SF 321

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to probate; providing for background 
  1.3             investigations before appointment of guardians or 
  1.4             conservators; authorizing access to data on 
  1.5             substantiated maltreatment of vulnerable adults; 
  1.6             requiring professionals to file informational 
  1.7             statements with the court; authorizing courts to 
  1.8             establish competency and training requirements for 
  1.9             professionals; amending Minnesota Statutes 2000, 
  1.10            sections 525.539, by adding a subdivision; and 525.56, 
  1.11            subdivision 3; proposing coding for new law in 
  1.12            Minnesota Statutes, chapter 525. 
  1.13  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.14     Section 1.  Minnesota Statutes 2000, section 525.539, is 
  1.15  amended by adding a subdivision to read: 
  1.16     Subd. 8.  [PROFESSIONAL GUARDIAN OR 
  1.17  CONSERVATOR.] "Professional guardian or conservator" means a 
  1.18  person who acts as a guardian or conservator at the same time 
  1.19  for two or more wards or conservatees who are not related to the 
  1.20  guardian or conservator by blood or marriage. 
  1.21     Sec. 2.  [525.545] [BACKGROUND INVESTIGATIONS.] 
  1.22     Subdivision 1.  [WHEN REQUIRED.] (a) The investigation 
  1.23  required by this section may be done by: 
  1.24     (1) the court or its designee; or 
  1.25     (2) a county, if the guardian or conservator will be 
  1.26  performing services on behalf of the county. 
  1.27     (b) Prior to the appointment of a professional guardian or 
  1.28  conservator, the court or county shall conduct a criminal 
  1.29  history background check under this section unless a criminal 
  2.1   history background check has been conducted under this section 
  2.2   within the previous three years.  In addition, the court or 
  2.3   county shall determine whether the proposed guardian or 
  2.4   conservator has been the perpetrator of substantiated 
  2.5   maltreatment of a vulnerable adult.  If the guardian or 
  2.6   conservator is not an individual, the requirements of this 
  2.7   subdivision apply to all individuals currently employed by the 
  2.8   proposed guardian or conservator who will be responsible for 
  2.9   exercising powers and duties under the guardianship or 
  2.10  conservatorship.  If the court determines that it would be in 
  2.11  the best interests of the ward or conservatee to appoint a 
  2.12  guardian or conservator before the background investigation can 
  2.13  be completed, the court may make the appointment pending the 
  2.14  results of the background investigation. 
  2.15     (c) If the proposed guardian or conservator is not a 
  2.16  professional guardian or conservator, the court or county shall 
  2.17  determine whether the individual has been the perpetrator of 
  2.18  substantiated maltreatment of a vulnerable adult.  The court or 
  2.19  county may also conduct a criminal history background check 
  2.20  under this section. 
  2.21     Subd. 2.  [PROCEDURE; CRIMINAL HISTORY BACKGROUND 
  2.22  CHECK.] On request by a court or county, the superintendent of 
  2.23  the bureau of criminal apprehension shall conduct a criminal 
  2.24  history background check under this section.  The superintendent 
  2.25  shall retrieve data on crimes in the criminal justice 
  2.26  information system computers and conduct a search of the 
  2.27  national criminal records repository, including the criminal 
  2.28  justice data communications network.  The superintendent may 
  2.29  exchange fingerprints with the Federal Bureau of Investigation 
  2.30  for purposes of the criminal history background check.  The 
  2.31  superintendent shall recover the cost of the background check 
  2.32  through a fee charged to the proposed guardian or conservator.  
  2.33  If the guardian or conservator is not a professional guardian or 
  2.34  conservator, after appointment the fee may be recovered from the 
  2.35  estate of the ward or conservatee or from the county if the 
  2.36  guardian or conservator is performing services on behalf of the 
  3.1   county. 
  3.2      Subd. 3.  [FORM.] The superintendent of the bureau of 
  3.3   criminal apprehension shall develop a standardized form to be 
  3.4   used for requesting a background check under this section, which 
  3.5   must include: 
  3.6      (1) a notification to the proposed guardian or conservator 
  3.7   that the court or county will request the superintendent to 
  3.8   perform a background check under this section; 
  3.9      (2) a notification to the guardian or conservator of the 
  3.10  rights in subdivision 4; and 
  3.11     (3) a signed consent to conduct the background check. 
