Minnesota Legislature
HF 804A
Conference Committee Report - 86th Legislature (2009 - 2010) Posted on 01/15/2013 08:25pm
KEY: stricken = removed, old language.
underscored = added, new language.
1.1CONFERENCE COMMITTEE REPORT ON H. F. No. 804
1.3relating to probate; modifying provisions governing guardians and conservators;
1.4amending Minnesota Statutes 2008, sections 260C.331, subdivision 1; 524.5-102,
1.5subdivision 7, by adding a subdivision; 524.5-304; 524.5-309; 524.5-310;
1.6524.5-315; 524.5-316; 524.5-317; 524.5-406; 524.5-409; 524.5-413; 524.5-414;
1.7524.5-420; proposing coding for new law in Minnesota Statutes, chapter 524.
1.8May 16, 2009
1.9The Honorable Margaret Anderson Kelliher
1.10Speaker of the House of Representatives
1.11The Honorable James P. Metzen
1.12President of the Senate
1.13We, the undersigned conferees for H. F. No. 804 report that we have agreed upon the
1.14items in dispute and recommend as follows:
1.15That the Senate recede from its amendments and that H. F. No. 804 be further
1.16amended as follows:
1.17Delete everything after the enacting clause and insert:
1.18 "Section 1. Minnesota Statutes 2008, section 260C.331, subdivision 1, is amended to
1.19read:
1.20 Subdivision 1. Care, examination, or treatment. (a) Except where parental rights
1.21are terminated,
1.22 (1) whenever legal custody of a child is transferred by the court to a responsible
1.23social services agency,
1.24 (2) whenever legal custody is transferred to a person other than the responsible social
1.25services agency, but under the supervision of the responsible social services agency, or
1.26 (3) whenever a child is given physical or mental examinations or treatment under
1.27order of the court, and no provision is otherwise made by law for payment for the care,
1.28examination, or treatment of the child, these costs are a charge upon the welfare funds of
1.29the county in which proceedings are held upon certification of the judge of juvenile court.
2.1 (b) The court shall order, and the responsible social services agency shall require,
2.2the parents or custodian of a child, while the child is under the age of 18, to use the
2.3total income and resources attributable to the child for the period of care, examination,
2.4or treatment, except for clothing and personal needs allowance as provided in section
2.5256B.35
, to reimburse the county for the cost of care, examination, or treatment. Income
2.6and resources attributable to the child include, but are not limited to, Social Security
2.7benefits, supplemental security income (SSI), veterans benefits, railroad retirement
2.8benefits and child support. When the child is over the age of 18, and continues to receive
2.9care, examination, or treatment, the court shall order, and the responsible social services
2.10agency shall require, reimbursement from the child for the cost of care, examination, or
2.11treatment from the income and resources attributable to the child less the clothing and
2.12personal needs allowance. Income does not include earnings from a child over the age of
2.1318 who is working as part of a plan under section260C.212, subdivision 1 , paragraph (c),
2.14clause (8), to transition from foster care.
2.15 (c) If the income and resources attributable to the child are not enough to reimburse
2.16the county for the full cost of the care, examination, or treatment, the court shall inquire
2.17into the ability of the parents to support the child and, after giving the parents a reasonable
2.18opportunity to be heard, the court shall order, and the responsible social services agency
2.19shall require, the parents to contribute to the cost of care, examination, or treatment of
2.20the child. When determining the amount to be contributed by the parents, the court shall
2.21use a fee schedule based upon ability to pay that is established by the responsible social
2.22services agency and approved by the commissioner of human services. The income of
2.23a stepparent who has not adopted a child shall be excluded in calculating the parental
2.24contribution under this section.
2.25 (d) The court shall order the amount of reimbursement attributable to the parents
2.26or custodian, or attributable to the child, or attributable to both sources, withheld under
2.27chapter 518A from the income of the parents or the custodian of the child. A parent or
2.28custodian who fails to pay without good reason may be proceeded against for contempt, or
2.29the court may inform the county attorney, who shall proceed to collect the unpaid sums,
2.30or both procedures may be used.
2.31 (e) If the court orders a physical or mental examination for a child, the examination
2.32is a medically necessary service for purposes of determining whether the service is
2.33covered by a health insurance policy, health maintenance contract, or other health
2.34coverage plan. Court-ordered treatment shall be subject to policy, contract, or plan
2.35requirements for medical necessity. Nothing in this paragraph changes or eliminates
2.36benefit limits, conditions of coverage, co-payments or deductibles, provider restrictions,
3.1or other requirements in the policy, contract, or plan that relate to coverage of other
3.2medically necessary services.
3.3(f) Notwithstanding paragraph (b), (c), or (d), a parent, custodian, or guardian of the
3.4child is not required to use income and resources attributable to the child to reimburse
3.5the county for costs of care and is not required to contribute to the cost of care of the
3.6child during any period of time when the child is returned to the home of that parent,
3.7custodian, or guardian pursuant to a trial home visit under section 260C.201, subdivision
3.81, paragraph (a).
3.9 Sec. 2. Minnesota Statutes 2008, section 524.5-102, subdivision 7, is amended to read:
3.10 Subd. 7. Interested person. "Interested person" includes:
3.11(i) the ward, protected person, or respondent;
3.12(ii) a nominated guardian or conservator, or the duly appointed guardian or
3.13conservator;
3.14(iii) legal representative;
3.15(iv) the spouse, parent, adult children and siblings, or if none of such persons is
3.16living or can be located, the next of kin of the ward, protected person, or respondent;
3.17(v) an adult person who has lived with a ward, protected person, or respondent for a
3.18period of more than six months;
3.19(vi) an attorney for the ward or protected person;
3.20(vii) a governmental agency paying or to which an application has been made for
3.21benefits for the respondent, ward, or protected person, including the county social services
3.22agency for the person's county of residence and the county where the proceeding is venued;
3.23(viii) a representative of a state ombudsman's office or a federal protection and
3.24advocacy program that has notified the court that it has a matter regarding the ward,
3.25protected person, or respondent;
3.26(viii) (ix) a health care agent or proxy appointed pursuant to a health care directive
3.27as defined in section145C.01 , a living will under chapter 145B, or other similar document
3.28executed in another state and enforceable under the laws of this state; and
3.29(ix) (x) any other person designated by the court.
3.30 Sec. 3. Minnesota Statutes 2008, section 524.5-102, is amended by adding a
3.31subdivision to read:
3.32 Subd. 13a. Professional guardian or professional conservator. "Professional
3.33guardian" or "professional conservator" means a person acting as guardian or conservator
3.34for three or more individuals not related by blood, adoption, or marriage.
4.1 Sec. 4. [524.5-119] CENTRAL REGISTRATION OF GUARDIANS AND
4.2CONSERVATORS; APPROPRIATION.
4.3(a) By July 1, 2013, the Supreme Court shall establish a statewide registration
4.4system under which guardians and conservators appointed under sections 524.5-101 to
4.5524.5-502 must register with the state court administrator. Registration information must
4.6include the name of the guardian or conservator, whether the person is a professional
4.7guardian or conservator, date and county of appointment, and other information required
4.8by the Supreme Court. Registration data that the Supreme Court determines are accessible
4.9to the public must be accessible online or through other means implemented by the
4.10Supreme Court.
4.11(b) The state court administrator shall establish registration fees or identify another
4.12source of funds to support the costs of developing and administering the registration
4.13system. The state court administrator shall determine whether guardians and conservators
4.14should pay a registration fee and the amount of the fee, and shall take into consideration
4.15whether the guardian or conservator is a professional guardian or conservator, whether the
4.16guardian or conservator represents clients in forma pauperis, and the number of wards or
4.17protected persons the guardian or conservator represents. The state court administrator
4.18shall report to the legislature on the fees or other source of funds to support the costs
4.19of developing and administering the registration system by January 1, 2012. The state
4.20court administrator shall begin collecting fees under this paragraph on July 1, 2012.
4.21Fees collected by the state court administrator under this section are appropriated to the
4.22Supreme Court.
4.23 Sec. 5. [524.5-120] BILL OF RIGHTS FOR WARDS AND PROTECTED
4.24PERSONS.
