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SF 7

1st Engrossment - 88th Legislature (2013 - 2014) Posted on 04/03/2013 09:34am

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to protected persons; guardians and conservators; modifying provisions
related to the appointment of guardians and conservators; increasing background
study fee; modifying contents of annual reports made by guardians and
conservators; amending Minnesota Statutes 2012, sections 245C.32, subdivision
2; 524.5-118, subdivision 1, by adding a subdivision; 524.5-303; 524.5-316;
524.5-403; 524.5-420.

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

Section 1.

Minnesota Statutes 2012, section 245C.32, subdivision 2, is amended to read:


Subd. 2.

Use.

(a) The commissioner may also use these systems and records to
obtain and provide criminal history data from the Bureau of Criminal Apprehension,
criminal history data held by the commissioner, and data about substantiated maltreatment
under section 626.556 or 626.557, for other purposes, provided that:

(1) the background study is specifically authorized in statute; or

(2) the request is made with the informed consent of the subject of the study as
provided in section 13.05, subdivision 4.

(b) An individual making a request under paragraph (a), clause (2), must agree in
writing not to disclose the data to any other individual without the consent of the subject
of the data.

(c) The commissioner may recover the cost of obtaining and providing background
study data by charging the individual or entity requesting the study a fee of no more
than $20 per study. The fees collected under this paragraph are appropriated to the
commissioner for the purpose of conducting background studies.

new text begin (d) The commissioner shall recover the cost of obtaining background study data
required under section 524.5-118 through a fee of $22 per study for an individual who
has not lived outside Minnesota for the past ten years, and a fee of $37 for an individual
who has resided outside of Minnesota for any period during the ten years preceding the
background study. The commissioner shall recover, from the individual, any additional
fees charged by other states' licensing agencies that are associated with these data requests.
Fees under subdivision 3 also apply when criminal history data from the National Criminal
Records Repository is required.
new text end

Sec. 2.

Minnesota Statutes 2012, section 524.5-118, subdivision 1, is amended to read:


Subdivision 1.

When required; exception.

(a) The court shall require a background
study under this section:

(1) before the appointment of a guardian or conservator, unless a background study
has been done on the person under this section within the previous deleted text beginfivedeleted text end new text begintwo new text endyears; and

(2) once every deleted text beginfivedeleted text end new text begintwo new text endyears after the appointment, if the person continues to serve
as a guardian or conservator.

(b) The background study must includenew text begin:
new text end

new text begin (1)new text end criminal history data from the Bureau of Criminal Apprehension, other criminal
history data held by the commissioner of human services, and data regarding whether the
person has been a perpetrator of substantiated maltreatment of a vulnerable adult deleted text beginand a
deleted text end new text beginor new text endminordeleted text begin.deleted text endnew text begin;
new text end

deleted text begin (c) The court shall request a search of thedeleted text end new text begin(2) criminal history data from the new text endNational
Criminal Records Repository if the proposed guardian or conservator has not resided in
Minnesota for the previous deleted text beginfivedeleted text end new text beginten new text endyears or if the Bureau of Criminal Apprehension
information received from the commissioner of human services under subdivision 2,
paragraph (b), indicates that the subject is a multistate offender or that the individual's
multistate offender status is undetermined.

new text begin (3) state licensing agency data if the proposed guardian or conservator has ever been
denied a professional license in the state of Minnesota or elsewhere that is directly related
to the responsibilities of a professional fiduciary, or has ever held a professional license
directly related to the responsibilities of a professional fiduciary that was conditioned,
suspended, revoked, or canceled.
new text end

deleted text begin (d)deleted text endnew text begin (c)new text end If the guardian or conservator is not an individual, the background study must
be done on all individuals currently employed by the proposed guardian or conservator
who will be responsible for exercising powers and duties under the guardianship or
conservatorship.

deleted text begin (e)deleted text endnew text begin (d)new text end If the court determines that it would be in the best interests of the ward or
protected person to appoint a guardian or conservator before the background study can
be completed, the court may make the appointment pending the results of the studynew text begin,
however, the background study must then be completed as soon as reasonably possible
after appointment, no later than 30 days after appointment
new text end.

deleted text begin (f)deleted text endnew text begin (e)new text end The fee for conducting a background study for appointment of a professional
guardian or conservator must be paid by the guardian or conservator. In other cases,
the fee must be paid as follows:

(1) if the matter is proceeding in forma pauperis, the fee is an expense for purposes
of section 524.5-502, paragraph (a);

(2) if there is an estate of the ward or protected person, the fee must be paid from
the estate; or

