to clients and
determine the extent to which quality assurance mechanisms within state and county
government work to promote the health, safety, and welfare of clients, other than clients in
acute care facilities who are receiving services not paid for by public funds.

(d) At the request of a client, or upon receiving a complaint or other information
affording reasonable grounds to believe that the rights of a client who is not capable
of requesting assistance have been adversely affected, the ombudsman may gather
information about and analyze, on behalf of the client, the actions of an agency, new text begin guardian,
conservator, new text end facility, or program.

(e) The ombudsman may examine, on behalf of a client, records of an agency, new text begin
guardian, conservator, new text end facility, or program if the records relate to a matter that is within
the scope of the ombudsman's authority. If the records are private and the client is
capable of providing consent, the ombudsman shall first obtain the client's consent. The
ombudsman is not required to obtain consent for access to private data on clients with
developmental disabilities new text begin or on clients with a mental illness who are under guardianship
or conservatorship new text end . The ombudsman is not required to obtain consent for access to
private data on decedents who were receiving services for mental illness, developmental
disabilities, or emotional disturbance.

(f) The ombudsman may subpoena a person to appear, give testimony, or produce
documents or other evidence that the ombudsman considers relevant to a matter under
inquiry. The ombudsman may petition the appropriate court to enforce the subpoena. A
witness who is at a hearing or is part of an investigation possesses the same privileges
that a witness possesses in the courts or under the law of this state. Data obtained from a
person under this paragraph are private data as defined in section 13.02, subdivision 12.

(g) The ombudsman may, at reasonable times in the course of conducting a review,
enter and view premises within the control of an agency, facility, or program.

(h) The ombudsman may attend Department of Human Services Review Board
and Special Review Board proceedings; proceedings regarding the transfer of patients
or residents, as defined in section 246.50, subdivisions 4 and 4a, between institutions
operated by the Department of Human Services; and, subject to the consent of the affected
client, other proceedings affecting the rights of clients. The ombudsman is not required to
obtain consent to attend meetings or proceedings and have access to private data on clients
with developmental disabilities.

(i) The ombudsman shall have access to data of agencies, facilities, or programs
classified as private or confidential as defined in section 13.02, subdivisions 3 and 12,
regarding services provided to clients with developmental disabilities.

(j) To avoid duplication and preserve evidence, the ombudsman shall inform
relevant licensing or regulatory officials before undertaking a review of an action of
the facility or program.

(k) Sections 245.91 to 245.97 are in addition to other provisions of law under which
any other remedy or right is provided.

Sec. 4.

Minnesota Statutes 2006, section 245.94, subdivision 3, is amended to read:

Subd. 3.

Complaints.

The ombudsman may receive a complaint from any source
concerning an action of an agency, new text begin guardian, conservator, new text end facility, or program. After
completing a review, the ombudsman shall inform the complainant and the agency, new text begin
guardian, conservator, new text end facility, or program. No client may be punished nor may the general
condition of the client's treatment be unfavorably altered as a result of an investigation, a
complaint by the client, or by another person on the client's behalf. An agency, new text begin guardian,
conservator, new text end facility, or program shall not retaliate or take adverse action against a client
or other person, who in good faith makes a complaint or assists in an investigation. The
ombudsman may classify as confidential, the identity of a complainant, upon request
of the complainant.

Sec. 5.

Minnesota Statutes 2006, section 245.94, subdivision 4, is amended to read:

Subd. 4.

Recommendations to agency.

(a) If, after reviewing a complaint or
conducting an investigation and considering the response of an agency, facility, or
program and any other pertinent material, the ombudsman determines that the complaint
has merit or the investigation reveals a problem, the ombudsman may recommend that
the agency, facility, or program:

(1) consider the matter further;

(2) modify or cancel its actions;

(3) alter a rule, order, or internal policy;

(4) explain more fully the action in question; or

(5) take other action.