4.25The ward or protected person retains all rights not restricted by court order and these
4.26rights must be enforced by the court. These rights include the right to:
4.27(1) treatment with dignity and respect;
4.28(2) due consideration of current and previously stated personal desires, medical
4.29treatment preferences, religious beliefs, and other preferences and opinions in decisions
4.30made by the guardian or conservator;
4.31(3) receive timely and appropriate health care and medical treatment that does not
4.32violate known conscientious, religious, or moral beliefs of the ward or protected person;
4.33(4) exercise control of all aspects of life not delegated specifically by court order
4.34to the guardian or conservator;
4.35(5) guardianship or conservatorship services individually suited to the ward or
4.36protected person's conditions and needs;
5.1(6) petition the court to prevent or initiate a change in abode;
5.2(7) care, comfort, social and recreational needs, training, education, habilitation, and
5.3rehabilitation care and services, within available resources;
5.4(8) be consulted concerning, and to decide to the extent possible, the reasonable
5.5care and disposition of the ward or protected person's clothing, furniture, vehicles, and
5.6other personal effects, to object to the disposition of personal property and effects, and to
5.7petition the court for a review of the guardian's or conservator's proposed disposition;
5.8(9) personal privacy;
5.9(10) communication and visitation with persons of the ward or protected person's
5.10choice, provided that if the guardian has found that certain communication or visitation
5.11may result in harm to the ward's health, safety, or well-being, that communication or
5.12visitation may be restricted but only to the extent necessary to prevent the harm;
5.13(11) marry and procreate, unless court approval is required, and to consent or object
5.14to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
5.15(12) petition the court for termination or modification of the guardianship or
5.16conservatorship or for other appropriate relief;
5.17(13) be represented by an attorney in any proceeding or for the purpose of petitioning
5.18the court; and
5.19(14) vote, unless restricted by the court.
5.20 Sec. 6. Minnesota Statutes 2008, section 524.5-304, is amended to read:
5.21524.5-304 JUDICIAL APPOINTMENT OF GUARDIAN: PRELIMINARIES
5.22TO HEARING.
5.23(a) Upon receipt of a petition to establish a guardianship, the court shall set a date
5.24and time for hearing the petition and may appoint a visitor. The duties and reporting
5.25requirements of the visitor are limited to the relief requested in the petition.
5.26(b) A proposed ward has the right to be represented by counsel at any proceeding
5.27under this article. The court shall appoint counsel to represent the proposed ward for
5.28the initial proceeding held pursuant to section524.5-307 if neither the proposed ward
5.29nor others provide counsel unless in a meeting with a visitor the proposed ward makes
5.30an informed decision in writing to specificallywaives waive the right to counsel. Before
5.31appointment, and at any time during the course of the representation when a risk of a
5.32conflict of interest may arise, the proposed or appointed counsel shall disclose to the
5.33court, the proposed ward or ward, and interested persons whether there are concurrent
5.34proceedings in which the counsel is the attorney for the proposed guardian or guardian and
5.35whether there is a risk of a conflict of interest under Rule 1.7 of the Rules of Professional
5.36Conduct so that the representation of the proposed ward or ward will be materially limited
6.1by counsel's concurrent responsibilities to the proposed guardian or guardian. If there is a
6.2risk of a conflict of interest, the counsel must not be appointed or new counsel must be
6.3appointed, unless:
6.4(1) the court determines that the proposed ward or ward is able to give informed
6.5consent to the representation and, if the proposed ward or ward consents, the consent is
6.6confirmed in writing pursuant to Rule 1.7; or
6.7(2) the court determines that there is not a risk of a conflict of interest under Rule 1.7
6.8requiring the appointment of different counsel.
6.9 Counsel must be appointed immediately after any petition under this article is served
6.10under section524.5-308 . Counsel has the full right of subpoena. In all proceedings under
6.11this article, counsel shall:
6.12(1) consult with the proposed ward before any hearing;
6.13(2) be given adequate time to prepare for all hearings; and
6.14(3) continue to represent the person throughout any proceedings under section
6.15524.5-307
, provided that such appointment shall expire upon the expiration of the appeal
6.16time for the order appointing guardian or the order dismissing a petition, or upon such
6.17other time or event as the court may direct.
6.18The court need not appoint counsel to represent the proposed ward on a voluntary
6.19petition, and the court may remove a court-appointed attorney at any time if the court
6.20finds that the proposed ward has made a knowing and intelligent waiver of the right to
6.21counsel or has obtained private counsel.
6.22(c) The visitor shall personally serve the notice and petition upon the respondent
6.23and shall offer to read the notice and petition to the respondent, and if so requested the
6.24visitor shall read the notice and petition to such person. The visitor shall also interview the
6.25respondent in person, and to the extent that the respondent is able to understand:
6.26(1) explain to the respondent the substance of the petition; the nature, purpose, and
6.27effect of the proceeding; the respondent's rights at the hearing; and the general powers
6.28and duties of a guardian;
6.29(2) determine the respondent's views about the proposed guardian, the proposed
6.30guardian's powers and duties, and the scope and duration of the proposed guardianship;
6.31(3) inform the respondent of the right to employ and consult with a lawyer at the
6.32respondent's own expense and the right to request a court-appointed lawyer; and
6.33(4) inform the respondent that all costs and expenses of the proceeding, including
6.34respondent's attorneys fees, will be paid from the respondent's estate.
6.35(d) In addition to the duties in paragraph (c), the visitor shall make any other
6.36investigation the court directs.
7.1(e) The visitor shall promptly file a report in writing with the court, which must
7.2include:
7.3(1) recommendations regarding the appropriateness of guardianship, including
7.4whether less restrictive means of intervention are available, the type of guardianship, and,
7.5if a limited guardianship, the powers to be granted to the limited guardian;
7.6(2) a statement as to whether the respondent approves or disapproves of the proposed
7.7guardian, and the powers and duties proposed or the scope of the guardianship; and
7.8(3) any other matters the court directs.
7.9(f) The county social service agency may create a screening committee to review a
7.10petition involving an indigent person. The screening committee must consist of individuals
7.11selected by the agency with knowledge of alternatives that are less restrictive than
7.12guardianship. If the agency has created a screening committee, the court shall make its
7.13decision after the screening committee has reviewed the petition. For an indigent person,
7.14the court may appoint a guardian under contract with the county to provide these services.
7.15(g) Before the initial appointment, and annually within 30 days after the anniversary
7.16date of the appointment, the proposed guardian or guardian shall file an informational
7.17statement with the court. The statement must be a sworn affidavit containing the following
7.18information:
7.19(1) the person's educational background and relevant work and other experience;
7.20(2) an address and telephone number where the guardian can be contacted;
7.21(3) whether the person has ever been removed for cause from serving as a guardian
7.22or conservator and if so, the case number and court location;
7.23(4) any changes occurring that would affect the accuracy of information contained in
7.24the most recent criminal background study conducted pursuant to section 524.5-118; and
7.25(5) if applicable, the amount of reimbursement for services rendered to the ward that
7.26the person has received during the previous year.
7.27 Sec. 7. Minnesota Statutes 2008, section 524.5-309, is amended to read:
7.28524.5-309 WHO MAY BE GUARDIAN: PRIORITIES.
7.29(a) Subject to paragraph (c), the court, in appointing a guardian, shall consider
7.30persons otherwise qualified in the following order of priority:
7.31(1) a guardian, other than a temporary or emergency guardian, currently acting for
7.32the respondent in this state or elsewhere;
7.33(2) an agent appointed by the respondent under a health care directive pursuant to
7.34chapter 145C;
8.1(3) the spouse of the respondent or a person nominated by will or other signed
8.2writing executed in the same manner as a health care directive pursuant to chapter 145C of
8.3a deceased spouse;
8.4(4) an adult child of the respondent;
8.5(5) a parent of the respondent, or an individual nominated by will or other signed
8.6writing executed in the same manner as a health care directive pursuant to chapter 145C
8.7of a deceased parent;and
8.8(6) an adult with whom the respondent has resided for more than six months before
8.9the filing of the petition;
8.10(7) an adult who is related to the respondent by blood, adoption, or marriage; and
8.11(8) any other adult or a professional guardian.
8.12(b) The court, acting in the best interest of the respondent, may decline to appoint a
8.13person having priority and appoint a person having a lower priority or no priority. With
8.14respect to persons having equal priority, the court shall select the one it considers best
8.15qualified.
8.16(c) Any individual or agency which provides residence, custodial care, medical care,
8.17employment training or other care or services for which they receive a fee may not be
8.18appointed as guardian unless related to the respondent by blood, marriage, or adoption.
8.19 Sec. 8. Minnesota Statutes 2008, section 524.5-310, is amended to read:
8.20524.5-310 FINDINGS; ORDER OF APPOINTMENT.
8.21(a) The court may appoint a limited or unlimited guardian for a respondent only if it
8.22finds by clear and convincing evidence that:
8.23(1) the respondent is an incapacitated person; and
8.24(2) the respondent's identified needs cannot be met by less restrictive means,
8.25including use of appropriate technological assistance.
8.26(b) Alternatively, the court, with appropriate findings, may treat the petition as
8.27one for a protective order under section524.5-401 , enter any other appropriate order, or
8.28dismiss the proceeding.
8.29(c) The court shall grant to a guardian only those powers necessitated by the ward's
8.30limitations and demonstrated needs and, whenever feasible, make appointive and other
8.31orders that will encourage the development of the ward's maximum self-reliance and
8.32independence. Any power not specifically granted to the guardian, following a written
8.33finding by the court of a demonstrated need for that power, is retained by the ward.