(3) in the case of a guardianship or conservatorship of the person that is not
proceeding in forma pauperis, the court may order that the fee be paid by the guardian or
conservator or by the court.

deleted text begin (g)deleted text endnew text begin (f)new text end The requirements of this subdivision do not apply if the guardian or
conservator is:

(1) a state agency or county;

(2) a parent or guardian of a proposed ward or protected person who has a
developmental disability, if the parent or guardian has raised the proposed ward or
protected person in the family home until the time the petition is filed, unless counsel
appointed for the proposed ward or protected person under section 524.5-205, paragraph
(d)
; 524.5-304, paragraph (b); 524.5-405, paragraph (a); or 524.5-406, paragraph (b),
recommends a background study; or

(3) a bank with trust powers, bank and trust company, or trust company, organized
under the laws of any state or of the United States and which is regulated by the
commissioner of commerce or a federal regulator.

Sec. 3.

Minnesota Statutes 2012, section 524.5-118, is amended by adding a
subdivision to read:


new text begin Subd. 2a. new text end

new text begin Procedure; state licensing agency data. new text end

new text begin The court shall request the
commissioner of human services to provide the court within 25 working days of receipt of
the request with licensing agency data from the appropriate Minnesota licensing agencies,
which agencies shall provide such data to the commissioner within ten working days, upon
an e-mail request by the commissioner. The data provided by the commissioner to the court
shall include, as applicable, license number and status; original date of issue; last renewal
date; expiration date; date of the denial, condition, suspension, revocation, or cancellation;
the name of the licensing agency that denied, conditioned, suspended, revoked, or canceled
the license; and the basis for denial, condition, suspension, revocation, or cancellation
of the license. If the proposed guardian or conservator has resided in a state other than
Minnesota in the previous ten years, licensing agency data shall also include the licensing
agency data from any other state where the proposed guardian or conservator resided. If
the proposed guardian or conservator has or has had a professional license in another state
that is directly related to the responsibilities of a professional fiduciary, state licensing
agency data shall also include data from the relevant licensing agency of that state.
new text end

Sec. 4.

Minnesota Statutes 2012, section 524.5-303, is amended to read:


524.5-303 JUDICIAL APPOINTMENT OF GUARDIAN: PETITION.

(a) An individual or a person interested in the individual's welfare may petition for
a determination of incapacity, in whole or in part, and for the appointment of a limited
or unlimited guardian for the individual.

(b) The petition must set forth the petitioner's name, residence, current address if
different, relationship to the respondent, and interest in the appointment and, to the extent
known, state or contain the following with respect to the respondent and the relief requested:

(1) the respondent's name, age, principal residence, current street address, and, if
different, the address of the dwelling in which it is proposed that the respondent will
reside if the appointment is made;

(2) the name and address of the respondent's:

(i) spouse, or if the respondent has none, an adult with whom the respondent has
resided for more than six months before the filing of the petition; and

(ii) adult children or, if the respondent has none, the respondent's parents and adult
brothers and sisters, or if the respondent has none, at least one of the adults nearest in
kinship to the respondent who can be found;

(3) the name of the administrative head and address of the institution where the
respondent is a patient, resident, or client of any hospital, nursing home, home care
agency, or other institution;

(4) the name and address of any legal representative for the respondent;

(5) the name, address, and telephone number of any person nominated as guardian
by the respondent in any manner permitted by law, including a health care agent nominated
in a health care directive;

(6) the name, address, and telephone number of any proposed guardian and the
reason why the proposed guardian should be selected;

(7) the name and address of any health care agent or proxy appointed pursuant to
a health care directive as defined in section 145C.01, a living will under chapter 145B,
or other similar document executed in another state and enforceable under the laws of
this state;

(8) the reason why guardianship is necessary, including a brief description of the
nature and extent of the respondent's alleged incapacity;

(9) if an unlimited guardianship is requested, the reason why limited guardianship
is inappropriate and, if a limited guardianship is requested, the powers to be granted to
the limited guardian; and

(10) a general statement of the respondent's property with an estimate of its value,
including any insurance or pension, and the source and amount of any other anticipated
income or receipts.

