Minnesota Session Laws - 1987, Regular Session

  

                         Laws of Minnesota 1987 

                        CHAPTER 185-H.F.No. 931 
           An act relating to public guardianship; modifying 
          standards and procedures for the appointment of public 
          guardians for mentally retarded persons; providing for 
          powers and duties of public guardians; amending 
          Minnesota Statutes 1986, sections 252.291, subdivision 
          3; 252A.01; 252A.02, subdivisions 2, 4, 6, 7, 8, 11, 
          12, and by adding subdivisions; 252A.03, subdivisions 
          2 and 3; 252A.04, subdivisions 1 and 3; 252A.05; 
          252A.06; 252A.07, subdivisions 1 and 3; 252A.14; 
          252A.16; 252A.17; 252A.19, subdivisions 1, 2, and 3, 
          and by adding a subdivision; 252A.20, subdivision 1; 
          252A.21, subdivision 2; 253B.03, subdivisions 1 and 6; 
          and 525.56, subdivision 3; proposing coding for new 
          law in Minnesota Statutes, chapter 252A; repealing 
          Minnesota Statutes 1986, sections 252A.08; 252A.10; 
          252A.11;  252A.13; 252A.15; and 252A.18. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 

                               ARTICLE 1  

                          PUBLIC GUARDIANSHIP 
    Section 1.  Minnesota Statutes 1986, section 252A.01, is 
amended to read:  
    252A.01 [POLICY AND CITATION.] 
    Subdivision 1.  [POLICY.] (a) It is the policy of the state 
of Minnesota to provide a coordinated approach to the 
supervision, protection and habilitation of its adult mentally 
retarded citizens.  In furtherance of this policy, sections 
252A.01 to 252A.21 are enacted to authorize the commissioner of 
human services to: 
    (1) supervise those adult mentally retarded citizens who 
are unable to fully provide for their own needs and for whom no 
qualified person is willing and able to seek private 
guardianship or conservatorship under sections 525.539 to 
525.705; and 
    (2) to protect such adult mentally retarded persons from 
violation of their human and civil rights by assuring that such 
individuals they receive the full range of needed social, 
financial, residential and habilitative services to which they 
are lawfully entitled.  
    (b) Public guardianship or conservatorship is the most 
restrictive form of guardianship or conservatorship and should 
be imposed only when no other acceptable alternative is 
available.  
    Subd. 2.  [CITATION.] Sections 252A.01 to 252A.21 may be 
cited as the "Minnesota public guardianship for adults with 
mental retardation protection act."  
    Sec. 2.  Minnesota Statutes 1986, section 252A.02, 
subdivision 2, is amended to read: 
    Subd. 2.  [MENTALLY RETARDED PERSON.] "Mentally retarded 
person" refers to any person age 18 or older who has been 
diagnosed as having significantly subaverage intellectual 
functioning existing concurrently with demonstrated deficits in 
adaptive behavior such as to require supervision and protection 
for the person's welfare or the public welfare.  
    Sec. 3.  Minnesota Statutes 1986, section 252A.02, 
subdivision 4, is amended to read: 
    Subd. 4.  [REGIONAL CENTER.] "State institution Regional 
center" means a state school or hospital or other residential 
facility operated by the state of Minnesota or any other state 
state-operated facility for persons with mental illness, mental 
retardation, or chemical dependency that is under the direct 
administrative authority of the commissioner.  
    Sec. 4.  Minnesota Statutes 1986, section 252A.02, 
subdivision 6, is amended to read:  
    Subd. 6.  [NEAR RELATIVE.] "Near relative" means a spouse, 
parent, brother, sister adult sibling, or adult child.  
    Sec. 5.  Minnesota Statutes 1986, section 252A.02, 
subdivision 7, is amended to read: 
    Subd. 7.  [PUBLIC GUARDIAN.] "Public guardian" means the 
commissioner of human services when exercising all the powers 
designated in article 1, section 252A.11 22. 
    Sec. 6.  Minnesota Statutes 1986, section 252A.02, 
subdivision 8, is amended to read: 
    Subd. 8.  [PUBLIC CONSERVATOR.] "Public conservator" means 
the commissioner of human services when exercising some, but not 
all the powers designated in article 1, section 252A.11 22.  
    Sec. 7.  Minnesota Statutes 1986, section 252A.02, 
subdivision 11, is amended to read:  
    Subd. 11.  [INTERESTED PERSON.] "Interested person" means 
an interested responsible adult, including, but not limited to, 
a public official, guardian, spouse, parent, adult sibling, 
legal counsel, adult child or next of kin of an allegedly 
mentally retarded person.  
