HF 3483

2nd Engrossment - 93rd Legislature (2023 - 2024) Posted on 03/25/2024 04:18pm

A bill for an act
relating to civil law; amending immunity for guardians; creating a task force on
guardianship; requiring a report; amending Minnesota Statutes 2022, section
524.5-315; Minnesota Statutes 2023 Supplement, section 524.5-313.

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

Section 1.

Minnesota Statutes 2023 Supplement, section 524.5-313, is amended to read:

524.5-313 POWERS AND DUTIES OF GUARDIAN.

(a) A guardian shall be subject to the control and direction of the court at all times and
in all things.

(b) The court shall grant to a guardian only those powers necessary to provide for the
demonstrated needs of the person subject to guardianship.

(c) The court may appoint a guardian if it determines that all the powers and duties listed
in this section are needed to provide for the needs of the incapacitated person. The court
may also appoint a guardian if it determines that a guardian is needed to provide for the
needs of the incapacitated person through the exercise of some, but not all, of the powers
and duties listed in this section. The duties and powers of a guardian or those which the
court may grant to a guardian include, but are not limited to:

(1) the power to have custody of the person subject to guardianship and the power to
establish a place of abode within or outside the state, except as otherwise provided in this
clause. The person subject to guardianship or any interested person may petition the court
to prevent or to initiate a change in abode. A person subject to guardianship may not be
admitted to a regional treatment center by the guardian except:

(i) after a hearing under chapter 253B;

(ii) for outpatient services; or

(iii) for the purpose of receiving temporary care for a specific period of time not to
exceed 90 days in any calendar year;

(2) the duty to provide for the care, comfort, and maintenance needs of the person subject
to guardianship, including food, clothing, shelter, health care, social and recreational
requirements, and, whenever appropriate, training, education, and habilitation or
rehabilitation. The guardian has no duty to pay for these requirements out of personal funds.
Whenever possible and appropriate, the guardian should meet these requirements through
governmental benefits or services to which the person subject to guardianship is entitled,
rather than from the estate of the person subject to guardianship deleted text begin . Failure to satisfy the needs
and requirements of this clause shall be grounds for removal of a private guardian, but the
guardian shall have no personal or monetary liability deleted text end ;

(3) the duty to take reasonable care of the clothing, furniture, vehicles, and other personal
effects of the person subject to guardianship, and, if other property requires protection, the
power to seek appointment of a conservator of the estate. The guardian must give notice by
mail to interested persons prior to the disposition of the clothing, furniture, vehicles, or
other personal effects of the person subject to guardianship. The notice must inform the
person of the right to object to the disposition of the property within ten days of the date of
mailing and to petition the court for a review of the guardian's proposed actions. Notice of
the objection must be served by mail or personal service on the guardian and the person
subject to guardianship unless the person subject to guardianship is the objector. The guardian
served with notice of an objection to the disposition of the property may not dispose of the
property unless the court approves the disposition after a hearing;

(4)(i) the power to give any necessary consent to enable the person subject to guardianship
to receive necessary medical or other professional care, counsel, treatment, or service, except
that no guardian may give consent for psychosurgery, electroshock, sterilization, or
experimental treatment of any kind unless the procedure is first approved by order of the
court as provided in this clause. The guardian shall not consent to any medical care for the
person subject to guardianship which violates the known conscientious, religious, or moral
belief of the person subject to guardianship;

(ii) a guardian who believes a procedure described in item (i) requiring prior court
approval to be necessary for the proper care of the person subject to guardianship, shall
petition the court for an order and, in the case of a public guardianship under chapter 252A,
obtain the written recommendation of the commissioner of human services. The court shall
fix the time and place for the hearing and shall give notice to the person subject to
guardianship in such manner as specified in section 524.5-308 and to interested persons.
The court shall appoint an attorney to represent the person subject to guardianship who is
not represented by counsel, provided that such appointment shall expire upon the expiration
of the appeal time for the order issued by the court under this section or the order dismissing
a petition, or upon such other time or event as the court may direct. In every case the court
shall determine if the procedure is in the best interest of the person subject to guardianship.
In making its determination, the court shall consider a written medical report which
specifically considers the medical risks of the procedure, whether alternative, less restrictive
methods of treatment could be used to protect the best interest of the person subject to
guardianship, and any recommendation of the commissioner of human services for a public
person subject to guardianship. The standard of proof is that of clear and convincing evidence;