(c) The petition must also set forth the following information regarding the proposed
guardian new text beginor any employee of the guardian responsible for exercising powers and duties
under the guardianship
new text end:

(1) whether the proposed guardian has ever been removed for cause from serving as
a guardian or conservator and, if so, the case number and court location; deleted text beginand
deleted text end

(2) if the proposed guardian is a professional guardiannew text begin or conservatornew text end, a summary of
the proposed guardian's educational background and relevant work and other experiencedeleted text begin.deleted text endnew text begin;
new text end

new text begin (3) whether the proposed guardian has ever applied for or held, at any time, any
professional license, and if so, the name of the licensing agency, and as applicable, the
license number and status; whether the license is active or has been denied, conditioned,
suspended, revoked, or canceled; and the basis for the denial, condition, suspension,
revocation, or cancellation of the license;
new text end

new text begin (4) whether the proposed guardian has ever been found civilly liable in an action
that involved fraud, misrepresentation, material omission, misappropriation, theft, or
conversion, and if so, the case number and court location;
new text end

new text begin (5) whether the proposed guardian has ever filed for or received protection under the
bankruptcy laws, and if so, the case number and court location;
new text end

new text begin (6) whether the proposed guardian has any outstanding civil monetary judgments
against the proposed guardian, and if so, the case number, court location, and outstanding
amount owed;
new text end

new text begin (7) whether an order for protection or harassment restraining order has ever been
issued against the proposed guardian, and if so, the case number and court location; and
new text end

new text begin (8) whether the proposed guardian has ever been convicted of a crime other than a
petty misdemeanor or traffic offense, and if so, the case number and the crime of which
the guardian was convicted.
new text end

Sec. 5.

Minnesota Statutes 2012, section 524.5-316, is amended to read:


524.5-316 REPORTS; MONITORING OF GUARDIANSHIP; COURT
ORDERS.

(a) A guardian shall report to the court in writing on the condition of the ward at least
annually and whenever ordered by the court. A copy of the report must be provided to the
ward and to interested persons of record with the court. A report must state or contain:

(1) the current mental, physical, and social condition of the ward;

(2) the living arrangements for all addresses of the ward during the reporting period;

(3) any restrictions placed on the ward's right to communication and visitation with
persons of the ward's choice and the factual bases for those restrictions;

(4) the medical, educational, vocational, and other services provided to the ward and
the guardian's opinion as to the adequacy of the ward's care;

(5) a recommendation as to the need for continued guardianship and any
recommended changes in the scope of the guardianship;

(6) an address and telephone number where the guardian can be contacted;new text begin and
new text end

deleted text begin (7) whether the guardian has ever been removed for cause from serving as a guardian
or conservator and, if so, the case number and court location;
deleted text end

deleted text begin (8) any changes occurring that would affect the accuracy of information contained
in the most recent criminal background study of the guardian conducted under section
524.5-118; and
deleted text end

deleted text begin (9)deleted text endnew text begin (7)new text end if applicable, the amount of reimbursement for services rendered to the ward
that the guardian received during the previous year that were not reimbursed by county
contract.

new text begin (b) A guardian shall report to the court in writing within 30 days of the occurrence
of any of the events listed in this subdivision. The guardian must report any of the
occurrences in this subdivision and follow the same reporting requirements in this
subdivision for any employee of the guardian responsible for exercising powers and
duties under the guardianship. A copy of the report must be provided to the ward and to
interested persons of record with the court. A guardian shall report when:
new text end

new text begin (1) the guardian is removed for cause from serving as a guardian or conservator, and
if so, the case number and court location;
new text end

new text begin (2) the guardian has a professional license denied, conditioned, suspended, revoked,
or canceled, and if so, the licensing agency and license number, and the basis for denial,
condition, suspension, revocation, or cancellation of the license;
new text end

new text begin (3) the guardian is found civilly liable in an action that involves fraud,
misrepresentation, material omission, misappropriation, theft, or conversion, and if so, the
case number and court location;
new text end

new text begin (4) the guardian files for or receives protection under the bankruptcy laws, and
if so, the case number and court location;
new text end

new text begin (5) a civil monetary judgment is entered against the guardian, and if so, the case
number, court location, and outstanding amount owed;
new text end

new text begin (6) the guardian is convicted of a crime other than a petty misdemeanor or traffic
offense, and if so, the case number and court location; or
new text end

new text begin (7) an order for protection or harassment restraining order is issued against the
guardian, and if so, the case number and court location.
new text end

deleted text begin (b)deleted text endnew text begin (c)new text end A ward or interested person of record with the court may submit to the court a
written statement disputing statements or conclusions regarding the condition of the ward
new text beginor addressing any disciplinary or legal action new text endthat deleted text beginaredeleted text endnew text begin isnew text end contained in the deleted text beginreportdeleted text endnew text begin guardian's
reports
new text end and may petition the court for an order that is in the best interests of the ward or
for other appropriate relief.

