Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2003, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 12-S.F.No. 112
An act relating to probate; adopting article 5 of the
Uniform Probate Code relating to guardianship and
conservatorship; amending Minnesota Statutes 2002,
sections 145C.09, by adding a subdivision; 201.014,
subdivision 2; 201.15, subdivision 1; 245A.041;
507.04; 524.2-502; 524.3-203; proposing coding for new
law in Minnesota Statutes, chapter 524; repealing
Minnesota Statutes 2002, sections 524.5-505; 525.539;
525.54; 525.541; 525.542; 525.543; 525.544; 525.545;
525.55; 525.5501; 525.551; 525.5515; 525.552; 525.56;
525.561; 525.562; 525.57; 525.58; 525.581; 525.582;
525.583; 525.59; 525.591; 525.60; 525.61; 525.615;
525.6155; 525.616; 525.6165; 525.617; 525.6175;
525.618; 525.6185; 525.619; 525.6192; 525.6194;
525.6195; 525.6196; 525.6197; 525.6198; 525.6199;
525.62; 525.63; 525.64; 525.641; 525.642; 525.65;
525.651; 525.652; 525.66; 525.661; 525.662; 525.67;
525.68; 525.69; 525.691; 525.692; 525.70; 525.702;
525.703; 525.705.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
ARTICLE 1
ADOPTION OF UNIFORM
GUARDIANSHIP AND PROTECTIVE PROCEEDINGS ACT
PART 1
GENERAL PROVISIONS
Section 1. [524.5-101] [SHORT TITLE.]
Sections 524.5-101 to 524.5-502 may be cited as the Uniform
Guardianship and Protective Proceedings Act.
Sec. 2. [524.5-102] [DEFINITIONS.]
Subdivision 1. [SCOPE.] As used in sections 524.5-101 to
524.5-502, the terms defined in this section have the meanings
given them.
Subd. 2. [CLAIM.] "Claim," with respect to a protected
person, includes a claim against an individual, whether arising
in contract, tort, or otherwise, and a claim against an estate
which arises at or after the appointment of a conservator,
including expenses of administration.
Subd. 3. [CONSERVATOR.] "Conservator" means a person who
is appointed by a court to manage the estate of a protected
person and includes a limited conservator.
Subd. 4. [COURT.] "Court" means the district court.
Subd. 5. [GUARDIAN] "Guardian" means a person who has
qualified as a guardian of a minor or incapacitated person
pursuant to appointment by a parent or spouse, or by the court,
and includes a limited, emergency, or temporary substitute
guardian but not a guardian ad litem.
Subd. 6. [INCAPACITATED PERSON.] "Incapacitated person"
means an individual who, for reasons other than being a minor,
is impaired to the extent of lacking sufficient understanding or
capacity to make or communicate responsible personal decisions,
and who has demonstrated deficits in behavior which evidence an
inability to meet personal needs for medical care, nutrition,
clothing, shelter, or safety, even with appropriate
technological assistance.
Subd. 7. [INTERESTED PERSON.] "Interested person" includes:
(i) the ward, protected person, or respondent;
(ii) a nominated guardian or conservator, or the duly
appointed guardian or conservator;
(iii) legal representative;
(iv) the spouse, parent, adult children and siblings, or if
none of such persons is living or can be located, the next of
kin of the ward, protected person, or respondent;
(v) an adult person who has lived with a ward, protected
person, or respondent for a period of more than six months;
(vi) an attorney for the ward or protected person;
(vii) a governmental agency paying or to which an
application has been made for benefits for the respondent, ward,
or protected person, including the county social services agency
for the person's county of residence and the county where the
proceeding is venued;
(viii) a 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; and
(ix) any other person designated by the court.
Subd. 8. [LEGAL REPRESENTATIVE.] "Legal representative"
includes a representative payee, a guardian or conservator
acting for a respondent in this state or elsewhere, or a trustee
or custodian of a trust or custodianship of which the respondent
is a beneficiary.
Subd. 9. [LETTERS.] "Letters" includes letters of
guardianship and letters of conservatorship.
Subd. 10. [MINOR.] "Minor" means an unemancipated
individual who has not attained 18 years of age.
Subd. 11. [NEXT OF KIN.] "Next of kin" shall be determined
by the court.
Subd. 12. [PARENT.] "Parent" means a parent whose parental
rights have not been terminated.
Subd. 13. [PERSON.] "Person" means an individual,
corporation, business trust, estate, trust, partnership, limited
liability company, association, joint venture, government,
governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity.
Subd. 14. [PROTECTED PERSON.] "Protected person" means a
minor or other individual for whom a conservator has been
appointed or other protective order has been made.
Subd. 15. [RESPONDENT.] "Respondent" means an individual
for whom the appointment of a guardian or conservator or other
protective order is sought.
Subd. 16. [STATE.] "State" means a state of the United
States, the District of Columbia, Puerto Rico, the United States
Virgin Islands, or a territory or insular possession subject to
the jurisdiction of the United States.
Subd. 17. [WARD.] "Ward" means an individual for whom a
guardian has been appointed.
Sec. 3. [524.5-103] [SUPPLEMENTAL GENERAL PRINCIPLES OF
LAW APPLICABLE.]
Unless displaced by the particular provisions of this
article, the principles of law and equity supplement its
provisions.
Sec. 4. [524.5-104] [FACILITY OF TRANSFER.]
(a) A person required to transfer money or personal
property to a minor may do so, as to an amount or value not
exceeding $5,000 per year, by transferring it to:
(1) a person who has the care and custody of the minor and
with whom the minor resides;
(2) a guardian of the minor;
(3) a custodian under the Uniform Transfers To Minors Act
or custodial trustee under the Uniform Custodial Trust Act; or
(4) a financial institution as a deposit in an
interest-bearing account or certificate in the sole name of the
minor and giving notice of the deposit to the minor.
(b) This section does not apply if the person making
payment or delivery knows that a conservator has been appointed
or that a proceeding for appointment of a conservator of the
minor is pending.
(c) A person who transfers money or property in compliance
with this section is not responsible for its proper application.
(d) A guardian or other person who receives money or
property for a minor under paragraph (a), clause (1) or (2), may
only apply it to the support, care, education, health, and
welfare of the minor, and may not derive a personal financial
benefit except for reimbursement for necessary expenses. Any
excess must be preserved for the future support, care,
education, health, and welfare of the minor and any balance must
be transferred to the minor upon emancipation or attaining
majority.
Sec. 5. [524.5-106] [SUBJECT-MATTER JURISDICTION.]
This article applies to, and the court has jurisdiction
over, guardianship and related proceedings for individuals
domiciled or present in this state, protective proceedings for
individuals domiciled in or having property located in this
state, and property coming into the control of a guardian or
conservator who is subject to the laws of this state. This
article does not apply to any matters or proceedings arising
under or governed by chapters 252A, 259, and 260C.
Notwithstanding anything else to the contrary, chapters 252A,
259, and 260C exclusively govern the rights, duties, and powers
of social service agencies, the commissioner of human services,
licensed child placing agencies, and parties with respect to all
matters and proceedings arising under those chapters.
Sec. 6. [524.5-107] [TRANSFER OF JURISDICTION.]
(a) Following the appointment of a guardian or conservator
or entry of another protective order, the court making the
appointment or entering the order may transfer the proceeding to
a court in another county in this state or to another state if
the court is satisfied that a transfer will serve the best
interest of the ward or protected person.
(b) A guardian, conservator, or like fiduciary appointed in
another state may petition the court for appointment as a
guardian or conservator in this state if the state has
jurisdiction. The appointment may be made upon proof of
appointment in the other state and presentation of a certified
copy of the portion of the court record in the other state
specified by the court in this state. Notice of hearing on the
petition, together with a copy of the petition, must be given to
the ward or protected person, if the ward or protected person
has attained 14 years of age, and to the persons who would be
entitled to notice if the regular procedures for appointment of
a guardian or conservator under this article were applicable.
The court shall make the appointment in this state unless it
concludes that the appointment would not be in the best interest
of the ward or protected person. Upon the filing of an
acceptance of office and any required bond, the court shall
issue appropriate letters of guardianship or conservatorship.
Within 14 days after an appointment, the guardian or conservator
shall send or deliver a copy of the order of appointment to the
ward or protected person, if the ward or protected person has
attained 14 years of age, and to all persons given notice of the
hearing on the petition.
Sec. 7. [524.5-108] [VENUE.]
(a) Venue for a guardianship proceeding for a minor is in
the county of this state in which the minor resides or is
present at the time the proceeding is commenced.
(b) Venue for a guardianship proceeding for an
incapacitated person is in the county of this state in which the
respondent resides and, if the respondent has been admitted to
an institution by order of a court of competent jurisdiction, in
the county in which that court is located. Venue for the
appointment of an emergency or a temporary guardian of an
incapacitated person is also in the county in which the
respondent is present.
(c) Venue for a protective proceeding is in the county of
this state in which the respondent resides, whether or not a
guardian has been appointed in another place or, if the
respondent does not reside in this state, in any county of this
state in which property of the respondent is located.
(d) If a proceeding under this article is brought in more
than one county in this state, the court of the county in which
the proceeding is first brought has the exclusive right to
proceed unless that court determines that venue is properly in
another court or that the interests of justice otherwise require
that the proceeding be transferred.
(e) If it is in the best interest of the ward or protected
person, the venue may be transferred to another county. Upon
the filing of a petition by any interested person, or upon the
court's own motion, the court shall fix a time and place for the
hearing on the transfer. Notice must be given to interested
persons, the district court of the county to which venue is
proposed to be transferred, and any other party the court
designates. Upon proof that a transfer of venue is in the best
interest of the ward or protected person or the ward or
protected person's estate, and upon settlement and allowance of
the conservator's accounts, if any, to the time of the hearing,
the court shall transmit the entire file to the court of the
other county, where all subsequent proceedings must be held.
Sec. 8. [524.5-109] [PRACTICE IN COURT.]
(a) Except as otherwise provided in this article, the rules
of civil procedure, including the rules concerning appellate
review, govern proceedings under this article.
(b) If guardianship and protective proceedings as to the
same individual are commenced or pending in the same court, the
proceedings may be consolidated.
Sec. 9. [524.5-110] [LETTERS OF OFFICE.]
The court shall issue appropriate letters of guardianship
upon the guardian's filing of an acceptance of office. The
court shall issue appropriate letters of conservatorship upon
the conservator's filing of an acceptance of office and any
required bond. Letters of guardianship must indicate whether
the guardian was appointed by the court, a parent, or the
spouse. Any limitation on the powers of a guardian or
conservator or of the assets subject to a conservatorship must
be endorsed on the guardian's or conservator's letters.
Sec. 10. [524.5-111] [EFFECT OF ACCEPTANCE OF
APPOINTMENT.]
By accepting appointment as guardian or conservator, a
guardian or conservator submits personally to the jurisdiction
of the court in any proceeding relating to the guardianship or
conservatorship. The petitioner shall send or deliver notice of
any proceeding to the guardian or conservator at the guardian's
or conservator's address shown in the court records and at any
other address then known to the petitioner.
Sec. 11. [524.5-112] [TERMINATION OF OR CHANGE IN
GUARDIAN'S OR CONSERVATOR'S APPOINTMENT.]
(a) The appointment of a guardian or conservator terminates
upon the death, resignation, or removal of the guardian or
conservator or upon termination of the guardianship or
conservatorship. A resignation of a guardian or conservator is
effective when approved by the court. A parental or spousal
appointment as guardian under an informally probated will
terminates if the will is later denied probate in a formal
proceeding. Termination of the appointment of a guardian or
conservator does not affect the liability of either for previous
acts or the obligation to account for money and other assets of
the ward or protected person.
(b) A ward, protected person, or interested person may
petition for removal of a guardian or conservator on the ground
that removal would be in the best interest of the ward or
protected person or for other good cause. A guardian or
conservator may petition for permission to resign. A petition
for removal or permission to resign may include a request for
appointment of a successor guardian or conservator.
(c) The court may appoint an additional guardian or
conservator at any time, to serve immediately or upon some other
designated event, and may appoint a successor guardian or
conservator in the event of a vacancy or make the appointment
prior to a vacancy, to serve when a vacancy occurs. An
additional or successor guardian or conservator may file an
acceptance of appointment at any time after the appointment, but
in no case later than 30 days after the occurrence of the
vacancy or other designated event. The additional or successor
guardian or conservator becomes eligible to act on the
occurrence of the vacancy or designated event, or the filing of
the acceptance of appointment, whichever occurs last. A
successor guardian or conservator succeeds to the predecessor's
powers, and a successor conservator succeeds to the
predecessor's title to the protected person's assets.
Sec. 12. [524.5-113] [NOTICE.]
(a) Except for notice for which specific requirements are
otherwise provided in this article or as otherwise ordered by
the court for good cause, notice of a hearing on a petition is
required for all petitions in the manner prescribed by this
section. The petitioner shall give notice of the time and place
of the hearing to all interested persons. Notice must be given
by mail postmarked at least 14 days before the hearing.
(b) Proof of notice must be made before or at the hearing
and filed in the proceeding.
(c) A notice under this article must be given in plain
language.
(d) If a patient of a state hospital, regional center, or
any state-operated service has a guardianship or conservatorship
established, modified, or terminated, the head of the state
hospital, regional center, or state-operated service shall be
notified. The notice shall require the institution to advise
the court of the existence, if known, of a health care directive
as defined in section 145C.01, executed by the proposed ward,
incapacitated person, or protected person, a living will
executed under chapter 145B, or any other similar document
executed in another state and enforceable under the laws of this
state. If a ward, incapacitated person, or protected person is
under the guardianship or conservatorship of the commissioner of
human services as mentally retarded or dependent and neglected
or is under the temporary custody of the commissioner of human
services, the court shall notify the commissioner of human
services if the public guardianship or conservatorship is
established, modified, or terminated.
(e) If a conservator is required to file a bond pursuant to
section 524.5-415, notice of any proceeding must be sent or
delivered to the surety at the address shown in the court
records at the place where the bond is filed and to any other
address then known to the petitioner.