(iii) in the case of a petition for sterilization of a person with developmental disabilities
subject to guardianship, the court shall appoint a licensed physician, a psychologist who is
qualified in the diagnosis and treatment of developmental disability, and a social worker
who is familiar with the social history and adjustment of the person subject to guardianship
or the case manager for the person subject to guardianship to examine or evaluate the person
subject to guardianship and to provide written reports to the court. The reports shall indicate
why sterilization is being proposed, whether sterilization is necessary and is the least intrusive
method for alleviating the problem presented, and whether it is in the best interest of the
person subject to guardianship. The medical report shall specifically consider the medical
risks of sterilization, the consequences of not performing the sterilization, and whether
alternative methods of contraception could be used to protect the best interest of the person
subject to guardianship;

(iv) any person subject to guardianship whose right to consent to a sterilization has not
been restricted under this section or section 252A.101 may be sterilized only if the person
subject to guardianship consents in writing or there is a sworn acknowledgment by an
interested person of a nonwritten consent by the person subject to guardianship. The consent
must certify that the person subject to guardianship has received a full explanation from a
physician or registered nurse of the nature and irreversible consequences of the sterilization;

(v) a guardian or the public guardian's designee who acts within the scope of authority
conferred by letters of guardianship under section 252A.101, subdivision 7, and according
to the standards established in this chapter or in chapter 252A shall not be civilly or criminally
liable for the provision of any necessary medical care, including, but not limited to, the
administration of psychotropic medication or the implementation of aversive and deprivation
procedures to which the guardian or the public guardian's designee has consented;

(5) in the event there is no duly appointed conservator of the estate of the person subject
to guardianship, the guardian shall have the power to approve or withhold approval of any
contract, except for necessities, which the person subject to guardianship may make or wish
to make;

(6) the duty and power to exercise supervisory authority over the person subject to
guardianship in a manner which limits civil rights and restricts personal freedom only to
the extent necessary to provide needed care and services. A guardian may not restrict the
ability of the person subject to guardianship to communicate, visit, or interact with others,
including receiving visitors or making or receiving telephone calls, personal mail, or
electronic communications including through social media, or participating in social activities,
unless the guardian has good cause to believe restriction is necessary because interaction
with the person poses a risk of significant physical, psychological, or financial harm to the
person subject to guardianship, and there is no other means to avoid such significant harm.
In all cases, the guardian shall provide written notice of the restrictions imposed to the court,
to the person subject to guardianship, and to the person subject to restrictions. The person
subject to guardianship or the person subject to restrictions may petition the court to remove
or modify the restrictions;

(7) if there is no acting conservator of the estate for the person subject to guardianship,
the guardian has the power to apply on behalf of the person subject to guardianship for any
assistance, services, or benefits available to the person subject to guardianship through any
unit of government;

(8) unless otherwise ordered by the court, the person subject to guardianship retains the
right to vote;

(9) the power to establish an ABLE account for a person subject to guardianship or
conservatorship. By this provision a guardian only has the authority to establish an ABLE
account, but may not administer the ABLE account in the guardian's capacity as guardian.
The guardian may appoint or name a person to exercise signature authority over an ABLE
account, including the individual selected by the eligible individual or the eligible individual's
agent under a power of attorney; conservator; spouse; parent; sibling; grandparent; or
representative payee, whether an individual or organization, appointed by the SSA, in that
order; and

(10) if there is no conservator appointed for the person subject to guardianship, the
guardian has the duty and power to institute suit on behalf of the person subject to
guardianship and represent the person subject to guardianship in expungement proceedings,
harassment proceedings, and all civil court proceedings, including but not limited to
restraining orders, orders for protection, name changes, conciliation court, housing court,
family court, probate court, and juvenile court, provided that a guardian may not settle or
compromise any claim or debt owed to the estate without court approval.

Sec. 2.

Minnesota Statutes 2022, section 524.5-315, is amended to read:

524.5-315 RIGHTS AND IMMUNITIES OF GUARDIAN; LIMITATIONS.

(a) A guardian is entitled to reasonable compensation for services as guardian and to
reimbursement for expenditures made on behalf of the person subject to guardianship, in a
manner consistent with section 524.5-502.

(b) A guardian is not liable to a third person for acts of the person subject to guardianship
solely by reason of the relationship. A guardian who exercises reasonable care in choosing
a third person providing medical or other care, treatment, or service for the person subject
to guardianship is not liable for injury to the person subject to guardianship resulting from
the wrongful conduct of the third person.

(c) A guardian may not revoke the health care directive of a person subject to guardianship
or conservatorship absent a court order.