deleted text begin (c)deleted text endnew text begin (d)new text end An interested person may notify the court in writing that the interested person
does not wish to receive copies of reports required under this section.

deleted text begin (d)deleted text endnew text begin (e)new text end The court may appoint a visitor to review a report, interview the ward or
guardian, and make any other investigation the court directs.

deleted text begin (e)deleted text endnew text begin (f)new text end The court shall establish a system for monitoring guardianships, including the
filing and review of annual reports. If an annual report is not filed within 60 days of the
required date, the court shall issue an order to show cause.

new text begin (g) If a guardian fails to comply with this section, the court may decline to appoint that
person as a guardian or conservator, or may remove a person as guardian or conservator.
new text end

Sec. 6.

Minnesota Statutes 2012, section 524.5-403, is amended to read:


524.5-403 ORIGINAL PETITION FOR APPOINTMENT OR PROTECTIVE
ORDER.

(a) The following may petition for the appointment of a conservator or for any
other appropriate protective order:

(1) the person to be protected;

(2) an individual interested in the estate, affairs, or welfare of the person to be
protected; or

(3) a person who would be adversely affected by lack of effective management of
the property and business affairs of the person to be protected.

(b) The petition must set forth the petitioner's name, residence, current address
if different, relationship to the respondent, and interest in the appointment or other
protective order, and, to the extent known, state or contain the following with respect to
the respondent and the relief requested:

(1) the respondent's name, age, principal residence, current street address, and, if
different, the address of the dwelling where it is proposed that the respondent will reside if
the appointment is made;

(2) if the petition alleges impairment in the respondent's ability to receive and
evaluate information, a brief description of the nature and extent of the respondent's
alleged impairment;

(3) if the petition alleges that the respondent is missing, detained, or unable to
return to the United States, a statement of the relevant circumstances, including the time
and nature of the disappearance or detention and a description of any search or inquiry
concerning the respondent's whereabouts;

(4) the name and address of the respondent's:

(i) spouse, or if the respondent has none, an adult with whom the respondent has
resided for more than six months before the filing of the petition; and

(ii) adult children or, if the respondent has none, the respondent's parents and adult
brothers and sisters or, if the respondent has none, at least one of the adults nearest in
kinship to the respondent who can be found;

(5) the name of the administrative head and address of the institution where the
respondent is a patient, resident, or client of any hospital, nursing home, home care
agency, or other institution;

(6) the name and address of any legal representative for the respondent;

(7) the name and address of any health care agent or proxy appointed pursuant to
a health care directive as defined in section 145C.01, a living will under chapter 145B,
or other similar document executed in another state and enforceable under the laws of
this state;

(8) a general statement of the respondent's property with an estimate of its value,
including any insurance or pension, and the source and amount of other anticipated
income or receipts; and

(9) the reason why a conservatorship or other protective order is in the best interest
of the respondent.

(c) If a conservatorship is requested, the petition must also set forth to the extent
known:

(1) the name, address, and telephone number of any proposed conservator and the
reason why the proposed conservator should be selected;

(2) the name, address, and telephone number of any person nominated as conservator
by the respondent if the respondent has attained 14 years of age; and

(3) the type of conservatorship requested and, if an unlimited conservatorship,
the reason why limited conservatorship is inappropriate or, if a limited conservatorship,
the property to be placed under the conservator's control and any limitation on the
conservator's powers and duties.

(d) The petition must also set forth the following information regarding the proposed
conservator new text beginor any employee of the conservator responsible for exercising powers and
duties under the conservatorship
new text end:

(1) whether the proposed conservator has ever been removed for cause from serving
as a guardian or conservator and, if so, the case number and court location; deleted text beginand
deleted text end

(2) if the proposed conservator is a professional new text beginguardian or new text endconservator, a summary
of the proposed conservator's educational background and relevant work and other
experiencedeleted text begin.deleted text endnew text begin;
new text end

new text begin (3) whether the proposed conservator has ever applied for or held, at any time, any
professional license, and if so, the name of the licensing agency, and as applicable, the
license number and status; whether the license is active or has been denied, conditioned,
suspended, revoked, or canceled; and the basis for the denial, condition, suspension,
revocation, or cancellation of the license;
new text end

new text begin (4) whether the proposed conservator has ever been found civilly liable in an action
that involved fraud, misrepresentation, material omission, misappropriation, theft, or
conversion, and if so, the case number and court location;
new text end

new text begin (5) whether the proposed conservator has ever filed for or received protection under
the bankruptcy laws, and if so, the case number and court location;
new text end

new text begin (6) whether the proposed conservator has any outstanding civil monetary judgments
against the proposed conservator, and if so, the case number, court location, and
outstanding amount owed;
new text end

new text begin (7) whether an order for protection or harassment restraining order has ever been
issued against the proposed conservator, and if so, the case number and court location; and
new text end

new text begin (8) whether the proposed conservator has ever been convicted of a crime other than
a petty misdemeanor or traffic offense, and if so, the case number and the crime of which
the conservator was convicted.
new text end

Sec. 7.