Sec. 13. [524.5-114] [WAIVER OF NOTICE.]
A person may waive notice by a writing signed by the person
or the person's attorney and filed in the proceeding. However,
a respondent, ward, or protected person may not waive notice.
Sec. 14. [524.5-115] [GUARDIAN AD LITEM.]
At any stage of a proceeding, a court may appoint a
guardian ad litem if the court determines that representation of
the interest otherwise would be inadequate. If not precluded by
a conflict of interest, a guardian ad litem may be appointed to
represent several individuals or interests. The court shall
state on the record the duties of the guardian ad litem and its
reasons for the appointment.
Sec. 15. [524.5-117] [MULTIPLE APPOINTMENTS OR
NOMINATIONS.]
If a respondent or other person makes more than one written
appointment or nomination of a guardian or a conservator, the
most recent controls.
Sec. 16. [524.5-118] [BACKGROUND STUDY.]
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 five years; and
(2) once every five years after the appointment, if the
person continues to serve as a guardian or conservator.
(b) The background study must include 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 and a minor.
(c) The court shall request a search of the National
Criminal Records Repository if the proposed guardian or
conservator has not resided in Minnesota for the previous five
years 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.
(d) 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.
(e) 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 study.
(f) 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.
(g) 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 mental retardation or a related condition, 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.
Subd. 2. [PROCEDURE; CRIMINAL HISTORY AND MALTREATMENT
RECORDS BACKGROUND CHECK.] (a) The court shall request the
commissioner of human services to complete a background study
under section 245A.041. The request must be accompanied by the
applicable fee and the signed consent of the subject of the
study authorizing the release of the data obtained to the
court. If the court is requesting a search of the National
Criminal Records Repository, the request must be accompanied by
a set of classifiable fingerprints of the subject of the study.
The fingerprints must be recorded on a fingerprint card provided
by the commissioner of human services.
(b) The commissioner of human services shall provide the
court with information from the bureau of criminal
apprehension's criminal justice information system, other
criminal history data held by the commissioner of human
services, and data regarding substantiated maltreatment of
vulnerable adults under section 626.557 and substantiated
maltreatment of minors under section 626.556 within 15 working
days of receipt of a request. If the subject of the study has
been the perpetrator of substantiated maltreatment of a
vulnerable adult or minor, the response must include a copy of
the public portion of the investigation memorandum under section
626.557, subdivision 12b, or the public portion of the
investigation memorandum under section 626.556, subdivision
10f. If the court did not request a search of the National
Criminal Records Repository and information from the bureau of
criminal apprehension indicates that the subject is a multistate
offender or that multistate offender status is undetermined, the
response must include this information. The commissioner shall
provide the court with information from the National Criminal
Records Repository within three working days of the
commissioner's receipt of the data.
(c) Notwithstanding section 626.557, subdivision 12b, or
626.556, subdivision 10f, if the commissioner of human services
or a county lead agency has information that a person on whom a
background study was previously done under this section has been
determined to be a perpetrator of maltreatment of a vulnerable
adult or minor, the commissioner or the county may provide this
information to the court that requested the background study.
The commissioner may also provide the court with additional
criminal history or substantiated maltreatment information that
becomes available after the background study is done.
Subd. 3. [FORM.] The commissioner of human services shall
develop a form to be used for requesting a background study
under this section, which must include:
(1) a notification to the subject of the study that the
court will request the commissioner to perform a background
study under this section;
(2) a notification to the subject of the rights in
subdivision 4; and
(3) a signed consent to conduct the background study.
Subd. 4. [RIGHTS.] The court shall notify the subject of a
background study that the subject has the following rights:
(1) the right to be informed that the court will request a
background study on the subject for the purpose of determining
whether the person's appointment or continued appointment is in
the best interests of the ward or protected person;
(2) the right to be informed of the results of the study
and to obtain from the court a copy of the results; and
(3) the right to challenge the accuracy and completeness of
information contained in the results under section 13.04,
subdivision 4, except to the extent precluded by section
256.045, subdivision 3.
PART 2
GUARDIAN OF MINOR
Sec. 17. [524.5-201] [APPOINTMENT AND STATUS OF GUARDIAN.]
A person becomes a guardian of a minor by parental
appointment, by designation of a standby guardian pursuant to
chapter 257B, or upon appointment by the court. The
guardianship continues until terminated, without regard to the
location of the guardian or minor ward.
Sec. 18. [524.5-202] [PARENTAL APPOINTMENT OF GUARDIAN.]
(a) A guardian may be appointed by will, by designation of
a standby guardian pursuant to chapter 257B, or by other signed
writing executed in the same manner as a health care directive
under chapter 145C by a parent for any minor child the parent
has or may have in the future. The appointment may specify the
desired limitations on the powers to be given to the guardian.
The appointing parent may revoke or amend the appointment prior
to court confirmation.
(b) Upon petition of an appointing parent and a finding
that the appointing parent will likely become unable to care for
the child within two years or less, and after notice as provided
in section 524.5-205, paragraph (b), the court, before the
appointment becomes effective, may confirm the parent's
selection of a guardian and terminate the rights of others to
object.
(c) Subject to section 524.5-203, the appointment of a
guardian becomes effective upon the appointing parent's death,
an adjudication that the parent is an incapacitated person, or a
written determination by a physician who has examined the parent
that the parent is no longer able to care for the child,
whichever occurs first.
(d) The guardian becomes eligible to act upon the filing of
an acceptance of appointment, which must be filed within 30 days
following the effective date of the guardian's appointment. The
guardian shall:
(1) file the acceptance of appointment and a copy of the
will with the court of the county in which the will was or could
be probated or, in the case of another appointing instrument,
file the acceptance of appointment and the appointing instrument
with the court of the county in which the minor resides or is
present; and
(2) give written notice of the acceptance of appointment to
the appointing parent, if living, the minor, if the minor has
attained 14 years of age, and a person other than the parent
having care and custody of the minor.
(e) Unless the appointment was previously confirmed by the
court, the notice given under paragraph (d), clause (2), must
include a statement of the right of those notified to terminate
the appointment by filing a written objection in the court as
provided in section 524.5-203.
(f) Unless the appointment was previously confirmed by the
court, within 30 days after filing the notice and the appointing
instrument, a guardian shall petition the court for confirmation
of the appointment, giving notice in the manner provided in
section 524.5-205, paragraph (b).
(g) The appointment of a guardian by a parent does not
supersede the parental rights of either parent. If both parents
are dead or have been adjudged incapacitated persons, an
appointment by the last parent who dies or was adjudged
incapacitated has priority. An appointment by a parent which is
effected by filing the guardian's acceptance under a will
probated in the state of the testator's domicile is effective in
this state.
(h) The powers of a guardian who timely complies with the
requirements of paragraphs (d) and (e) relate back to give acts
by the guardian which are of benefit to the minor and occurred
on or after the date the appointment became effective the same
effect as those that occurred after the filing of the acceptance
of the appointment.
(i) The authority of a guardian appointed under this
section terminates upon the first to occur of the appointment of
a guardian by the court or the giving of written notice to the
guardian of the filing of an objection pursuant to section
524.5-203.
Sec. 19. [524.5-203] [OBJECTION BY MINOR OR OTHERS TO
PARENTAL APPOINTMENT.]
Until the court has confirmed an appointee under section
524.5-202, a minor who is the subject of an appointment by a
parent and who has attained 14 years of age, the other parent,
or a person other than a parent or guardian having custody or
care of the minor may prevent or terminate the appointment at
any time by filing in the court in which the appointing
instrument is filed a written objection and by giving notice of
the objection to the guardian and any other persons entitled to
notice of the acceptance of the appointment. An objection may
be withdrawn, and if withdrawn is of no effect. An objection
does not preclude an appointment of the appointee by the court.
The court may treat the filing of an objection as a petition for
the appointment of an emergency or a temporary guardian under
section 524.5-204, and proceed accordingly.
Sec. 20. [524.5-204] [JUDICIAL APPOINTMENT OF GUARDIAN:
CONDITIONS FOR APPOINTMENT.]
(a) The court may appoint a guardian for a minor if the
court finds the appointment is in the minor's best interest, and:
(i) both parents are deceased; or
(ii) all parental rights have been terminated by court
order.
If a guardian is appointed by a parent pursuant to section
524.5-202 and the appointment has not been prevented or
terminated under section 524.5-203, that appointee has priority
for appointment. However, the court may proceed with another
appointment upon a finding that the appointee under section
524.5-202 has failed to accept the appointment within 30 days
after notice of the guardianship proceeding.
(b) If necessary and on petition or motion and whether or
not the conditions of paragraph (a) have been established, the
court may appoint a temporary guardian for a minor upon a
showing that an immediate need exists and that the appointment
would be in the best interest of the minor. Notice must be
given to the parents and to a minor who has attained 14 years of
age. Except as otherwise ordered by the court, the temporary
guardian has the authority of an unlimited guardian, but the
duration of the temporary guardianship may not exceed six
months. Within five days after the appointment, the temporary
guardian shall send or deliver a copy of the order to all
individuals who would be entitled to notice of hearing under
section 524.5-205.
(c) If the court finds that following the procedures of
this article will likely result in substantial harm to a minor's
health or safety and that no other person appears to have
authority to act in the circumstances, the court, on appropriate
petition, may appoint an emergency guardian for the minor. The
duration of the guardian's authority may not exceed 30 days and
the guardian may exercise only the powers specified in the
order. Reasonable notice of the time and place of a hearing on
the petition for appointment of an emergency guardian must be
given to the minor, if the minor has attained 14 years of age,
to each living parent of the minor, and a person having care or
custody of the minor, if other than a parent. The court may
dispense with the notice if it finds from affidavit or other
sworn testimony that the minor will be substantially harmed
before a hearing can be held on the petition. If the guardian
is appointed without notice, notice of the appointment must be
given within 48 hours after the appointment and a hearing on the
appropriateness of the appointment held within five days after
the appointment.
Sec. 21. [524.5-205] [JUDICIAL APPOINTMENT OF GUARDIAN:
PROCEDURE.]
(a) A person interested in the welfare of a minor may
petition for appointment of a guardian.
(b) After a petition is filed, the court shall set a date
for hearing, and the petitioner shall give notice of the time
and place for hearing the petition, together with a copy of the
petition, to:
(1) the minor, if the minor has attained 14 years of age
and is not the petitioner;
(2) any person alleged to have had the primary care and
custody of the minor during the 60 days before the filing of the
petition;
(3) each living parent of the minor or, if there is none,
the adult nearest in kinship that can be found;
(4) any person nominated as guardian by the minor if the
minor has attained 14 years of age;
(5) any appointee of a parent whose appointment has not
been prevented or terminated under section 524.5-203; and
(6) any guardian or conservator currently acting for the
minor in this state or elsewhere.
(c) The court, upon hearing, shall make the appointment if
it finds that a qualified person seeks appointment, venue is
proper, the required notices have been given, the conditions of
section 524.5-204, paragraph (a), have been met, and the best
interest of the minor will be served by the appointment. In
other cases, the court may dismiss the proceeding or make any
other disposition of the matter that will serve the best
interest of the minor.
(d) If the court determines at any stage of the proceeding,
before or after appointment, that the interests of the minor are
or may be inadequately represented, it may appoint a lawyer to
represent the minor, giving consideration to the choice of the
minor if the minor has attained 14 years of age, provided that
such appointment shall expire upon the expiration of the appeal
time for the order appointing guardian or the order dismissing a
petition or upon such other time or event as the court may
direct.
(e) Within 14 days after an appointment, a guardian shall
send or deliver to the minor ward, and counsel if represented at
the hearing, a copy of the order of appointment accompanied by a
notice which advises the minor ward of the right to appeal the
guardianship appointment in the time and manner provided by the
rules of appellate procedure.
Sec. 22. [524.5-206] [JUDICIAL APPOINTMENT OF GUARDIAN:
PRIORITY OF MINOR'S NOMINEE, LIMITED GUARDIANSHIP.]
(a) The court shall appoint as guardian a person whose
appointment will be in the best interest of the minor. The
court shall appoint a person nominated by the minor, if the
minor has attained 14 years of age, unless the court finds the
appointment will be contrary to the best interest of the minor.
(b) In the interest of developing self-reliance of a ward
or for other good cause, the court, at the time of appointment
or later, on its own motion or on motion of the minor ward or
other interested person, may limit the powers of a guardian
otherwise granted by this article and thereby create a limited
guardianship. Following the same procedure, additional powers
may be granted or existing powers may be withdrawn.
Sec. 23. [524.5-207] [POWERS AND DUTIES OF GUARDIAN.]
Subdivision 1. [GENERAL STATEMENT.] A guardian of a minor
has the powers and responsibilities of a parent who has not been
deprived of custody of the minor and unemancipated child, except
that a guardian is not legally obligated to provide from the
guardian's own funds for the ward.
Subd. 2. [PARTICULAR DUTIES.] In particular, and without
qualifying subdivision 1, a guardian has the duties and powers
in this subdivision.
(a) The guardian must take reasonable care of the ward's
personal effects and commence protective proceedings if
necessary to protect other property of the ward.
(b) The guardian may receive money payable for the support
of the ward to the ward's parent, guardian, or custodian under
the terms of any statutory benefit or insurance system, or any
private contract, devise, trust, conservatorship, or
custodianship and also may receive money or property of the ward
paid or delivered by virtue of section 524.5-104. Any sums
received must be applied to the ward's current needs for
support, care, and education.
The guardian must exercise due care to conserve any excess
for the ward's future needs unless a conservator has been
appointed for the estate of the ward, in which case the excess
must be paid at least annually to the conservator. Money
received by the guardian under this paragraph must not be used
for compensation for the guardian's services except as approved
by court order or as determined by a duly appointed conservator
other than the guardian.
A guardian may institute proceedings to compel the
performance by any person of a duty to support the ward or to
pay sums for the welfare of the ward.