8.34(d) Within 14 days after an appointment, a guardian shall send or deliver to the ward,
8.35and counsel if represented at the hearing, a copy of the order of appointment accompanied
9.1by a notice which advises the ward of the right to appeal the guardianship appointment in
9.2the time and manner provided by the Rules of Appellate Procedure.
9.3(e) Each year, within 30 days after the anniversary date of an appointment, a
9.4guardian shall send or deliver to the ward and to interested persons of record with the
9.5court a notice of the right to request termination or modification of the guardianship or to
9.6request an order that is in the best interests of the ward or for other appropriate relief, and
9.7notice of the status of the ward's right to vote.
9.8 Sec. 9. Minnesota Statutes 2008, section 524.5-315, is amended to read:
9.9524.5-315 RIGHTS AND IMMUNITIES OF GUARDIAN; LIMITATIONS.
9.10(a) A guardian is entitled to reasonable compensation for services as guardian and
9.11to reimbursement for expenditures made on behalf of the ward, in a manner consistent
9.12with section524.5-502 .
9.13(b) A guardian is not liable to a third person for acts of the ward solely by reason
9.14of the relationship. A guardian who exercises reasonable care in choosing a third person
9.15providing medical or other care, treatment, or service for the ward is not liable for injury
9.16to the ward resulting from the wrongful conduct of the third person.
9.17(c)A guardian, without authorization of the court, may revoke the appointment of an
9.18agent of a health care directive of which the ward is the principal, but the guardian may
9.19not, absent a court order, revoke the health care directive itself. If a health care directive
9.20is in effect, absent an order of the court to the contrary, a health care decision of the
9.21guardian takes precedence over that of an agent. A guardian may not revoke the health
9.22care directive of a ward or protected person absent a court order. A guardian may revoke
9.23the appointment of an agent of a health care directive for which the ward is the principal
9.24only under the following circumstances:
9.25(1) the agent was appointed in the previous 60 days;
9.26(2) multiple agents have been appointed; or
9.27(3) when a court has determined that the ward lacks capacity to appoint an agent of a
9.28health care directive and the court has expressly granted the guardian the power to give
9.29necessary consent to enable the ward to receive medical care, treatment, or service.
9.30In all other circumstances, the guardian may not revoke the appointment of an agent
9.31of a health care directive for which the ward is principal absent a court order. Unless the
9.32appointment of a health care directive is revoked in accordance with this section, a health
9.33care decision of the agent takes precedence over that of the guardian.
9.34(d) A guardian may not initiate the commitment of a ward to an institution except in
9.35accordance with section524.5-313 .
10.1 Sec. 10. Minnesota Statutes 2008, section 524.5-316, is amended to read:
10.2524.5-316 REPORTS; MONITORING OF GUARDIANSHIP; COURT
10.3ORDERS.
10.4(a) A guardian shall report to the court in writing on the condition of the ward at least
10.5annually and whenever ordered by the court. A copy of the report must be provided to the
10.6ward and to interested persons of record with the court. A report must state or contain:
10.7(1) the current mental, physical, and social condition of the ward;
10.8(2) the living arrangements for all addresses of the ward during the reporting period;
10.9(3) any restrictions placed on the ward's right to communication and visitation with
10.10persons of the ward's choice and the factual bases for those restrictions;
10.11(3) (4) the medical, educational, vocational, and other services provided to the ward
10.12and the guardian's opinion as to the adequacy of the ward's care; and
10.13(4) (5) a recommendation as to the need for continued guardianship and any
10.14recommended changes in the scope of the guardianship.
10.15(b) A ward or interested person of record with the court may submit to the court a
10.16written statement disputing statements or conclusions regarding the condition of the ward
10.17that are contained in the report and may petition the court for an order that is in the best
10.18interests of the ward or for other appropriate relief.
10.19(c) The court may appoint a visitor to review a report, interview the ward or
10.20guardian, and make any other investigation the court directs.
10.21(c) (d) The court shall establish a system for monitoring guardianships, including the
10.22filing and review of annual reports. If an annual report is not filed within 60 days of the
10.23required date, the court shall issue an order to show cause.
10.24 Sec. 11. Minnesota Statutes 2008, section 524.5-317, is amended to read:
10.25524.5-317 TERMINATION OR MODIFICATION OF GUARDIANSHIP;
10.26COURT ORDERS.
10.27(a) A guardianship terminates upon the death of the ward or upon order of the court.
10.28(b) On petition of any person interested in the ward's welfare the court may terminate
10.29a guardianship if the ward no longer needs the assistance or protection of a guardian. The
10.30court may modify the type of appointment or powers granted to the guardian if the extent
10.31of protection or assistance previously granted is currently excessive or insufficient or the
10.32ward's capacity to provide for support, care, education, health, and welfare has so changed
10.33as to warrant that action. The court may make any other order that is in the best interests
10.34of the ward or may grant other appropriate relief.
11.1(c) Except as otherwise ordered by the court for good cause, the court, before
11.2terminating a guardianship, shall follow the same procedures to safeguard the rights of
11.3the ward as apply to a petition for guardianship. Upon presentation by the petitioner
11.4of evidence establishing a prima facie case for termination, the court shall order the
11.5termination and discharge the guardian unless it is proven that continuation of the
11.6guardianship is in the best interest of the ward.
11.7 Sec. 12. Minnesota Statutes 2008, section 524.5-406, is amended to read:
11.8524.5-406 ORIGINAL PETITION: PERSONS UNDER DISABILITY;
11.9PRELIMINARIES TO HEARING.
11.10(a) Upon the filing of a petition for a conservatorship or other protective order for a
11.11respondent for reasons other than being a minor, the court shall set a date for hearing and
11.12the court may appoint a visitor. The duties and reporting requirements of the visitor are
11.13limited to the relief requested in the petition.
11.14(b) A respondent has the right to be represented by counsel at any proceeding
11.15under this article. The court shall appoint counsel to represent the respondent for the
11.16initial proceeding held pursuant to section524.5-408 if neither the respondent nor others
11.17provide counsel, unless in a meeting with a visitor, the proposed respondent makes an
11.18informed decision in writing to specificallywaives waive the right to counsel. Before
11.19appointment, and at anytime during the course of the representation when a risk of a
11.20conflict of interest may arise, the proposed or appointed counsel shall disclose to the
11.21court, the proposed protected person or protected person, and interested persons whether
11.22there are concurrent proceedings in which the counsel is the attorney for the proposed
11.23conservator or conservator and whether there is a risk of a conflict of interest under
11.24Rule 1.7 of the Rules of Professional Conduct so that the representation of the proposed
11.25protected person or protected person will be materially limited by counsel's concurrent
11.26responsibilities to the proposed conservator or conservator. If there is a risk of a conflict of
11.27interest, the counsel must not be appointed, unless:
11.28(1) the court determines that the proposed protected person or protected person is
11.29able to give informed consent to the representation and, if the proposed protected person
11.30or protected person consents, the consent is confirmed in writing pursuant to Rule 1.7; or
11.31(2) the court determines that there is not a risk of a conflict of interest under Rule 1.7
11.32requiring the appointment of different counsel.
11.33Counsel must be appointed immediately after any petition under this part is served
11.34pursuant to section524.5-404 . Counsel has the full right of subpoena. In all proceedings
11.35under this part, counsel shall:
11.36(1) consult with the respondent before any hearing;
12.1(2) be given adequate time to prepare for all hearings; and
12.2(3) continue to represent the respondent throughout any proceedings under section
12.3524.5-408
, provided that such appointment shall expire upon the expiration of the appeal
12.4time for the order appointing conservator or the order dismissing a petition, or upon such
12.5other time or event as the court may direct.
12.6The court need not appoint counsel to represent the respondent on a voluntary
12.7petition, and the court may remove a court-appointed attorney at any time if the court finds
12.8that the respondent has made a knowing and intelligent waiver of the right to counsel
12.9or has obtained private counsel.
12.10(c) The visitor shall personally serve the notice and petition upon the respondent
12.11and shall offer to read the notice and petition to the respondent, and if so requested, the
12.12visitor shall read the notice and petition to such person. The visitor shall also interview the
12.13respondent in person, and to the extent that the respondent is able to understand:
12.14(1) explain to the respondent the substance of the petition and the nature, purpose,
12.15and effect of the proceeding;
12.16(2) if the appointment of a conservator is requested, inform the respondent of the
12.17general powers and duties of a conservator and determine the respondent's views regarding
12.18the proposed conservator, the proposed conservator's powers and duties, and the scope and
12.19duration of the proposed conservatorship;
12.20(3) inform the respondent of the respondent's rights, including the right to employ
12.21and consult with a lawyer at the respondent's own expense, and the right to request a
12.22court-appointed lawyer; and
12.23(4) inform the respondent that all costs and expenses of the proceeding, including
12.24respondent's attorney fees, will be paid from the respondent's estate.
12.25(d) In addition to the duties set out in paragraph (c), the visitor shall make any other
12.26investigations the court directs.
12.27(e) The visitor shall promptly file a report with the court which must include:
12.28(1) recommendations regarding the appropriateness of a conservatorship, including
12.29whether less restrictive means of intervention are available, the type of conservatorship,
12.30and, if a limited conservatorship, the powers and duties to be granted the limited
12.31conservator, and the assets over which the conservator should be granted authority;
12.32(2) a statement as to whether the respondent approves or disapproves of the proposed
12.33conservator, and the powers and duties proposed or the scope of the conservatorship; and
12.34(3) any other matters the court directs.
12.35(f) While a petition to establish a conservatorship or for another protective order
12.36is pending, after preliminary hearing and without notice to others, the court may make
13.1orders to preserve and apply the property of the respondent as may be required for the
13.2support of the respondent or individuals who are in fact dependent upon the respondent,
13.3and may appoint an agent to assist in that task.
13.4(g) Before the initial appointment, and annually within 30 days after the anniversary
13.5date of the appointment, the proposed conservator or conservator shall file an informational
13.6statement with the court. The statement must be a sworn affidavit containing the following
13.7information:
13.8(1) the person's educational background and relevant work and other experience;
13.9(2) an address and telephone number where the conservator can be contacted;
13.10(3) whether the person has ever been removed for cause from serving as a guardian
13.11or conservator and if so, the case number and court location;
13.12(4) any changes occurring that would affect the accuracy of information contained in
13.13the most recent criminal background study conducted pursuant to section 524.5-118; and
13.14(5) if applicable, the amount of reimbursement for services rendered to the protected
13.15person that the person has received during the previous year.
13.16 Sec. 13. Minnesota Statutes 2008, section 524.5-409, is amended to read:
13.17524.5-409 FINDINGS; ORDER OF APPOINTMENT.
13.18(a) The court may appoint a limited or unlimited conservator for a respondent only
13.19if it finds that:
13.20(1) by clear and convincing evidence, the individual is unable to manage property
13.21and business affairs because of an impairment in the ability to receive and evaluate
13.22information or make decisions, even with the use of appropriate technological assistance,
13.23or because the individual is missing, detained, or unable to return to the United States;
13.24(2) by a preponderance of evidence, the individual has property that will be wasted
13.25or dissipated unless management is provided or money is needed for the support, care,
13.26education, health, and welfare of the individual or of individuals who are entitled to the
13.27individual's support and that protection is necessary or desirable to obtain or provide
13.28money; and
13.29(3) the respondent's identified needs cannot be met by less restrictive means,
13.30including use of appropriate technological assistance.
13.31(b) Alternatively, the court, with appropriate findings, may enter any other
13.32appropriate order, or dismiss the proceeding.
13.33(c) The court, whenever feasible, shall grant to a conservator only those powers
13.34necessitated by the protected person's limitations and demonstrated needs and make
13.35appointive and other orders that will encourage the development of the protected person's
13.36maximum self-reliance and independence.
14.1(d) Within 14 days after an appointment, the conservator shall send or deliver to the
14.2protected person, if the protected person has attained 14 years of age and is not missing,
14.3detained, or unable to return to the United States, and counsel if represented at the hearing,
14.4a copy of the order of appointment accompanied by a notice which advises the protected
14.5person of the right to appeal the conservatorship appointment in the time and manner
14.6provided by the Rules of Appellate Procedure.
14.7(e) Each year, within 30 days after the anniversary date of an appointment, a
14.8conservator shall send or deliver to the protected person and to interested persons of
14.9record with the court a notice of the right to request termination or modification of the
14.10conservatorship or for any order that is in the best interests of the protected person or for
14.11other appropriate relief.
14.12(f) The appointment of a conservator or the entry of another protective order is not a
14.13determination of incapacity of the protected person.
14.14 Sec. 14. Minnesota Statutes 2008, section 524.5-413, is amended to read:
14.15524.5-413 WHO MAY BE CONSERVATOR; PRIORITIES.
14.16(a) Except as otherwise provided in paragraph (d), the court, in appointing a
14.17conservator, shall consider persons otherwise qualified in the following order of priority:
14.18(1) a conservator, guardian of the estate, or other like fiduciary appointed or
14.19recognized by an appropriate court of any other jurisdiction in which the protected person
14.20resides;
14.21(2) a person nominated as conservator by the respondent, including the respondent's
14.22most recent nomination made in a durable power of attorney, if the respondent has attained
14.2314 years of age and at the time of the nomination had sufficient capacity to express
14.24a preference;
14.25(3) an agent appointed by the respondent to manage the respondent's property under
14.26a durable power of attorney;
14.27(4) the spouse of the respondent;
14.28(5) an adult child of the respondent;
14.29(6) a parent of the respondent;and
14.30(7) an adult with whom the respondent has resided for more than six months before
14.31the filing of the petition;
14.32(8) an adult who is related to the respondent by blood, adoption, or marriage; and
14.33(9) any other adult or a professional conservator.
14.34(b) A person having priority under paragraph (a), clause (1), (4), (5), or (6), may
14.35designate in writing a substitute to serve instead and thereby transfer the priority to the
14.36substitute.
15.1(c) The court, acting in the best interest of the protected person, may decline to
15.2appoint a person having priority and appoint a person having a lower priority or no
15.3priority. With respect to persons having equal priority, the court shall select the one it
15.4considers best qualified.
15.5(d) In any proceeding where the value of the personal property of the estate of the
15.6proposed protected person in the initial inventory of the estate filed by the conservator
15.7under section 524.5-419 is expected to be at least $10,000, the court shall require the
15.8conservator to post a bond. The bond requirement under this paragraph does not apply to
15.9conservators appointed before August 1, 2009, but shall apply as current conservatorships
15.10are reviewed by the court after August 1, 2009.
15.11(e) Any individual or agency which provides residence, custodial care, medical care,
15.12employment training, or other care or services for which they receive a fee may not be
15.13appointed as conservator unless related to the respondent by blood, marriage, or adoption.
15.14 Sec. 15. Minnesota Statutes 2008, section 524.5-414, is amended to read:
15.15524.5-414 PETITION FOR ORDER SUBSEQUENT TO APPOINTMENT.
15.16(a) A protected person or an interested person may file a petition in the appointing
15.17court for an order:
15.18(1) requiring bond or collateral or additional bond or collateral, or reducing bond;
15.19(2) requiring an accounting for the administration of the protected person's estate;
15.20(3) directing distribution;
15.21(4) removing the conservator and appointing a temporary or successor conservator;
15.22(5) modifying the type of appointment or powers granted to the conservator if
15.23the extent of protection or management previously granted is currently excessive or
15.24insufficient or the protected person's ability to manage the estate and business affairs
15.25has so changed as to warrant the action; or
15.26(6) acting in the protected person's best interests or granting other appropriate relief.
15.27(b) A conservator may petition the appointing court for instructions concerning
15.28fiduciary responsibility.
15.29(c) On notice and hearing the petition, the court may give appropriate instructions
15.30and make any appropriate order.
15.31(d) The court may, at its own discretion, waive the notice or hearing requirements
15.32for the relief requested in a petition filed under this section.
15.33 Sec. 16. Minnesota Statutes 2008, section 524.5-420, is amended to read:
15.34524.5-420 REPORTS; APPOINTMENT OF VISITOR; MONITORING;
15.35COURT ORDERS.
16.1(a) A conservator shall report to the court for administration of the estate annually
16.2unless the court otherwise directs, upon resignation or removal, upon termination of
16.3the conservatorship, and at other times as the court directs. An order, after notice and
16.4hearing, allowing an intermediate report of a conservator adjudicates liabilities concerning
16.5the matters adequately disclosed in the accounting. An order, after notice and hearing,
16.6allowing a final report adjudicates all previously unsettled liabilities relating to the
16.7conservatorship.
16.8(b) A report must state or contain a listing of the assets of the estate under the
16.9conservator's control and a listing of the receipts, disbursements, and distributions during
16.10the reporting period.
16.11(c) A protected person or an interested person of record with the court may submit to
16.12the court a written statement disputing account statements regarding the administration of
16.13the estate that are contained in the report and may petition the court for any order that is in
16.14the best interests of the protected person and the estate or for other appropriate relief.
16.15(d) The court may appoint a visitor to review a report or plan, interview the protected
16.16person or conservator, and make any other investigation the court directs. In connection
16.17with a report, the court may order a conservator to submit the assets of the estate to an
16.18appropriate examination to be made in a manner the court directs.
16.19(d) (e) The court shall establish a system for monitoring of conservatorships,
16.20including the filing and review of conservators' reports and plans. If an annual report is
16.21not filed within 60 days of the required date, the court shall issue an order to show cause."
16.22Delete the title and insert:
16.24relating to probate; modifying provisions governing guardians and conservators;
16.25providing for fees for central registration and use of fee proceeds; amending
16.26Minnesota Statutes 2008, sections 260C.331, subdivision 1; 524.5-102,
16.27subdivision 7, by adding a subdivision; 524.5-304; 524.5-309; 524.5-310;
16.28524.5-315; 524.5-316; 524.5-317; 524.5-406; 524.5-409; 524.5-413; 524.5-414;
16.29524.5-420; proposing coding for new law in Minnesota Statutes, chapter 524."
We request the adoption of this report and repassage of the bill.House Conferees: (Signed) Paul Thissen, Joe Mullery, Paul AndersonSenate Conferees: (Signed) Mee Moua, Ron Latz, David Hann
1.3relating to probate; modifying provisions governing guardians and conservators;
1.4amending Minnesota Statutes 2008, sections 260C.331, subdivision 1; 524.5-102,
1.5subdivision 7, by adding a subdivision; 524.5-304; 524.5-309; 524.5-310;
1.6524.5-315; 524.5-316; 524.5-317; 524.5-406; 524.5-409; 524.5-413; 524.5-414;
1.7524.5-420; proposing coding for new law in Minnesota Statutes, chapter 524.
1.8May 16, 2009
1.9The Honorable Margaret Anderson Kelliher
1.10Speaker of the House of Representatives
1.11The Honorable James P. Metzen
1.12President of the Senate
1.13We, the undersigned conferees for H. F. No. 804 report that we have agreed upon the
1.14items in dispute and recommend as follows:
1.15That the Senate recede from its amendments and that H. F. No. 804 be further
1.16amended as follows:
1.17Delete everything after the enacting clause and insert:
1.18 "Section 1. Minnesota Statutes 2008, section 260C.331, subdivision 1, is amended to
1.19read:
1.20 Subdivision 1. Care, examination, or treatment. (a) Except where parental rights
1.21are terminated,
1.22 (1) whenever legal custody of a child is transferred by the court to a responsible
1.23social services agency,
1.24 (2) whenever legal custody is transferred to a person other than the responsible social
1.25services agency, but under the supervision of the responsible social services agency, or
1.26 (3) whenever a child is given physical or mental examinations or treatment under
1.27order of the court, and no provision is otherwise made by law for payment for the care,
1.28examination, or treatment of the child, these costs are a charge upon the welfare funds of
1.29the county in which proceedings are held upon certification of the judge of juvenile court.
2.1 (b) The court shall order, and the responsible social services agency shall require,
2.2the parents or custodian of a child, while the child is under the age of 18, to use the
2.3total income and resources attributable to the child for the period of care, examination,
2.4or treatment, except for clothing and personal needs allowance as provided in section
2.6and resources attributable to the child include, but are not limited to, Social Security
2.7benefits, supplemental security income (SSI), veterans benefits, railroad retirement
2.8benefits and child support. When the child is over the age of 18, and continues to receive
2.9care, examination, or treatment, the court shall order, and the responsible social services
2.10agency shall require, reimbursement from the child for the cost of care, examination, or
2.11treatment from the income and resources attributable to the child less the clothing and
2.12personal needs allowance. Income does not include earnings from a child over the age of
2.1318 who is working as part of a plan under section
2.14clause (8), to transition from foster care.
2.15 (c) If the income and resources attributable to the child are not enough to reimburse
2.16the county for the full cost of the care, examination, or treatment, the court shall inquire
2.17into the ability of the parents to support the child and, after giving the parents a reasonable
2.18opportunity to be heard, the court shall order, and the responsible social services agency
2.19shall require, the parents to contribute to the cost of care, examination, or treatment of
2.20the child. When determining the amount to be contributed by the parents, the court shall
2.21use a fee schedule based upon ability to pay that is established by the responsible social
2.22services agency and approved by the commissioner of human services. The income of
2.23a stepparent who has not adopted a child shall be excluded in calculating the parental
2.24contribution under this section.
2.25 (d) The court shall order the amount of reimbursement attributable to the parents
2.26or custodian, or attributable to the child, or attributable to both sources, withheld under
2.27chapter 518A from the income of the parents or the custodian of the child. A parent or
2.28custodian who fails to pay without good reason may be proceeded against for contempt, or
2.29the court may inform the county attorney, who shall proceed to collect the unpaid sums,
2.30or both procedures may be used.
2.31 (e) If the court orders a physical or mental examination for a child, the examination
2.32is a medically necessary service for purposes of determining whether the service is
2.33covered by a health insurance policy, health maintenance contract, or other health
2.34coverage plan. Court-ordered treatment shall be subject to policy, contract, or plan
2.35requirements for medical necessity. Nothing in this paragraph changes or eliminates
2.36benefit limits, conditions of coverage, co-payments or deductibles, provider restrictions,
3.1or other requirements in the policy, contract, or plan that relate to coverage of other
3.2medically necessary services.
3.3(f) Notwithstanding paragraph (b), (c), or (d), a parent, custodian, or guardian of the
3.4child is not required to use income and resources attributable to the child to reimburse
3.5the county for costs of care and is not required to contribute to the cost of care of the
3.6child during any period of time when the child is returned to the home of that parent,
3.7custodian, or guardian pursuant to a trial home visit under section 260C.201, subdivision
3.81, paragraph (a).
3.9 Sec. 2. Minnesota Statutes 2008, section 524.5-102, subdivision 7, is amended to read:
3.10 Subd. 7. Interested person. "Interested person" includes:
3.11(i) the ward, protected person, or respondent;
3.12(ii) a nominated guardian or conservator, or the duly appointed guardian or
3.13conservator;
3.14(iii) legal representative;
3.15(iv) the spouse, parent, adult children and siblings, or if none of such persons is
3.16living or can be located, the next of kin of the ward, protected person, or respondent;
3.17(v) an adult person who has lived with a ward, protected person, or respondent for a
3.18period of more than six months;
3.19(vi) an attorney for the ward or protected person;
3.20(vii) a governmental agency paying or to which an application has been made for
3.21benefits for the respondent, ward, or protected person, including the county social services
3.22agency for the person's county of residence and the county where the proceeding is venued;
3.23(viii) a representative of a state ombudsman's office or a federal protection and
3.24advocacy program that has notified the court that it has a matter regarding the ward,
3.25protected person, or respondent;
3.26
3.27as defined in section
3.28executed in another state and enforceable under the laws of this state; and
3.29
3.30 Sec. 3. Minnesota Statutes 2008, section 524.5-102, is amended by adding a
3.31subdivision to read:
3.32 Subd. 13a. Professional guardian or professional conservator. "Professional
3.33guardian" or "professional conservator" means a person acting as guardian or conservator
3.34for three or more individuals not related by blood, adoption, or marriage.
4.1 Sec. 4. [524.5-119] CENTRAL REGISTRATION OF GUARDIANS AND
4.2CONSERVATORS; APPROPRIATION.
4.3(a) By July 1, 2013, the Supreme Court shall establish a statewide registration
4.4system under which guardians and conservators appointed under sections 524.5-101 to
4.5524.5-502 must register with the state court administrator. Registration information must
4.6include the name of the guardian or conservator, whether the person is a professional
4.7guardian or conservator, date and county of appointment, and other information required
4.8by the Supreme Court. Registration data that the Supreme Court determines are accessible
4.9to the public must be accessible online or through other means implemented by the
4.10Supreme Court.
4.11(b) The state court administrator shall establish registration fees or identify another
4.12source of funds to support the costs of developing and administering the registration
4.13system. The state court administrator shall determine whether guardians and conservators
4.14should pay a registration fee and the amount of the fee, and shall take into consideration
4.15whether the guardian or conservator is a professional guardian or conservator, whether the
4.16guardian or conservator represents clients in forma pauperis, and the number of wards or
4.17protected persons the guardian or conservator represents. The state court administrator
4.18shall report to the legislature on the fees or other source of funds to support the costs
4.19of developing and administering the registration system by January 1, 2012. The state
4.20court administrator shall begin collecting fees under this paragraph on July 1, 2012.
4.21Fees collected by the state court administrator under this section are appropriated to the
4.22Supreme Court.
4.23 Sec. 5. [524.5-120] BILL OF RIGHTS FOR WARDS AND PROTECTED
4.24PERSONS.