    Sec. 8.  Minnesota Statutes 1986, section 252A.02, 
subdivision 12, is amended to read:  
    Subd. 12.  [COMPREHENSIVE EVALUATION.] "Comprehensive 
evaluation" shall consist of: 
    (1) a diagnosis of a proposed ward's physical 
condition medical report on the health status and physical 
condition of the proposed ward, prepared under the direction of 
a licensed physician,; 
    (2) a report on the proposed ward's intellectual capacity 
and functional abilities, specifying the tests and other data 
used in reaching its conclusions, prepared by a psychologist who 
is qualified in the diagnosis and treatment of mental 
retardation,; and 
    (3) a report on the proposed ward's social history and 
adjustment, prepared by a social worker who is experienced in 
working with mentally retarded persons.  The psychologist's 
report shall specify the tests and other data used in reaching 
its conclusions.  The social worker's report shall describe what 
educational, medical and social services have previously been 
made available to the person under review and shall specify the 
data used in reaching its conclusions.  The reports of the 
psychologist and social worker from the case manager that 
includes: 
    (i) the most current assessment of individual service needs 
as described in rules of the commissioner; 
    (ii) the most current individual service plan as described 
in rules of the commissioner; and 
    (iii) a description of contacts with and responses of near 
relatives of the proposed ward notifying them that a nomination 
for public guardianship has been made and advising them that 
they may seek private guardianship.  
    Each report shall contain recommendations as to the ability 
of the proposed ward to function in society without amount of 
assistance and supervision required by the proposed ward to 
function as independently as possible in society.  To be 
considered part of the comprehensive evaluation, reports must be 
completed no more than one year before filing the petition under 
section 252A.05.  
    Sec. 9.  Minnesota Statutes 1986, section 252A.02, is 
amended by adding a subdivision to read: 
    Subd. 13.  [CASE MANAGER.] "Case manager" means the person 
designated by the county board under rules of the commissioner 
to provide case management services. 
    Sec. 10.  Minnesota Statutes 1986, section 252A.02, is 
amended by adding a subdivision to read: 
    Subd. 14.  [LOCAL AGENCY.] "Local agency" means the agency 
designated by the county board of commissioners, human services 
boards, county welfare boards in the several counties of the 
state, or multicounty welfare boards or departments where those 
have been established under law. 
    Sec. 11.  Minnesota Statutes 1986, section 252A.02, is 
amended by adding a subdivision to read: 
    Subd. 15.  [VISITOR.] "Visitor" means a person who is 
trained in law, health care, or social work and is an officer, 
employee, or special appointee of the court with no personal 
interest in the proceedings. 
    Sec. 12.  Minnesota Statutes 1986, section 252A.03, 
subdivision 2, is amended to read:  
    Subd. 2.  [ACCEPTANCE OR REJECTION.] The commissioner shall 
accept or reject the nomination in writing within 15 20 working 
days of the receipt of a comprehensive evaluation provided for 
in section 252A.04. The commissioner's acceptance shall be 
binding upon the commissioner and successors.  Acceptance of a 
nomination shall confer no authority on the commissioner unless 
affirmed at a judicial hearing.  Rejection of a nomination by 
the commissioner shall not bar the filing of a petition pursuant 
to section 252A.06. 
    Sec. 13.  Minnesota Statutes 1986, section 252A.03, 
subdivision 3, is amended to read:  
    Subd. 3.  [STANDARD FOR ACCEPTANCE.] The commissioner shall 
accept the nomination if the psychologist's report contained in 
the comprehensive evaluation concludes that: 
    (1) the alleged mentally retarded person alleged to have 
mental retardation is, in fact, mentally retarded and if the 
comprehensive evaluation concludes that such; 
    (2) the person is in need of the supervision and protection 
of a conservator or guardian; and 
    (3) no qualified person is willing to assume private 
guardianship or conservatorship under sections 525.539 to 
525.705. 
    Sec. 14.  Minnesota Statutes 1986, section 252A.04, 
subdivision 1, is amended to read:  
    Subdivision 1.  [LOCAL AGENCY.] Upon receipt of a written 
nomination, the commissioner shall promptly order the local 
agency of the county welfare department in which the proposed 
ward resides to coordinate or arrange for a comprehensive 
evaluation of the proposed ward.  The evaluation shall be 
conducted in a public or private hospital, school, mental health 
center or other suitable and appropriate facility. 
    Sec. 15.  Minnesota Statutes 1986, section 252A.04, 
subdivision 3, is amended to read:  
    Subd. 3.  [TIME.] The county welfare department local 
agency shall prepare and forward the comprehensive evaluation to 
the commissioner within 90 days of the date the commissioner 
orders the evaluation. 
    Sec. 16.  Minnesota Statutes 1986, section 252A.05, is 
amended to read:  
    252A.05 [COMMISSIONER'S PETITION FOR APPOINTMENT AS PUBLIC 
GUARDIAN OR PUBLIC CONSERVATOR.] 