(c) The guardian is empowered to facilitate the ward's
education, social, or other activities and to authorize medical
or other professional care, treatment, or advice. A ward who is
less than 16 years of age may be admitted to a treatment
facility as an informal patient according to section 253B.04 but
may not be committed to any state institution except pursuant to
chapter 253B. No guardian may give consent for psychosurgery,
electroshock, sterilization, or experimental treatment of any
kind unless the procedure is first approved by the order of the
court, after a hearing as prescribed by section 524.5-313,
paragraph (c), clause (4). A guardian is not liable by reason
of consent for injury to the ward resulting from the negligence
or acts of third persons unless it would have been illegal for a
parent to have consented, or unless the guardian fails to comply
with the requirements of this section which provide that a court
order is necessary for commitment and for certain types of
medical procedures. A guardian may consent to the marriage or
adoption of the ward.
(d) A guardian must report the condition of the ward and of
the ward's estate which has been subject to the guardian's
possession or control, as ordered by the court on its own motion
or on petition of any interested person and as required by court
rule.
(e) If there is no acting conservator of the estate for the
ward, the guardian has the power to apply on behalf of the ward
for any assistance, services, or benefits available to the ward
through any unit of government.
Sec. 24. [524.5-209] [RIGHTS AND IMMUNITIES OF GUARDIAN.]
(a) A guardian of a minor ward is entitled to reasonable
compensation for services as guardian and to reimbursement for
expenditures made on behalf of the ward, in a manner consistent
with section 524.5-502.
(b) A guardian of a minor ward is not liable to a third
person for acts of the ward solely by reason of the
relationship. A guardian of a minor ward is not liable for
injury to the ward resulting from the negligence or act of a
third person providing medical or other care, treatment, or
service for the ward except to the extent that a parent would be
liable under the circumstances.
(c) A guardian of a minor ward may not initiate the
commitment of a ward to an institution except in accordance with
section 524.5-207.
Sec. 25. [524.5-210] [TERMINATION OF GUARDIANSHIP; OTHER
PROCEEDINGS AFTER APPOINTMENT.]
(a) A guardianship of a minor terminates upon the minor's
death, adoption, emancipation, attainment of majority, or as
ordered by the court.
(b) A ward or an interested person may petition for any
order that is in the best interest of the ward. The petitioner
shall give notice of the hearing on the petition to interested
persons pursuant to section 524.5-113 and to any other person as
ordered by the court, except notice is not required for the ward
if the ward has not attained 14 years of age and is not the
petitioner.
Sec. 26. [524.5-211] [DELEGATION OF POWER BY PARENT OR
GUARDIAN.]
(a) A parent, legal custodian, or guardian of a minor or
incapacitated person, by a properly executed power of attorney,
may delegate to another person, for a period not exceeding one
year, any powers regarding care, custody, or property of the
minor or ward, except the power to consent to marriage or
adoption of a minor ward.
(b) A parent who executes a delegation of powers under this
section must mail or give a copy of the document to any other
parent within 30 days of its execution unless:
(1) the other parent does not have parenting time or has
supervised parenting time; or
(2) there is an existing order for protection under chapter
518B or a similar law of another state in effect against the
other parent to protect the parent, legal custodian, or guardian
executing the delegation of powers or the child.
(c) A parent, legal custodian, or guardian of a minor child
may also delegate those powers by designating a standby or
temporary custodian under chapter 257B.
PART 3
GUARDIAN OF INCAPACITATED PERSON
Sec. 27. [524.5-301] [APPOINTMENT AND STATUS OF GUARDIAN.]
A person becomes a guardian of an incapacitated person by a
parental or spousal appointment or upon appointment by the
court. The guardianship continues until terminated, without
regard to the location of the guardian or ward.
Sec. 28. [524.5-302] [APPOINTMENT OF GUARDIAN BY WILL OR
OTHER WRITING.]
(a) A parent, by will or other signed writing executed in
the same manner as a health care directive pursuant to chapter
145C, may appoint a guardian for an unmarried child who the
parent believes is an incapacitated person, may specify the
desired limitations on the powers to be given to the guardian,
and may revoke or amend the appointment prior to court
confirmation.
(b) An individual by will or other signed writing executed
in the same manner as a health care directive pursuant to
chapter 145C may appoint a guardian for his or her spouse who
the appointing spouse believes is an incapacitated person, may
specify the desired limitations on the powers to be given to the
guardian, and may revoke or amend the appointment prior to court
confirmation.
(c) Subject to the right of the incapacitated person, the
person having custody or care of the incapacitated person if
other than the appointing parent or spouse or the adult nearest
in kinship to the incapacitated person to object, the guardian's
appointment becomes effective upon the death of the appointing
parent or spouse, the adjudication of incapacity of the
appointing parent or spouse, or a written determination by a
physician who has examined the appointing parent or spouse that
the appointing parent or spouse is no longer able to care for
the incapacitated person, whichever occurs first.
(d) Upon petition of the appointing parent or spouse, and a
finding that the appointing parent or spouse will likely become
unable to care for the incapacitated person within two years or
less, and after notice as provided in this section, the court,
before the appointment becomes effective, may confirm the
appointing parent's or spouse's selection of a guardian and
terminate the rights of others to object.
(e) The guardian becomes eligible to act upon the filing of
an acceptance of appointment, which must be filed within 30 days
following the effective date of the guardian's appointment. The
guardian shall:
(1) file the notice of acceptance of appointment and a copy
of the will with the court of the county in which the will was
or could be probated or, in the case of another appointing
instrument, file the acceptance of appointment and the
appointing instrument with the court in the county in which the
incapacitated person resides or is present; and
(2) give written notice of the acceptance of appointment to
the appointing parent or spouse if living, the incapacitated
person, a person having custody or care of the incapacitated
person other than the appointing parent or spouse, and the adult
nearest in kinship.
(f) Unless the appointment was previously confirmed by the
court, the notice given under paragraph (e), clause (2), must
include a statement of the right of those notified to terminate
the appointment by filing a written objection as provided in
this section.
(g) An appointment effected by filing the guardian's
acceptance under a will probated in the state of the testator's
domicile is effective in this state.
(h) The filing of a written objection to an appointment by
the alleged incapacitated person or another interested person in
the court in which the guardian's written acceptance was filed
terminates the appointment. An objection may be withdrawn and,
if withdrawn, is of no effect. An objection does not preclude
the court from appointing the parental or spousal appointee as
guardian. The court may treat the filing of an objection as a
petition for the appointment of an emergency guardian under
section 524.5-311 or for the appointment of a limited or
unlimited guardian under section 524.5-303 and proceed
accordingly.
(i) Unless the appointment was previously confirmed by the
court, within 30 days after filing the notice and the appointing
instrument, a guardian appointed under this section shall file a
petition in the court for confirmation of the appointment,
giving notice in the manner provided in section 524.5-308, and,
if necessary, for an appointment as conservator.
(j) The authority of a guardian appointed under this
section terminates upon the first to occur of the appointment of
a guardian by the court or the giving of written notice to the
guardian of the filing of an objection pursuant to paragraph (h).
(k) The appointment of a guardian under this section is not
a determination of incapacity.
(l) The powers of a guardian who timely complies with the
requirements of paragraphs (e) and (f) relate back to give acts
by the guardian which are of benefit to the incapacitated person
and occurred on or after the date the appointment became
effective the same effect as those that occurred after the
filing of the acceptance of appointment.
Sec. 29. [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 and address of any person nominated as
guardian by the respondent;
(6) the name and address 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.
Sec. 30. [524.5-304] [JUDICIAL APPOINTMENT OF GUARDIAN:
PRELIMINARIES TO HEARING.]
(a) Upon receipt of a petition to establish a guardianship,
the court shall set a date and time for hearing the petition and
appoint a visitor. The duties and reporting requirements of the
visitor are limited to the relief requested in the petition.
The visitor must be an individual having training or experience
in the type of incapacity alleged.
(b) A proposed ward has the right to be represented by
counsel at any proceeding under this article. The court shall
appoint counsel to represent the proposed ward for the initial
proceeding held pursuant to section 524.5-307 if neither the
proposed ward nor others provide counsel unless in a meeting
with a visitor the proposed ward specifically waives the right
to counsel. Counsel must be appointed immediately after any
petition under this article is served under section 524.5-308.
Counsel has the full right of subpoena. In all proceedings
under this article, counsel shall:
(1) consult with the proposed ward before any hearing;
(2) be given adequate time to prepare for all hearings; and
(3) continue to represent the person throughout any
proceedings under section 524.5-307, provided that such
appointment shall expire upon the expiration of the appeal time
for the order appointing guardian or the order dismissing a
petition, or upon such other time or event as the court may
direct.
The court need not appoint counsel to represent the
proposed ward on a voluntary petition, and the court may remove
a court-appointed attorney at any time if the court finds that
the proposed ward has made a knowing and intelligent waiver of
the right to counsel or has obtained private counsel.
(c) The visitor shall personally serve the notice and
petition upon the respondent and shall offer to read the notice
and petition to the respondent, and if so requested the visitor
shall read the notice and petition to such person. The visitor
shall also interview the respondent in person, and to the extent
that the respondent is able to understand:
(1) explain to the respondent the substance of the
petition; the nature, purpose, and effect of the proceeding; the
respondent's rights at the hearing; and the general powers and
duties of a guardian;
(2) determine the respondent's views about the proposed
guardian, the proposed guardian's powers and duties, and the
scope and duration of the proposed guardianship;
(3) inform the respondent of the right to employ and
consult with a lawyer at the respondent's own expense and the
right to request a court-appointed lawyer; and
(4) inform the respondent that all costs and expenses of
the proceeding, including respondent's attorneys fees, will be
paid from the respondent's estate.
(d) In addition to the duties in paragraph (c), the visitor
shall make any other investigation the court directs.
(e) The visitor shall promptly file a report in writing
with the court, which must include:
(1) recommendations regarding the appropriateness of
guardianship, including whether less restrictive means of
intervention are available, the type of guardianship, and, if a
limited guardianship, the powers to be granted to the limited
guardian;
(2) a statement as to whether the respondent approves or
disapproves of the proposed guardian, and the powers and duties
proposed or the scope of the guardianship; and
(3) any other matters the court directs.
(f) The county social service agency may create a screening
committee to review a petition involving an indigent person.
The screening committee must consist of individuals selected by
the agency with knowledge of alternatives that are less
restrictive than guardianship. If the agency has created a
screening committee, the court shall make its decision after the
screening committee has reviewed the petition. For an indigent
person, the court may appoint a guardian under contract with the
county to provide these services.
Sec. 31. [524.5-307] [JUDICIAL APPOINTMENT OF GUARDIAN;
PRESENCE AND RIGHTS AT HEARING.]
(a) Unless excused by the court for good cause, the
petitioner and the proposed guardian shall attend the hearing.
The respondent shall attend and participate in the hearing,
unless excused by the court for good cause. The petitioner and
respondent may present evidence and subpoena witnesses and
documents; examine witnesses, including the visitor; and
otherwise participate in the hearing. The hearing may be held
in a location convenient to the respondent and may be closed
upon the request of the respondent and a showing of good cause.
(b) Any person may request permission to participate in the
proceeding. The court may grant the request, with or without
hearing, upon a showing of good cause and after determining that
the best interest of the respondent will be served. The court
may attach appropriate conditions to the participation.
Sec. 32. [524.5-308] [NOTICE.]
(a) A copy of the petition and notice of the hearing on a
petition for guardianship must be served personally on the
respondent pursuant to section 524.5-304, paragraph (c). The
notice must include a statement that the respondent must be
physically present unless excused by the court; inform the
respondent of the respondent's rights at the hearing; and
include a description of the nature, purpose, and consequences
of an appointment. A failure to serve the respondent with a
notice substantially complying with this paragraph precludes the
court from granting the petition.
(b) In a proceeding to establish a guardianship, notice of
the hearing shall also be given to the persons listed in the
petition. Failure to give notice under this paragraph does not
preclude the appointment of a guardian or the making of a
protective order.
(c) Notice of the hearing on a petition for an order after
appointment of a guardian shall be given to interested persons
pursuant to section 524.5-113 and to any other person as ordered
by the court, except notice to the ward is not required if the
ward has not attained 14 years of age and is not the petitioner.
(d) The guardian shall give notice of the filing of the
guardian's report, together with a copy of the report, to the
ward and any other person the court directs. The notice must be
sent or delivered within 14 days after the filing of the report.
Sec. 33. [524.5-309] [WHO MAY BE GUARDIAN: PRIORITIES.]
(a) Subject to paragraph (c), the court in appointing a
guardian shall consider persons otherwise qualified in the
following order of priority:
(1) a guardian, other than a temporary or emergency
guardian, currently acting for the respondent in this state or
elsewhere;
(2) an agent appointed by the respondent under a health
care directive pursuant to chapter 145C;
(3) the spouse of the respondent or a person nominated by
will or other signed writing executed in the same manner as a
health care directive pursuant to chapter 145C of a deceased
spouse;
(4) an adult child of the respondent;
(5) a parent of the respondent, or an individual nominated
by will or other signed writing executed in the same manner as a
health care directive pursuant to chapter 145C of a deceased
parent; and
(6) an adult with whom the respondent has resided for more
than six months before the filing of the petition.
(b) The court, acting in the best interest of the
respondent, may decline to appoint a person having priority and
appoint a person having a lower priority or no priority. With
respect to persons having equal priority, the court shall select
the one it considers best qualified.
(c) Any individual or agency which provides residence,
custodial care, medical care, employment training or other care
or services for which they receive a fee may not be appointed as
guardian unless related to the respondent by blood, marriage, or
adoption.
Sec. 34. [524.5-310] [FINDINGS; ORDER OF APPOINTMENT.]
(a) The court may appoint a limited or unlimited guardian
for a respondent only if it finds by clear and convincing
evidence that:
(1) the respondent is an incapacitated person; and
(2) the respondent's identified needs cannot be met by less
restrictive means, including use of appropriate technological
assistance.
(b) Alternatively, the court, with appropriate findings,
may treat the petition as one for a protective order under
section 524.5-401, enter any other appropriate order, or dismiss
the proceeding.