  3.12     If the court or county is requesting a search of the 
  3.13  national criminal records repository, the form must be 
  3.14  accompanied by the fingerprints of the guardian or conservator 
  3.15  on whom the background check is to be performed. 
  3.16     Subd. 4.  [RIGHTS.] The court or county shall notify a 
  3.17  guardian or conservator who is the subject of a background check 
  3.18  request that the guardian or conservator has the following 
  3.19  rights: 
  3.20     (1) the right to be informed that the court or county will 
  3.21  request a background check on the guardian or conservator for 
  3.22  purposes of determining whether the person's appointment would 
  3.23  be in the best interests of the ward or conservatee; 
  3.24     (2) the right to be informed of the results of the 
  3.25  background check and to obtain from the court or county a copy 
  3.26  of the background check report; 
  3.27     (3) the right to obtain from the superintendent any record 
  3.28  that forms the basis for the report; and 
  3.29     (4) the right to challenge the accuracy and completeness of 
  3.30  information contained in the report or record under section 
  3.31  13.04, subdivision 4. 
  3.32     Subd. 5.  [RESPONSE OF BUREAU.] The superintendent shall 
  3.33  respond in writing to a background check request within a 
  3.34  reasonable time not to exceed ten working days after receiving 
  3.35  the signed form under subdivision 3.  If a search is being done 
  3.36  of the national criminal records repository and that portion of 
  4.1   the background check is not completed, the superintendent shall 
  4.2   notify the court or county that the background check is not 
  4.3   complete and shall provide that portion of the background check 
  4.4   as soon as it is available.  
  4.5      Subd. 6.  [ACCESS TO DATA ON SUBSTANTIATED 
  4.6   MALTREATMENT.] Notwithstanding section 626.557, subdivision 12, 
  4.7   upon request a county or the commissioner of health or human 
  4.8   services shall provide data to a court or county conducting an 
  4.9   investigation under this section to determine whether a proposed 
  4.10  guardian or conservator has been the perpetrator of 
  4.11  substantiated maltreatment of a vulnerable adult.  The data must 
  4.12  include a statement as to whether the individual has been the 
  4.13  perpetrator of substantiated maltreatment and, if so, a copy of 
  4.14  the public portion of the investigation memorandum under section 
  4.15  626.557, subdivision 12, paragraph (b), clause (1). 
  4.16     Sec. 3.  [525.546] [PROFESSIONAL GUARDIAN OR CONSERVATOR 
  4.17  ANNUAL INFORMATIONAL STATEMENT; OPTIONAL REQUIREMENTS.] 
  4.18     Subdivision 1.  [WHEN REQUIRED.] A professional guardian or 
  4.19  conservator must file an informational statement with the court 
  4.20  administrator in each county where the person is currently 
  4.21  acting as a professional guardian or conservator.  The statement 
  4.22  must be filed before the person's initial appointment as a 
  4.23  professional guardian or conservator within a county and must be 
  4.24  updated on an annual basis.  If the professional guardian or 
  4.25  conservator is not an individual, the statement must also be 
  4.26  filed by each individual who is performing services under the 
  4.27  guardianship or conservatorship. 
  4.28     Subd. 2.  [FORM; CONTENTS.] The informational statement 
  4.29  under subdivision 1 must be a sworn affidavit containing the 
  4.30  following information: 
  4.31     (1) the person's educational background and professional 
  4.32  experience; 
  4.33     (2) at least three professional references; 
  4.34     (3) the names of the guardian's or conservator's current 
  4.35  wards or conservatees; 
  4.36     (4) the aggregate dollar value of all assets currently 
  5.1   under the guardian's or conservator's supervision; 
  5.2      (5) the guardian's or conservator's addresses and telephone 
  5.3   numbers for place of business and place of residence; 
  5.4      (6) whether the guardian or conservator has ever been 
  5.5   removed for cause as guardian or conservator or has resigned as 
  5.6   guardian or conservator in a specific case, the circumstances 
  5.7   causing that removal or resignation, and the case names, court 
  5.8   locations, and case numbers; 
  5.9      (7) the case names, court locations, and case numbers of 
  5.10  all guardianship or conservatorship cases that are closed for 
  5.11  which the professional guardian or conservator served as a 
  5.12  guardian or conservator within the previous five years; 
  5.13     (8) annual fees and expenses received by the guardian or 
  5.14  conservator for performing guardianship and conservatorship 
  5.15  services during the previous five years; and 
  5.16     (9) any other information required by the court. 