    In every case on agreeing in which the commissioner agrees 
to accept a nomination, the commissioner local agency, within 15 
20 working days of such receipt of the commissioner's 
acceptance, shall petition on behalf of the commissioner in the 
county or probate court of the county of residence of the 
mentally retarded person for appointment to act as public 
conservator or public guardian of the mentally retarded person.  
    Sec. 17.  Minnesota Statutes 1986, section 252A.06, is 
amended to read:  
    252A.06 [CONTENTS OF PETITION FOR APPOINTMENT OF PUBLIC 
GUARDIAN OR PUBLIC CONSERVATOR.] 
    Subdivision 1.  [WHO MAY FILE.] The commissioner, the local 
agency, a mentally retarded person or any parent, spouse or 
relative of a mentally retarded person may file a verified 
petition alleging that the appointment of a public conservator 
or public guardian is required.  If the commissioner brings the 
petition after accepting the nomination as conservator or 
guardian, the petition shall so state and shall set forth the 
name and address of the nominating person.  
    Subd. 2.  [CONTENTS.] The petition shall set forth: 
    (a) (1) the name and address of the petitioner, and, in the 
case of a petition brought by a person other than the 
commissioner, whether the petitioner is a parent, spouse, or 
relative of the proposed ward; 
    (2) whether the commissioner has accepted a nomination to 
act as public conservator or public guardian; 
    (b) (3) the name and, address, and date of birth of the 
proposed ward; 
    (c) (4) the names and addresses of the nearest relatives 
and spouse, if any, of the proposed ward; 
    (d) (5) the probable value and general character of the 
proposed ward's real and personal property and the probable 
amount of the proposed ward's debts; and 
    (e) (6) the reasons and supporting facts why supporting 
the establishment of public conservatorship or guardianship 
should be awarded, including that no family member or other 
qualified individual is willing to assume private guardianship 
or conservatorship responsibilities under sections 525.539 to 
525.705; and 
    (7) if conservatorship is requested, the powers the 
petitioner believes are necessary to protect and supervise the 
proposed conservatee. 
    Sec. 18.  Minnesota Statutes 1986, section 252A.07, 
subdivision 1, is amended to read:  
    Subdivision 1.  [WITH PETITION.] When a petition is brought 
by the commissioner following acceptance of nomination or local 
agency, a copy of the comprehensive evaluation shall be filed 
with the petition.  If a petition is brought by a person other 
than the commissioner or local agency and a comprehensive 
evaluation has been prepared within a year of the filing of the 
petition, the commissioner local agency shall forward a copy of 
the comprehensive evaluation to the court upon notice of the 
filing of said the petition.  If a comprehensive evaluation has 
not been prepared within a year of the filing of the petition, 
the commissioner local agency, upon notice of the filing of said 
the petition, shall arrange for a comprehensive evaluation to be 
prepared and forwarded to the court within 90 days. 
    Sec. 19.  Minnesota Statutes 1986, section 252A.07, 
subdivision 3, is amended to read:  
    Subd. 3.  [EVALUATION REQUIRED; EXCEPTION.] No action for 
the appointment of a public guardian may proceed to hearing 
unless a comprehensive evaluation has been first filed with the 
court; provided, however, that such an action may proceed and a 
guardian appointed if the director of the county welfare 
department local agency responsible for conducting the 
comprehensive evaluation has filed an affidavit that the 
proposed ward refused to participate in the comprehensive 
evaluation and the court finds on the basis of clear and 
convincing evidence that the proposed ward is mentally retarded 
and in need of the supervision and protection of a guardian. 
    Sec. 20.  [252A.081] [NOTICE OF HEARING.] 
    Subdivision 1.  [GENERAL.] Except as otherwise provided in 
this section, section 525.55 applies to a notice of hearing for 
public guardianship. 
    Subd. 2.  [SERVICE OF NOTICE.] Service of notice on the 
ward or proposed ward must be made by a nonuniformed person.  To 
the extent possible, the process server or visitor shall explain 
the document's meaning to the proposed ward.  In addition to the 
persons required to be served under section 525.55, subdivision 
1, the mailed notice of the hearing must be served on the 
commissioner, the local agency, and the county attorney.  
    Subd. 3.  [ATTORNEY.] In place of the notice of attorney 
provisions in section 525.55, subdivision 2, the notice must 
state that the court will appoint an attorney for the proposed 
ward unless an attorney is provided by other persons. 
    Subd. 4.  [SERVICE OF PETITION ON COMMISSIONER.] When a 
petition has been filed by a person other than the commissioner, 
the court shall promptly forward a copy of the petition and any 
other documents filed with or issued by the court to the 
commissioner. 