(c) The court shall grant to a guardian only those powers
necessitated by the ward's limitations and demonstrated needs
and, whenever feasible, make appointive and other orders that
will encourage the development of the ward's maximum
self-reliance and independence. Any power not specifically
granted to the guardian, following a written finding by the
court of a demonstrated need for that power, is retained by the
ward.
(d) Within 14 days after an appointment, a guardian shall
send or deliver to the ward, and counsel if represented at the
hearing, a copy of the order of appointment accompanied by a
notice which advises the ward of the right to appeal the
guardianship appointment in the time and manner provided by the
Rules of Appellate Procedure.
(e) Each year, within 30 days after the anniversary date of
an appointment, a guardian shall send or deliver to the ward a
notice of the right to request termination or modification of
the guardianship.
Sec. 35. [524.5-311] [EMERGENCY GUARDIAN.]
(a) If the court finds that compliance with the procedures
of this article will likely result in substantial harm to the
respondent's health, safety, or welfare, and that no other
person appears to have authority and willingness to act in the
circumstances, the court, on petition by a person interested in
the respondent's welfare, may appoint an emergency guardian
whose authority may not exceed 60 days and who may exercise only
the powers specified in the order. A county that is acting
under section 626.557, subdivision 10, by petitioning for
appointment of an emergency guardian on behalf of a vulnerable
adult may be granted authority to act for a period not to exceed
90 days. Immediately upon receipt of the petition for an
emergency guardianship, the court shall appoint a lawyer to
represent the respondent in the proceeding. Except as otherwise
provided in paragraph (b), reasonable notice of the time and
place of a hearing on the petition must be given to the
respondent and any other persons as the court directs.
(b) An emergency guardian may be appointed without notice
to the respondent and the respondent's lawyer only if the court
finds from affidavit or other sworn testimony that the
respondent will be substantially harmed before a hearing on the
appointment can be held. If the court appoints an emergency
guardian without notice to the respondent, the respondent must
be given notice of the appointment within 48 hours after the
appointment. The court shall hold a hearing on the
appropriateness of the appointment within five days after the
appointment.
(c) Appointment of an emergency guardian, with or without
notice, is not a determination of the respondent's incapacity.
(d) The court may remove an emergency guardian at any
time. An emergency guardian shall make any report the court
requires. In other respects, the provisions of this article
concerning guardians apply to an emergency guardian.
Sec. 36. [524.5-312] [TEMPORARY SUBSTITUTE GUARDIAN.]
(a) If the court finds that a guardian is not effectively
performing the guardian's duties and that the welfare of the
ward requires immediate action, it may appoint a temporary
substitute guardian for the ward for a specified period not
exceeding six months. Except as otherwise ordered by the court,
a temporary substitute guardian so appointed has the powers set
forth in the previous order of appointment. The authority of
any unlimited or limited guardian previously appointed by the
court is suspended as long as a temporary substitute guardian
has authority. If an appointment is made without previous
notice to the ward or the affected guardian, within five days
after the appointment, the court shall inform the ward or
guardian of the appointment.
(b) The court may remove a temporary substitute guardian at
any time. A temporary substitute guardian shall make any report
the court requires. In other respects, the provisions of this
article concerning guardians apply to a temporary substitute
guardian.
Sec. 37. [524.5-313] [POWERS AND DUTIES OF GUARDIAN.]
(a) A guardian 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 guardian only those powers
necessary to provide for the demonstrated needs of the ward.
(c) The court may appoint a guardian if it determines that
all the powers and duties listed in this section are needed to
provide for the needs of the incapacitated person. The court
may also appoint a guardian if it determines that a guardian 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 section. The duties and powers of a
guardian or those which the court may grant to a guardian
include, but are not limited to:
(1) the power to have custody of the ward and the power to
establish a place of abode within or outside the state, except
as otherwise provided in this clause. The ward or any
interested person may petition the court to prevent or to
initiate a change in abode. A ward may not be admitted to a
regional treatment center by the guardian except:
(i) after a hearing under chapter 253B;
(ii) for outpatient services; or
(iii) for the purpose of receiving temporary care for a
specific period of time not to exceed 90 days in any calendar
year;
(2) the duty to provide for the ward'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 has no duty to pay for these
requirements out of personal funds. Whenever possible and
appropriate, the guardian should meet these requirements through
governmental benefits or services to which the ward is entitled,
rather than from the ward's estate. Failure to satisfy the
needs and requirements of this clause shall be grounds for
removal of a private guardian, but the guardian shall have no
personal or monetary liability;
(3) the duty to take reasonable care of the ward's
clothing, furniture, vehicles, and other personal effects, and,
if other property requires protection, the power to seek
appointment of a conservator of the estate. The guardian must
give notice by mail to interested persons prior to the
disposition of the ward'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 of the date of mailing and to petition the court for a
review of the guardian's proposed actions. Notice of the
objection must be served by mail or personal service on the
guardian and the ward unless the ward is the objector. The
guardian 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)(i) The power to give any necessary consent to enable
the ward to receive necessary medical or other professional
care, counsel, treatment, or service, except that no guardian
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 shall not consent to any medical care for the ward
which violates the known conscientious, religious, or moral
belief of the ward.
(ii) a guardian who believes a procedure described in item
(i) requiring prior court approval to be necessary for the
proper care of the ward, shall petition the court for an order
and, in the case of a public guardianship 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 in such manner as
specified in section 524.5-308 and to interested persons. The
court shall appoint an attorney to represent the ward who is not
represented by counsel, provided that such appointment shall
expire upon the expiration of the appeal time for the order
issued by the court under this section or the order dismissing a
petition, or upon such other time or event as the court may
direct. In every case the court shall determine if the
procedure is in the best interest of the ward. In making its
determination, the court shall consider a written medical report
which specifically considers the medical risks of the procedure,
whether alternative, less restrictive methods of treatment could
be used to protect the best interest of the ward, and any
recommendation of the commissioner of human services for a
public ward. The standard of proof is that of clear and
convincing evidence.
(iii) In the case of a petition for sterilization of a
mentally retarded ward, 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 social history and adjustment or the
case manager for the ward to examine or evaluate the ward 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
interest of the ward. 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
interest of the ward.
(iv) Any ward whose right to consent to a sterilization has
not been restricted under this section or section 252A.101 may
be sterilized only if the ward consents in writing or there is a
sworn acknowledgment by an interested person of a nonwritten
consent by the ward. The consent must certify that the ward has
received a full explanation from a physician or registered nurse
of the nature and irreversible consequences of the sterilization.
(v) A guardian or the public guardian's designee who acts
within the scope of authority conferred by letters of
guardianship under section 252A.101, 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 the public guardian's designee has consented.
(5) In the event there is no duly appointed conservator of
the ward's estate, the guardian shall have the power to approve
or withhold approval of any contract, except for necessities,
which the ward may make or wish to make.
(6) The duty and power to exercise supervisory authority
over the ward in a manner which limits civil rights and
restricts personal freedom only to the extent necessary to
provide needed care and services.
(7) If there is no acting conservator of the estate for the
ward, the guardian has the power to apply on behalf of the ward
for any assistance, services, or benefits available to the ward
through any unit of government.
(8) Unless otherwise ordered by the court, the ward retains
the right to vote.
Sec. 38. [524.5-315] [RIGHTS AND IMMUNITIES OF GUARDIAN;
LIMITATIONS.]
(a) A guardian is entitled to reasonable compensation for
services as guardian and to reimbursement for expenditures made
on behalf of the ward, in a manner consistent with section
524.5-502.
(b) A guardian is not liable to a third person for acts of
the ward solely by reason of the relationship. A guardian who
exercises reasonable care in choosing a third person providing
medical or other care, treatment, or service for the ward is not
liable for injury to the ward resulting from the wrongful
conduct of the third person.
(c) A guardian, without authorization of the court, may
revoke the appointment of an agent of a health care directive of
which the ward is the principal, but the guardian may not,
absent a court order, revoke the health care directive itself.
If a health care directive is in effect, absent an order of the
court to the contrary, a health care decision of the guardian
takes precedence over that of an agent.
(d) A guardian may not initiate the commitment of a ward to
an institution except in accordance with section 524.5-313.
Sec. 39. [524.5-316] [REPORTS; MONITORING OF
GUARDIANSHIP.]
(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 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) 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; and
(4) a recommendation as to the need for continued
guardianship and any recommended changes in the scope of the
guardianship.
(b) The court may appoint a visitor to review a report,
interview the ward or guardian, and make any other investigation
the court directs.
(c) The court shall establish a system for monitoring
guardianships, including the filing and review of annual reports.
Sec. 40. [524.5-317] [TERMINATION OR MODIFICATION OF
GUARDIANSHIP.]
(a) A guardianship terminates upon the death of the ward or
upon order of the court.
(b) On petition of any person interested in the ward's
welfare the court may terminate a guardianship if the ward no
longer needs the assistance or protection of a guardian. The
court may modify the type of appointment or powers granted to
the guardian if the extent of protection or assistance
previously granted is currently excessive or insufficient or the
ward's capacity to provide for support, care, education, health,
and welfare has so changed as to warrant that action.
(c) Except as otherwise ordered by the court for good
cause, the court, before terminating a guardianship, shall
follow the same procedures to safeguard the rights of the ward
as apply to a petition for guardianship. Upon presentation by
the petitioner of evidence establishing a prima facie case for
termination, the court shall order the termination and discharge
the guardian unless it is proven that continuation of the
guardianship is in the best interest of the ward.
PART 4
PROTECTION OF PROPERTY OF PROTECTED PERSON
Sec. 41. [524.5-401] [PROTECTIVE PROCEEDING.]
Upon petition and after notice and hearing, the court may
appoint a limited or unlimited conservator or make any other
protective order provided in this part in relation to the estate
and affairs of:
(1) a minor, if the court determines that the minor owns
money or property requiring management or protection that cannot
otherwise be provided or has or may have business affairs that
may be jeopardized or prevented because of the minor's age, or
that money is needed for support and education and that
protection is necessary or desirable to obtain or provide money;
and
(2) any individual, including a minor, if the court
determines that, for reasons other than age:
(i) by clear and convincing evidence, the individual is
unable to manage property and business affairs because of an
impairment in the ability to receive and evaluate information or
make decisions, even with the use of appropriate technological
assistance, or because the individual is missing, detained, or
unable to return to the United States; and
(ii) by a preponderance of evidence, the individual has
property that will be wasted or dissipated unless management is
provided or money is needed for the support, care, education,
health, and welfare of the individual or of individuals who are
entitled to the individual's support and that protection is
necessary or desirable to obtain or provide money.
Sec. 42. [524.5-402] [JURISDICTION OVER BUSINESS AFFAIRS
OF PROTECTED PERSON.]
After the service of notice in a proceeding seeking a
conservatorship or other protective order and until termination
of the proceeding, the court in which the petition is filed has:
(1) exclusive jurisdiction to determine the need for a
conservatorship or other protective order;
(2) exclusive jurisdiction to determine how the estate of
the protected person which is subject to the laws of this state
must be managed, expended, or distributed to or for the use of
the protected person, individuals who are in fact dependent upon
the protected person, or other claimants; and
(3) concurrent jurisdiction to determine the validity of
claims against the person or estate of the protected person and
questions of title concerning assets of the estate.
Sec. 43. [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 and address of any proposed conservator and
the reason why the proposed conservator should be selected;
(2) the name and address 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.
Sec. 44. [524.5-404] [NOTICE.]
(a) A copy of the petition and the notice of hearing on a
petition for conservatorship or other protective order must be
served personally on the respondent pursuant to section
524.5-406, paragraph (c), but if the respondent's location is
unknown or personal service cannot be made, service on the
respondent must be made by substituted service or publication.
The notice must include a statement that the respondent must be
physically present unless excused by the court, inform the
respondent of the respondent's rights at the hearing, and, if
the appointment of a conservator is requested, include a
description of the nature, purpose, and consequences of an
appointment. A failure to serve the respondent with a notice
substantially complying with this paragraph precludes the court
from granting the petition.
(b) In a proceeding to establish a conservatorship or for
another protective order, notice of the hearing shall also be
given to the persons listed in the petition. Failure to give
notice under this paragraph does not preclude the appointment of
a conservator or the making of another protective order.
(c) Notice of the hearing on a petition for an order after
appointment of a conservator or making of another protective
order, shall be given to interested persons pursuant to section
524.5-113 and to any other person as ordered by the court,
except notice to the protected person is not required if the
protected person has not attained 14 years of age and is not
missing, detained, or unable to return to the United States.
(d) The conservator shall give notice of the filing of the
conservator's inventory, together with a copy of the inventory,
to the protected person and any other person the court directs.
The notice must be sent or delivered within 14 days after the
filing of the inventory.
Sec. 45. [524.5-405] [ORIGINAL PETITION: MINORS;
PRELIMINARIES TO HEARING.]
(a) Upon the filing of a petition to establish a
conservatorship or for another protective order for the reason
that the respondent is a minor, the court shall set a date for
hearing. If the court determines at any stage of the proceeding
that the interests of the minor are or may be inadequately
represented, it may appoint a lawyer to represent the minor,
giving consideration to the choice of the minor if the minor has
attained 14 years of age.
(b) While a petition to establish a conservatorship or for
another protective order is pending, after preliminary hearing
and without notice to others, the court may make orders to
preserve and apply the property of the minor as may be required
for the support of the minor or individuals who are in fact
dependent upon the minor, and may appoint an agent to assist in
that task.
Sec. 46. [524.5-406] [ORIGINAL PETITION: PERSONS UNDER
DISABILITY; PRELIMINARIES TO HEARING.]
(a) Upon the filing of a petition for a conservatorship or
other protective order for a respondent for reasons other than
being a minor, the court shall set a date for hearing. The
court shall appoint a visitor. The duties and reporting
requirements of the visitor are limited to the relief requested
in the petition. The visitor must be an individual having
training or experience in the type of incapacity alleged.
(b) A respondent has the right to be represented by counsel
at any proceeding under this article. The court shall appoint
counsel to represent the respondent for the initial proceeding
held pursuant to section 524.5-408 if neither the respondent nor
others provide counsel, unless in a meeting with a visitor, the
proposed respondent specifically waives the right to counsel.