  5.17     Subd. 3.  [OPTIONAL TRAINING AND COMPETENCY 
  5.18  REQUIREMENT.] In addition to the requirements of this section, 
  5.19  the supreme court or a judicial district may establish 
  5.20  competency and training requirements or guidelines for 
  5.21  professional guardians or conservators and other criteria to be 
  5.22  used by courts in determining whether an appointment of a 
  5.23  professional guardian or conservator would be in the best 
  5.24  interests of a ward or conservatee. 
  5.25     Sec. 4.  Minnesota Statutes 2000, section 525.56, 
  5.26  subdivision 3, is amended to read: 
  5.27     Subd. 3.  The court may appoint a guardian of the person if 
  5.28  it determines that all the powers and duties listed in this 
  5.29  subdivision are needed to provide for the needs of the 
  5.30  incapacitated person.  The court may appoint a conservator of 
  5.31  the person if it determines that a conservator is needed to 
  5.32  provide for the needs of the incapacitated person through the 
  5.33  exercise of some, but not all, of the powers and duties listed 
  5.34  in this subdivision.  The duties and powers of a guardian or 
  5.35  those which the court may grant to a conservator of the person 
  5.36  include, but are not limited to: 
  6.1      (1) the power to have custody of the ward or conservatee 
  6.2   and the power to establish a place of abode within or without 
  6.3   the state, except as otherwise provided in this clause.  The 
  6.4   ward or conservatee or any person interested in the ward's or 
  6.5   conservatee's welfare may petition the court to prevent or to 
  6.6   initiate a change in abode.  A ward or conservatee may not be 
  6.7   admitted to a regional treatment center by the guardian or 
  6.8   conservator except (1): 
  6.9      (i) after a hearing pursuant to chapter 253B; 
  6.10     (2) (ii) for outpatient services; or 
  6.11     (3) (iii) for the purpose of receiving temporary care for a 
  6.12  specific period of time not to exceed 90 days in any calendar 
  6.13  year.; 
  6.14     (2)(i) the duty to provide for the ward's or conservatee's 
  6.15  care, comfort and maintenance needs, including food, clothing, 
  6.16  shelter, health care, social and recreational requirements, and, 
  6.17  whenever appropriate, training, education, and habilitation or 
  6.18  rehabilitation.  The guardian or conservator has no duty to pay 
  6.19  for these requirements out of personal funds.  Whenever possible 
  6.20  and appropriate, the guardian or conservator should meet these 
  6.21  requirements through governmental benefits or services to which 
  6.22  the ward or conservatee is entitled, rather than from the ward's 
  6.23  or conservatee's estate.  Failure to satisfy the needs and 
  6.24  requirements of this clause shall be grounds for removal of a 
  6.25  private guardian or conservator, but the guardian or conservator 
  6.26  shall have no personal or monetary liability.; and 
  6.27     (ii) the power to provide for the ward's or conservatee's 
  6.28  care, comfort, and maintenance needs in a manner consistent with 
  6.29  the standard of living and lifestyle of the ward or conservatee 
  6.30  before the guardianship or conservatorship was established, to 
  6.31  the extent money is reasonably available from the estate; 
  6.32     (3) the duty to take reasonable care of the ward's or 
  6.33  conservatee's clothing, furniture, vehicles, and other personal 
  6.34  effects, and, if other property requires protection, the power 
  6.35  to seek appointment of a guardian or conservator of the estate.  
  6.36  The guardian or conservator must give notice in the manner 
  7.1   required and to those persons specified in section 525.55 prior 
  7.2   to the disposition of the ward's or conservatee's clothing, 
  7.3   furniture, vehicles, or other personal effects.  The notice must 
  7.4   inform the person of the right to object to the disposition of 
  7.5   the property within ten days and to petition the court for a 
  7.6   review of the guardian's or conservator's proposed actions.  