    Subd. 5.  [DEFECTIVE NOTICE OF SERVICE.] A defect in the 
service of notice or process, other than personal service upon 
the proposed ward or conservatee or service upon the 
commissioner and local agency within the time allowed and the 
form prescribed in this section and section 525.55, does not 
invalidate any public guardianship or conservatorship 
proceedings. 
    Sec. 21.  [252A.101] [HEARING.] 
    Subdivision 1.  [GENERAL.] Except as otherwise provided in 
this section, section 525.551, subdivisions 1 to 4, apply to 
public guardianship hearings. 
    Subd. 2.  [WAIVER OF PRESENCE.] The proposed ward may waive 
the right to be present at the hearing only if the proposed ward 
has met with counsel and specifically waived the right to appear.
    Subd. 3.  [MEDICAL CARE.] If, at the time of the hearing, 
the proposed ward has been under medical care, the ward has the 
same rights regarding limitation on the use of drugs, 
medication, or other treatment before the hearing that are 
available under section 252A.04, subdivision 2. 
    Subd. 4.  [COUNTY ATTORNEY.] The county attorney shall 
appear and represent the petitioner upon the request of the 
court or the petitioner.  The petitioner must be notified of the 
right to request that the county attorney appear.  The attorney 
general may appear and represent the commissioner in any 
proceedings brought under this chapter. 
    Subd. 5.  [FINDINGS.] (a) In all cases the court shall make 
specific written findings of fact, conclusions of law, and 
direct entry of an appropriate judgment or order.  The court 
shall order the appointment of the commissioner as guardian or 
conservator if it finds that: 
     (1) the proposed ward or conservatee is a mentally retarded 
person as defined in section 252A.02, subdivision 2; 
     (2) the proposed ward or conservatee is incapable of 
exercising specific legal rights, which must be enumerated in 
its findings; 
     (3) the proposed ward or conservatee is in need of the 
supervision and protection of a guardian or conservator; and 
    (4) no appropriate alternatives to public guardianship or 
public conservatorship exist that are less restrictive of the 
person's civil rights and liberties, such as appointing a 
guardian or conservator under sections 525.539 to 525.705. 
     (b) The court shall grant the specific powers that are 
necessary for the commissioner to act as public guardian or 
conservator on behalf of the ward or conservatee. 
    Subd. 6.  [NOTICE OF ORDER; APPEAL.] A copy of the order 
shall be served by mail upon the ward or conservatee and the 
ward's counsel.  The order must be accompanied by a notice that 
advises the ward or conservatee of the right to appeal the 
guardianship or conservatorship appointment within 30 days. 
    Subd. 7.  [LETTERS OF GUARDIANSHIP.] Letters of 
guardianship or conservatorship must be issued by the court and 
contain: 
    (1) the name, address, and telephone number of the person 
delegated by the commissioner to act as the guardian or 
conservator; 
    (2) the name, address, and telephone number of the ward or 
conservatee; and 
    (3) the powers to be exercised on behalf of the ward or 
conservatee. 
    The letters must be served by mail upon the ward or 
conservatee, the ward's counsel, the commissioner, and the local 
agency. 
    Subd. 8.  [DISMISSAL.] If upon the completion of the 
hearing and consideration of the record, the court finds that 
the proposed ward is not mentally retarded or is mentally 
retarded but not in need of the supervision and protection of a 
conservator or guardian, it shall dismiss the application and 
shall notify the proposed ward, the ward's counsel, and the 
petitioner. 
    Sec. 22.  [252A.111] [POWERS AND DUTIES OF PUBLIC GUARDIAN 
OR CONSERVATOR.] 
    Subdivision 1.  [GENERAL.] Except as otherwise provided in 
this section, section 525.56, subdivisions 1 to 3, apply to the 
powers and duties of a public guardian or conservator. 
    Subd. 2.  [ADDITIONAL POWERS.] In addition to the powers 
contained in section 525.56, subdivision 3, the powers of a 
public guardian or those that the court may grant to a public 
conservator include: 
    (1) the power to permit or withhold permission for the ward 
to marry; 
    (2) the power to begin legal action or defend against legal 
action in the name of the ward; and 
    (3) the power to consent to the adoption of the ward as 
provided in section 259.24. 
    Subd. 3.  [SPECIAL TREATMENT SERVICES.] The public guardian 
shall obtain the concurrence of the local agency and the chief 
executive officer or designee of the hospital before a ward may 
receive outpatient services or temporary care from a regional 
treatment center.  The ward may not receive these services or 
care for a period exceeding 90 days in any calendar year unless 
the ward is committed under chapter 253B.  Services must be 
provided under an individual service plan and individual 
habilitation plan as required under rules of the commissioner.  
The plans must be completed within ten working days of the first 
admission in the calendar year. 
     Subd. 4.  [APPOINTMENT OF GUARDIAN OR CONSERVATOR OF THE 
ESTATE.] If the ward has a personal estate beyond that which is 
necessary for the ward's personal and immediate needs, the 
commissioner shall determine whether a guardian of the estate 
has been appointed for the ward.  If no guardian of the estate 
has been appointed, the commissioner, after consulting with the 
parents, spouse, or nearest relative of the ward, may petition 
the probate court for the appointment of a private guardian or 
conservator of the estate of the ward. 
    Subd. 5.  [LOCAL AGENCIES.] The commissioner may carry out 
the powers and duties prescribed by this chapter directly or 
through local agencies. 
    Subd. 6.  [SPECIAL DUTIES.] In exercising powers and duties 
under this chapter, the commissioner shall: 
    (1) maintain close contact with the ward, visiting at least 
twice a year; 
     (2) prohibit filming a ward in any way that would reveal 
the identity of the ward; 
    (3) take actions and make decisions on behalf of the ward 
that encourage and allow the maximum level of independent 
functioning in a manner least restrictive of the ward's personal 
freedom consistent with the need for supervision and protection; 
and 
    (4) permit and encourage maximum self-reliance on the part 
of the ward and permit and encourage input by the nearest 
relative of the ward in planning and decision making on behalf 
of the ward. 
    Sec. 23.  Minnesota Statutes 1986, section 252A.14, is 
amended to read:  
    252A.14 [COMMISSIONER AS ADVISOR.] 
    The commissioner, acting through the county welfare 
departments local agency, shall seek out those mentally retarded 
persons who are not under state in need of guardianship and 
shall advise such persons them as to the availability of 
suitable services and assistance.  The provision of advice and 
guidance may be made without prior appointment by a court and 
shall not be dependent upon a finding of incompetency.  The 
provision of such services by the commissioner does not 
authorize the care, treatment, supervision or any control over 
any mentally retarded person. 
    Sec. 24.  Minnesota Statutes 1986, section 252A.16, is 
amended to read:  
    252A.16 [ANNUAL REVIEW.] 
    Subdivision 1.  [REVIEW REQUIRED.] The commissioner shall 
provide an annual review of the physical, mental and social 
adjustment and progress of every ward and conservatee.  A copy 
of this review shall be kept on file at the department of human 
services and may be inspected by the ward or conservatee, the 
ward's or conservatee's parents, spouse or relatives and such 
other persons as who receive the permission of the 
commissioner.  The review shall contain information required 
under rules of the commissioner.  
    Subd. 2.  [ASSESSMENT OF NEED FOR CONTINUED GUARDIANSHIP.] 
The commissioner shall annually review the legal status of each 
ward in light of the progress indicated in the annual review.  
If the commissioner determines the ward is no longer in need 
of public guardianship or conservatorship or is capable of 
functioning under a less restrictive conservatorship, the 
commissioner or local agency shall petition the court pursuant 
to section 252A.19 to restore the ward to capacity or for a 
modification of the court's previous order.  
    Sec. 25.  Minnesota Statutes 1986, section 252A.17, is 
amended to read:  
    252A.17 [EFFECT OF SUCCESSION IN OFFICE.] 
    The appointment by the court of the commissioner of human 
services as public conservator or guardian shall be by the title 
of the commissioner's office.  The authority of the commissioner 
as public conservator or guardian shall cease upon the 
termination of the commissioner's term of office and shall vest 
in a successor or successors in office without further court 
proceedings.  
    Sec. 26.  [252A.171] [TRANSFER OF VENUE.] 
    Section 525.57 applies to the transfer of venue in 
proceedings under this chapter.  Notice of a transfer of venue 
petition must be given to the persons and in the manner required 
by article 1, section 20.  
    Sec. 27.  Minnesota Statutes 1986, section 252A.19, 
subdivision 1, is amended to read:  
    Subdivision 1.  [COMMISSIONER TO SERVE.] The commissioner 
shall serve as public guardian or conservator with all the 
powers awarded pursuant to the guardianship or conservatorship, 
until termination or modification thereof by the court. 
    Sec. 28.  Minnesota Statutes 1986, section 252A.19, 
subdivision 2, is amended to read:  
    Subd. 2.  [PETITION.] The commissioner, ward or any 
interested person may petition the appointing court or the court 
to which venue has been transferred for an order to remove the 
guardianship or to limit or expand the powers of the 
conservatorship or to appoint a guardian or conservator under 
sections 525.539 to 525.705 or to restore the ward or 
conservatee to full legal capacity or to review de novo any 
decision made by the public guardian or public conservator for 
or on behalf of a ward or conservatee or for such any other 
order as the court may deem just and equitable.  