Counsel must be appointed immediately after any petition under
this part is served pursuant to section 524.5-404. Counsel has
the full right of subpoena. In all proceedings under this part,
counsel shall:
(1) consult with the respondent before any hearing;
(2) be given adequate time to prepare for all hearings; and
(3) continue to represent the respondent throughout any
proceedings under section 524.5-408, provided that such
appointment shall expire upon the expiration of the appeal time
for the order appointing conservator or the order dismissing a
petition, or upon such other time or event as the court may
direct.
The court need not appoint counsel to represent the
respondent on a voluntary petition, and the court may remove a
court-appointed attorney at any time if the court finds that the
respondent has made a knowing and intelligent waiver of the
right to counsel or has obtained private counsel.
(c) The visitor shall personally serve the notice and
petition upon the respondent and shall offer to read the notice
and petition to the respondent, and if so requested, the visitor
shall read the notice and petition to such person. The visitor
shall also interview the respondent in person, and to the extent
that the respondent is able to understand:
(1) explain to the respondent the substance of the petition
and the nature, purpose, and effect of the proceeding;
(2) if the appointment of a conservator is requested,
inform the respondent of the general powers and duties of a
conservator and determine the respondent's views regarding the
proposed conservator, the proposed conservator's powers and
duties, and the scope and duration of the proposed
conservatorship;
(3) inform the respondent of the respondent's rights,
including the right to employ and consult with a lawyer at the
respondent's own expense, and the right to request a
court-appointed lawyer; and
(4) inform the respondent that all costs and expenses of
the proceeding, including respondent's attorney fees, will be
paid from the respondent's estate.
(d) In addition to the duties set out in paragraph (c), the
visitor shall make any other investigations the court directs.
(e) The visitor shall promptly file a report with the court
which must include:
(1) recommendations regarding the appropriateness of a
conservatorship, including whether less restrictive means of
intervention are available, the type of conservatorship, and, if
a limited conservatorship, the powers and duties to be granted
the limited conservator, and the assets over which the
conservator should be granted authority;
(2) a statement as to whether the respondent approves or
disapproves of the proposed conservator, and the powers and
duties proposed or the scope of the conservatorship; and
(3) any other matters the court directs.
(f) While a petition to establish a conservatorship or for
another protective order is pending, after preliminary hearing
and without notice to others, the court may make orders to
preserve and apply the property of the respondent as may be
required for the support of the respondent or individuals who
are in fact dependent upon the respondent, and may appoint an
agent to assist in that task.
Sec. 47. [524.5-408] [ORIGINAL PETITION: PROCEDURE AT
HEARING.]
(a) Unless excused by the court for good cause, the
petitioner and a proposed conservator shall attend the hearing.
The respondent shall attend and participate in the hearing
unless excused by the court for good cause. The petitioner and
respondent may present evidence and subpoena witnesses and
documents, examine witnesses, including the visitor, and
otherwise participate in the hearing. The hearing may be held
in a location convenient to the respondent and may be closed
upon request of the respondent and a showing of good cause.
(b) Any person may request permission to participate in the
proceeding. The court may grant the request, with or without
hearing, upon a showing of good cause and after determining that
the best interest of the respondent will be served. The court
may attach appropriate conditions to the participation.
Sec. 48. [524.5-409] [FINDINGS; ORDER OF APPOINTMENT.]
(a) The court may appoint a limited or unlimited
conservator for a respondent only if it finds that:
(1) by clear and convincing evidence, the individual is
unable to manage property and business affairs because of an
impairment in the ability to receive and evaluate information or
make decisions, even with the use of appropriate technological
assistance, or because the individual is missing, detained, or
unable to return to the United States;
(2) by a preponderance of evidence, the individual has
property that will be wasted or dissipated unless management is
provided or money is needed for the support, care, education,
health, and welfare of the individual or of individuals who are
entitled to the individual's support and that protection is
necessary or desirable to obtain or provide money; and
(3) the respondent's identified needs cannot be met by less
restrictive means, including use of appropriate technological
assistance.
(b) Alternatively, the court, with appropriate findings,
may enter any other appropriate order, or dismiss the proceeding.
(c) The court, whenever feasible, shall grant to a
conservator only those powers necessitated by the protected
person's limitations and demonstrated needs and make appointive
and other orders that will encourage the development of the
protected person's maximum self-reliance and independence.
(d) Within 14 days after an appointment, the conservator
shall send or deliver to the protected person, if the protected
person has attained 14 years of age and is not missing,
detained, or unable to return to the United States, and counsel
if represented at the hearing, a copy of the order of
appointment accompanied by a notice which advises the protected
person of the right to appeal the conservatorship appointment in
the time and manner provided by the Rules of Appellate Procedure.
(e) Each year, within 30 days after the anniversary date of
an appointment, a conservator shall send or deliver to the
protected person a notice of the right to request termination or
modification of the conservatorship.
(f) The appointment of a conservator or the entry of
another protective order is not a determination of incapacity of
the protected person.
Sec. 49. [524.5-410] [POWERS OF COURT.]
(a) After hearing and upon determining that a basis for a
conservatorship or other protective order exists, the court has
the following powers, which may be exercised directly or through
a conservator:
(1) with respect to a minor for reasons of age, all the
powers over the estate and business affairs of the minor which
may be necessary for the best interest of the minor and members
of the minor's immediate family; and
(2) with respect to an adult, or to a minor for reasons
other than age, for the benefit of the protected person and
individuals who are in fact dependent on the protected person
for support, all the powers over the estate and business affairs
of the protected person which the protected person could
exercise if an adult, present, and not under conservatorship or
other protective order.
(b) Subject to the provisions of section 524.5-110 relating
to letters of office, the court may at any time limit the powers
of a conservator otherwise conferred and may remove or modify
any limitation.
Sec. 50. [524.5-411] [REQUIRED COURT APPROVAL.]
(a) After notice to affected persons as provided in this
section, and after hearing, and upon express authorization of
the court, a conservator may:
(1) make gifts;
(2) convey, release, or disclaim contingent and expectant
interests in property, including marital property rights and any
right of survivorship incident to joint tenancy or tenancy by
the entireties;
(3) exercise or release a power of appointment;
(4) create a revocable or irrevocable trust of property of
the estate, whether or not the trust extends beyond the duration
of the conservatorship, or to revoke or amend a trust revocable
by the protected person;
(5) subject to the terms of the plan document, contract, or
agreement, exercise rights to elect options and change
beneficiaries under insurance policies and annuities or
surrender the policies and annuities for their cash value, and
any change pursuant to this clause, shall invalidate the
existing elections and beneficiary designations;
(6) exercise any right to exempt property and an elective
share in the estate of the protected person's deceased spouse
and to renounce or disclaim any interest by testate or intestate
succession or by transfer inter vivos;
(7) subject to the terms of the plan document, contract, or
agreement, exercise rights to elect options and change
beneficiaries under any qualified or nonqualified retirement
plan including, but not limited to, defined benefit plans,
defined contribution plans, plans governed by sections 401(k),
403, 408, or 457 of the Internal Revenue Code and the
regulations thereto, and the right to exercise the options
provided a plan participant or beneficiary under section 401 and
related provisions of the Internal Revenue Code and the
regulations thereto, and any change pursuant to this clause,
shall invalidate the existing elections and beneficiary
designations;
(8) exercise the power to create, terminate, or alter the
beneficial interests and beneficiaries of, a payable on death
(POD) account, a transfer on death (TOD) security registration
or account, or joint tenancy interests with rights of
survivorship; and
(9) make, amend, or revoke the protected person's will.
(b) Notice of any hearing pursuant to this section shall
not be given pursuant to section 524.5-113. Notice of any
hearing under this section shall be given to all affected
persons, in plain language, and shall provide the time and place
of the hearing and be given by mail postmarked at least 14 days
before the hearing. Proof of notice must be made before or at
the hearing and filed in the proceeding. For purposes of this
section, notice to "affected persons":
(1) shall always include (i) the protected person, (ii) the
duly appointed conservator, (iii) the protected person's
heirs-at-law, (iv) any state agency or county social services
agency paying benefits to or for the benefit of the protected
person, (v) any state agency to which an application for
benefits has been submitted and any state or county agency that
has prepared an asset assessment or could prepare an asset
assessment under section 256B.059, subdivision 2, for the
protected person or spouse, and (vi) subject to the limitations
of paragraph (c), all beneficiaries of the protected person's
existing will or revocable trust;
(2) shall also include, subject to the limitations of
paragraph (c), any person who has a beneficial vested or
contingent interest that may be affected by the exercise of the
power under this section; and
(3) shall also include any other persons designated by the
court.
(c) For purposes of this section, when giving notice, or
for purposes of giving consent or approval, or objecting with
regard to any proceedings under this section, the sole holder or
all coholders of a presently exercisable or testamentary general
power of appointment, power of revocation, or unlimited power of
withdrawal, under an existing will or trust, are deemed to
represent and act for beneficiaries to the extent that their
interests as objects, takers in default, or otherwise, are
subject to the power.
(d) A conservator, in making, amending, or revoking the
protected person's will, shall comply with section 524.2-501 to
524.2-517 acting on behalf of the protected person.
(e) The court, in exercising or in approving a
conservator's exercise of the powers listed in paragraph (a),
shall consider primarily the decision that the protected person
would have made, to the extent that the decision can be
ascertained. The court shall also consider:
(1) the financial needs of the protected person and the
needs of individuals who are dependent on the protected person
for support and the interests of creditors;
(2) possible effect on income, estate, gift, inheritance,
or other tax liabilities;
(3) eligibility for governmental assistance with the goal
of avoiding reliance on such programs;
(4) the protected person's previous pattern of giving or
level of support;
(5) the existing estate plan;
(6) the protected person's life expectancy and the
probability that the conservatorship will terminate before the
protected person's death;
(7) whether the protected person's needs can be met from
the person's remaining assets after any transfer is made, taking
into account the effect of any transfer on eligibility for
medical assistance long term care services; and
(8) any other factors the court considers relevant.
(f) If an affected person, as defined in this article, is a
minor or an incapacitated person as defined by this article and
has no guardian or conservator within the state, or if an
affected person is unborn, unascertained, or a person whose
identity or address is unknown to the petitioner, the court
shall represent that person, unless the court, upon the
application of the guardian, conservator or any other affected
person, appoints a guardian ad litem to represent the affected
person.
(g) Notwithstanding the power granted to the conservator by
the court under this section, the conservator owes no duty to
any person other than the protected person. The conservator
shall not be held liable for the exercise or the failure to
exercise, or the decision to exercise or the decision to decline
to exercise, the powers granted by this section. The
conservator, however, may be held liable to the protected
person's estate for gross negligence related to the
implementation of any action approved by the court under this
section.
(h) The Uniform Guardianship and Protective Proceedings Act
does not repeal section 524.2-215 as it applies to wards,
protected persons, or respondents, expressly or by implication.
If there is a conflict between the act and section 524.2-215,
section 524.2-215 controls and the guardian or conservator shall
exercise the rights of the ward, protected person, or respondent
under section 524.2-215 without the need for any court order.
Sec. 51. [524.5-412] [PROTECTIVE ARRANGEMENTS AND SINGLE
TRANSACTIONS.]
(a) If a basis is established for a protective order with
respect to an individual, the court, without appointing a
conservator, may:
(1) authorize, direct, or ratify any transaction necessary
or desirable to achieve any arrangement for security, service,
or care meeting the foreseeable needs of the protected person,
including:
(i) subject to the procedural and notice requirements of
section 524.5-418, the sale, mortgage, lease, or other transfer
of property;
(ii) purchase of an annuity;
(iii) making a contract for lifetime care, a deposit
contract, or a contract for training and education; or
(iv) addition to or establishment of a suitable trust,
including a trust created under the Uniform Custodial Trust Act;
and
(2) authorize, direct, or ratify any other contract, trust,
will, or transaction relating to the protected person's property
and business affairs, including a settlement of a claim, upon
determining that it is in the best interest of the protected
person.
(b) In deciding whether to approve a protective arrangement
or other transaction under this section, the court shall
consider the factors listed in section 524.5-411, paragraph (e).
(c) The court may appoint an agent to assist in the
accomplishment of any protective arrangement or other
transaction authorized under this section. The agent has the
authority conferred by the order and shall serve until
discharged by order after report to the court; provided,
however, that if a conservator is appointed, only the
conservator has the power to sign all real estate deeds.
Sec. 52. [524.5-413] [WHO MAY BE CONSERVATOR; PRIORITIES.]
(a) Except as otherwise provided in paragraph (d), the
court, in appointing a conservator, shall consider persons
otherwise qualified in the following order of priority:
(1) a conservator, guardian of the estate, or other like
fiduciary appointed or recognized by an appropriate court of any
other jurisdiction in which the protected person resides;
(2) a person nominated as conservator by the respondent,
including the respondent's most recent nomination made in a
durable power of attorney, if the respondent has attained 14
years of age and at the time of the nomination had sufficient
capacity to express a preference;
(3) an agent appointed by the respondent to manage the
respondent's property under a durable power of attorney;
(4) the spouse of the respondent;
(5) an adult child of the respondent;
(6) a parent of the respondent; and
(7) an adult with whom the respondent has resided for more
than six months before the filing of the petition.
(b) A person having priority under paragraph (a), clause
(1), (4), (5), or (6), may designate in writing a substitute to
serve instead and thereby transfer the priority to the
substitute.
(c) The court, acting in the best interest of the protected
person, may decline to appoint a person having priority and
appoint a person having a lower priority or no priority. With
respect to persons having equal priority, the court shall select
the one it considers best qualified.
(d) Any individual or agency which provides residence,
custodial care, medical care, employment training, or other care
or services for which they receive a fee may not be appointed as
conservator unless related to the respondent by blood, marriage,
or adoption.
Sec. 53. [524.5-414] [PETITION FOR ORDER SUBSEQUENT TO
APPOINTMENT.]