4.25The ward or protected person retains all rights not restricted by court order and these
4.26rights must be enforced by the court. These rights include the right to:
4.27(1) treatment with dignity and respect;
4.28(2) due consideration of current and previously stated personal desires, medical
4.29treatment preferences, religious beliefs, and other preferences and opinions in decisions
4.30made by the guardian or conservator;
4.31(3) receive timely and appropriate health care and medical treatment that does not
4.32violate known conscientious, religious, or moral beliefs of the ward or protected person;
4.33(4) exercise control of all aspects of life not delegated specifically by court order
4.34to the guardian or conservator;
4.35(5) guardianship or conservatorship services individually suited to the ward or
4.36protected person's conditions and needs;
5.1(6) petition the court to prevent or initiate a change in abode;
5.2(7) care, comfort, social and recreational needs, training, education, habilitation, and
5.3rehabilitation care and services, within available resources;
5.4(8) be consulted concerning, and to decide to the extent possible, the reasonable
5.5care and disposition of the ward or protected person's clothing, furniture, vehicles, and
5.6other personal effects, to object to the disposition of personal property and effects, and to
5.7petition the court for a review of the guardian's or conservator's proposed disposition;
5.8(9) personal privacy;
5.9(10) communication and visitation with persons of the ward or protected person's
5.10choice, provided that if the guardian has found that certain communication or visitation
5.11may result in harm to the ward's health, safety, or well-being, that communication or
5.12visitation may be restricted but only to the extent necessary to prevent the harm;
5.13(11) marry and procreate, unless court approval is required, and to consent or object
5.14to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
5.15(12) petition the court for termination or modification of the guardianship or
5.16conservatorship or for other appropriate relief;
5.17(13) be represented by an attorney in any proceeding or for the purpose of petitioning
5.18the court; and
5.19(14) vote, unless restricted by the court.
5.20 Sec. 6. Minnesota Statutes 2008, section 524.5-304, is amended to read:
5.21524.5-304 JUDICIAL APPOINTMENT OF GUARDIAN: PRELIMINARIES
5.22TO HEARING.
5.23(a) Upon receipt of a petition to establish a guardianship, the court shall set a date
5.24and time for hearing the petition and may appoint a visitor. The duties and reporting
5.25requirements of the visitor are limited to the relief requested in the petition.
5.26(b) A proposed ward has the right to be represented by counsel at any proceeding
5.27under this article. The court shall appoint counsel to represent the proposed ward for
5.28the initial proceeding held pursuant to section
5.29nor others provide counsel unless in a meeting with a visitor the proposed ward makes
5.30an informed decision in writing to specifically
5.31appointment, and at any time during the course of the representation when a risk of a
5.32conflict of interest may arise, the proposed or appointed counsel shall disclose to the
5.33court, the proposed ward or ward, and interested persons whether there are concurrent
5.34proceedings in which the counsel is the attorney for the proposed guardian or guardian and
5.35whether there is a risk of a conflict of interest under Rule 1.7 of the Rules of Professional
5.36Conduct so that the representation of the proposed ward or ward will be materially limited
6.1by counsel's concurrent responsibilities to the proposed guardian or guardian. If there is a
6.2risk of a conflict of interest, the counsel must not be appointed or new counsel must be
6.3appointed, unless:
6.4(1) the court determines that the proposed ward or ward is able to give informed
6.5consent to the representation and, if the proposed ward or ward consents, the consent is
6.6confirmed in writing pursuant to Rule 1.7; or
6.7(2) the court determines that there is not a risk of a conflict of interest under Rule 1.7
6.8requiring the appointment of different counsel.
6.9 Counsel must be appointed immediately after any petition under this article is served
6.10under section
6.11this article, counsel shall:
6.12(1) consult with the proposed ward before any hearing;
6.13(2) be given adequate time to prepare for all hearings; and
6.14(3) continue to represent the person throughout any proceedings under section
6.16time for the order appointing guardian or the order dismissing a petition, or upon such
6.17other time or event as the court may direct.
6.18The court need not appoint counsel to represent the proposed ward on a voluntary
6.19petition, and the court may remove a court-appointed attorney at any time if the court
6.20finds that the proposed ward has made a knowing and intelligent waiver of the right to
6.21counsel or has obtained private counsel.
6.22(c) The visitor shall personally serve the notice and petition upon the respondent
6.23and shall offer to read the notice and petition to the respondent, and if so requested the
6.24visitor shall read the notice and petition to such person. The visitor shall also interview the
6.25respondent in person, and to the extent that the respondent is able to understand:
6.26(1) explain to the respondent the substance of the petition; the nature, purpose, and
6.27effect of the proceeding; the respondent's rights at the hearing; and the general powers
6.28and duties of a guardian;
6.29(2) determine the respondent's views about the proposed guardian, the proposed
6.30guardian's powers and duties, and the scope and duration of the proposed guardianship;
6.31(3) inform the respondent of the right to employ and consult with a lawyer at the
6.32respondent's own expense and the right to request a court-appointed lawyer; and
6.33(4) inform the respondent that all costs and expenses of the proceeding, including
6.34respondent's attorneys fees, will be paid from the respondent's estate.
6.35(d) In addition to the duties in paragraph (c), the visitor shall make any other
6.36investigation the court directs.
7.1(e) The visitor shall promptly file a report in writing with the court, which must
7.2include:
7.3(1) recommendations regarding the appropriateness of guardianship, including
7.4whether less restrictive means of intervention are available, the type of guardianship, and,
7.5if a limited guardianship, the powers to be granted to the limited guardian;
7.6(2) a statement as to whether the respondent approves or disapproves of the proposed
7.7guardian, and the powers and duties proposed or the scope of the guardianship; and
7.8(3) any other matters the court directs.
7.9(f) The county social service agency may create a screening committee to review a
7.10petition involving an indigent person. The screening committee must consist of individuals
7.11selected by the agency with knowledge of alternatives that are less restrictive than
7.12guardianship. If the agency has created a screening committee, the court shall make its
7.13decision after the screening committee has reviewed the petition. For an indigent person,
7.14the court may appoint a guardian under contract with the county to provide these services.
7.15(g) Before the initial appointment, and annually within 30 days after the anniversary
7.16date of the appointment, the proposed guardian or guardian shall file an informational
7.17statement with the court. The statement must be a sworn affidavit containing the following
7.18information:
7.19(1) the person's educational background and relevant work and other experience;
7.20(2) an address and telephone number where the guardian can be contacted;
7.21(3) whether the person has ever been removed for cause from serving as a guardian
7.22or conservator and if so, the case number and court location;
7.23(4) any changes occurring that would affect the accuracy of information contained in
7.24the most recent criminal background study conducted pursuant to section 524.5-118; and
7.25(5) if applicable, the amount of reimbursement for services rendered to the ward that
7.26the person has received during the previous year.
7.27 Sec. 7. Minnesota Statutes 2008, section 524.5-309, is amended to read:
7.28524.5-309 WHO MAY BE GUARDIAN: PRIORITIES.
7.29(a) Subject to paragraph (c), the court, in appointing a guardian, shall consider
7.30persons otherwise qualified in the following order of priority:
7.31(1) a guardian, other than a temporary or emergency guardian, currently acting for
7.32the respondent in this state or elsewhere;
7.33(2) an agent appointed by the respondent under a health care directive pursuant to
7.34chapter 145C;
8.1(3) the spouse of the respondent or a person nominated by will or other signed
8.2writing executed in the same manner as a health care directive pursuant to chapter 145C of
8.3a deceased spouse;
8.4(4) an adult child of the respondent;
8.5(5) a parent of the respondent, or an individual nominated by will or other signed
8.6writing executed in the same manner as a health care directive pursuant to chapter 145C
8.7of a deceased parent;
8.8(6) an adult with whom the respondent has resided for more than six months before
8.9the filing of the petition;
8.10(7) an adult who is related to the respondent by blood, adoption, or marriage; and
8.11(8) any other adult or a professional guardian.
8.12(b) The court, acting in the best interest of the respondent, may decline to appoint a
8.13person having priority and appoint a person having a lower priority or no priority. With
8.14respect to persons having equal priority, the court shall select the one it considers best
8.15qualified.
8.16(c) Any individual or agency which provides residence, custodial care, medical care,
8.17employment training or other care or services for which they receive a fee may not be
8.18appointed as guardian unless related to the respondent by blood, marriage, or adoption.
8.19 Sec. 8. Minnesota Statutes 2008, section 524.5-310, is amended to read:
8.20524.5-310 FINDINGS; ORDER OF APPOINTMENT.
8.21(a) The court may appoint a limited or unlimited guardian for a respondent only if it
8.22finds by clear and convincing evidence that:
8.23(1) the respondent is an incapacitated person; and
8.24(2) the respondent's identified needs cannot be met by less restrictive means,
8.25including use of appropriate technological assistance.
8.26(b) Alternatively, the court, with appropriate findings, may treat the petition as
8.27one for a protective order under section
8.28dismiss the proceeding.
8.29(c) The court shall grant to a guardian only those powers necessitated by the ward's
8.30limitations and demonstrated needs and, whenever feasible, make appointive and other
8.31orders that will encourage the development of the ward's maximum self-reliance and
8.32independence. Any power not specifically granted to the guardian, following a written
8.33finding by the court of a demonstrated need for that power, is retained by the ward.
8.34(d) Within 14 days after an appointment, a guardian shall send or deliver to the ward,
8.35and counsel if represented at the hearing, a copy of the order of appointment accompanied
9.1by a notice which advises the ward of the right to appeal the guardianship appointment in
9.2the time and manner provided by the Rules of Appellate Procedure.
9.3(e) Each year, within 30 days after the anniversary date of an appointment, a
9.4guardian shall send or deliver to the ward and to interested persons of record with the
9.5court a notice of the right to request termination or modification of the guardianship or to
9.6request an order that is in the best interests of the ward or for other appropriate relief, and
9.7notice of the status of the ward's right to vote.
9.8 Sec. 9. Minnesota Statutes 2008, section 524.5-315, is amended to read:
9.9524.5-315 RIGHTS AND IMMUNITIES OF GUARDIAN; LIMITATIONS.
9.10(a) A guardian is entitled to reasonable compensation for services as guardian and
9.11to reimbursement for expenditures made on behalf of the ward, in a manner consistent
9.12with section
9.13(b) A guardian is not liable to a third person for acts of the ward solely by reason
9.14of the relationship. A guardian who exercises reasonable care in choosing a third person
9.15providing medical or other care, treatment, or service for the ward is not liable for injury
9.16to the ward resulting from the wrongful conduct of the third person.
9.17(c)
9.18
9.19
9.20
9.21
9.22care directive of a ward or protected person absent a court order. A guardian may revoke
9.23the appointment of an agent of a health care directive for which the ward is the principal
9.24only under the following circumstances:
9.25(1) the agent was appointed in the previous 60 days;
9.26(2) multiple agents have been appointed; or
9.27(3) when a court has determined that the ward lacks capacity to appoint an agent of a
9.28health care directive and the court has expressly granted the guardian the power to give
9.29necessary consent to enable the ward to receive medical care, treatment, or service.
9.30In all other circumstances, the guardian may not revoke the appointment of an agent
9.31of a health care directive for which the ward is principal absent a court order. Unless the
9.32appointment of a health care directive is revoked in accordance with this section, a health
9.33care decision of the agent takes precedence over that of the guardian.
9.34(d) A guardian may not initiate the commitment of a ward to an institution except in
9.35accordance with section
10.1 Sec. 10. Minnesota Statutes 2008, section 524.5-316, is amended to read:
10.2524.5-316 REPORTS; MONITORING OF GUARDIANSHIP; COURT
10.3ORDERS.
10.4(a) A guardian shall report to the court in writing on the condition of the ward at least
10.5annually and whenever ordered by the court. A copy of the report must be provided to the
10.6ward and to interested persons of record with the court. A report must state or contain:
10.7(1) the current mental, physical, and social condition of the ward;
10.8(2) the living arrangements for all addresses of the ward during the reporting period;
10.9(3) any restrictions placed on the ward's right to communication and visitation with
10.10persons of the ward's choice and the factual bases for those restrictions;
10.11
10.12and the guardian's opinion as to the adequacy of the ward's care; and
10.13
10.14recommended changes in the scope of the guardianship.
10.15(b) A ward or interested person of record with the court may submit to the court a
10.16written statement disputing statements or conclusions regarding the condition of the ward
10.17that are contained in the report and may petition the court for an order that is in the best
10.18interests of the ward or for other appropriate relief.
10.19(c) The court may appoint a visitor to review a report, interview the ward or
10.20guardian, and make any other investigation the court directs.
10.21
10.22filing and review of annual reports. If an annual report is not filed within 60 days of the
10.23required date, the court shall issue an order to show cause.
10.24 Sec. 11. Minnesota Statutes 2008, section 524.5-317, is amended to read:
10.25524.5-317 TERMINATION OR MODIFICATION OF GUARDIANSHIP;
10.26COURT ORDERS.
10.27(a) A guardianship terminates upon the death of the ward or upon order of the court.
10.28(b) On petition of any person interested in the ward's welfare the court may terminate
10.29a guardianship if the ward no longer needs the assistance or protection of a guardian. The
10.30court may modify the type of appointment or powers granted to the guardian if the extent
10.31of protection or assistance previously granted is currently excessive or insufficient or the
10.32ward's capacity to provide for support, care, education, health, and welfare has so changed
10.33as to warrant that action. The court may make any other order that is in the best interests
10.34of the ward or may grant other appropriate relief.
11.1(c) Except as otherwise ordered by the court for good cause, the court, before
11.2terminating a guardianship, shall follow the same procedures to safeguard the rights of
11.3the ward as apply to a petition for guardianship. Upon presentation by the petitioner
11.4of evidence establishing a prima facie case for termination, the court shall order the
11.5termination and discharge the guardian unless it is proven that continuation of the
11.6guardianship is in the best interest of the ward.
11.7 Sec. 12. Minnesota Statutes 2008, section 524.5-406, is amended to read:
11.8524.5-406 ORIGINAL PETITION: PERSONS UNDER DISABILITY;
11.9PRELIMINARIES TO HEARING.
11.10(a) Upon the filing of a petition for a conservatorship or other protective order for a
11.11respondent for reasons other than being a minor, the court shall set a date for hearing and
11.12the court may appoint a visitor. The duties and reporting requirements of the visitor are
11.13limited to the relief requested in the petition.
11.14(b) A respondent has the right to be represented by counsel at any proceeding
11.15under this article. The court shall appoint counsel to represent the respondent for the
11.16initial proceeding held pursuant to section
11.17provide counsel, unless in a meeting with a visitor, the proposed respondent makes an
11.18informed decision in writing to specifically
11.19appointment, and at anytime during the course of the representation when a risk of a
11.20conflict of interest may arise, the proposed or appointed counsel shall disclose to the
11.21court, the proposed protected person or protected person, and interested persons whether
11.22there are concurrent proceedings in which the counsel is the attorney for the proposed
11.23conservator or conservator and whether there is a risk of a conflict of interest under
11.24Rule 1.7 of the Rules of Professional Conduct so that the representation of the proposed
11.25protected person or protected person will be materially limited by counsel's concurrent
11.26responsibilities to the proposed conservator or conservator. If there is a risk of a conflict of
11.27interest, the counsel must not be appointed, unless:
11.28(1) the court determines that the proposed protected person or protected person is
11.29able to give informed consent to the representation and, if the proposed protected person
11.30or protected person consents, the consent is confirmed in writing pursuant to Rule 1.7; or
11.31(2) the court determines that there is not a risk of a conflict of interest under Rule 1.7
11.32requiring the appointment of different counsel.
11.33Counsel must be appointed immediately after any petition under this part is served
11.34pursuant to section
11.35under this part, counsel shall:
11.36(1) consult with the respondent before any hearing;
12.1(2) be given adequate time to prepare for all hearings; and
12.2(3) continue to represent the respondent throughout any proceedings under section
12.4time for the order appointing conservator or the order dismissing a petition, or upon such
12.5other time or event as the court may direct.
12.6The court need not appoint counsel to represent the respondent on a voluntary
12.7petition, and the court may remove a court-appointed attorney at any time if the court finds
12.8that the respondent has made a knowing and intelligent waiver of the right to counsel
12.9or has obtained private counsel.
12.10(c) The visitor shall personally serve the notice and petition upon the respondent
12.11and shall offer to read the notice and petition to the respondent, and if so requested, the
12.12visitor shall read the notice and petition to such person. The visitor shall also interview the
12.13respondent in person, and to the extent that the respondent is able to understand:
12.14(1) explain to the respondent the substance of the petition and the nature, purpose,
12.15and effect of the proceeding;
12.16(2) if the appointment of a conservator is requested, inform the respondent of the
12.17general powers and duties of a conservator and determine the respondent's views regarding
12.18the proposed conservator, the proposed conservator's powers and duties, and the scope and
12.19duration of the proposed conservatorship;
12.20(3) inform the respondent of the respondent's rights, including the right to employ
12.21and consult with a lawyer at the respondent's own expense, and the right to request a
12.22court-appointed lawyer; and
12.23(4) inform the respondent that all costs and expenses of the proceeding, including
12.24respondent's attorney fees, will be paid from the respondent's estate.
12.25(d) In addition to the duties set out in paragraph (c), the visitor shall make any other
12.26investigations the court directs.
12.27(e) The visitor shall promptly file a report with the court which must include:
12.28(1) recommendations regarding the appropriateness of a conservatorship, including
12.29whether less restrictive means of intervention are available, the type of conservatorship,
12.30and, if a limited conservatorship, the powers and duties to be granted the limited
12.31conservator, and the assets over which the conservator should be granted authority;
12.32(2) a statement as to whether the respondent approves or disapproves of the proposed
12.33conservator, and the powers and duties proposed or the scope of the conservatorship; and
12.34(3) any other matters the court directs.
12.35(f) While a petition to establish a conservatorship or for another protective order
12.36is pending, after preliminary hearing and without notice to others, the court may make
13.1orders to preserve and apply the property of the respondent as may be required for the
13.2support of the respondent or individuals who are in fact dependent upon the respondent,
13.3and may appoint an agent to assist in that task.
13.4(g) Before the initial appointment, and annually within 30 days after the anniversary
13.5date of the appointment, the proposed conservator or conservator shall file an informational
13.6statement with the court. The statement must be a sworn affidavit containing the following
13.7information:
13.8(1) the person's educational background and relevant work and other experience;
13.9(2) an address and telephone number where the conservator can be contacted;
13.10(3) whether the person has ever been removed for cause from serving as a guardian
13.11or conservator and if so, the case number and court location;
13.12(4) any changes occurring that would affect the accuracy of information contained in
13.13the most recent criminal background study conducted pursuant to section 524.5-118; and
13.14(5) if applicable, the amount of reimbursement for services rendered to the protected
13.15person that the person has received during the previous year.
13.16 Sec. 13. Minnesota Statutes 2008, section 524.5-409, is amended to read:
13.17524.5-409 FINDINGS; ORDER OF APPOINTMENT.
13.18(a) The court may appoint a limited or unlimited conservator for a respondent only
13.19if it finds that:
13.20(1) by clear and convincing evidence, the individual is unable to manage property
13.21and business affairs because of an impairment in the ability to receive and evaluate
13.22information or make decisions, even with the use of appropriate technological assistance,
13.23or because the individual is missing, detained, or unable to return to the United States;
13.24(2) by a preponderance of evidence, the individual has property that will be wasted
13.25or dissipated unless management is provided or money is needed for the support, care,
13.26education, health, and welfare of the individual or of individuals who are entitled to the
13.27individual's support and that protection is necessary or desirable to obtain or provide
13.28money; and
13.29(3) the respondent's identified needs cannot be met by less restrictive means,
13.30including use of appropriate technological assistance.
13.31(b) Alternatively, the court, with appropriate findings, may enter any other
13.32appropriate order, or dismiss the proceeding.
13.33(c) The court, whenever feasible, shall grant to a conservator only those powers
13.34necessitated by the protected person's limitations and demonstrated needs and make
13.35appointive and other orders that will encourage the development of the protected person's
13.36maximum self-reliance and independence.
14.1(d) Within 14 days after an appointment, the conservator shall send or deliver to the
14.2protected person, if the protected person has attained 14 years of age and is not missing,
14.3detained, or unable to return to the United States, and counsel if represented at the hearing,
14.4a copy of the order of appointment accompanied by a notice which advises the protected
14.5person of the right to appeal the conservatorship appointment in the time and manner
14.6provided by the Rules of Appellate Procedure.
14.7(e) Each year, within 30 days after the anniversary date of an appointment, a
14.8conservator shall send or deliver to the protected person and to interested persons of
14.9record with the court a notice of the right to request termination or modification of the
14.10conservatorship or for any order that is in the best interests of the protected person or for
14.11other appropriate relief.
14.12(f) The appointment of a conservator or the entry of another protective order is not a
14.13determination of incapacity of the protected person.
14.14 Sec. 14. Minnesota Statutes 2008, section 524.5-413, is amended to read:
14.15524.5-413 WHO MAY BE CONSERVATOR; PRIORITIES.
14.16(a) Except as otherwise provided in paragraph (d), the court, in appointing a
14.17conservator, shall consider persons otherwise qualified in the following order of priority:
14.18(1) a conservator, guardian of the estate, or other like fiduciary appointed or
14.19recognized by an appropriate court of any other jurisdiction in which the protected person
14.20resides;
14.21(2) a person nominated as conservator by the respondent, including the respondent's
14.22most recent nomination made in a durable power of attorney, if the respondent has attained
14.2314 years of age and at the time of the nomination had sufficient capacity to express
14.24a preference;
14.25(3) an agent appointed by the respondent to manage the respondent's property under
14.26a durable power of attorney;
14.27(4) the spouse of the respondent;
14.28(5) an adult child of the respondent;
14.29(6) a parent of the respondent;
14.30(7) an adult with whom the respondent has resided for more than six months before
14.31the filing of the petition;
14.32(8) an adult who is related to the respondent by blood, adoption, or marriage; and
14.33(9) any other adult or a professional conservator.
14.34(b) A person having priority under paragraph (a), clause (1), (4), (5), or (6), may
14.35designate in writing a substitute to serve instead and thereby transfer the priority to the
14.36substitute.
15.1(c) The court, acting in the best interest of the protected person, may decline to
15.2appoint a person having priority and appoint a person having a lower priority or no
15.3priority. With respect to persons having equal priority, the court shall select the one it
15.4considers best qualified.
15.5(d) In any proceeding where the value of the personal property of the estate of the
15.6proposed protected person in the initial inventory of the estate filed by the conservator
15.7under section 524.5-419 is expected to be at least $10,000, the court shall require the
15.8conservator to post a bond. The bond requirement under this paragraph does not apply to
15.9conservators appointed before August 1, 2009, but shall apply as current conservatorships
15.10are reviewed by the court after August 1, 2009.
15.11(e) Any individual or agency which provides residence, custodial care, medical care,
15.12employment training, or other care or services for which they receive a fee may not be
15.13appointed as conservator unless related to the respondent by blood, marriage, or adoption.
15.14 Sec. 15. Minnesota Statutes 2008, section 524.5-414, is amended to read:
15.15524.5-414 PETITION FOR ORDER SUBSEQUENT TO APPOINTMENT.
15.16(a) A protected person or an interested person may file a petition in the appointing
15.17court for an order:
15.18(1) requiring bond or collateral or additional bond or collateral, or reducing bond;
15.19(2) requiring an accounting for the administration of the protected person's estate;
15.20(3) directing distribution;
15.21(4) removing the conservator and appointing a temporary or successor conservator;
15.22(5) modifying the type of appointment or powers granted to the conservator if
15.23the extent of protection or management previously granted is currently excessive or
15.24insufficient or the protected person's ability to manage the estate and business affairs
15.25has so changed as to warrant the action; or
15.26(6) acting in the protected person's best interests or granting other appropriate relief.
15.27(b) A conservator may petition the appointing court for instructions concerning
15.28fiduciary responsibility.
15.29(c) On notice and hearing the petition, the court may give appropriate instructions
15.30and make any appropriate order.
15.31(d) The court may, at its own discretion, waive the notice or hearing requirements
15.32for the relief requested in a petition filed under this section.
15.33 Sec. 16. Minnesota Statutes 2008, section 524.5-420, is amended to read:
15.34524.5-420 REPORTS; APPOINTMENT OF VISITOR; MONITORING;
15.35COURT ORDERS.
16.1(a) A conservator shall report to the court for administration of the estate annually
16.2unless the court otherwise directs, upon resignation or removal, upon termination of
16.3the conservatorship, and at other times as the court directs. An order, after notice and
16.4hearing, allowing an intermediate report of a conservator adjudicates liabilities concerning
16.5the matters adequately disclosed in the accounting. An order, after notice and hearing,
16.6allowing a final report adjudicates all previously unsettled liabilities relating to the
16.7conservatorship.
16.8(b) A report must state or contain a listing of the assets of the estate under the
16.9conservator's control and a listing of the receipts, disbursements, and distributions during
16.10the reporting period.
16.11(c) A protected person or an interested person of record with the court may submit to
16.12the court a written statement disputing account statements regarding the administration of
16.13the estate that are contained in the report and may petition the court for any order that is in
16.14the best interests of the protected person and the estate or for other appropriate relief.
16.15(d) The court may appoint a visitor to review a report or plan, interview the protected
16.16person or conservator, and make any other investigation the court directs. In connection
16.17with a report, the court may order a conservator to submit the assets of the estate to an
16.18appropriate examination to be made in a manner the court directs.
16.19
16.20including the filing and review of conservators' reports and plans. If an annual report is
16.21not filed within 60 days of the required date, the court shall issue an order to show cause."
16.22Delete the title and insert:
16.24relating to probate; modifying provisions governing guardians and conservators;
16.25providing for fees for central registration and use of fee proceeds; amending
16.26Minnesota Statutes 2008, sections 260C.331, subdivision 1; 524.5-102,
16.27subdivision 7, by adding a subdivision; 524.5-304; 524.5-309; 524.5-310;
16.28524.5-315; 524.5-316; 524.5-317; 524.5-406; 524.5-409; 524.5-413; 524.5-414;
16.29524.5-420; proposing coding for new law in Minnesota Statutes, chapter 524."
We request the adoption of this report and repassage of the bill.House Conferees: (Signed) Paul Thissen, Joe Mullery, Paul AndersonSenate Conferees: (Signed) Mee Moua, Ron Latz, David Hann