(b) At the ombudsman's request, the agency, facility, or program shall, within a
reasonable time, inform the ombudsman about the action taken on the recommendation
or the reasons for not complying with it.

new text begin (c) If, after reviewing a complaint or conducting an investigation and considering the
response of a guardian or conservator and any other pertinent material, the ombudsman
determines that the complaint has merit or the investigation reveals a problem, the
ombudsman may submit recommendations to the court with jurisdiction over the
guardianship or conservatorship.
new text end

Sec. 6.

Minnesota Statutes 2006, section 524.5-316, is amended to read:

524.5-316 REPORTS; MONITORING OF GUARDIANSHIP.

(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. 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 The guardian shall provide a copy of the report at the time it is submitted to
the court to the ward or to a person designated by the ward for review and opportunity
to comment to the court.
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.

Sec. 7.

Minnesota Statutes 2006, section 524.5-502, is amended to read:

524.5-502 COMPENSATION AND EXPENSES.

(a) The court may authorize a proceeding under this article to proceed in forma
pauperis, as provided in chapter 563.

(b) In proceedings under this article, a lawyer or health professional rendering
necessary services with regard to the appointment of a guardian or conservator, the
administration of the protected person's estate or personal affairs, or the restoration of
that person's capacity or termination of the protective proceeding shall be entitled to
compensation from the protected person's estate or from the county having jurisdiction
over the proceedings if the ward or protected person is indigent. When the court
determines that other necessary services have been provided for the benefit of the ward or
protected person by a lawyer or health professional, the court may order fees to be paid
from the estate of the protected person or from the county having jurisdiction over the
proceedings if the ward or protected person is indigent. If, however, the court determines
that a petitioner, guardian, or conservator has not acted in good faith, the court shall order
some or all of the fees or costs incurred in the proceedings to be borne by the petitioner,
guardian, or conservator not acting in good faith. In determining compensation for a
guardian or conservator of an indigent person, the court shall consider a fee schedule
recommended by the Board of County Commissioners. The fee schedule may also include
a maximum compensation based on the living arrangements of the ward or protected
person. If these services are provided by a public or private agency, the county may
contract on a fee-for-service basis with that agency.

(c) When the court determines that a guardian or conservator has rendered necessary
services or has incurred necessary expenses for the benefit of the ward or protected person,
the court may order reimbursement or compensation to be paid from the estate of the
protected person or from the county having jurisdiction over the guardianship or protective
proceeding if the ward or protected person is indigent. The court may not deny an award
of fees solely because the ward or protected person is a recipient of medical assistance. In
determining compensation for a guardian or conservator of an indigent person, the court
shall consider a fee schedule recommended by the Board of County Commissioners. The
fee schedule may also include a maximum compensation based on the living arrangements
of the ward or protected person. If these services are provided by a public or private
agency, the county may contract on a fee-for-service basis with that agency.

(d) The court shall order reimbursement or compensation if the guardian or
conservator requests payment and the guardian or conservator was nominated by the court
or by the county adult protection unit because no suitable relative or other person was
available to provide guardianship or protective proceeding services necessary to prevent
maltreatment of a vulnerable adult, as defined in section 626.5572, subdivision 15. In
determining compensation for a guardian or conservator of an indigent person, the court
shall consider a fee schedule recommended by the Board of County Commissioners. The
fee schedule may also include a maximum compensation based on the living arrangements
of the ward or protected person. If these services are provided by a public or private
agency, the county may contract on a fee-for-service basis with that agency. new text begin A person
reimbursed personally or on behalf of an agency pursuant to a county fee schedule or
contract must be certified by the National Guardianship Foundation.
new text end

(e) When a county employee serves as a guardian or conservator as part of
employment duties, the court shall order compensation if the guardian or conservator
performs necessary services that are not compensated by the county. The court may
order reimbursement to the county from the protected person's estate for compensation
paid by the county for services rendered by a guardian or conservator who is a county
employee but only if the county shows that after a diligent effort it was unable to arrange
for an independent guardian or conservator.