(a) A protected person or an interested person may file a
petition in the appointing court for an order:
(1) requiring bond or collateral or additional bond or
collateral, or reducing bond;
(2) requiring an accounting for the administration of the
protected person's estate;
(3) directing distribution;
(4) removing the conservator and appointing a temporary or
successor conservator;
(5) modifying the type of appointment or powers granted to
the conservator if the extent of protection or management
previously granted is currently excessive or insufficient or the
protected person's ability to manage the estate and business
affairs has so changed as to warrant the action; or
(6) granting other appropriate relief.
(b) A conservator may petition the appointing court for
instructions concerning fiduciary responsibility.
(c) On notice and hearing the petition, the court may give
appropriate instructions and make any appropriate order.
(d) The court may, at its own discretion, waive the notice
or hearing requirements for the relief requested in a petition
filed under this section.
Sec. 54. [524.5-415] [BOND.]
The court may require a conservator to furnish a bond
conditioned upon faithful discharge of all duties of the
conservatorship according to law, with sureties as it may
specify.
Sec. 55. [524.5-416] [TERMS AND REQUIREMENTS OF BOND.]
(a) The following rules apply to any bond required:
(1) Except as otherwise provided by the terms of the bond,
sureties and the conservator are jointly and severally liable.
(2) By executing the bond of a conservator, a surety
submits to the jurisdiction of the court that issued letters to
the primary obligor in any proceeding pertaining to the
fiduciary duties of the conservator in which the surety is named
as a party. Notice of any proceeding must be sent or delivered
to the surety at the address shown in the court records at the
place where the bond is filed and to any other address then
known to the petitioner.
(3) On petition of a successor conservator or any
interested person, a proceeding may be brought against a surety
for breach of the obligation of the bond of the conservator.
(4) The bond of the conservator may be proceeded against
until liability under the bond is exhausted.
(b) A proceeding may not be brought against a surety on any
matter as to which an action or proceeding against the primary
obligor is barred.
Sec. 56. [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 of the estate 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, 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. 57. [524.5-418] [GENERAL POWERS AND DUTIES OF
CONSERVATOR WITH RESPECT TO REAL PROPERTY.]
This section is applicable only to conservatorships and not
to decedents' estates. As used in this section, the word
"mortgage" includes an extension of an existing mortgage,
subject to the provisions of this section, and the word "lease"
means a lease for one or more years, unless the context
indicates otherwise. The conservator shall have the following
powers and duties with respect to conservatorship real property:
(a) The court may direct a sale, mortgage, or lease of any
real estate of a protected person when the personal property is
insufficient to pay debts and other charges against the estate,
or to provide for the support, maintenance, and education of the
protected person, a spouse, and dependent children, or when it
shall determine the sale, mortgage, or lease to be for the best
interest of the protected person. The homestead of a protected
person shall not be sold, mortgaged, or leased unless the
written consent of the spouse has been filed.
(b) A conservator may file a petition to sell, mortgage, or
lease alleging briefly the facts constituting the reasons for
the application and describing the real estate involved
therein. The petition may include all the real estate of the
protected person or any part or parts thereof. It may apply for
different authority as to separate parcels. It may apply in the
alternative for authority to sell, mortgage, or lease.
(1) Upon the filing of such petition, the court shall fix
the time and place for the hearing thereof. Notice of the
hearing shall be given to interested persons and shall state
briefly the nature of the application made by the petition. If
publication of notice is required by the court, published notice
shall be given by publication once a week for two consecutive
weeks in a legal newspaper designated by the petitioner in the
county wherein the proceedings are pending, or, if no such
designation be made, in any legal newspaper in the county, or,
if the city of the protected person's residence is situated in
more than one county, in any legal newspaper in the city. The
first publication shall be had within two weeks after the date
of the order fixing the time and place for the hearing. Proof
of publication and mailing shall be filed before the hearing.
No defect in any notice or in the publication or service thereof
shall invalidate any proceedings.
(2) Upon the hearing, the court shall have full power to
direct the sale, mortgage, or lease of all the real estate
described in the petition, or to direct the sale, mortgage, or
lease of any one or more parcels thereof, provided that any such
direction shall be within the terms of the application made by
the petition. The order shall describe the real estate to be
sold, mortgaged, or leased, and may designate the sequence in
which the several parcels shall be sold, mortgaged, or leased.
If the order be for a sale, it shall direct whether the real
estate shall be sold at private sale or public auction. An
order to mortgage shall fix the maximum amount of the principal
and the maximum rate of interest and shall direct the purpose
for which the proceeds shall be used. An order for sale,
mortgage, or lease shall remain in force until terminated by the
court, but no private sale shall be made after one year from the
date of the order unless the real estate shall have been
reappraised under order of the court within six months preceding
the sale.
(3) The court may order a sale of real estate for cash,
part cash, and a purchase-money mortgage of not more than 50
percent of the purchase price, or on contract for deed. The
initial payment under a sale on contract shall not be less than
ten percent of the total purchase price, and the unpaid purchase
price shall bear interest at a rate of not less than four
percent per annum and shall be payable in reasonable monthly,
quarterly, semiannual, or annual payments, and the final
installment shall become due and payable not later than ten
years from the date of the contract. Such contract shall
provide for conveyance by conservator's or quit claim deed,
which deed shall be executed and delivered upon full performance
of the contract without further order of the court. In the
event of termination of the interest of the purchaser and
assigns in such contract, the real estate may be resold under
the original order and a reappraisal within six months preceding
the sale. A sale of the vendor's interest in real estate sold
by the conservator on contract may be made under order of the
court, with or without notice, upon an appraisal of such
interest within six months preceding the sale; no such sale
shall be made for less than its value as fixed by such appraisal.
(4) If a sale at public auction is ordered, two weeks'
published notice of the time and place of sale shall be given.
Proof of publication shall be filed before the confirmation of
the sale. Such publication and sale may be made in the county
where the real estate is situated or in the county of the
proceedings. If the parcels to be sold are contiguous and lie
in more than one county, notice may be given and the sale may be
made in either of such counties or in the county of the
proceedings. The conservator may adjourn the sale from time to
time, if for the best interests of the estate and the persons
concerned, but not exceeding six months in all. Every
adjournment shall be announced publicly at the time and place
fixed for the sale and, if for more than one day, further notice
thereof shall be given as the court may direct.
(5) If a private sale be ordered, the real estate shall be
reappraised by two or more disinterested persons under order of
the court unless a prior appraisal of the real estate has been
made by two or more disinterested persons not more than six
months before the sale, which reappraisal shall be filed before
the confirmation of the sale. No real estate shall be sold at
private sale for less than its value as fixed by such appraisal.
(6) If the bond is insufficient, before confirmation of a
sale or lease, or before execution of a mortgage, the
conservator shall file an additional bond in such amount as the
court may require.
(7) Upon making a sale or lease, the conservator shall file
a report thereof. Upon proof of compliance with the terms of
the order, the court may confirm the sale or lease and order the
conservator to execute and deliver the proper instrument.
(c) When a protected person is entitled under contract of
purchase to any interest in real estate, such interest may be
sold for the same reasons and in the same manner as other real
estate of a protected person. Before confirmation, the court
may require the filing of a bond conditioned to save the estate
harmless. Upon confirmation, the conservator shall assign the
contract and convey by conservator's or quit claim deed.
(d) When the estate of a protected person is liable for any
charge, mortgage, lien, or other encumbrance upon the real
estate therein, the court may refuse to confirm the sale or
lease until after the filing of a bond in such amount as the
court may direct conditioned to save the estate harmless.
(e) When any real estate of a protected person is desired
by any person, firm, association, corporation, or governmental
agency having the power of eminent domain, the conservator may
agree, in writing, upon the compensation to be made for the
taking, injuring, damaging, or destroying thereof, subject to
the approval of the court. When the agreement has been made,
the conservator shall file a petition, of which the agreement
shall be a part, setting forth the facts relative to the
transaction.
(1) The court, with notice to interested persons, shall
hear, determine, and act upon the petition. If publication of
notice is required by the court, published notice shall be given
by publication once a week for two consecutive weeks in a legal
newspaper designated by the petitioner in the county wherein the
proceedings are pending, or, if no such designation be made, in
any legal newspaper in the county, or, if the city of the
protected person's residence is situated in more than one
county, in any legal newspaper in the city. The first
publication shall be within two weeks after the date of the
order fixing the time and place for the hearing. Proof of
publication and mailing shall be filed before the hearing. No
defect in any notice or in the publication or service thereof
shall invalidate any proceedings.
(2) If the court approves the agreement, the conservator,
upon payment of the agreed compensation, shall convey the real
estate sought to be acquired and execute any release which may
be authorized.
(f) When it is for the best interests of the estate of a
protected person, real estate may be platted by the conservator
under such conditions and upon such notice as the court may
order.
(g) When any protected person is legally bound to make a
conveyance or lease, the court, without further notice, may
direct the conservator to make the conveyance or lease to the
person entitled thereto. The petition may be made by any person
claiming to be entitled to the conveyance or lease, or by the
conservator, or by any interested person or person claiming an
interest in the real estate or contract, and shall show the
description of the land and the facts upon which the claim for
conveyance or lease is based. Upon proof of the petition, the
court may order the conservator to execute and deliver an
instrument of conveyance or lease upon performance of the
contract.
(h) A conservator without order of the court may make an
extension of an existing mortgage for a period of five years or
less, if the extension agreement contains the same prepayment
privileges and the rate of interest does not exceed the lowest
rate in the mortgage extended.
(i) No conservator shall be liable personally on any
mortgage note or by reason of the covenants in any instrument or
conveyance executed in the capacity of conservator.
(j) No sale, mortgage, lease, or conveyance by a
conservator shall be subject to collateral attack on account of
any irregularity in the proceedings if the court which ordered
the same had jurisdiction of the estate.
(k) No proceeding to have declared invalid the sale,
mortgage, lease, or conveyance by a conservator shall be
maintained by any person claiming under or through the protected
person unless such proceeding is begun within five years
immediately succeeding the date of such sale, mortgage, lease,
or conveyance; provided, however, that in case of real estate
sold by a conservator, no action for its recovery shall be
maintained by or under the protected person unless it is begun
within five years after the termination of the protective
proceedings and that, in cases of fraud, minors, and others
under legal disability to sue when the right of action first
accrues may begin such action at any time within five years
after the disability is removed.
(l) After the filing of the petition, a certificate of the
district court certified to that fact may be filed for record in
the office of the county recorder for abstract property, or with
the registrar of titles for registered property, of any county
in which any real estate owned by the proposed protected person
is situated and, if the protected person is a resident of this
state, in the county of residence. 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 and all
transfers of real property made by the protected person after
the filing and before the termination of the conservatorship
shall be void.
Sec. 58. [524.5-419] [INVENTORY; RECORDS.]
(a) Within 60 days after appointment, a conservator shall
prepare and file with the appointing court a detailed inventory
of the estate subject to the conservatorship, together with an
oath or affirmation that the inventory is believed to be
complete and accurate as far as information permits.
(b) A conservator shall keep records of the administration
of the estate and make them available for examination on
reasonable request of the court, ward, protected person, or any
attorney representing such persons.
Sec. 59. [524.5-420] [REPORTS; APPOINTMENT OF VISITOR;
MONITORING.]
(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 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.
(d) The court shall establish a system for monitoring of
conservatorships, including the filing and review of
conservators' reports and plans.
Sec. 60. [524.5-421] [TITLE AFTER APPOINTMENT.]
(a) The appointment of a conservator does not vest title of
the protected person's property in the conservator.
(b) Letters of conservatorship are evidence of the
conservator's power to act on behalf of the protected person.
An order terminating a conservatorship terminates the
conservator's powers to act on behalf of the protected person.
(c) Subject to the requirements of general statutes
governing the filing or recordation of documents of title to
land or other property, letters of conservatorship and orders
terminating conservatorships may be filed or recorded to give
notice of title as between the conservator and the protected
person.
Sec. 61. [524.5-422] [PROTECTED PERSON'S INTEREST
NONALIENABLE.]
(a) Except as otherwise provided in paragraphs (c) and (d),
the interest of a protected person in property is not
transferable or assignable by the protected person. An
attempted transfer or assignment by the protected person,
although ineffective to affect property rights, may give rise to
a claim against the protected person for restitution or damages
which, subject to presentation and allowance, may be satisfied
as provided in section 524.5-429.
(b) Upon appointment of a conservator, property vested in a
protected person is not subject to levy, garnishment, or similar
process for claims against the protected person unless allowed
pursuant to section 524.5-429.
(c) A person without knowledge of the conservatorship who
in good faith and for security or substantially equivalent value
receives delivery from a protected person of tangible personal
property of a type normally transferred by delivery of
possession is protected as if the protected person or transferee
had valid title.
(d) A third party who deals with the protected person with
respect to property subject to a conservatorship is entitled to
any protection provided in other law.
(e) Nothing in this section or in this article shall
prevent the imposition, enforcement, or collection of a lien
under sections 514.980 to 514.985.
Sec. 62. [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.
Sec. 63. [524.5-424] [PROTECTION OF PERSON DEALING WITH
CONSERVATOR.]
(a) A person who assists or deals with a conservator in
good faith and for value in any transaction other than one
requiring a court order under section 524.5-410 or 524.5-411 is
protected as though the conservator properly exercised the
power. The fact that a person knowingly deals with a
conservator does not alone require the person to inquire into
the existence of a power or the propriety of its exercise, but
restrictions on powers of conservators which are endorsed on
letters as provided in section 524.5-110 are effective as to
other persons. A person need not see to the proper application
of assets of the estate paid or delivered to a conservator.
(b) Protection provided by this section extends to any
procedural irregularity or jurisdictional defect that occurred
in proceedings leading to the issuance of letters and is not a
substitute for protection provided to persons assisting or
dealing with a conservator by comparable provisions in other law
relating to commercial transactions or to simplifying transfers
of securities by fiduciaries.
Sec. 64. [524.5-426] [DELEGATION.]
(a) A conservator may not delegate to an agent or another
conservator the entire administration of the estate, but a
conservator may otherwise delegate the performance of functions
that a prudent person of comparable skills may delegate under
similar circumstances.