Minnesota Statutes 2012, section 524.5-420, is amended to read:


524.5-420 REPORTS; APPOINTMENT OF VISITOR; MONITORING;
COURT ORDERS.

(a) A conservator shall report to the court for administration of the estate annually
unless the court otherwise directs, upon resignation or removal, upon termination of the
conservatorship, and at other times as the court directs. An order, after notice and hearing,
allowing an intermediate report of a conservator adjudicates liabilities concerning the
matters adequately disclosed in the accounting. An order, after notice and hearing, allowing
a final report adjudicates all previously unsettled liabilities relating to the conservatorship.

(b) A report must state or contain a listing of the assets of the estate under the
conservator's control and a listing of the receipts, disbursements, and distributions during
the reporting period.

(c) The report must also statedeleted text begin:
deleted text end

deleted text begin (1)deleted text end an address and telephone number where the conservator can be contacteddeleted text begin;deleted text endnew text begin.
new text end

deleted text begin (2) whether the conservator has ever been removed for cause from serving as a
guardian or conservator and, if so, the case number and court locations; and
deleted text end

deleted text begin (3) any changes occurring that would affect the accuracy of information contained in
the most recent criminal background study of the conservator conducted under section
524.5-118.
deleted text end

new text begin (d) A conservator shall report to the court in writing within 30 days of the occurrence
of any of the events listed in this subdivision. The conservator must report any of the
occurrences in this subdivision and follow the same reporting requirements in this
subdivision for any employee of the conservator responsible for exercising powers and
duties under the conservatorship. A copy of the report must be provided to the protected
person and to interested persons of record with the court. A conservator shall report when:
new text end

new text begin (1) the conservator is removed for cause from serving as a guardian or conservator,
and if so, the case number and court location;
new text end

new text begin (2) the conservator has a professional license denied, conditioned, suspended,
revoked, or canceled, and if so, the licensing agency and license number, and the basis for
denial, condition, suspension, revocation, or cancellation of the license;
new text end

new text begin (3) the conservator is found civilly liable in an action that involves fraud,
misrepresentation, material omission, misappropriation, theft, or conversion, and if so, the
case number and court location;
new text end

new text begin (4) the conservator files for or receives protection under the bankruptcy laws, and
if so, the case number and court location;
new text end

new text begin (5) a civil monetary judgment is entered against the conservator, and if so, the case
number, court location, and outstanding amount owed;
new text end

new text begin (6) the conservator is convicted of a crime other than a petty misdemeanor or traffic
offense, and if so, the case number and court location; or
new text end

new text begin (7) an order for protection or harassment restraining order is issued against the
conservator, and if so, the case number and court location.
new text end

deleted text begin (d)deleted text endnew text begin (e)new text end A protected person or an interested person of record with the court may
submit to the court a written statement disputing account statements regarding the
administration of the estate new text beginor addressing any disciplinary or legal action new text endthat deleted text beginaredeleted text endnew text begin is
new text end contained in the deleted text beginreportdeleted text endnew text begin reportsnew text end and may petition the court for any order that is in the best
interests of the protected person and the estate or for other appropriate relief.

deleted text begin (e)deleted text endnew text begin (f)new text end An interested person may notify the court in writing that the interested person
does not wish to receive copies of reports required under this section.

deleted text begin (f)deleted text endnew text begin (g)new text end The court may appoint a visitor to review a report or plan, interview the
protected person or conservator, and make any other investigation the court directs. In
connection with a report, the court may order a conservator to submit the assets of the
estate to an appropriate examination to be made in a manner the court directs.

deleted text begin (g)deleted text endnew text begin (h)new text end The court shall establish a system for monitoring of conservatorships,
including the filing and review of conservators' reports and plans. If an annual report is
not filed within 60 days of the required date, the court shall issue an order to show cause.

new text begin (i) If a conservator fails to comply with this section, the court may decline to appoint
that person as a guardian or conservator, or may remove a person as guardian or conservator.
new text end