    Sec. 29.  Minnesota Statutes 1986, section 252A.19, 
subdivision 3, is amended to read: 
    Subd. 3.  [NOTICE OF TIME AND PLACE.] Upon the filing of 
the petition the court shall fix the time and place for the 
hearing.  Notice of the filing of the petition and of the 
hearing shall be provided in the manner set forth in article 1, 
section 252A.08 20.  
    Sec. 30.  Minnesota Statutes 1986, section 252A.19, is 
amended by adding a subdivision to read: 
    Subd. 9.  [COSTS FOR PRIVATE GUARDIANSHIP.] In proceedings 
where private guardianship or conservatorship is being sought 
under sections 525.539 to 525.705, costs are reimbursable under 
section 525.703, subdivision 3, paragraph (b). 
    Sec. 31.  Minnesota Statutes 1986, section 252A.20, 
subdivision 1, is amended to read:  
    Subdivision 1.  [WITNESS AND ATTORNEY FEES.] In each 
proceeding under sections 252A.01 to 252A.21, the court shall 
allow and order paid to each witness subpoenaed the fees and 
mileage prescribed by law; to each physician, psychologist or 
social worker who assists in the preparation of the 
comprehensive evaluation and who is not in the employ of 
the county welfare department local agency, state department of 
human services or area mental health-mental retardation board, a 
reasonable sum for services and for travel; and to the ward's 
counsel, when appointed by the court, a reasonable sum for 
travel and for each day or portion thereof of a day actually 
employed in court or actually consumed in preparing for the 
hearing.  Upon such order the county auditor shall issue a 
warrant on the county treasurer for payment of the amount 
allowed. 
    Sec. 32.  Minnesota Statutes 1986, section 252A.21, 
subdivision 2, is amended to read:  
    Subd. 2.  [RULES.] The commissioner shall establish such 
adopt rules not inconsistent with the provisions of sections 
252A.01 to 252A.21 as the commissioner finds necessary for the 
proper and efficient administration thereof.  In promulgating 
such rules, the commissioner shall specifically develop methods 
of administration under which the county welfare departments 
shall have sufficient authority to effectively implement the 
duties and responsibilities of the commissioner under sections 
252A.01 to 252A.21, consistent with the commissioner's ultimate 
responsibility as public guardian or public conservator to 
implement this chapter.  The rules must include standards for 
performance of guardianship or conservatorship duties including, 
but not limited to:  twice a year visits with the ward; 
quarterly reviews of records from day, residential, and support 
services; a requirement that the duties of guardianship or 
conservatorship and case management not be performed by the same 
person; specific standards for action on "do not resuscitate" 
orders, sterilization requests, and the use of psychotropic 
medication and aversive procedures.  

                               ARTICLE 2 

                        MISCELLANEOUS PROVISIONS 
    Section 1.  Minnesota Statutes 1986, section 252.291, 
subdivision 3, is amended to read:  
    Subd. 3.  [DUTIES OF COMMISSIONER OF HUMAN SERVICES.] The 
commissioner shall:  
    (a) establish standard admission criteria for state 
hospitals and county utilization targets to limit and reduce the 
number of intermediate care beds in state hospitals and 
community facilities in accordance with approved waivers under 
United States Code, title 42, sections 1396 to 1396p, as amended 
through December 31, 1982, to assure that appropriate services 
are provided in the least restrictive setting;  
    (b) define services, including respite care, that may be 
needed in meeting individual service plan objectives; 
    (c) provide technical assistance so that county boards may 
establish a request for proposal system for meeting individual 
service plan objectives through home and community-based 
services; alternative community services; or, if no other 
alternative will meet the needs of identifiable individuals for 
whom the county is financially responsible, a new intermediate 
care facility for persons with mental retardation or related 
conditions; and 
    (c) (d) establish a client tracking and evaluation system 
as required under applicable federal waiver regulations, Code of 
Federal Regulations, title 42, sections 431, 435, 440, and 441, 
as amended through December 31, 1982.; and 
    (d) (e) develop a state plan for the delivery and funding 
of residential day and support services to persons with mental 
retardation or related conditions in Minnesota and submit that 
plan to the clerk of each house of the Minnesota legislature on 
or before the 15th of January of each biennium beginning January 
15, 1985.  The biennial mental retardation plan shall include 
but not be limited to: 
    (1) county by county maximum intermediate care bed 
utilization quotas;  
    (2) plans for the development of the number and types of 
services alternative to intermediate care beds;  
    (3) procedures for the administration and management of the 
plan;  
    (4) procedures for the evaluation of the implementation of 
the plan; and 
    (5) the number, type, and location of intermediate care 
beds targeted for decertification. 
    The commissioner shall modify the plan to ensure 
conformance with the medical assistance home and community-based 
services waiver. 
    Sec. 2.  Minnesota Statutes 1986, section 253B.03, 
subdivision 1, is amended to read:  
    Subdivision 1.  [RESTRAINTS.] A patient has the right to be 
free from restraints.  Restraints shall not be applied to a 
patient unless the head of the treatment facility or a member of 
the medical staff determines that they are necessary for the 
safety of the patient or others.  Restraints shall not be 
applied to patients with mental retardation except as permitted 
under section 245.825 and rules of the commissioner of human 
services.  Consent must be obtained from the person or person's 
guardian except for emergency procedures as permitted under 
rules of the commissioner adopted under section 245.825.  Each 
use of a restraint and reason for it shall be made part of the 
clinical record of the patient under the signature of the head 
of the treatment facility.  
    Sec. 3.  Minnesota Statutes 1986, section 253B.03, 
subdivision 6, is amended to read:  
    Subd. 6.  [CONSENT FOR MEDICAL PROCEDURE.] A patient has 
the right to prior consent to any medical or surgical treatment, 
other than the treatment of mental illness, mental retardation 
or chemical dependency.  A patient with mental retardation or 
the patient's guardian has the right to give or withhold consent 
before:  
    (1) the implementation of any aversive or deprivation 
procedure except for emergency procedures permitted in rules of 
the commissioner adopted under section 245.825; or 
    (2) the administration of psychotropic medication.  
    The following procedures shall be used to obtain consent 
for any treatment necessary to preserve the life or health of 
any committed patient:  
    (1) (a) The consent of a competent adult patient for the 
treatment is sufficient.  
    (2) (b) If the patient is subject to guardianship or 
conservatorship which includes the provision of medical care, 
the consent of the guardian or conservator for the treatment is 
sufficient.  
    (3) (c) If the head of the treatment facility determines 
that the patient is not competent to consent to the treatment 
and the patient has not been adjudicated incompetent, consent 
for the surgery shall be obtained from the nearest proper 
relative.  For this purpose, the following persons are proper 
relatives, in the order listed:  the patient's spouse, parent, 
adult child, or adult sibling.  If the nearest proper relatives 
cannot be located or refuse to consent to the procedure, the 
head of the treatment facility or an interested person may 
petition the committing court for approval for the treatment or 
may petition an appropriate court for the appointment of a 
guardian or conservator.  The determination that the patient is 
not competent, and the reasons for the determination, shall be 
documented in the patient's clinical record.  
    (4) (d) Consent to treatment of any minor patient shall be 
secured in accordance with sections 144.341 to 144.346, except 
that a minor 16 years of age or older may give valid consent for 
hospitalization, routine diagnostic evaluation, and emergency or 
short-term acute care.  
    (5) (e) In the case of an emergency and when the persons 
ordinarily qualified to give consent cannot be located, the head 
of the treatment facility may give consent.  
    No person who consents to treatment pursuant to the 
provisions of this subdivision shall be civilly or criminally 
liable for the performance or the manner of performing the 
treatment.  No person shall be liable for performing treatment 
without consent if consent was given pursuant to this 
subdivision.  This provision shall not affect any other 
liability which may result from the manner in which the 
treatment is performed.  
    Sec. 4.  Minnesota Statutes 1986, section 525.56, 
subdivision 3, is amended to read:  
    Subd. 3.  The court may appoint a guardian of the person if 
it determines that all the powers and duties listed in this 
subdivision are needed to provide for the needs of the 
incapacitated person.  The court may appoint a conservator of 
the person if it determines that a conservator is needed to 
provide for the needs of the incapacitated person through the 
exercise of some, but not all, of the powers and duties listed 
in this subdivision.  The duties and powers of a guardian or 
those which the court may grant to a conservator of the person 
include, but are not limited to: 
    (1) The power to have custody of the ward or conservatee 
and the power to establish a place of abode within or without 
the state, except as otherwise provided in this clause.  The 
ward or conservatee or any person interested in the ward's or 
conservatee's welfare may petition the court to prevent or to 
initiate a change in abode.  A ward or conservatee may not be 
admitted to any state institution a regional treatment center by 
the guardian or conservator except after a hearing pursuant 
to section 253A.07 chapter 253B. 
    (2) The duty to provide for the ward's or conservatee's 
care, comfort and maintenance needs, including food, clothing, 
shelter, health care, social and recreational requirements, and, 
whenever appropriate, training, education, and habilitation or 
rehabilitation.  The guardian or conservator has no duty to pay 
for these requirements out of personal funds.  Whenever possible 
and appropriate, the guardian or conservator should meet these 
requirements through governmental benefits or services to which 
the ward or conservatee is entitled, rather than from the ward's 
or conservatee's estate.  Failure to satisfy the needs and 
requirements of this clause shall be grounds for removal of a 
private guardian or conservator, but the guardian or conservator 
shall have no personal or monetary liability.  
    (3) The duty to take reasonable care of the ward's or 
conservatee's clothing, furniture, vehicles and other personal 
effects, and, if other property requires protection, the power 
to seek appointment of a guardian or conservator of the estate.  
The guardian or conservator must give notice in the manner 
required and to those persons specified in section 525.55 prior 
to the disposition of the ward's or conservatee's clothing, 
furniture, vehicles or other personal effects.  The notice must 
inform the person of the right to object to the disposition of 
the property within ten days and to petition the court for a 
review of the guardian's or conservator's proposed actions.  
Notice of the objection must be served by mail or personal 
service on the guardian or conservator and the ward or 
conservatee unless the ward or conservatee be the objector.  The 
guardian or conservator served with notice of an objection to 
the disposition of the property may not dispose of the property 
unless the court approves the disposition after a hearing. 
    (4) (a) The power to give any necessary consent to enable 
the ward or conservatee to receive necessary medical or other 
professional care, counsel, treatment or service, except that no 
guardian or conservator may give consent for psychosurgery, 
electroshock, sterilization or experimental treatment of any 
kind unless the procedure is first approved by order of the 
court as provided in this clause.  The guardian or conservator 
shall not consent to any medical care for the ward or 
conservatee which violates the known conscientious, religious, 
or moral belief of the ward or conservatee. 
    (b) A guardian or conservator who believes a procedure 
described in clause (4)(a) requiring prior court approval to be 
necessary for the proper care of the ward or conservatee shall 
petition the court for an order and, in the case of a public 
guardianship or conservatorship under chapter 252A, obtain the 
written recommendation of the commissioner of human services.  
The court shall fix the time and place for the hearing and shall 
give notice to the ward or conservatee and to the other persons 
specified in section 525.55, subdivision 1.  The notice shall 
comply with the requirements of, and be served in the manner 
provided in section 525.55, subdivision 2.  The court shall 
appoint an attorney to represent the ward or conservatee who is 
not represented by counsel.  In every case the court shall 
determine if the procedure is in the best interests of the ward 
or conservatee.  In making its determination the court shall 
consider a written medical report which specifically considers 
the medical risks of the procedure and, whether alternative, 
less restrictive methods of treatment could be used to protect 
the best interests of the ward or conservatee, and any 
recommendation of the commissioner of human services for a 
public ward or conservatee.  The standard of proof is that of 
clear and convincing evidence.  
    (c) In the case of a petition for sterilization of a 
mentally retarded ward or conservatee, the court shall appoint a 
licensed physician, a psychologist who is qualified in the 
diagnosis and treatment of mental retardation, and a social 
worker who is familiar with the ward's or conservatee's social 
history and adjustment or the case manager for the ward or 
conservatee to examine or evaluate the ward or conservatee and 
to provide written reports to the court.  The reports shall 
indicate why sterilization is being proposed, whether 
sterilization is necessary and is the least intrusive method for 
alleviating the problem presented, and whether it is in the best 
interests of the ward or conservatee.  The medical report shall 
specifically consider the medical risks of sterilization, the 
consequences of not performing the sterilization, and whether 
alternative methods of contraception could be used to protect 
the best interests of the ward or conservatee. 
    (d) Any conservatee whose right to consent to a 
sterilization has not been restricted under this section or 
article 1, section 21, may be sterilized only if the conservatee 
consents in writing or there is a sworn acknowledgment by an 
interested person of a nonwritten consent by the conservatee.  
The consent must certify that the conservatee has received a 
full explanation from a physician or registered nurse of the 
nature and irreversible consequences of the sterilization 
operation.  
     (e) A guardian or conservator or the public guardian's 
designee who acts within the scope of authority conferred by 
letters of guardianship under article 1, section 21, subdivision 
7, and according to the standards established in this chapter or 
in chapter 252A shall not be civilly or criminally liable for 
the provision of any necessary medical care, including but not 
limited to, the administration of psychotropic medication or the 
implementation of aversive and deprivation procedures to which 
the guardian or conservator or the public guardian's designee 
has consented. 
    (5) The power to approve or withhold approval of any 
contract, except for necessities, which the ward or conservatee 
may make or wish to make. 
    (6) The duty and power to exercise supervisory authority 
over the ward or conservatee in a manner which limits civil 
rights and restricts personal freedom only to the extent 
necessary to provide needed care and services.  
    Sec. 5.  [REPEALER.] 
    Minnesota Statutes 1986, sections 252A.08; 252A.10; 
252A.11; 252A.13; 252A.15; and 252A.18, are repealed. 
    Approved May 20, 1987