(b) The conservator shall exercise reasonable care, skill,
and caution in:
(1) selecting an agent;
(2) establishing the scope and terms of a delegation,
consistent with the purposes and terms of the conservatorship;
(3) periodically reviewing an agent's overall performance
and compliance with the terms of the delegation; and
(4) redressing an action or decision of an agent which
would constitute a breach of fiduciary duty if performed by the
conservator.
(c) A conservator who complies with paragraphs (a) and (b)
is not liable to the protected person or to the estate for the
decisions or actions of the agent to whom a function was
delegated.
(d) In performing a delegated function, an agent shall
exercise reasonable care to comply with the terms of the
delegation.
(e) By accepting a delegation from a conservator subject to
the laws of this state, an agent submits to the jurisdiction of
the courts of this state.
Sec. 65. [524.5-427] [PRINCIPLES OF DISTRIBUTION BY
CONSERVATOR.]
(a) Unless otherwise specified in the order of appointment
and endorsed on the letters of appointment, a conservator may
expend or distribute income or principal of the estate of the
protected person without further court authorization or
confirmation for the support, care, education, health, and
welfare of the protected person and individuals who are in fact
dependent on the protected person, including the payment of
child or spousal support, in accordance with paragraphs (b) to
(e).
(b) The conservator shall consider recommendations relating
to the appropriate standard of support, care, education, health,
and welfare for the protected person or an individual who is in
fact dependent on the protected person made by a guardian, if
any, and, if the protected person is a minor, the conservator
shall consider recommendations made by a parent.
(c) The conservator may not be surcharged for money paid to
persons furnishing support, care, education, or benefit to the
protected person or an individual who is in fact dependent on
the protected person pursuant to the recommendations of a parent
or guardian of the protected person unless the conservator knows
that the parent or guardian derives personal financial benefit
therefrom, including relief from any personal duty of support,
or the recommendations are not in the best interest of the
protected person.
(d) In making distributions under this section, the
conservator shall consider:
(1) the size of the estate, the estimated duration of the
conservatorship, and the likelihood that the protected person,
at some future time, may be fully self-sufficient and able to
manage business affairs and the estate;
(2) the accustomed standard of living of the protected
person and individuals who are in fact dependent on the
protected person; and
(3) other money or sources used for the support of the
protected person.
(e) Money expended under this section may be paid by the
conservator to any person, including the protected person, to
reimburse for expenditures that the conservator might have made
or in advance for services to be rendered to the protected
person if it is reasonable to expect the services will be
performed and advance payments are customary or reasonably
necessary under the circumstances.
Sec. 66. [524.5-428] [DEATH OF PROTECTED PERSON.]
(a) If a protected person dies, the conservator shall
deliver to the court for safekeeping any will of the deceased
protected person which may have come into the conservator's
possession, inform the personal representative named in the will
of the delivery, and retain the estate for delivery to a duly
appointed personal representative of the decedent or other
persons entitled thereto.
(b) If a personal representative has not been appointed
within 90 days after the death of a protected person and an
application or petition for appointment is not before the court,
the conservator may apply or petition for appointment as
personal representative in order to administer and distribute
the decedent's estate.
Sec. 67. [524.5-429] [CLAIMS AGAINST PROTECTED PERSON.]
(a) A conservator may pay, or secure by encumbering assets
of the estate, claims against the estate or against the
protected person arising before or during the conservatorship
upon their presentation and allowance in accordance with the
priorities stated in paragraph (d). A claimant may present a
claim by:
(1) sending or delivering to the conservator a written
statement of the claim, indicating its basis, the name and
address of the claimant, and the amount claimed; or
(2) filing a written statement of the claim, in the form
prescribed by rule, with the clerk of court and sending or
delivering a copy of the statement to the conservator.
(b) A claim is deemed presented on receipt of the written
statement of claim by the conservator or the filing of the claim
with the court, whichever occurs first. A presented claim is
allowed if it is not disallowed by written statement sent or
delivered by the conservator to the claimant within 60 days
after its presentation. The conservator before payment may
change an allowance to a disallowance in whole or in part, but
not after allowance by a court order or judgment or an order
directing payment of the claim. The presentation of a claim
tolls the running of any statute of limitations relating to the
claim until 30 days after its disallowance.
(c) A claimant whose claim has not been paid may petition
the court for determination of the claim at any time before it
is barred by a statute of limitations and, upon due proof,
procure an order for its allowance, payment, or security by
encumbering assets of the estate. If a proceeding is pending
against a protected person at the time of appointment of a
conservator or is initiated against the protected person
thereafter, the moving party shall give to the conservator
notice of any proceeding that could result in creating a claim
against the estate.
(d) If it appears that the estate is likely to be exhausted
before all existing claims are paid, the conservator shall
distribute the estate in money or in kind in payment of claims
in the following order:
(1) costs and expenses of administration;
(2) claims of the federal or state government having
priority under other law;
(3) reasonable and necessary medical, hospital, or nursing
home expenses of the protected person, including compensation of
persons attending the ward, protected person, or respondent;
(4) claims incurred by the conservator for support, care,
education, health, and welfare previously provided to the
protected person or individuals who are in fact dependent on the
protected person;
(5) claims arising before the conservatorship; and
(6) all other claims.
(e) Preference may not be given in the payment of a claim
over any other claim of the same class, and a claim due and
payable may not be preferred over a claim not due.
(f) If assets of the conservatorship are adequate to meet
all existing claims, the court, acting in the best interest of
the protected person, may order the conservator to give a
mortgage or other security on the conservatorship estate to
secure payment at some future date of any or all claims.
Sec. 68. [524.5-430] [PERSONAL LIABILITY OF CONSERVATOR.]
(a) Except as otherwise agreed, a conservator is not
personally liable on a contract properly entered into in a
fiduciary capacity in the course of administration of the estate
unless the conservator fails to reveal in the contract the
representative capacity and identify the estate.
(b) A conservator is personally liable for obligations
arising from ownership or control of property of the estate or
for other acts or omissions occurring in the course of
administration of the estate only if personally at fault.
(c) Claims based on contracts entered into by a conservator
in a fiduciary capacity, obligations arising from ownership or
control of the estate, and claims based on torts committed in
the course of administration of the estate may be asserted
against the estate by proceeding against the conservator in a
fiduciary capacity, whether or not the conservator is personally
liable therefor.
(d) A question of liability between the estate and the
conservator personally may be determined in a proceeding for
accounting, surcharge, or indemnification, or in another
appropriate proceeding or action.
(e) A conservator is not personally liable for any
environmental condition on or injury resulting from any
environmental condition on land solely by reason of being
appointed conservator.
Sec. 69. [524.5-431] [TERMINATION OF PROCEEDINGS.]
(a) A conservatorship terminates upon the death of the
protected person or upon order of the court. Unless created for
reasons other than that the protected person is a minor, a
conservatorship created for a minor also terminates when the
protected person attains majority or is emancipated.
(b) Upon the death of a protected person, the conservator
shall conclude the administration of the estate by distribution
of probate property to the personal representative of the
protected person's estate. The conservator shall distribute
nonprobate property to the successor in interest. The
conservator shall file a final report and petition for discharge
no later than 30 days after distribution, and notice of hearing
for allowance of said report shall be given to interested
persons and to the personal representative of the protected
person's estate.
(c) On petition of any person interested in the protected
person's welfare, the court may terminate the conservatorship if
the protected person no longer needs the assistance or
protection of a conservator. Termination of the conservatorship
does not affect a conservator's liability for previous acts or
the obligation to account for funds and assets of the protected
person.
(d) Except as otherwise ordered by the court for good
cause, before terminating a conservatorship, the court shall
follow the same procedures to safeguard the rights of the
protected person that apply to a petition for conservatorship.
Upon the establishment of a prima facie case for termination,
the court shall order termination unless it is proved that
continuation of the conservatorship is in the best interest of
the protected person.
(e) Upon termination of a conservatorship, whether or not
formally distributed by the conservator, title to assets of the
estate remains vested in the formerly protected person or passes
to the person's successors subject to administration, including
claims of creditors and allowances of surviving spouse and
dependent children, and subject to the rights of others
resulting from abatement, retainer, advancement, and ademption.
The order of termination must provide for expenses of
administration and direct the conservator to execute appropriate
instruments to evidence the transfer of title or confirm a
distribution previously made and to file a final report and a
petition for discharge upon approval of the final report.
(f) The court shall enter a final order of discharge upon
the approval of the final report and satisfaction by the
conservator of any other conditions placed by the court on the
conservator's discharge.
Sec. 70. [524.5-432] [PAYMENT OF DEBT AND DELIVERY OF
PROPERTY TO FOREIGN CONSERVATOR WITHOUT LOCAL PROCEEDING.]
(a) A person who is indebted to or has the possession of
tangible or intangible property of a protected person may pay
the debt or deliver the property to a foreign conservator,
guardian of the estate, or other court-appointed fiduciary of
the state of residence of the protected person. Payment or
delivery may be made only upon proof of appointment and
presentation of an affidavit made by or on behalf of the
fiduciary stating that a protective proceeding relating to the
protected person is not pending in this state and the foreign
fiduciary is entitled to payment or to receive delivery.
(b) Payment or delivery in accordance with paragraph (a)
discharges the debtor or possessor, absent knowledge of any
protective proceeding pending in this state.
Sec. 71. [524.5-433] [FOREIGN CONSERVATOR: PROOF OF
AUTHORITY; BOND; POWERS.]
If a conservator has not been appointed in this state and a
petition in a protective proceeding is not pending in this
state, a conservator appointed in the state in which the
protected person resides may file in a court of this state, in a
county in which property belonging to the protected person is
located, authenticated copies of letters of appointment and of
any bond. Thereafter, the conservator may exercise all powers
of a conservator appointed in this state as to property in this
state and may maintain actions and proceedings in this state
subject to any conditions otherwise imposed upon nonresident
parties.
PART 5
MISCELLANEOUS PROVISIONS
Sec. 72. [524.5-501] [GUARDIANSHIP, CONSERVATORSHIP;
WORKERS' COMPENSATION PROCEEDINGS.]
(a) When a matter is referred under section 176.092,
subdivision 3, the court shall determine whether the employee or
dependent is a minor or an incapacitated person, shall appoint a
guardian or conservator if the employee or dependent is a minor
or an incapacitated person, and shall return the matter to the
source of referral.
(b) The court shall oversee the use of monetary benefits
paid to a conservator as provided in this article or under rule
145 of the General Rules of Practice for the district courts.
There is a rebuttable presumption that a settlement or award
approved by the commissioner of the department of labor and
industry or a compensation judge is reasonable and fair to the
employee or dependent.
(c) Subject to the approval of the court, the insurer or
self-insured employer shall pay the costs and guardian,
conservator, and attorney fees of the employee or dependent
associated with the appointment of a guardian or conservator and
as required under section 176.092.
Sec. 73. [524.5-502] [COMPENSATION AND EXPENSES.]
(a) The court may authorize a proceeding under this article
to proceed in forma pauperis, as provided in chapter 563.
(b) In proceedings under this article, a lawyer or health
professional rendering necessary services with regard to the
appointment of a guardian or conservator, the administration of
the protected person's estate or personal affairs, or the
restoration of that person's capacity or termination of the
protective proceeding shall be entitled to compensation from the
protected person's estate or from the county having jurisdiction
over the proceedings if the ward or protected person is
indigent. When the court determines that other necessary
services have been provided for the benefit of the ward or
protected person by a lawyer or health professional, the court
may order fees to be paid from the estate of the protected
person or from the county having jurisdiction over the
proceedings if the ward or protected person is indigent. If,
however, the court determines that a petitioner, guardian, or
conservator has not acted in good faith, the court shall order
some or all of the fees or costs incurred in the proceedings to
be borne by the petitioner, guardian, or conservator not acting
in good faith. In determining compensation for a guardian or
conservator of an indigent person, the court shall consider a
fee schedule recommended by the board of county commissioners.
The fee schedule may also include a maximum compensation based
on the living arrangements of the ward or protected person. If
these services are provided by a public or private agency, the
county may contract on a fee-for-service basis with that agency.
(c) When the court determines that a guardian or
conservator has rendered necessary services or has incurred
necessary expenses for the benefit of the ward or protected
person, the court may order reimbursement or compensation to be
paid from the estate of the protected person or from the county
having jurisdiction over the guardianship or protective
proceeding if the ward or protected person is indigent. The
court may not deny an award of fees solely because the ward or
protected person is a recipient of medical assistance. In
determining compensation for a guardian or conservator of an
indigent person, the court shall consider a fee schedule
recommended by the board of county commissioners. The fee
schedule may also include a maximum compensation based on the
living arrangements of the ward or protected person. If these
services are provided by a public or private agency, the county
may contract on a fee-for-service basis with that agency.
(d) The court shall order reimbursement or compensation if
the guardian or conservator requests payment and the guardian or
conservator was nominated by the court or by the county adult
protection unit because no suitable relative or other person was
available to provide guardianship or protective proceeding
services necessary to prevent maltreatment of a vulnerable
adult, as defined in section 626.5572, subdivision 15. In
determining compensation for a guardian or conservator of an
indigent person, the court shall consider a fee schedule
recommended by the board of county commissioners. The fee
schedule may also include a maximum compensation based on the
living arrangements of the ward or protected person. If these
services are provided by a public or private agency, the county
may contract on a fee-for-service basis with that agency.
(e) When a county employee serves as a guardian or
conservator as part of employment duties, the court shall order
compensation if the guardian or conservator performs necessary
services that are not compensated by the county. The court may
order reimbursement to the county from the protected person's
estate for compensation paid by the county for services rendered
by a guardian or conservator who is a county employee but only
if the county shows that after a diligent effort it was unable
to arrange for an independent guardian or conservator.
ARTICLE 2
CONFORMING AMENDMENTS AND TRANSITION
Section 1. Minnesota Statutes 2002, section 145C.09, is
amended by adding a subdivision to read:
Subd. 3. [POWER OF A GUARDIAN.] The powers of a guardian
to revoke the appointment of a health care agent in a health
care directive of which the ward is the principal or to revoke
the health care directive itself are specified in section
524.5-315.