(d) A guardian may not initiate the commitment of a person subject to guardianship to
an institution except in accordance with section 524.5-313.

new text begin (e) Failure to satisfy the duties of a guardian under section 524.5-313, paragraph (c),
shall be grounds for removal of a private guardian but such guardian shall not be held
personally liable for acts or omissions made in the discharge of the guardian's duties except
for the guardian's acts or omissions:
new text end

new text begin (1) that are performed in a wanton, reckless, or intentional manner; or
new text end

new text begin (2) that constitute a knowing violation of law.
new text end

Sec. 3. new text begin TASK FORCE ON GUARDIANSHIP.
new text end

new text begin Subdivision 1. new text end

new text begin Purpose. new text end

new text begin A task force on guardianship is established. The purpose of the
task force is to make recommendations to address concerns and gaps related to guardianships
in Minnesota, including but not limited to:
new text end

new text begin (1) developing efforts to sustain and increase the number of qualified guardians;
new text end

new text begin (2) increasing compensation for in forma pauperis (IFP) guardians;
new text end

new text begin (3) securing ongoing funding for guardianships;
new text end

new text begin (4) exploring guardian certification or licensure;
new text end

new text begin (5) identifying standards of practice for guardians and options for providing education
to guardians on standards; and
new text end

new text begin (6) securing ongoing funding for the guardian and conservator administrative complaint
process.
new text end

new text begin Subd. 2. new text end

new text begin Membership. new text end

new text begin (a) The task force shall include the following members:
new text end

new text begin (1) one member of the house of representatives appointed by the speaker of the house;
new text end

new text begin (2) one member of the house of representatives appointed by the minority leader of the
house;
new text end

new text begin (3) one member of the senate appointed by the senate majority leader;
new text end

new text begin (4) one member of the senate appointed by the senate minority leader;
new text end

new text begin (5) one judge who has experience working on guardianship cases appointed by the chief
justice of the supreme court;
new text end

new text begin (6) two individuals under guardianship appointed by the governor;
new text end

new text begin (7) one private, professional guardian appointed by the governor;
new text end

new text begin (8) one private, nonprofessional guardian appointed by the governor;
new text end

new text begin (9) one representative of the Department of Human Services with knowledge of
guardianship issues appointed by the commissioner of human services;
new text end

new text begin (10) one member appointed by the Minnesota Council on Disabilities;
new text end

new text begin (11) one member appointed by a disability rights advocacy organization appointed by
the governor;
new text end

new text begin (12) one member of a professional or advocacy group representing the interests of the
guardian who has experience working in the judicial system on guardianship cases appointed
by the governor;
new text end

new text begin (13) one member of a professional or advocacy group representing the interests of persons
subject to guardianship who has experience working in the judicial system on guardianship
cases appointed by the governor;
new text end

new text begin (14) one member of an advocacy group representing the interests of older Minnesotans
who are or may find themselves subject to guardianship; and
new text end

new text begin (15) one member appointed by the Minnesota Indian Affairs Council.
new text end

new text begin (b) Appointees to the task force must be named by each appointing authority no later
than June 30, 2024. Appointments made by the governor may also be made by his designee.
new text end

new text begin (c) The members of the legislature appointed by the speaker of the house and the majority
leader of the senate serve as cochairs of the task force. The cochairs must designate a member
to serve as secretary.
new text end

new text begin Subd. 3. new text end

new text begin Meetings; administrative support. new text end

new text begin The first meeting of the task force must
be convened no later than September 1, 2024. The task force must meet at least quarterly
thereafter. Meetings are subject to Minnesota Statutes, chapter 13D. The task force may
meet by telephone or interactive technology consistent with Minnesota Statutes, section
13D.015. The legislative coordinating commission shall provide meeting space and
administrative and research support to the task force.
new text end

new text begin Subd. 4. new text end

new text begin Duties. new text end

new text begin The task force shall seek input from the public, the judiciary, persons
subject to guardianship, guardians, advocacy groups, and attorneys related to the task force's
purpose as described in subdivision 1. The task force shall hold hearings to gather information
to fulfill the purpose of the task force articulated in subdivision 1 and to the report required
under this section.
new text end

new text begin Subd. 5. new text end

new text begin Compensation; expenses. new text end

new text begin Members of the task force may receive compensation
and expense reimbursement as provided in Minnesota Statutes, section 15.059, subdivision
3.
new text end

new text begin Subd. 6. new text end

new text begin Report; expiration. new text end

new text begin The task force shall submit a report to the chairs and
ranking minority members of the legislative committees with jurisdiction over guardianship
issues no later than December 31, 2025. The report must describe any concerns about the
current guardianship system identified by the task force and recommend policy options to
address those concerns. The task force expires upon submission of its report.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end