  7.7   Notice of the objection must be served by mail or personal 
  7.8   service on the guardian or conservator and the ward or 
  7.9   conservatee unless the ward or conservatee be the objector.  The 
  7.10  guardian or conservator served with notice of an objection to 
  7.11  the disposition of the property may not dispose of the property 
  7.12  unless the court approves the disposition after a hearing.; 
  7.13     (4)(a)(i) the power to give any necessary consent to enable 
  7.14  the ward or conservatee to receive necessary medical or other 
  7.15  professional care, counsel, treatment or service, except that no 
  7.16  guardian or conservator may give consent for psychosurgery, 
  7.17  electroshock, sterilization, or experimental treatment of any 
  7.18  kind unless the procedure is first approved by order of the 
  7.19  court as provided in this clause.  The guardian or conservator 
  7.20  shall not consent to any medical care for the ward or 
  7.21  conservatee which violates the known conscientious, religious, 
  7.22  or moral belief of the ward or conservatee.; 
  7.23     (b) A (ii) if the guardian or conservator who believes a 
  7.24  procedure described in clause (4)(a) item (i) requiring prior 
  7.25  court approval to be is necessary for the proper care of the 
  7.26  ward or conservatee shall, the duty to petition the court for an 
  7.27  order and, in the case of a public guardianship or 
  7.28  conservatorship under chapter 252A, obtain the written 
  7.29  recommendation of the commissioner of human services.  The court 
  7.30  shall fix the time and place for the hearing and shall give 
  7.31  notice to the ward or conservatee and to the other persons 
  7.32  specified in section 525.55, subdivision 1.  The notice shall 
  7.33  comply with the requirements of, and be served in the manner 
  7.34  provided in section 525.55, subdivision 2.  The court shall 
  7.35  appoint an attorney to represent the ward or conservatee who is 
  7.36  not represented by counsel.  In every case the court shall 
  8.1   determine if the procedure is in the best interests of the ward 
  8.2   or conservatee.  In making its determination, the court shall 
  8.3   consider a written medical report which specifically considers 
  8.4   the medical risks of the procedure, whether alternative, less 
  8.5   restrictive methods of treatment could be used to protect the 
  8.6   best interests of the ward or conservatee, and any 
  8.7   recommendation of the commissioner of human services for a 
  8.8   public ward or conservatee.  The standard of proof is that of 
  8.9   clear and convincing evidence.; 
  8.10     (c) (iii) in the case of a petition for sterilization of a 
  8.11  mentally retarded ward or conservatee, the court shall appoint a 
  8.12  licensed physician, a psychologist who is qualified in the 
  8.13  diagnosis and treatment of mental retardation, and a social 
  8.14  worker who is familiar with the ward's or conservatee's social 
  8.15  history and adjustment or the case manager for the ward or 
  8.16  conservatee to examine or evaluate the ward or conservatee and 
  8.17  to provide written reports to the court.  The reports shall 
  8.18  indicate why sterilization is being proposed, whether 
  8.19  sterilization is necessary and is the least intrusive method for 
  8.20  alleviating the problem presented, and whether it is in the best 
  8.21  interests of the ward or conservatee.  The medical report shall 
  8.22  specifically consider the medical risks of sterilization, the 
  8.23  consequences of not performing the sterilization, and whether 
  8.24  alternative methods of contraception could be used to protect 
  8.25  the best interests of the ward or conservatee.; 
  8.26     (d) (iv) any conservatee whose right to consent to a 
  8.27  sterilization has not been restricted under this section or 
  8.28  section 252A.101, may be sterilized only if the conservatee 
  8.29  consents in writing or there is a sworn acknowledgment by an 
  8.30  interested person of a nonwritten consent by the conservatee.  
  8.31  The consent must certify that the conservatee has received a 
  8.32  full explanation from a physician or registered nurse of the 
  8.33  nature and irreversible consequences of the sterilization 
  8.34  operation.; and 
  8.35     (e) (v) a guardian or conservator or the public guardian's 
  8.36  designee who acts within the scope of authority conferred by 
  9.1   letters of guardianship under section 252A.101, subdivision 7, 
  9.2   and according to the standards established in this chapter or in 
  9.3   chapter 252A shall not be civilly or criminally liable for the 
  9.4   provision of any necessary medical care, including but not 
  9.5   limited to, the administration of psychotropic medication or the 
  9.6   implementation of aversive and deprivation procedures to which 
  9.7   the guardian or conservator or the public guardian's designee 
  9.8   has consented.; 
  9.9      (5) the power to approve or withhold approval of any 
  9.10  contract, except for necessities, which the ward or conservatee 
  9.11  may make or wish to make.; and 
  9.12     (6) the duty and power to exercise supervisory authority 
  9.13  over the ward or conservatee in a manner which limits civil 
  9.14  rights and restricts personal freedom only to the extent 
  9.15  necessary to provide needed care and services.