SF 1969

1st Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to civil law; providing for certain
conservator's transactions; amending Minnesota
Statutes 2004, sections 524.5-417; 524.5-423.

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

Section 1.

Minnesota Statutes 2004, section 524.5-417, is
amended to read:

524.5-417 GENERAL POWERS AND DUTIES OF CONSERVATOR.

(a) A conservator 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 conservator only those
powers necessary to provide for the demonstrated needs of the
protected person.

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

(1) the duty to pay the reasonable charges for the support,
maintenance, and education of the protected person in a manner
suitable to the protected person's station in life and the value
of the estate. Nothing herein contained shall release parents
from obligations imposed by law for the support, maintenance,
and education of their children. The conservator has no duty to
pay for these requirements out of personal funds. Wherever
possible and appropriate, the conservator should meet these
requirements through governmental benefits or services to which
the protected person is entitled, rather than from the protected
person's estate. Failure to satisfy the needs and requirements
of this section shall be grounds for removal, but the
conservator shall have no personal or monetary liability;

(2) the duty to pay out of the protected person's estate
all lawful debts of the protected person and the reasonable
charges incurred for the support, maintenance, and education of
the protected person's spouse and dependent children and, upon
order of the court, pay such sum as the court may fix as
reasonable for the support of any person unable to earn a
livelihood who is legally entitled to support from the protected
person;

(3) the duty to possess and manage the estate, collect all
debts and claims in favor of the protected person, or, with the
approval of the court, compromise them, institute suit on behalf
of the protected person and represent the protected person in
any court proceedings, and invest all funds not currently needed
for the debts and charges named in clauses (1) and (2) and the
management of the estate, in accordance with the provisions of
sections 48A.07, subdivision 6, and 501B.151, new text begin 524.5-423, new text end or as
otherwise ordered by the court. The standard of a fiduciary
shall be applicable to all investments by a conservator. A
conservator shall also have the power to purchase certain
contracts of insurance as provided in section 50.14, subdivision
14, clause (b);

(4) where a protected person has inherited an undivided
interest in real estate, the court, on a showing that it is for
the best interest of the protected person, may authorize an
exchange or sale of the protected person's interest or a
purchase by the protected person of any interest other heirs may
have in the real estate, subject to the procedures and notice
requirements of section 524.5-418;

(5) the power to approve or withhold approval of any
contract, except for necessities, which the protected person may
make or wish to make; and

(6) the power to apply on behalf of the protected person
for any assistance, services, or benefits available to the
protected person through any unit of government.

(d) The conservator shall have the power to revoke,
suspend, or terminate all or any part of a durable power of
attorney of which the protected person is the principal with the
same power the principal would have if the principal were not
incapacitated. If a durable power of attorney is in effect, a
decision of the conservator takes precedence over that of an
attorney-in-fact.

(e) Transaction set aside. If a protected person has made
a financial transaction or gift or entered into a contract
during the two-year period before establishment of the
conservatorship, the conservator may petition for court review
of the transaction, gift, or contract. If the court finds that
the protected person was incapacitated or subject to duress,
coercion, or undue influence when the transaction, gift, or
contract was made, the court may declare the transaction, gift,
or contract void except as against a bona fide transferee for
value and order reimbursement or other appropriate relief. This
paragraph does not affect any other right or remedy that may be
available to the protected person with respect to the
transaction, gift, or contract.

(f) After the filing of the petition, a certificate of the
district court certified to that fact may be filed for record
with the Minnesota secretary of state in the same manner as
provided in section 336.9-501. The certificate shall state that
a petition is pending and the name and address of the person for
whom a conservator is sought. If a conservator is appointed on
the petition, and if the conservatorship order removes or
restricts the right of the protected person to transfer property
or to contract, then all contracts except for necessaries, and
all transfers of personal property, tangible or intangible,
including, but not limited to, cash or securities transfers at
banks, brokerage houses, or other financial institutions, or
transfers of cash or securities, made by the protected person
after the filing and before the termination of the
conservatorship shall be voidable.

Sec. 2.

Minnesota Statutes 2004, section 524.5-423, is
amended to read:

524.5-423 SALE, ENCUMBRANCE, OR OTHER TRANSACTION
INVOLVING CONFLICT OF INTEREST.

Any transaction involving the conservatorship estate which
is affected by a conflict between the conservator's fiduciary
and personal interests is voidable unless the transaction is
expressly authorized by the court after notice to interested
persons. A transaction affected by a conflict between personal
and fiduciary interests includes any sale, encumbrance, or other
transaction involving the conservatorship estate entered into by
the conservator, the spouse, descendant, agent, or lawyer of a
conservator, or corporation or other enterprise in which the
conservator has a beneficial interest. new text begin Notwithstanding a
conflict between the conservator's fiduciary and personal
interests, the court has discretion to allow a transaction of
beneficial interest to the conservator, as long as the
conservator can prove that this transaction is primarily in the
best interest of the protected person.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2005,
and shall include all proceedings open or pending on that date.
new text end