Sec. 2. Minnesota Statutes 2002, section 201.014,
subdivision 2, is amended to read:
Subd. 2. [NOT ELIGIBLE.] The following individuals are not
eligible to vote. Any individual:
(a) Convicted of treason or any felony whose civil rights
have not been restored;
(b) Under a guardianship of the person in which the court
order provides that the ward does not retain the right to vote;
or
(c) Found by a court of law to be legally incompetent.
Sec. 3. Minnesota Statutes 2002, section 201.15,
subdivision 1, is amended to read:
Subdivision 1. [GUARDIANSHIPS AND INCOMPETENTS.] The state
court administrator shall report monthly to the secretary of
state the name, address, and date of birth of each individual 18
years of age or over, who during the month preceding the date of
the report:
(a) was placed under a guardianship of the person in which
the court order provides that the ward does not retain the right
to vote; or
(b) was adjudged legally incompetent.
The court administrator shall also report the same
information for each individual transferred to the jurisdiction
of the court who meets a condition specified in clause (a) or
(b). The secretary of state shall determine if any of the
persons in the report is registered to vote and shall prepare a
list of those registrants for the county auditor. The county
auditor shall change the status on the record in the statewide
registration system of any individual named in the report to
indicate that the individual is not eligible to reregister or
vote.
Sec. 4. Minnesota Statutes 2002, section 245A.041, is
amended to read:
245A.041 [SYSTEMS AND RECORDS.]
Subdivision 1. [ESTABLISHMENT; USE.] (a) The commissioner
may establish systems and records to fulfill the requirements of
section 245A.04. 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.
A person making a request under clause (2) must agree in
writing not to disclose the data to any other person without the
consent of the subject of the data.
(b) The commissioner may recover the cost of obtaining and
providing background study data by charging the person or entity
requesting the study a fee of no more than $12 per study. The
fees collected under this paragraph are appropriated to the
commissioner for the purpose of conducting background studies.
Subd. 2. [NATIONAL RECORDS SEARCH.] (a) When specifically
required by statute, the commissioner shall also obtain criminal
history data from the National Criminal Records Repository. To
obtain criminal history data from the National Criminal Records
Repository, the commissioner shall require classifiable
fingerprints of the data subject and must submit these
fingerprint requests through the bureau of criminal
apprehension. The commissioner may recover the cost of
obtaining and providing criminal history data from the National
Criminal Records Repository by charging the person or entity
requesting the study a fee of no more than $30 per study. The
fees collected under this subdivision are appropriated to the
commissioner for the purpose of obtaining criminal history data
from the National Criminal Records Repository.
(b) To obtain criminal history data from the National
Criminal Records Repository under this chapter, the commissioner
may require the background study subject to submit fingerprint
images electronically. The commissioner may not require
electronic fingerprint images until the electronic recording and
transfer system is available for non-criminal-justice purposes
and the necessary equipment is in use in the law enforcement
agency in the background study subject's local community.
Sec. 5. Minnesota Statutes 2002, section 507.04, is
amended to read:
507.04 [CONVEYANCE BY SPOUSE OF INSANE OR INCOMPETENT
PERSON OF PROTECTED PERSON'S REAL PROPERTY.]
Subdivision 1. [WITH GUARDIAN'S NO CONVEYANCE EXCEPT BY
COURT APPROVAL.] The spouse of any person who is adjudged by a
court of competent jurisdiction to be insane or incompetent to
transact business or manage that person's estate, and for whose
person or estate, or both, a guardian is appointed by a district
court of this state, may, with the guardian's approval, by
separate deed convey any real estate, the title to which is in
such spouse, as fully as the spouse could do if unmarried. A
duly certified copy of the letters of guardianship of the
guardian shall be recorded in the office of the county recorder
of the county in which the real estate is situated. The
approval of the conveyance by the guardian shall be in writing,
after being first authorized to do so by an order of the
district court, and shall be endorsed on the instrument of the
conveyance. Without the approval of the guardian, Except as
otherwise provided by this section, if a protected person's
right to convey an interest in real property is restricted under
sections 524.5-401 to 524.5-433, no conveyance of the interest
is effective unless ordered by the court pursuant to section
524.5-418. A conveyance of an interest in real property owned
by the competent spouse does not affect of a protected person
remains subject to the marital rights of the insane or
incompetent spouse protected person unless the protected
person's conservator joins in the conveyance on behalf of the
protected person pursuant to a court order under section
524.5-418. This section does not revive marital rights in real
property extinguished as part of a property agreement or
settlement between the spouses approved by a court of competent
jurisdiction, including but not limited to a valid pre-nuptial
or post-nuptial agreement, a legal separation, or any other
court approved division of assets between the spouses.
Subd. 2. [DISABILITY FOR THREE YEARS.] Where no guardian
has been appointed of the person or estate of such insane or
incompetent spouse and such insanity or incompetency has existed
or may exist for three years subsequent to the adjudication of
the insanity or incompetency of the insane or incompetent
spouse, the spouse of the insane or incompetent person may
convey any real estate, the title to which is in the spouse, as
fully as the spouse could do if unmarried.
Subd. 3. [HOMESTEAD.] This section does not authorize the
conveyance of a homestead unless the guardian of the person or
estate of the insane or incompetent person appointed by the
district court of the proper county consents in writing to the
conveyance by endorsement thereon after being first authorized
so to do by order of the district court.
Subd. 4. [NONRESIDENT WITH DISABILITY.] The provisions of
subdivisions 2 and 3 do not apply to a nonresident insane or
incompetent person.
Subd. 5. [INCHOATE INTEREST IN SPOUSE'S SHARE REAL
PROPERTY OF PROTECTED PERSON'S SPOUSE.] In all cases where
the district court under section 524.5-418 has directed ordered
a sale conveyance of the interest of an insane or incompetent
interest in real property owned by a protected person in real
estate or has ordered a protected person's joinder in the
conveyance of an interest in real property owned by the
protected person's spouse, the sale conveyance includes the
inchoate interest of the protected person in any share or part
of the real estate property owned by such the protected person's
spouse whether or not specifically mentioned in the proceedings
or conveyance, when the interest of the spouse is also conveyed
to the same grantee.
Subd. 6. [VALIDITY OF HOMESTEAD CONVEYANCE.] No conveyance
of the homestead is valid unless made by both spouses in a joint
deed each spouse or the duly authorized legal representative of
each spouse joins in the conveyance by joint deed or by separate
deeds.
Sec. 6. Minnesota Statutes 2002, section 524.2-502, is
amended to read:
524.2-502 [EXECUTION; WITNESSED WILLS.]
Except as provided in sections 524.2-506 and 524.2-513, a
will must be:
(1) in writing;
(2) signed by the testator or in the testator's name by
some other individual in the testator's conscious presence and
by the testator's direction or signed by the testator's
conservator pursuant to a court order under section 524.5-411;
and
(3) signed by at least two individuals, each of whom signed
within a reasonable time after witnessing either the signing of
the will as described in clause (2) or the testator's
acknowledgment of that signature or acknowledgment of the will.
Sec. 7. Minnesota Statutes 2002, section 524.3-203, is
amended to read:
524.3-203 [PRIORITY AMONG PERSONS SEEKING APPOINTMENT AS
PERSONAL REPRESENTATIVE.]
(a) Whether the proceedings are formal or informal, persons
who are not disqualified have priority for appointment in the
following order:
(1) the person with priority as determined by a probated
will including a person nominated by a power conferred in a
will;
(2) the surviving spouse of the decedent who is a devisee
of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent;
(6) 45 days after the death of the decedent, any creditor;
(7) 90 days after the death of the decedent and pursuant to
section 524.5-428, paragraph (b), any conservator of the
decedent who has not been discharged.
(b) An objection to an appointment can be made only in
formal proceedings. In case of objection the priorities stated
in (a) apply except that
(1) if the estate appears to be more than adequate to meet
exemptions and costs of administration but inadequate to
discharge anticipated unsecured claims, the court, on petition
of creditors, may appoint any qualified person;
(2) in case of objection to appointment of a person other
than one whose priority is determined by will by an heir or
devisee appearing to have a substantial interest in the estate,
the court may appoint a person who is acceptable to heirs and
devisees whose interests in the estate appear to be worth in
total more than half of the probable distributable value, or, in
default of this accord any suitable person.
(c) A person entitled to letters under (2) to (5) of (a)
above may nominate a qualified person to act as personal
representative. Any person aged 18 and over may renounce the
right to nominate or to an appointment by appropriate writing
filed with the court. When two or more persons share a
priority, those of them who do not renounce must concur in
nominating another to act for them, or in applying for
appointment.
(d) Conservators of the estates of protected persons, or if
there is no conservator, any guardian except a guardian ad litem
of a minor or incapacitated person, may exercise the same right
to nominate, to object to another's appointment, or to
participate in determining the preference of a majority in
interest of the heirs and devisees that the protected person or
ward would have if qualified for appointment.
(e) Appointment of one who does not have priority,
including priority resulting from disclaimer, renunciation or
nomination determined pursuant to this section, may be made only
in formal proceedings. Before appointing one without priority,
the court must determine that those having priority, although
given notice of the proceedings, have failed to request
appointment or to nominate another for appointment, and that
administration is necessary.
(f) No person is qualified to serve as a personal
representative who is:
(1) under the age of 18;
(2) a person whom the court finds unsuitable in formal
proceedings;
(g) A personal representative appointed by a court of the
decedent's domicile has priority over all other persons except
as provided in (b)(1) or where the decedent's will nominates
different persons to be personal representative in this state
and in the state of domicile. The domiciliary personal
representative may nominate another, who shall have the same
priority as the domiciliary personal representative.
(h) This section governs priority for appointment of a
successor personal representative but does not apply to the
selection of a special administrator.
Sec. 8. [REPEALER.]
Minnesota Statutes 2002, sections 524.5-505; 525.539;
525.54; 525.541; 525.542; 525.543; 525.544; 525.545; 525.55;
525.5501; 525.551; 525.5515; 525.552; 525.56; 525.561; 525.562;
525.57; 525.58; 525.581; 525.582; 525.583; 525.59; 525.591;
525.60; 525.61; 525.615; 525.6155; 525.616; 525.6165; 525.617;
525.6175; 525.618; 525.6185; 525.619; 525.6192; 525.6194;
525.6195; 525.6196; 525.6197; 525.6198; 525.6199; 525.62;
525.63; 525.64; 525.641; 525.642; 525.65; 525.651; 525.652;
525.66; 525.661; 525.662; 525.67; 525.68; 525.69; 525.691;
525.692; 525.70; 525.702; 525.703; and 525.705, are repealed.
Sec. 9. [TRANSITION PROVISIONS.]
(a) Articles 1 and 2 apply to each guardianship or
conservatorship proceeding and each appointment of guardian or
conservator commenced on or after the effective date of articles
1 and 2. Except as otherwise provided in this section, articles
1 and 2 apply to each guardianship or conservatorship approved
by the court prior to the effective date of articles 1 and 2,
and to any guardianship or conservatorship proceeding pending in
court on the effective date of articles 1 and 2, unless the
court finds for good cause or in the interests of judicial
economy that the proceeding should be completed under the
provisions of Minnesota Statutes, chapter 525, as it existed
prior to the effective date of articles 1 and 2.
(b) A guardian or conservator who is not discharged prior
to the effective date of articles 1 and 2 shall continue to hold
the appointment but shall have only the powers specified in the
order of appointment and in Minnesota Statutes, chapter 525, as
it existed prior to the effective date of articles 1 and 2.
Each guardian or conservator holding an appointment on the
effective date of articles 1 and 2 shall continue to be bound by
the duties imposed by the order of appointment; by Minnesota
Statutes, chapter 525, as it existed prior to the effective date
of articles 1 and 2; and by article 1, section 50; and shall be
bound by any additional duties imposed by articles 1 and 2
starting on the first day of the next month starting after the
effective date of articles 1 and 2 or on the next anniversary
date of the appointment, whichever occurs later.
(c) Any act done prior to the effective date of articles 1
and 2 in any proceeding and any right accrued under Minnesota
Statutes, chapter 525, prior to the effective date of articles 1
and 2 shall not be impaired by articles 1 and 2. If a right is
acquired, extinguished, or barred upon the expiration of a
prescribed period of time which has commenced to run in
accordance with the provisions of any statute before the
effective date of articles 1 and 2, the provisions of the prior
statute shall remain in force with respect to that right
notwithstanding the statute's amendment or repeal by articles 1
and 2.
(d) An order of the court or letters of guardianship or
conservatorship issued by the court prior to the effective date
of articles 1 and 2 shall remain in full force and effect in
accordance with its terms and conditions and in accordance with
the provisions of prior law until the court modifies the order
or letters in accordance with the provisions of articles 1 and 2.
Upon request for a certified copy of an order or letters which
remains in full force and effect under this paragraph, the court
administrator shall certify that the order or letters remains in
full force and effect pursuant to this paragraph.
(e) The court, without hearing or notice to any person, may
issue new letters of guardianship or conservatorship under
articles 1 and 2 to replace similar letters issued prior to the
effective date of articles 1 and 2. The new letters shall be
effective under articles 1 and 2 with the same force and effect
as the prior letters and shall remain in full force and effect
until modified by the court in accordance with the provisions of
articles 1 and 2.
(f) A power of attorney executed in accordance with
Minnesota Statutes, section 524.5-505, prior to the effective
date of articles 1 and 2, or any surety bond, deed, or other
instrument, report, or other undertaking executed in accordance
with Minnesota Statutes, chapter 525, prior to the effective
date of articles 1 and 2, shall remain in full force and effect
for all purposes in accordance with its terms and conditions and
the provisions of the applicable statutes under which the power
of attorney, surety bond, deed, or other instrument, report, or
other undertaking was executed, until the power of attorney,
surety bond, deed, or other instrument, report, or other
undertaking expires according to its terms or pursuant to the
statutes governing its execution, or is modified, terminated, or
superseded by a new power of attorney, surety bond, deed, or
other instrument, report, or other undertaking executed in
accordance with the provisions of articles 1 and 2.
Presented to the governor April 10, 2003
Signed by the governor April 11, 2003, 5:45 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes