Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2004, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 146-S.F.No. 1745
An act relating to civil law; changing certain
provisions of trust law; clarifying procedures and
terms; providing an effective date; making technical
changes to guardianship and conservatorship law and
correcting certain references; amending Minnesota
Statutes 2002, sections 144.343, subdivision 2;
145B.03, subdivision 3; 145C.05, subdivision 2;
145C.07, subdivisions 2, 4; 147.091, subdivision 2;
147A.13, subdivision 2; 148.10, subdivision 6; 148.75;
153.22, subdivision 4; 156.122; 176.092, subdivision
1; 196.051, subdivision 2; 252A.01, subdivision 1;
252A.03, subdivision 3; 252A.06, subdivision 2;
252A.081; 252A.111; 252A.171; 252A.19; 253B.03,
subdivisions 4a, 6, 6a, 6d, 11; 257B.02; 257B.04,
subdivision 4; 257B.06, subdivision 2; 257C.02;
260C.325, subdivision 3; 270B.03, subdivision 2;
501B.08; 501B.14, subdivision 3; 501B.16; 501B.47;
501B.49, subdivision 2; 501B.50; 501B.51, subdivision
1; 501B.53, subdivision 4; 519.07; 523.03; 524.1-201;
524.2-606; 524.3-715; 525.71; 609.2325, subdivision 2;
609.233, subdivision 2; 626.557, subdivision 10;
626.5572, subdivision 17; Minnesota Statutes 2003
Supplement, sections 256J.14; 524.5-104; 524.5-118,
subdivision 2; 524.5-304; 524.5-308; 524.5-406;
524.5-408; 524.5-417; Laws 2002, chapter 347, section
5; proposing coding for new law in Minnesota Statutes,
chapter 501B.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
ARTICLE 1
TRUSTS
Section 1. [501B.012] [MEMORIAL FUND.]
Subdivision 1. [ESTABLISHMENT.] A trust may be created for
the purpose of establishing a fund for the benefit of one or
more individuals with a single transfer under the Minnesota
Uniform Custodial Trust Act in the manner and form provided by
section 529.17. A trust authorized under this section must be
created and administered and is subject to the Minnesota Uniform
Custodial Trust Act.
Subd. 2. [ADDITIONAL FUNDS.] Notwithstanding subdivision
1, after a fund has been created, additional funds may be
transferred to the fund without the formalities required by
chapter 529 if the transferor manifests a reasonable expression
of intent to make the transfer, together with a reasonable form
of delivery of the property including, but not limited to, the
following:
(1) a check payable to the name of the fund and delivered
to the trustee or the trustee's custodial agent;
(2) delivery of cash or tangible personal property to the
trustee or to the trustee's custodial agent;
(3) delivery and recording of title of stock or other
registered security in the name of the fund;
(4) delivery of a deed and acceptance of the deed by the
trustee of the fund, or the recording of a deed in the name of
the trustee of the fund with the applicable county recorder or
registrar of titles for real property; and
(5) any other means of transfer and delivery so that a
reasonable person would conclude that the transferor intended
the property be titled in the name of, and used for the benefit
of the beneficiaries of, the fund.
Sec. 2. Minnesota Statutes 2002, section 501B.08, is
amended to read:
501B.08 [APPOINTMENT OF AND ACQUISITION OF TITLE BY
SUCCESSOR TRUSTEES AND CONFIRMATION OF ACTS PERFORMED DURING
VACANCIES IN TRUSTEESHIP.]
If the terms of a trust provide for the appointment of a
successor trustee and direct how the successor is to qualify,
title to the trust assets vests in the successor trustee upon
qualification, unless the terms of the trust expressly provide
otherwise.
If the terms of a trust do not effectively provide for the
appointment of a successor trustee and appointment of a
successor is required, or if title to the trust assets does not
vest in a successor trustee, the district court may appoint a
successor trustee or vest title in a successor trustee.
Whenever the district court appoints a successor trustee,
it is presumed that a corporate trustee must be replaced by
another corporate trustee unless the court finds it would best
serve the interests of all the beneficiaries and is not
inconsistent with a material purpose of the trust to not appoint
a corporate trustee.
The district court may confirm an act performed by a person
in execution of the trust while there was no acting trustee.
Sec. 3. Minnesota Statutes 2002, section 501B.14,
subdivision 3, is amended to read:
Subd. 3. [APPLICATION.] (a) Except as provided in
paragraph (b), this section applies to any exercise of any
powers of the trustee after May 14, 1993, under any trust
created before, on, or after May 14, 1993, unless the terms of
the trust refer specifically to this section and provide that
this section does not apply.
(b) This section does not apply to a trustee:
(1) who retains or is granted an unlimited lifetime or
testamentary power, exercisable in a capacity other than as
trustee, to revoke the trust, or to withdraw all of the income
and principal of the trust, or to appoint all of the income and
principal of the trust to the trustee individually or the
trustee's estate;
(2) of a trust created on or before May 14, 1993, if the
entire principal of the trust would be included in the gross
estate of the trustee for federal estate tax purposes if the
trustee had died on May 14, 1993, without regard to any power
described in subdivision 1;
(3) of a trust created on or before May 14, 1993, if no
part of the principal of the trust would be included in the
gross estate of the trustee for federal estate tax purposes if
the trustee had died on May 14, 1993, without exercising the
power; or
(4) of a trust created on or before May 14, 1993, if (i)
the trust is not exempt from generation-skipping transfer tax
under chapter 13 of the Internal Revenue Code of 1986, as
amended through December 31, 1992, because of Public Law 99-514,
section 1433(b) to (d); (ii) there would be a taxable
termination with respect to the assets held in the trust if the
trustee and all beneficiaries of the trust who are assigned to
the trustee's generation or a higher generation had died on May
14, 1993; and (iii) the trust would have an inclusion ratio, as
defined in section 2642(c) of the Internal Revenue Code of 1986,
as amended through December 31, 1992, of one with respect to the
taxable termination; or
(5) of a trust created on or before May 14, 1993, if (i) on
May 14, 1993, there is no person with the power to amend or
revoke the trust, and (ii) on May 14, 1993, there is only one
trustee of the trust.
(c) This section has no effect on an action taken by a
trustee on or before May 14, 1993.
Sec. 4. [501B.154] [NONJUDICIAL SETTLEMENT AGREEMENTS.]
(a) The trustee and all beneficiaries of a trust not under
court supervision may enter into a binding nonjudicial
settlement agreement with respect to the matters listed in
paragraph (c).
(b) A nonjudicial settlement agreement is valid only to the
extent it does not violate a material purpose of the trust,
subject to paragraph (c), clause (5), and includes terms and
conditions that could be properly approved by the court under
applicable law.
(c) Matters that may be resolved by nonjudicial settlement
agreement are:
(1) the approval of a trustee's accounting;
(2) the resignation of a trustee;
(3) the determination of a trustee's compensation;
(4) the transfer of the trust's situs; and
(5) the termination of a noncharitable trust and
distribution of the trust property if the fair market value of
the trust is less than $50,000, as determined on the date of the
nonjudicial settlement agreement, and it has been determined
that relative to the costs of administering the trust,
continuance pursuant to its existing terms will defeat or
substantially impair the accomplishment of its purposes. The
trust property must be distributed in a manner which conforms as
nearly as possible to the intention of the grantor. The
existence of a spendthrift or similar protective provision in
the trust does not conclusively make this clause inapplicable.
Sec. 5. [501B.155] [REPRESENTATION; PLEADINGS; WHEN
PARTIES ARE BOUND BY OTHERS; NOTICE.]
Subdivision 1. [APPLICABILITY.] Subdivisions 2 to 4 apply
in judicial proceedings involving trusts and in nonjudicial
settlement agreements under section 501B.154.
Subd. 2. [DESCRIPTION TO GIVE REASONABLE
NOTICE.] Interests to be affected must be described in the
agreement or pleadings which give reasonable information to
owners by name or class, by reference to the instrument creating
the interests, or in another appropriate manner.
Subd. 3. [BINDING EFFECT OF ORDERS AND AGREEMENTS.] (a)
Persons are bound by orders and nonjudicial settlement
agreements binding others in the cases in paragraphs (b) to (d).
(b) Orders and agreements binding the sole holder or all
coholders of a power of revocation or a presently exercisable
general power of appointment, including one in the form of a
power of amendment, bind all persons to the extent that their
interests, as objects, takers in default, or otherwise are
subject to the power.
(c) To the extent there is no conflict of interest between
them or among persons represented:
(1) orders and agreements binding a conservator of the
property bind the protected person;
(2) orders and agreements binding a guardian bind the ward
if no conservator of the estate has been appointed; and
(3) orders imposed upon and agreements entered into by an
agent having authority to represent and act on behalf of the
principal with respect to a particular question or dispute bind
the principal.
(d) An unborn or unascertained person, a person whose
identity or location is unknown and not reasonably
ascertainable, a minor, or any other person under a legal
disability who is not otherwise represented is bound by an order
or nonjudicial settlement agreement to the extent that the
person's interest is represented by another party having a
substantially identical interest, but only to the extent there
is no conflict of interest between them or among persons
represented. A person's identity or location is not reasonably
ascertainable if the identity or location is unable to be
determined or ascertained after a diligent search is made.
Subd. 4. [REQUIRED NOTICE.] In judicial proceedings
involving trusts, notice is required as follows:
(1) notice as prescribed by section 501B.18 must be given
to every interested person or to one who can bind an interested
person as described in subdivision 3, paragraph (c), clause (1),
(2), or (3), and may be given both to a person and to another
who may bind the person;
(2) notice is given to unborn or unascertained persons, who
are not represented under subdivision 3, paragraph (c), clause
(1), (2), or (3), by giving notice to all known persons whose
interests in the proceedings are substantially identical to
those of the unborn or unascertained persons.
Sec. 6. Minnesota Statutes 2002, section 501B.16, is
amended to read:
501B.16 [PETITION FOR COURT ORDER.]
A trustee of an express trust by will or other written
instrument or a person interested in the trust may petition the
district court for an order:
(1) to confirm an action taken by a trustee;
(2) upon filing of an account, to settle and allow the
account;
(3) to determine the persons having an interest in the
income or principal of the trust and the nature and extent of
their interests;
(4) to construe, interpret, or reform the terms of a trust,
or authorize a deviation from the terms of a trust, including a
proceeding involving section 501B.31;
(5) to approve payment of the trustee's fees, attorneys'
fees, accountants' fees, or any other fees to be charged against
the trust;
(6) to confirm the appointment of a trustee;
(7) to accept a trustee's resignation and discharge the
trustee from the trust;
(8) to require a trustee to account;
(9) to remove a trustee for cause; or if the court finds
that removal of the trustee best serves the interests of all of
the beneficiaries, is not inconsistent with a material purpose
of the trust, and one or more of the following elements is found:
(i) the trustee has committed a serious breach of trust;
(ii) lack of cooperation among cotrustees substantially
impairs the administration of the trust;
(iii) the unfitness, unwillingness, or persistent failure
of the trustee to administer the trust effectively;
(iv) there has been a substantial change of circumstances;
or
(v) removal is requested by all of the beneficiaries not
under disability who, on the date the petition is signed, either
are current permissible distributees of trust income or
principal, or would be permissible distributees of trust income
or principal if the trust terminated on that date;
(10) to appoint a successor trustee when required by the
terms of the trust instrument or when by reason of death,
resignation, removal, or other cause there is no acting trustee;
(11) to confirm an act performed in execution of the trust
by a person while there was no acting trustee;
(12) to subject a trust to continuing court supervision
under section 501B.23;
(13) to remove a trust from continuing court supervision
under section 501B.23;
(14) to mortgage, lease, sell, or otherwise dispose of real
property held by the trustee notwithstanding any contrary
provision of the trust instrument;
(15) to suspend the powers and duties of a trustee in
military service or war service in accordance with section
525.95 and to order further action authorized in that section;
(16) to secure compliance with the provisions of sections
501B.33 to 501B.45, in accordance with section 501B.41;
(17) to determine the validity of a disclaimer filed under
section 501B.86;
(18) to change the situs of a trust;
(19) to redress a breach of trust;
(20) to terminate a trust;
(21) to divide a trust under section 501B.15;
(22) to merge two or more trusts under section 501B.15; or
(23) to instruct the trustee, beneficiaries, and any other
interested parties in any matter relating to the administration
of the trust and the discharge of the trustee's duties.
Sec. 7. Laws 2002, chapter 347, section 5, is amended to
read:
Sec. 5. [EFFECTIVE DATE.]
Section 2 applies to decedents dying after July 31, 2002.
Section 4 applies to proceedings for a decree of descent
commenced after July 31, 2002.
ARTICLE 2
GUARDIANS AND CONSERVATORS
Section 1. Minnesota Statutes 2003 Supplement, section
524.5-104, is amended to read:
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 or a different amount that is approved
by the court, 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. 2. Minnesota Statutes 2003 Supplement, section
524.5-118, subdivision 2, is amended to read:
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 245C.32. 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.
Sec. 3. Minnesota Statutes 2003 Supplement, section
524.5-304, is amended to read:
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
may 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. 4. Minnesota Statutes 2003 Supplement, section
524.5-308, is amended to read:
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, the court, and any other person the court directs. The
notice must be sent or delivered within 14 days after the filing
of the report.
Sec. 5. Minnesota Statutes 2003 Supplement, section
524.5-406, is amended to read:
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. and the
court shall may 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. 6. Minnesota Statutes 2003 Supplement, section
524.5-408, is amended to read:
524.5-408 [ORIGINAL PETITION: PROCEDURE AT HEARING.]
(a) Unless excused by the court for good cause, the
petitioner and a the 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. 7. Minnesota Statutes 2003 Supplement, section
524.5-417, is amended to read:
524.5-417 [GENERAL POWERS AND DUTIES OF CONSERVATOR.]
(a) A conservator shall be subject to the control and
direction of the court at all times and in all things.
(b) The court shall grant to a conservator only those
powers necessary to provide for the demonstrated needs of the
protected person.
(c) The court may appoint a conservator 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. 8. Minnesota Statutes 2002, section 525.71, is
amended to read:
525.71 [APPEALABLE ORDERS.]
(a) Appeals to the Court of Appeals may be taken from any
of the following orders, judgments, and decrees issued by a
judge of the court under this chapter or chapter 524:
(1) an order admitting, or refusing to admit, a will to
probate;
(2) an order appointing, or refusing to appoint, or
removing, or refusing to remove, a representative other than a
special administrator or special guardian, temporary or
emergency guardian, agent, or conservator;
(3) an order authorizing, or refusing to authorize, the
sale, mortgage, or lease of real estate, or confirming, or
refusing to confirm, the sale or lease of real estate;
(4) an order directing, or refusing to direct, a conveyance
or lease of real estate under contract;
(5) an order permitting, or refusing to permit, the filing
of a claim, or allowing or disallowing a claim or counterclaim,
in whole or in part, when the amount in controversy exceeds
$100;
(6) an order setting apart, or refusing to set apart,
property, or making, or refusing to make, an allowance for the
spouse or children;
(7) an order determining, or refusing to determine, venue;
an order transferring, or refusing to transfer, venue;
(8) an order directing, or refusing to direct, the payment
of a bequest or distributive share when the amount in
controversy exceeds $100;
(9) an order allowing, or refusing to allow, an account of
a representative or any part of it when the amount in
controversy exceeds $100;
(10) an order adjudging a person in contempt;
(11) an order vacating, or refusing to vacate, a previous
appealable order, judgment, or decree alleged to have been
procured by fraud or misrepresentation, or through surprise or
excusable inadvertence or neglect;
(12) a judgment or decree of partial or final distribution
or an order determining or confirming distribution or any order
of general protection;
(13) an order entered pursuant to section 576.142;
(14) an order granting or denying restoration to capacity;
(15) an order made directing, or refusing to direct, the
payment of representative's fees or attorneys' fees, and in such
case the representative and the attorney shall each be deemed an
aggrieved party and entitled to appeal;
(16) an order, judgment, or decree relating to or affecting
estate taxes or refusing to amend, modify, or vacate such an
order, judgment, or decree; and
(17) an order extending the time for the settlement of the
estate beyond five years from the date of the appointment of the
representative.
(b) Appeals to the Court of Appeals may also be taken from
any other properly appealable order pursuant to the Rules of
Civil Appellate Procedure.
(c) An order appointing, refusing to appoint, removing, or
refusing to remove a temporary or emergency guardian under
sections 524.5-204, paragraphs (b) and (c), 524.5-311, and
524.5-312, or temporary or emergency conservator or agent under
sections 524.5-406, paragraph (f), and 524.5-412, or a special
administrator under section 524.3-614, is not an appealable
order under this section or the Rules of Civil Appellate
Procedure.
ARTICLE 3
TECHNICAL CORRECTIONS
Section 1. Minnesota Statutes 2002, section 144.343,
subdivision 2, is amended to read:
Subd. 2. [NOTIFICATION CONCERNING ABORTION.]
Notwithstanding the provisions of section 13.02, subdivision 8,
no abortion operation shall be performed upon an unemancipated
minor or upon a woman for whom a guardian or conservator has
been appointed pursuant to sections 525.54 524.5-101 to 525.551
524.5-502 because of a finding of incompetency incapacity, until
at least 48 hours after written notice of the pending operation
has been delivered in the manner specified in subdivisions 2 to
4.
(a) The notice shall be addressed to the parent at the
usual place of abode of the parent and delivered personally to
the parent by the physician or an agent.
(b) In lieu of the delivery required by clause (a), notice
shall be made by certified mail addressed to the parent at the
usual place of abode of the parent with return receipt requested
and restricted delivery to the addressee which means postal
employee can only deliver the mail to the authorized addressee.
Time of delivery shall be deemed to occur at 12 o'clock noon on
the next day on which regular mail delivery takes place,
subsequent to mailing.
Sec. 2. Minnesota Statutes 2002, section 145B.03,
subdivision 3, is amended to read:
Subd. 3. [GUARDIAN OR CONSERVATOR.] Except as otherwise
provided in the living will, designation of a proxy is
considered a nomination of a guardian or conservator of the
person for purposes of section 525.544 sections 524.5-101 to
524.5-502.
Sec. 3. Minnesota Statutes 2002, section 145C.05,
subdivision 2, is amended to read:
Subd. 2. [PROVISIONS THAT MAY BE INCLUDED.] (a) A health
care directive may include provisions consistent with this
chapter, including, but not limited to:
(1) the designation of one or more alternate health care
agents to act if the named health care agent is not reasonably
available to serve;
(2) directions to joint health care agents regarding the
process or standards by which the health care agents are to
reach a health care decision for the principal, and a statement
whether joint health care agents may act independently of one
another;
(3) limitations, if any, on the right of the health care
agent or any alternate health care agents to receive, review,
obtain copies of, and consent to the disclosure of the
principal's medical records;
(4) limitations, if any, on the nomination of the health
care agent as guardian or conservator of the person for purposes
of section 525.544 sections 524.5-202, 524.5-211, 524.5-302, and
524.5-303;
(5) a document of gift for the purpose of making an
anatomical gift, as set forth in sections 525.921 to 525.9224,
or an amendment to, revocation of, or refusal to make an
anatomical gift;
(6) a declaration regarding intrusive mental health
treatment under section 253B.03, subdivision 6d, or a statement
that the health care agent is authorized to give consent for the
principal under section 253B.04, subdivision 1a;
(7) a funeral directive as provided in section 149A.80,
subdivision 2;
(8) limitations, if any, to the effect of dissolution or
annulment of marriage or termination of domestic partnership on
the appointment of a health care agent under section 145C.09,
subdivision 2;
(9) specific reasons why a principal wants a health care
provider or an employee of a health care provider attending the
principal to be eligible to act as the principal's health care
agent;
(10) health care instructions by a woman of child bearing
age regarding how she would like her pregnancy, if any, to
affect health care decisions made on her behalf; and
(11) health care instructions regarding artificially
administered nutrition or hydration.
(b) A health care directive may include a statement of the
circumstances under which the directive becomes effective other
than upon the judgment of the principal's attending physician in
the following situations:
(1) a principal who in good faith generally selects and
depends upon spiritual means or prayer for the treatment or care
of disease or remedial care and does not have an attending
physician, may include a statement appointing an individual who
may determine the principal's decision-making capacity; and
(2) a principal who in good faith does not generally select
a physician or a health care facility for the principal's health
care needs may include a statement appointing an individual who
may determine the principal's decision-making capacity, provided
that if the need to determine the principal's capacity arises
when the principal is receiving care under the direction of an
attending physician in a health care facility, the determination
must be made by an attending physician after consultation with
the appointed individual.
If a person appointed under clause (1) or (2) is not
reasonably available and the principal is receiving care under
the direction of an attending physician in a health care
facility, an attending physician shall determine the principal's
decision-making capacity.
(c) A health care directive may authorize a health care
agent to make health care decisions for a principal even though
the principal retains decision-making capacity.
Sec. 4. Minnesota Statutes 2002, section 145C.07,
subdivision 2, is amended to read:
Subd. 2. [HEALTH CARE AGENT AS GUARDIAN.] Unless the
principal has otherwise specified in the health care directive,
the appointment of the health care agent in a health care
directive is considered a nomination of a guardian or
conservator of the person for purposes of section 525.544
sections 524.5-101 to 524.5-502.
Sec. 5. Minnesota Statutes 2002, section 145C.07,
subdivision 4, is amended to read:
Subd. 4. [INCONSISTENCIES AMONG DOCUMENTS.] In the event
of inconsistency between the appointment of a proxy under
chapter 145B or section 253B.03, subdivision 6d, or of a health
care agent under this chapter, the most recent appointment takes
precedence. In the event of other inconsistencies among
documents executed under this chapter, under chapter 145B, or
under section sections 253B.03, subdivision 6d, or 525.544
524.5-101 to 524.5-502, or other legally sufficient documents,
the provisions of the most recently executed document take
precedence only to the extent of the inconsistency.
Sec. 6. Minnesota Statutes 2002, section 147.091,
subdivision 2, is amended to read:
Subd. 2. [AUTOMATIC SUSPENSION.] (a) A license to practice
medicine is automatically suspended if (1) a guardian of the
person of a licensee is appointed by order of a court pursuant
to sections 525.54 524.5-101 to 525.61 524.5-502, for reasons
other than the minority of the licensee; or (2) the licensee is
committed by order of a court pursuant to chapter 253B. The
license remains suspended until the licensee is restored to
capacity by a court and, upon petition by the licensee, the
suspension is terminated by the board after a hearing.
(b) Upon notice to the board of a judgment of, or a plea of
guilty to, a felony reasonably related to the practice of
patient care, the credentials of the regulated person shall be
automatically suspended by the board. The credentials shall
remain suspended until, upon petition by the regulated person
and after a hearing, the suspension is terminated by the board.
The board shall indefinitely suspend or revoke the credentials
of the regulated person if, after a hearing, the board finds
that the felonious conduct would cause a serious risk of harm to
the public.
(c) For credentials that have been suspended or revoked
pursuant to paragraphs (a) and (b), the regulated person may be
reinstated to practice, either with or without restrictions, by
demonstrating clear and convincing evidence of rehabilitation,
as provided in section 364.03. If the regulated person's
conviction is subsequently overturned by court decision, the
board shall conduct a hearing to review the suspension within 30
days after receipt of the court decision. The regulated person
is not required to prove rehabilitation if the subsequent court
decision overturns previous court findings of public risk.
(d) The board may, upon majority vote of a quorum of its
members, suspend the credentials of a regulated person without a
hearing if the regulated person fails to maintain a current name
and address with the board, as described in paragraph (e), while
the regulated person is: (1) under board investigation, and a
notice of conference has been issued by the board; (2) party to
a contested case with the board; (3) party to an agreement for
corrective action with the board; or (4) under a board order for
disciplinary action. The suspension shall remain in effect
until lifted by the board pursuant to the board's receipt of a
petition from the regulated person, along with the regulated
person's current name and address.
(e) A person regulated by the board shall maintain a
current name and address with the board and shall notify the
board in writing within 30 days of any change in name or
address. If a name change only is requested, the regulated
person must request revised credentials and return the current
credentials to the board. The board may require the regulated
person to substantiate the name change by submitting official
documentation from a court of law or agency authorized under law
to receive and officially record a name change. If an address
change only is requested, no request for revised credentials is
required. If the regulated person's current credentials have
been lost, stolen, or destroyed, the person shall provide a
written explanation to the board.
Sec. 7. Minnesota Statutes 2002, section 147A.13,
subdivision 2, is amended to read:
Subd. 2. [EFFECTIVE DATES, AUTOMATIC SUSPENSION.] A
suspension, revocation, condition, limitation, qualification, or
restriction of a registration shall be in effect pending
determination of an appeal unless the court, upon petition and
for good cause shown, orders otherwise.
A physician assistant registration is automatically
suspended if:
(1) a guardian of the person of a registrant is appointed
by order of a court pursuant to sections 525.54 524.5-101 to
525.61 524.5-502, for reasons other than the minority of the
registrant; or
(2) the registrant is committed by order of a court
pursuant to chapter 253B. The registration remains suspended
until the registrant is restored to capacity by a court and,
upon petition by the registrant, the suspension is terminated by
the board after a hearing.
Sec. 8. Minnesota Statutes 2002, section 148.10,
subdivision 6, is amended to read:
Subd. 6. [EFFECT OF APPEAL.] A suspension, revocation,
condition, limitation, qualification, or restriction of a
license shall be in effect pending determination of an appeal
unless the court, upon petition and for good cause shown, shall
otherwise order.
A license to practice chiropractic is automatically
suspended if (1) a guardian of the person of a licensee is
appointed by order of a court under sections 525.54 524.5-101 to
525.61 524.5-502, for reasons other than the minority of the
licensee; or (2) the licensee is committed by order of a court
under chapter 253B. The license remains suspended until the
licensee is restored to capacity by a court and, upon petition
by the licensee, the suspension is terminated by the board after
a hearing.
Sec. 9. Minnesota Statutes 2002, section 148.75, is
amended to read:
148.75 [LICENSES; DENIAL, SUSPENSION, REVOCATION.]
(a) The state Board of Physical Therapy may refuse to grant
a license to any physical therapist, or may suspend or revoke
the license of any physical therapist for any of the following
grounds:
(1) using drugs or intoxicating liquors to an extent which
affects professional competence;
(2) conviction of a felony;
(3) conviction for violating any state or federal narcotic
law;
(4) obtaining a license or attempting to obtain a license
by fraud or deception;
(5) conduct unbecoming a person licensed as a physical
therapist or conduct detrimental to the best interests of the
public;
(6) gross negligence in the practice of physical therapy as
a physical therapist;
(7) treating human ailments by physical therapy after an
initial 30-day period of patient admittance to treatment has
lapsed, except by the order or referral of a person licensed in
this state in the practice of medicine as defined in section
147.081, the practice of chiropractic as defined in section
148.01, the practice of podiatry as defined in section 153.01,
or the practice of dentistry as defined in section 150A.05 and
whose license is in good standing; or when a previous diagnosis
exists indicating an ongoing condition warranting physical
therapy treatment, subject to periodic review defined by board
of physical therapy rule;
(8) treating human ailments, without referral, by physical
therapy treatment without first having practiced one year under
a physician's orders as verified by the board's records;
(9) failing to consult with the patient's health care
provider who prescribed the physical therapy treatment if the
treatment is altered by the physical therapist from the original
written order. The provision does not include written orders to
"evaluate and treat";
(10) treating human ailments other than by physical therapy
unless duly licensed or registered to do so under the laws of
this state;
(11) inappropriate delegation to a physical therapist
assistant or inappropriate task assignment to an aide or
inadequate supervision of either level of supportive personnel;
(12) practicing as a physical therapist performing medical
diagnosis, the practice of medicine as defined in section
147.081, or the practice of chiropractic as defined in section
148.01;
(13) failing to comply with a reasonable request to obtain
appropriate clearance for mental or physical conditions that
would interfere with the ability to practice physical therapy,
and that may be potentially harmful to patients;
(14) dividing fees with, or paying or promising to pay a
commission or part of the fee to, any person who contacts the
physical therapist for consultation or sends patients to the
physical therapist for treatment;
(15) engaging in an incentive payment arrangement, other
than that prohibited by clause (14), that tends to promote
physical therapy overuse, that allows the referring person or
person who controls the availability of physical therapy
services to a client to profit unreasonably as a result of
patient treatment;
(16) practicing physical therapy and failing to refer to a
licensed health care professional a patient whose medical
condition at the time of evaluation has been determined by the
physical therapist to be beyond the scope of practice of a
physical therapist; and
(17) failing to report to the board other licensed physical
therapists who violate this section.
(b) A license to practice as a physical therapist is
suspended if (1) a guardian of the person of the physical
therapist is appointed by order of a court pursuant to sections
525.54 524.5-101 to 525.61 524.5-502, for reasons other than the
minority of the physical therapist; or (2) the physical
therapist is committed by order of a court pursuant to chapter
253B. The license remains suspended until the physical
therapist is restored to capacity by a court and, upon petition
by the physical therapist, the suspension is terminated by the
Board of Physical Therapy after a hearing.
Sec. 10. Minnesota Statutes 2002, section 153.22,
subdivision 4, is amended to read:
Subd. 4. [AUTOMATIC SUSPENSION.] A license to practice
podiatric medicine is automatically suspended if (1) a guardian
of the person of a licensee is appointed by order of a court
under sections 525.54 524.5-101 to 525.61 524.5-502, for reasons
other than the minority of the licensee; or (2) the licensee is
committed by order of a court under chapter 253B. The license
remains suspended until the licensee is restored to capacity by
a court and, upon petition by the licensee, the suspension is
terminated by the board after a hearing.
Sec. 11. Minnesota Statutes 2002, section 156.122, is
amended to read:
156.122 [COURTS TO REPORT.]
The court administrator shall report to the board a
judgment or finding by a court that a person regulated by the
board:
(1) is a person who is mentally ill, chemically dependent,
mentally ill and dangerous to the public, or is a sexual
psychopathic personality or sexually dangerous person under
chapter 253B or other applicable law;
(2) is guilty of a felony or gross misdemeanor; violation
of a law involving the use, possession, or sale of a controlled
substance; or operating a motor vehicle under the influence of
alcohol or a controlled substance; or
(3) is in need of a guardian of the person under sections
525.54 524.5-101 to 525.61 524.5-502.
Sec. 12. Minnesota Statutes 2002, section 176.092,
subdivision 1, is amended to read:
Subdivision 1. [WHEN REQUIRED.] An injured employee or a
dependent under section 176.111 who is a minor or an
incapacitated person as that term is defined in section 525.54
524.5-102, subdivision 2 or 3 6, shall have a guardian or
conservator to represent the interests of the employee or
dependent in obtaining compensation according to the provisions
of this chapter. This section applies if the employee receives
or is eligible for permanent total disability benefits,
supplementary benefits, or permanent partial disability benefits
totaling more than $3,000 or a dependent receives or is eligible
for dependency benefits, or if the employee or dependent
receives or is offered a lump sum that exceeds five times the
statewide average weekly wage.
Sec. 13. Minnesota Statutes 2002, section 196.051,
subdivision 2, is amended to read:
Subd. 2. [BONDING.] Notwithstanding section 525.551 or any
other law, the commissioner is not required to file a bond when
acting as guardian pursuant to authority granted by this section.
Sec. 14. Minnesota Statutes 2002, section 252A.01,
subdivision 1, is amended to read:
Subdivision 1. [POLICY.] (a) It is the policy of the state
of Minnesota to provide a coordinated approach to the
supervision, protection, and habilitation of its adult mentally
retarded citizens. In furtherance of this policy, sections
252A.01 to 252A.21 are enacted to authorize the commissioner of
human services to:
(1) supervise those adult mentally retarded citizens who
are unable to fully provide for their own needs and for whom no
qualified person is willing and able to seek private
guardianship or conservatorship under sections 525.539 524.5-101
to 525.705 524.5-502; and
(2) to protect adult mentally retarded persons from
violation of their human and civil rights by assuring that they
receive the full range of needed social, financial, residential,
and habilitative services to which they are lawfully entitled.
(b) Public guardianship or conservatorship is the most
restrictive form of guardianship or conservatorship and should
be imposed only when no other acceptable alternative is
available.
Sec. 15. Minnesota Statutes 2002, section 252A.03,
subdivision 3, is amended to read:
Subd. 3. [STANDARD FOR ACCEPTANCE.] The commissioner shall
accept the nomination if the comprehensive evaluation concludes
that:
(1) the person alleged to have mental retardation is, in
fact, mentally retarded;
(2) the person is in need of the supervision and protection
of a conservator or guardian; and
(3) no qualified person is willing to assume private
guardianship or conservatorship under sections 525.539 524.5-101
to 525.705 524.5-502.
Sec. 16. Minnesota Statutes 2002, section 252A.06,
subdivision 2, is amended to read:
Subd. 2. [CONTENTS.] The petition shall set forth:
(1) the name and address of the petitioner, and, in the
case of a petition brought by a person other than the
commissioner, whether the petitioner is a parent, spouse, or
relative of the proposed ward;
(2) whether the commissioner has accepted a nomination to
act as public conservator or public guardian;
(3) the name, address, and date of birth of the proposed
ward;
(4) the names and addresses of the nearest relatives and
spouse, if any, of the proposed ward;
(5) the probable value and general character of the
proposed ward's real and personal property and the probable
amount of the proposed ward's debts;
(6) the facts supporting the establishment of public
conservatorship or guardianship, including that no family member
or other qualified individual is willing to assume private
guardianship or conservatorship responsibilities under sections
525.539 524.5-101 to 525.705 524.5-502; and
(7) if conservatorship is requested, the powers the
petitioner believes are necessary to protect and supervise the
proposed conservatee.
Sec. 17. Minnesota Statutes 2002, section 252A.081, is
amended to read:
252A.081 [NOTICE OF HEARING.]
Subdivision 1. [GENERAL.] Except as otherwise provided in
this section, section 525.55 applies sections 524.5-113,
524.5-205, and 524.5-304 apply to a notice of hearing for public
guardianship.
Subd. 2. [SERVICE OF NOTICE.] Service of notice on the
ward or proposed ward must be made by a nonuniformed person. To
the extent possible, the process server or visitor shall explain
the document's meaning to the proposed ward. In addition to the
persons required to be served under section 525.55, subdivision
1 sections 524.5-113, 524.5-205, and 524.5-304, the mailed
notice of the hearing must be served on the commissioner, the
local agency, and the county attorney.
Subd. 3. [ATTORNEY.] In place of the notice of attorney
provisions in section 525.55, subdivision 2 sections 524.5-205
and 524.5-304, the notice must state that the court will appoint
an attorney for the proposed ward unless an attorney is provided
by other persons.
Subd. 4. [SERVICE OF PETITION ON COMMISSIONER.] When a
petition has been filed by a person other than the commissioner,
the court shall promptly forward a copy of the petition and any
other documents filed with or issued by the court to the
commissioner.
Subd. 5. [DEFECTIVE NOTICE OF SERVICE.] A defect in the
service of notice or process, other than personal service upon
the proposed ward or conservatee or service upon the
commissioner and local agency within the time allowed and the
form prescribed in this section and section 525.55 sections
524.5-113, 524.5-205, and 524.5-304, does not invalidate any
public guardianship or conservatorship proceedings.
Sec. 18. Minnesota Statutes 2002, section 252A.111, is
amended to read:
252A.111 [POWERS AND DUTIES OF PUBLIC GUARDIAN OR
CONSERVATOR.]
Subdivision 1. [GENERAL.] Except as otherwise provided in
this section, section 525.56, subdivisions 1 to 3 sections
524.5-207 and 524.5-313, apply to the powers and duties of a
public guardian or conservator.
Subd. 2. [ADDITIONAL POWERS.] In addition to the powers
contained in section 525.56, subdivision 3 sections 524.5-207
and 524.5-313, the powers of a public guardian or those that the
court may grant to a public conservator include:
(1) the power to permit or withhold permission for the ward
to marry;
(2) the power to begin legal action or defend against legal
action in the name of the ward; and
(3) the power to consent to the adoption of the ward as
provided in section 259.24.
Subd. 4. [APPOINTMENT OF GUARDIAN OR CONSERVATOR OF THE
ESTATE.] If the ward has a personal estate beyond that which is
necessary for the ward's personal and immediate needs, the
commissioner shall determine whether a guardian of the estate
conservator should be appointed. The commissioner shall consult
with the parents, spouse, or nearest relative of the ward. The
commissioner may petition the court for the appointment of a
private guardian or conservator of the estate of the ward. The
commissioner cannot act as guardian or conservator of the estate
for public wards or public conservatees protected persons.
Subd. 5. [LOCAL AGENCIES.] The commissioner may carry out
the powers and duties prescribed by this chapter directly or
through local agencies.
Subd. 6. [SPECIAL DUTIES.] In exercising powers and duties
under this chapter, the commissioner shall:
(1) maintain close contact with the ward, visiting at least
twice a year;
(2) protect and exercise the legal rights of the ward;
(3) take actions and make decisions on behalf of the ward
that encourage and allow the maximum level of independent
functioning in a manner least restrictive of the ward's personal
freedom consistent with the need for supervision and protection;
and
(4) permit and encourage maximum self-reliance on the part
of the ward and permit and encourage input by the nearest
relative of the ward in planning and decision making on behalf
of the ward.
Sec. 19. Minnesota Statutes 2002, section 252A.171, is
amended to read:
252A.171 [TRANSFER OF VENUE.]
Section 525.57 524.5-108 applies to the transfer of venue
in proceedings under this chapter. Notice of a transfer of
venue petition must be given to the persons and in the manner
required by section 252A.081.
Sec. 20. Minnesota Statutes 2002, section 252A.19, is
amended to read:
252A.19 [MODIFICATION OF CONSERVATORSHIP; RESTORATION TO
LEGAL CAPACITY.]
Subdivision 1. [COMMISSIONER TO SERVE.] The commissioner
shall serve as public guardian or conservator with all the
powers awarded pursuant to the guardianship or conservatorship,
until termination or modification by the court.
Subd. 2. [PETITION.] The commissioner, ward, or any
interested person may petition the appointing court or the court
to which venue has been transferred for an order to remove the
guardianship or to limit or expand the powers of the
conservatorship guardianship or to appoint a guardian or
conservator under sections 525.539 524.5-101 to 525.705
524.5-502 or to restore the ward or conservatee protected person
to full legal capacity or to review de novo any decision made by
the public guardian or public conservator for or on behalf of a
ward or conservatee protected person or for any other order as
the court may deem just and equitable. Section 525.61,
subdivision 3, does not apply to a petition to remove a public
guardian.
Subd. 3. [NOTICE OF TIME AND PLACE.] Upon the filing of
the petition the court shall fix the time and place for the
hearing. Notice of the filing of the petition and of the
hearing shall be provided in the manner set forth in section
252A.081.
Subd. 4. [COMPREHENSIVE EVALUATION.] The commissioner
shall, at the court's request, arrange for the preparation of a
comprehensive evaluation of the ward or conservatee protected
person.
Subd. 5. [COURT ORDER.] Upon proof of the allegations of
the petition the court shall enter an order removing the
guardianship or limiting or expanding the powers of the
conservatorship guardianship or restoring the ward or
conservatee protected person to full legal capacity or may enter
such other order as the court may deem just and equitable.
Subd. 6. [COUNTY ATTORNEY PARTICIPATION.] The county
attorney may attend the hearing and may oppose the petition in
the court and in the appellate courts if the county attorney
deems it for the best interest of the public.
Subd. 7. [ATTORNEY GENERAL'S ROLE; COMMISSIONER'S ROLE.]
The attorney general may appear and represent the commissioner
in such proceedings. The commissioner shall support or oppose
the petition if the commissioner deems such action necessary for
the protection and supervision of the ward or conservatee
protected person.
Subd. 8. [COURT APPOINTED COUNSEL.] In all such
proceedings, the conservatee protected person or ward shall be
afforded an opportunity to be represented by counsel, and if
neither the conservatee protected person or ward nor others
provide counsel the court shall appoint counsel to represent the
conservatee protected person or ward.
Subd. 9. [COSTS FOR PRIVATE GUARDIANSHIP.] In proceedings
where private guardianship or conservatorship is being sought
under sections 525.539 524.5-101 to 525.705 524.5-502, costs are
reimbursable under section 525.703, subdivision 3, paragraph (b)
524.5-502.
Sec. 21. Minnesota Statutes 2002, section 253B.03,
subdivision 4a, is amended to read:
Subd. 4a. [DISCLOSURE OF PATIENT'S ADMISSION.] Upon
admission to a facility where federal law prohibits unauthorized
disclosure of patient or resident identifying information to
callers and visitors, the patient or resident, or the legal
guardian or conservator of the patient or resident, shall be
given the opportunity to authorize disclosure of the patient's
or resident's presence in the facility to callers and visitors
who may seek to communicate with the patient or resident. To
the extent possible, the legal guardian or conservator of a
patient or resident shall consider the opinions of the patient
or resident regarding the disclosure of the patient's or
resident's presence in the facility.
Sec. 22. Minnesota Statutes 2002, section 253B.03,
subdivision 6, is amended to read:
Subd. 6. [CONSENT FOR MEDICAL PROCEDURE.] A patient has
the right to prior consent to any medical or surgical treatment,
other than treatment for chemical dependency or nonintrusive
treatment for mental illness.
The following procedures shall be used to obtain consent
for any treatment necessary to preserve the life or health of
any committed patient:
(a) The written, informed consent of a competent adult
patient for the treatment is sufficient.
(b) If the patient is subject to guardianship or
conservatorship which includes the provision of medical care,
the written, informed consent of the guardian or conservator for
the treatment is sufficient.
(c) If the head of the treatment facility determines that
the patient is not competent to consent to the treatment and the
patient has not been adjudicated incompetent, written, informed
consent for the surgery or medical treatment shall be obtained
from the nearest proper relative. For this purpose, the
following persons are proper relatives, in the order listed:
the patient's spouse, parent, adult child, or adult sibling. If
the nearest proper relatives cannot be located, refuse to
consent to the procedure, or are unable to consent, the head of
the treatment facility or an interested person may petition the
committing court for approval for the treatment or may petition
a court of competent jurisdiction for the appointment of a
guardian or conservator. The determination that the patient is
not competent, and the reasons for the determination, shall be
documented in the patient's clinical record.
(d) Consent to treatment of any minor patient shall be
secured in accordance with sections 144.341 to 144.346. A minor
16 years of age or older may consent to hospitalization, routine
diagnostic evaluation, and emergency or short-term acute care.
(e) In the case of an emergency when the persons ordinarily
qualified to give consent cannot be located, the head of the
treatment facility may give consent.
No person who consents to treatment pursuant to the
provisions of this subdivision shall be civilly or criminally
liable for the performance or the manner of performing the
treatment. No person shall be liable for performing treatment
without consent if written, informed consent was given pursuant
to this subdivision. This provision shall not affect any other
liability which may result from the manner in which the
treatment is performed.
Sec. 23. Minnesota Statutes 2002, section 253B.03,
subdivision 6a, is amended to read:
Subd. 6a. [CONSENT FOR TREATMENT FOR MENTAL RETARDATION.]
A patient with mental retardation, or the patient's guardian or
conservator, has the right to give or withhold consent before:
(1) the implementation of any aversive or deprivation
procedure except for emergency procedures permitted in rules of
the commissioner adopted under section 245.825; or
(2) the administration of psychotropic medication.
Sec. 24. Minnesota Statutes 2002, section 253B.03,
subdivision 6d, is amended to read:
Subd. 6d. [ADULT MENTAL HEALTH TREATMENT.] (a) A competent
adult may make a declaration of preferences or instructions
regarding intrusive mental health treatment. These preferences
or instructions may include, but are not limited to, consent to
or refusal of these treatments.
(b) A declaration may designate a proxy to make decisions
about intrusive mental health treatment. A proxy designated to
make decisions about intrusive mental health treatments and who
agrees to serve as proxy may make decisions on behalf of a
declarant consistent with any desires the declarant expresses in
the declaration.
(c) A declaration is effective only if it is signed by the
declarant and two witnesses. The witnesses must include a
statement that they believe the declarant understands the nature
and significance of the declaration. A declaration becomes
operative when it is delivered to the declarant's physician or
other mental health treatment provider. The physician or
provider must comply with it to the fullest extent possible,
consistent with reasonable medical practice, the availability of
treatments requested, and applicable law. The physician or
provider shall continue to obtain the declarant's informed
consent to all intrusive mental health treatment decisions if
the declarant is capable of informed consent. A treatment
provider may not require a person to make a declaration under
this subdivision as a condition of receiving services.
(d) The physician or other provider shall make the
declaration a part of the declarant's medical record. If the
physician or other provider is unwilling at any time to comply
with the declaration, the physician or provider must promptly
notify the declarant and document the notification in the
declarant's medical record. If the declarant has been committed
as a patient under this chapter, the physician or provider may
subject a declarant to intrusive treatment in a manner contrary
to the declarant's expressed wishes, only upon order of the
committing court. If the declarant is not a committed patient
under this chapter, the physician or provider may subject the
declarant to intrusive treatment in a manner contrary to the
declarant's expressed wishes, only if the declarant is committed
as mentally ill or mentally ill and dangerous to the public and
a court order authorizing the treatment has been issued.
(e) A declaration under this subdivision may be revoked in
whole or in part at any time and in any manner by the declarant
if the declarant is competent at the time of revocation. A
revocation is effective when a competent declarant communicates
the revocation to the attending physician or other provider.
The attending physician or other provider shall note the
revocation as part of the declarant's medical record.
(f) A provider who administers intrusive mental health
treatment according to and in good faith reliance upon the
validity of a declaration under this subdivision is held
harmless from any liability resulting from a subsequent finding
of invalidity.
(g) In addition to making a declaration under this
subdivision, a competent adult may delegate parental powers
under section 524.5-505 524.5-211 or may nominate a guardian or
conservator under section 525.544 sections 524.5-101 to
524.5-502.
Sec. 25. Minnesota Statutes 2002, section 253B.03,
subdivision 11, is amended to read:
Subd. 11. [PROXY.] A legally authorized health care proxy,
agent, or guardian, or conservator may exercise the patient's
rights on the patient's behalf.
Sec. 26. Minnesota Statutes 2003 Supplement, section
256J.14, is amended to read:
256J.14 [ELIGIBILITY FOR PARENTING OR PREGNANT MINORS.]
(a) The definitions in this paragraph only apply to this
subdivision.
(1) "Household of a parent, legal guardian, or other adult
relative" means the place of residence of:
(i) a natural or adoptive parent;
(ii) a legal guardian according to appointment or
acceptance under section sections 260C.325, 525.615, or 525.6165
524.5-201 to 524.5-317, and related laws;
(iii) a caregiver as defined in section 256J.08,
subdivision 11; or
(iv) an appropriate adult relative designated by a county
agency.
(2) "Adult-supervised supportive living arrangement" means
a private family setting which assumes responsibility for the
care and control of the minor parent and minor child, or other
living arrangement, not including a public institution, licensed
by the commissioner of human services which ensures that the
minor parent receives adult supervision and supportive services,
such as counseling, guidance, independent living skills
training, or supervision.
(b) A minor parent and the minor child who is in the care
of the minor parent must reside in the household of a parent,
legal guardian, other adult relative, or in an adult-supervised
supportive living arrangement in order to receive MFIP unless:
(1) the minor parent has no living parent, other adult
relative, or legal guardian whose whereabouts is known;
(2) no living parent, other adult relative, or legal
guardian of the minor parent allows the minor parent to live in
the parent's, other adult relative's, or legal guardian's home;
(3) the minor parent lived apart from the minor parent's
own parent or legal guardian for a period of at least one year
before either the birth of the minor child or the minor parent's
application for MFIP;
(4) the physical or emotional health or safety of the minor
parent or minor child would be jeopardized if the minor parent
and the minor child resided in the same residence with the minor
parent's parent, other adult relative, or legal guardian; or
(5) an adult supervised supportive living arrangement is
not available for the minor parent and child in the county in
which the minor parent and child currently reside. If an adult
supervised supportive living arrangement becomes available
within the county, the minor parent and child must reside in
that arrangement.
(c) The county agency shall inform minor applicants both
orally and in writing about the eligibility requirements, their
rights and obligations under the MFIP program, and any other
applicable orientation information. The county must advise the
minor of the possible exemptions under section 256J.54,
subdivision 5, and specifically ask whether one or more of these
exemptions is applicable. If the minor alleges one or more of
these exemptions, then the county must assist the minor in
obtaining the necessary verifications to determine whether or
not these exemptions apply.
(d) If the county worker has reason to suspect that the
physical or emotional health or safety of the minor parent or
minor child would be jeopardized if they resided with the minor
parent's parent, other adult relative, or legal guardian, then
the county worker must make a referral to child protective
services to determine if paragraph (b), clause (4), applies. A
new determination by the county worker is not necessary if one
has been made within the last six months, unless there has been
a significant change in circumstances which justifies a new
referral and determination.
(e) If a minor parent is not living with a parent, legal
guardian, or other adult relative due to paragraph (b), clause
(1), (2), or (4), the minor parent must reside, when possible,
in a living arrangement that meets the standards of paragraph
(a), clause (2).
(f) Regardless of living arrangement, MFIP must be paid,
when possible, in the form of a protective payment on behalf of
the minor parent and minor child according to section 256J.39,
subdivisions 2 to 4.
Sec. 27. Minnesota Statutes 2002, section 257B.02, is
amended to read:
257B.02 [APPLICATION OF OTHER LAW; CONSTRUCTION.]
Chapters 257 and 518 and sections 525.539 524.5-101 to
525.705 524.5-502 apply to standby custodians, temporary
custodians, co-custodians, custodians, and alternates unless
otherwise specified in this chapter.
Nothing in this chapter may be construed to deprive a
parent of any parental rights or responsibilities. A designator
does not lose any custodial rights by the appointment of a
standby or temporary custodian.
Nothing in this chapter may be construed to relieve any
parent of a duty to support the parent's children. A
preexisting child support order is not suspended or terminated
during the time a child is cared for by a standby or temporary
custodian, unless otherwise provided by court order. A standby
custodian or temporary custodian has a cause of action for child
support against an absent parent under section 256.87,
subdivision 5.
Sec. 28. Minnesota Statutes 2002, section 257B.04,
subdivision 4, is amended to read:
Subd. 4. [RECOMMENDED FORM.] A designation may, but need
not, be in the following form: "I (insert name of designator)
do hereby appoint (insert name, address, and telephone number of
standby or temporary custodian) as the standby or temporary
custodian of (insert name(s) of child(ren)) to take effect upon
the occurrence of the following triggering event or events
(insert specific triggering events).
I am the (insert designator's relationship to child(ren))
of (insert name(s) of child(ren)). (Insert name(s) of
child(ren)'s other parent) is the other parent of (insert
name(s) of child(ren)). The other parent's address is:
(check all that apply):
.... The other parent died on (insert date of death).
.... The other parent's parental rights were terminated on
(insert date of termination).
.... The other parent's whereabouts are unknown. I
understand that all living parents whose rights have not been
terminated must be given notice of this designation pursuant to
the Minnesota Rules of Civil Procedure or a petition to approve
this designation may not be granted by the court.
.... The other parent is unwilling and unable to make and
carry out day-to-day child-care decisions concerning the
child(ren).
.... The other parent consents to this designation and has
signed this form below.
By this designation I am granting (insert name of standby
or temporary custodian) the authority to act for 60 days
following the occurrence of the triggering event as a
co-custodian with me, or in the event of my death, as custodian
of my child(ren).
A temporary custodian appointment terminates upon the death
of the designator.
(Optional) I hereby nominate (insert name, address, and
telephone number of alternate standby custodian) as the
alternate standby custodian to assume the duties of the standby
custodian named above if the standby custodian is unable or
unwilling to act as a standby custodian.
If I have indicated more than one triggering event, it is
my intent that the triggering event which occurs first shall
take precedence. If I have indicated "my death" as the
triggering event, it is my intent that the person named in the
designation to be standby custodian for my child(ren) in the
event of my death shall be appointed as guardian of my
child(ren) under Minnesota Statutes, section 525.551 sections
524.5-201 to 524.5-317, upon my death.
It is my intention to retain full parental rights to the
extent consistent with my condition and to retain the authority
to revoke the appointment of a standby or temporary custodian if
I so choose.
This designation is made after careful reflection, while I
am of sound mind.
........................... ...........................
(Date) (Designator's Signature)
.......................... ..........................
(Witness' Signature) (Witnesses' Signature)
.......................... ..........................
(Number and Street) (Number and Street)
.......................... ..........................
(City, State, and Zip Code) (City, State, and Zip Code)
IF APPLICABLE: I (insert name of other parent) hereby
consent to this designation.
........................... ...........................
(Date) (Signature of Other Parent)
..............................................................
(Address of Other Parent)
I, (insert name of standby or temporary custodian), hereby
accept my nomination as standby or temporary custodian of
(insert child(ren)'s name(s)). I understand that my rights and
responsibilities toward the child(ren) named above will become
effective upon the occurrence of the above-stated triggering
event or events. I further understand that in order to continue
caring for the child(ren), I must file a petition with the court
within 60 days of the occurrence of the triggering event.
........................... ...........................
(Date) (Signature of Standby or
Temporary Custodian)"
Sec. 29. Minnesota Statutes 2002, section 257B.06,
subdivision 2, is amended to read:
Subd. 2. [DEATH OF DESIGNATOR.] The commencement of the
standby custodian's authority to act as custodian because of the
death of the designator does not confer upon the standby
custodian more than legal and physical custody of the child as
defined in chapter 518. On the death of the designator, the
standby custodian shall be appointed a guardian pursuant to
section 525.551 sections 524.5-201 to 524.5-317. No separate
petition is required. No bond or accounting is required except
as specified in this chapter.
Sec. 30. Minnesota Statutes 2002, section 257C.02, is
amended to read:
257C.02 [APPLICATION OF OTHER LAW; CONSTRUCTION.]
(a) Chapters 256, 257, and 518 and section 525.551 sections
524.5-201 to 524.5-317 apply to third-party and de facto custody
proceedings unless otherwise specified in this chapter. De
facto or third-party child custody proceedings concerning an
Indian child are child custody proceedings governed by the
Indian Child Welfare Act, United States Code, title 25, sections
1901 to 1963; by the Minnesota Indian Family Preservation Act,
sections 260.751 to 260.835; and by this chapter when not
inconsistent with the Indian Child Welfare Act or the Minnesota
Indian Family Preservation Act.
(b) Nothing in this chapter relieves a parent of a duty to
support the parent's child. A preexisting child support order
is not suspended or terminated when a third party takes custody
of a child unless otherwise provided by court order. A de facto
or third-party custodian has a cause of action against a parent
for child support under section 256.87, subdivision 5, and the
public authority has a cause of action against a parent for
child support under section 256.87, subdivision 1.
(c) Nothing in this chapter prohibits the establishment of
parentage under chapter 257.
Sec. 31. Minnesota Statutes 2002, section 260C.325,
subdivision 3, is amended to read:
Subd. 3. [BOTH PARENTS DECEASED.] If upon petition to the
juvenile court by a reputable person, including but not limited
to an agent of the commissioner of human services, and upon
hearing in the manner provided in section 260C.163, the court
finds that both parents are deceased and no appointment has been
made or petition for appointment filed pursuant to
sections 525.615 524.5-201 to 525.6185 524.5-317, the court
shall order the guardianship and legal custody of the child
transferred to:
(a) the commissioner of human services;
(b) a licensed child-placing agency; or
(c) an individual who is willing and capable of assuming
the appropriate duties and responsibilities to the child.
Sec. 32. Minnesota Statutes 2002, section 270B.03,
subdivision 2, is amended to read:
Subd. 2. [INCAPACITATION.] If an individual is legally
incapacitated subject to guardianship or conservatorship under
sections 525.539 524.5-101 to 525.61 524.5-502, or similar laws
of another state, that individual's return and return
information is, upon written request, open to inspection by or
disclosure to the guardian or conservator appointed for the
individual or the individual's estate.
Sec. 33. Minnesota Statutes 2002, section 501B.47, is
amended to read:
501B.47 [PETITION BY OWNER OF PRESENT OR FUTURE INTEREST
FOR COURT ORDER TO SELL, MORTGAGE, OR LEASE INTERESTS IN REAL
PROPERTY.]
Notwithstanding a contrary provision in the instrument
creating the interests, when the ownership of real property
situated in this state is divided into one or more possessory
interests and one or more future interests, the owner of an
interest may petition the district court for the county in which
any of the real property is situated for an order directing that
the real property or part of the real property be sold,
mortgaged, or leased. If an owner is a minor or incapacitated
person as defined in section 525.54 524.5-102, subdivision 6 or
10, or otherwise under conservatorship, the petition may be made
on behalf of the owner by a custodian, conservator, or guardian.
Sec. 34. Minnesota Statutes 2002, section 501B.49,
subdivision 2, is amended to read:
Subd. 2. [NOTICE.] Notice of hearing must be given by
publishing a copy of the order for hearing one time in a legal
newspaper for the county in which the petition is filed at least
20 days before the date of the hearing, and by mailing copies of
the order for hearing in the manner specified in this
subdivision or in another manner ordered by the court. In the
case of a petition under section 501B.46, mailed notice must be
given by mailing a copy of the order for hearing to those
beneficiaries of the trust then in being who are known to or
reasonably ascertainable by the petitioner and, in the case of a
beneficiary who is a minor or an incapacitated person as defined
in section 525.54 524.5-102, subdivision 6 or 10, or otherwise
under conservatorship, to the conservator or guardian, or if
none is acting within the state, to the guardian ad litem of the
beneficiary, at least 15 days before the date of the hearing.
In the case of a petition under section 501B.47, mailed notice
must be given by mailing a copy of the order for hearing to
those persons owning an interest in the real property then in
being who are known to or reasonably ascertainable by the
petitioner and, in the case of a person who is a minor or an
incapacitated person as defined in section 525.54 524.5-102,
subdivision 6 or 10, or otherwise under conservatorship, to the
conservator or guardian, or if none is acting within the state,
to the guardian ad litem of the person, at least 15 days before
the date of the hearing.
Sec. 35. Minnesota Statutes 2002, section 501B.50, is
amended to read:
501B.50 [REPRESENTATION OF PERSONS WHO ARE UNBORN,
UNASCERTAINED, UNKNOWN, OR MINORS OR INCAPACITATED PERSONS.]
If an interested person is a minor or an incapacitated
person as defined in section 525.54 524.5-102, subdivision 6 or
10, or otherwise under conservatorship, and does not have a
guardian or conservator within the state, the court shall
appoint a guardian ad litem for the person. If an interested
person is unborn, unascertained, or a person whose identity or
address is unknown to the petitioner, the court shall represent
the person, but the court may, upon the application of the
petitioner or another interested person or on its own motion,
appoint a guardian ad litem to represent the person.
Sec. 36. Minnesota Statutes 2002, section 501B.51,
subdivision 1, is amended to read:
Subdivision 1. [FORM OF ORDER; CONCLUSIVENESS.] At a
hearing under section 501B.49, the court shall make an order it
considers appropriate. If the petition is granted in whole or
in part, the order must specify the real property to be sold,
mortgaged, or leased and the terms and conditions on which the
transaction is to be consummated. The order is final and
conclusive as to all matters determined by it and binding in rem
on all persons interested in the real property, whether their
interests are vested or contingent, even though the person is a
minor, incapacitated as defined in section 525.54 524.5-102,
subdivision 6 or 10, or otherwise subject to conservatorship,
unascertained, or not in being, except that appeal may be taken
in the manner provided in the Rules of Appellate Procedure.
Sec. 37. Minnesota Statutes 2002, section 501B.53,
subdivision 4, is amended to read:
Subd. 4. [HEARING ON CONFIRMATION ORDER.] The trustee or
receiver shall obtain from the court a time and place for the
court's hearing on the confirmation of the agreement and shall
give mailed notice of the time and place of the hearing to the
interested parties described in section 501B.51 at least 15 days
before the date of that hearing. The order of confirmation is
final and conclusive as to all matters determined by it and
binding in rem on all persons interested in the real property,
whether their interests are vested or contingent, even though a
person is a minor, or incapacitated, as defined in section
525.54 524.5-102, subdivision 6 or 10, or otherwise under
conservatorship, unascertained, or not in being, except that
appeal may be taken in the manner provided in the Rules of
Appellate Procedure.
Sec. 38. Minnesota Statutes 2002, section 519.07, is
amended to read:
519.07 [BARRING INTEREST OF SPOUSE; RIGHTS RECIPROCAL.]
A person who has an interest in real estate may bring an
action in any county in which all or a part of the real estate
is located, seeking a decree that will bar any inchoate interest
of the person's spouse in the real estate. The court may grant
such a petition if the court finds by clear and convincing
evidence that the person's spouse is an incapacitated person as
defined in section 525.54 524.5-102, subdivision 6, that the
person has been deserted by the spouse for a period of at least
one year, or that other similar circumstances warrant. The
decree may grant the person full control of all the person's
real estate located in Minnesota, with power to sell, convey,
mortgage, lease, or transfer title to it, subject to any
limitations the court considers proper in the circumstances.
The decree may not be granted or must be vacated if the
petitioner caused or contributed to the incapacity or
disappearance of the petitioner's spouse. A certified copy of
such decree may be recorded in the office of the county recorder
or filed in the office of registrar of titles in any county
wherever such real estate, or any part thereof, may be situated.
Sec. 39. Minnesota Statutes 2002, section 523.03, is
amended to read:
523.03 [INTERPRETATION.]
As used in this chapter:
(1) "incapacity" means cause for appointment of a guardian
or conservator of the person or estate of an adult under section
525.54 sections 524.5-101 to 524.5-502;
(2) "incompetence" has the meaning given in section 525.54;
(3) "principal" includes a guardian or conservator of the
estate appointed for the principal at any time; and
(4) (3) "power of attorney" means a validly executed power
of attorney.
Sec. 40. Minnesota Statutes 2002, section 524.1-201, is
amended to read:
524.1-201 [GENERAL DEFINITIONS.]
Subject to additional definitions contained in the
subsequent articles which are applicable to specific articles or
parts, and unless the context otherwise requires, in chapters
524 and 525:
(2) "Application" means a written request to the registrar
for an order of informal probate or appointment under article
III, part 3.
(3) "Beneficiary," as it relates to trust beneficiaries,
includes a person who has any present or future interest, vested
or contingent, and also includes the owner of an interest by
assignment or other transfer and as it relates to a charitable
trust, includes any person entitled to enforce the trust.
(5) "Child" includes any individual entitled to take as a
child under law by intestate succession from the parent whose
relationship is involved and excludes any person who is only a
stepchild, a foster child, a grandchild or any more remote
descendant.
(6) "Claims" includes liabilities of the decedent whether
arising in contract or otherwise and liabilities of the estate
which arise after the death of the decedent including funeral
expenses and expenses of administration. The term does not
include taxes, demands or disputes regarding title of a decedent
to specific assets alleged to be included in the estate, tort
claims, foreclosure of mechanic's liens, or to actions pursuant
to section 573.02.
(7) "Court" means the court or branch having jurisdiction
in matters relating to the affairs of decedents. This court in
this state is known as the district court.
(8) "Conservator" means a person who is appointed by a
court to manage the estate of a protected person.
(9) "Descendant" of an individual means all of the
individual's descendants of all generations, with the
relationship of parent and child at each generation being
determined by the definition of child and parent contained in
this section.
(10) "Devise," when used as a noun, means a testamentary
disposition of real or personal property and when used as a
verb, means to dispose of real or personal property by will.
(11) "Devisee" means any person designated in a will to
receive a devise. In the case of a devise to an existing trust
or trustee, or to a trustee on trust described by will, the
trust or trustee is the devisee and the beneficiaries are not
devisees.
(12) "Disability" means cause for appointment of a
protective order conservator as described by in section 525.54
524.5-401, or a protective order as described in section
524.5-412.
(13) "Distributee" means any person who has received or who
will receive property of a decedent from the decedent's personal
representative other than as a creditor or purchaser. A
testamentary trustee is a distributee with respect to property
which the trustee has received from a personal representative
only to the extent of distributed assets or their increment
remaining in the trustee's hands. A beneficiary of a
testamentary trust to whom the trustee has distributed property
received from a personal representative is a distributee of the
personal representative. For purposes of this provision,
"testamentary trustee" includes a trustee to whom assets are
transferred by will, to the extent of the devised assets.
(14) "Estate" includes all of the property of the decedent,
trust, or other person whose affairs are subject to this chapter
as originally constituted and as it exists from time to time
during administration.
(16) "Fiduciary" includes personal representative,
guardian, conservator and trustee.
(17) "Foreign personal representative" means a personal
representative of another jurisdiction.
(18) "Formal proceedings" means those conducted before a
judge with notice to interested persons.
(20) "Guardian" means a person who has qualified as a
guardian of a minor or incapacitated person pursuant to
testamentary or court appointment, but excludes one who is
merely a guardian ad litem.
(21) "Heirs" means those persons, including the surviving
spouse, who are entitled under the statutes of intestate
succession to the property of a decedent.
(22) "Incapacitated person" is as described in section
525.54 524.5-102, subdivision 6, other than a minor.
(23) "Informal proceedings" means those conducted by the
judge, the registrar, or the person or persons designated by the
judge for probate of a will or appointment of a personal
representative in accordance with sections 524.3-301 to
524.3-311.
(24) "Interested person" includes heirs, devisees,
children, spouses, creditors, beneficiaries and any others
having a property right in or claim against the estate of a
decedent, ward or protected person which may be affected by the
proceeding. It also includes persons having priority for
appointment as personal representative, and other fiduciaries
representing interested persons. The meaning as it relates to
particular persons may vary from time to time and must be
determined according to the particular purposes of, and matter
involved in, any proceeding.
(27) "Lease" includes an oil, gas, or other mineral lease.
(28) "Letters" includes letters testamentary, letters of
guardianship, letters of administration, and letters of
conservatorship.
(30) "Mortgage" means any conveyance, agreement or
arrangement in which property is used as security.
(31) "Nonresident decedent" means a decedent who was
domiciled in another jurisdiction at the time of death.
(32) "Organization" includes a corporation, government or
governmental subdivision or agency, business trust, estate,
trust, partnership or association, two or more persons having a
joint or common interest, or any other legal entity.
(35) "Person" means an individual, a corporation, an
organization, or other legal entity.
(36) "Personal representative" includes executor,
administrator, successor personal representative, special
administrator, and persons who perform substantially the same
function under the law governing their status. "General
personal representative" excludes special administrator.
(37) "Petition" means a written request to the court for an
order after notice.
(38) "Proceeding" includes action at law and suit in equity.
(39) "Property" includes both real and personal property or
any interest therein and means anything that may be the subject
of ownership.
(40) "Protected person" is as described in section 525.54
524.5-102, subdivision 1 14.
(42) "Registrar" refers to the judge of the court or the
person designated by the court to perform the functions of
registrar as provided in section 524.1-307.
(43) "Security" includes any note, stock, treasury stock,
bond, debenture, evidence of indebtedness, certificate of
interest or participation in an oil, gas or mining title or
lease or in payments out of production under such a title or
lease, collateral trust certificate, transferable share, voting
trust certificate or, in general, any interest or instrument
commonly known as a security, or any certificate of interest or
participation, any temporary or interim certificate, receipt or
certificate of deposit for, or any warrant or right to subscribe
to or purchase, any of the foregoing.
(44) "Settlement," in reference to a decedent's estate,
includes the full process of administration, distribution and
closing.
(45) "Special administrator" means a personal
representative as described by sections 524.3-614 to 524.3-618.
(46) "State" includes any state of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and any
territory or possession subject to the legislative authority of
the United States.
(47) "Successor personal representative" means a personal
representative, other than a special administrator, who is
appointed to succeed a previously appointed personal
representative.
(48) "Successors" means those persons, other than
creditors, who are entitled to property of a decedent under the
decedent's will, this chapter or chapter 525. "Successors" also
means a funeral director or county government that provides the
funeral and burial of the decedent, or a state or county agency
with a claim authorized under section 256B.15.
(49) "Supervised administration" refers to the proceedings
described in sections 524.3-501 to 524.3-505.
(51) "Testacy proceeding" means a proceeding to establish a
will or determine intestacy.
(53) "Trust" includes any express trust, private or
charitable, with additions thereto, wherever and however
created. It also includes a trust created or determined by
judgment or decree under which the trust is to be administered
in the manner of an express trust. "Trust" excludes other
constructive trusts, and it excludes resulting trusts,
conservatorships, personal representatives, trust accounts as
defined in chapter 528, custodial arrangements pursuant to
sections 149A.97, 318.01 to 318.06, 527.21 to 527.44, business
trusts providing for certificates to be issued to beneficiaries,
common trust funds, voting trusts, security arrangements,
liquidation trusts, and trusts for the primary purpose of paying
debts, dividends, interest, salaries, wages, profits, pensions,
or employee benefits of any kind, and any arrangement under
which a person is nominee or escrowee for another.
(54) "Trustee" includes an original, additional, or
successor trustee, whether or not appointed or confirmed by
court.
(55) "Ward" is as described in section 525.54 524.5-102,
subdivision 1 17.
(56) "Will" includes codicil and any testamentary
instrument which merely appoints an executor or revokes or
revises another will.
Sec. 41. Minnesota Statutes 2002, section 524.2-606, is
amended to read:
524.2-606 [NONADEMPTION OF SPECIFIC DEVISES; UNPAID
PROCEEDS OF SALE, CONDEMNATION, OR INSURANCE; SALE BY
CONSERVATOR OR GUARDIAN.]
(a) A specific devisee has a right to the specifically
devised property in the testator's estate at death and:
(1) any balance of the purchase price, together with any
security agreement, owing from a purchaser to the testator at
death by reason of sale of the property;
(2) any amount of a condemnation award for the taking of
the property unpaid at death;
(3) any proceeds unpaid at death on fire or casualty
insurance on or other recovery for injury to the property; and
(4) property owned by the testator at death and acquired as
a result of foreclosure, or obtained in lieu of foreclosure, of
the security interest for a specifically devised obligation.
(b) If specifically devised property is sold or mortgaged
by a conservator or guardian or by an agent acting within the
authority of a durable power of attorney for an incapacitated
principal, or if a condemnation award, insurance proceeds, or
recovery for injury to the property are paid to a conservator or
guardian or to an agent acting within the authority of a durable
power of attorney for an incapacitated principal, the specific
devisee has the right to a general pecuniary devise equal to the
net sale price, the amount of the unpaid loan, the condemnation
award, the insurance proceeds, or the recovery.
(c) The right of a specific devisee under paragraph (b) is
reduced by any right the devisee has under paragraph (a).
(d) For the purposes of the references in paragraph (b) to
a conservator or guardian or an agent acting within the
authority of a durable power of attorney, paragraph (b) does not
apply if after the sale, mortgage, condemnation, casualty, or
recovery;
(1) in the case of a conservator or guardian, it was
adjudicated that the testator's incapacity ceased and the
testator survived the adjudication by one year; or
(2) in the case of an agent acting within the authority of
a durable power of attorney, the testator's incapacity ceased
and the testator survived for one year after the incapacity
ceased.
(e) For the purposes of the references in paragraph (b) to
an agent acting within the authority of a durable power of
attorney for an incapacitated principal, (i) "incapacitated
principal" means a principal who is an incapacitated person as
defined in section 525.54 524.5-102, subdivision 3 6, and (ii) a
finding of the principal's incapacity need not occur during the
principal's life.
Sec. 42. Minnesota Statutes 2002, section 524.3-715, is
amended to read:
524.3-715 [TRANSACTIONS AUTHORIZED FOR PERSONAL
REPRESENTATIVES; EXCEPTIONS.]
Except as restricted or otherwise provided by the will or
by an order in a formal proceeding and subject to the priorities
stated in section 524.3-902, a personal representative, acting
reasonably for the benefit of the interested persons, may
properly:
(1) retain assets owned by the decedent pending
distribution or liquidation including those in which the
representative is personally interested or which are otherwise
improper for trust investment;
(2) receive assets from fiduciaries, or other sources;
(3) perform, compromise or refuse performance of the
decedent's contracts that continue as obligations of the estate,
as the personal representative may determine under the
circumstances. In performing enforceable contracts by the
decedent to convey or lease land, the personal representative,
among other possible courses of action, may:
(i) execute and deliver a deed of conveyance for cash
payment of all sums remaining due or the purchaser's note for
the sum remaining due secured by a mortgage or deed of trust on
the land; or
(ii) deliver a deed in escrow with directions that the
proceeds, when paid in accordance with the escrow agreement, be
paid to the successors of the decedent, as designated in the
escrow agreement;
(4) satisfy written charitable pledges of the decedent
irrespective of whether the pledges constituted binding
obligations of the decedent or were properly presented as
claims, if in the judgment of the personal representative the
decedent would have wanted the pledges completed under the
circumstances;
(5) if funds are not needed to meet debts and expenses
currently payable and are not immediately distributable, deposit
or invest liquid assets of the estate, including moneys received
from the sale of other assets, in federally insured
interest-bearing accounts, readily marketable secured loan
arrangements or other prudent investments which would be
reasonable for use by trustees generally;
(6) acquire or dispose of an asset, including land in this
or another state, for cash or on credit, at public or private
sale; and manage, develop, improve, exchange, partition, change
the character of, or abandon an estate asset;
(7) make ordinary or extraordinary repairs or alterations
in buildings or other structures, demolish any improvements,
raze existing or erect new party walls or buildings;
(8) subdivide, develop or dedicate land to public use; make
or obtain the vacation of plats and adjust boundaries; or adjust
differences in valuation on exchange or partition by giving or
receiving considerations; or dedicate easements to public use
without consideration;
(9) enter for any purpose into a lease as lessor or lessee,
with or without option to purchase or renew, for a term within
or extending beyond the period of administration;
(10) enter into a lease or arrangement for exploration and
removal of minerals or other natural resources or enter into a
pooling or unitization agreement;
(11) abandon property when, in the opinion of the personal
representative, it is valueless, or is so encumbered, or is in
condition that it is of no benefit to the estate;
(12) vote stocks or other securities in person or by
general or limited proxy;
(13) pay calls, assessments, and other sums chargeable or
accruing against or on account of securities, unless barred by
the provisions relating to claims;
(14) hold a security in the name of a nominee or in other
form without disclosure of the interest of the estate but the
personal representative is liable for any act of the nominee in
connection with the security so held;
(15) insure the assets of the estate against damage, loss
and liability and the personal representative against liability
as to third persons;
(16) borrow money with or without security to be repaid
from the estate assets or otherwise; and advance money for the
protection of the estate;
(17) effect a fair and reasonable compromise with any
debtor or obligor, or extend, renew or in any manner modify the
terms of any obligation owing to the estate. The personal
representative on holding a mortgage, pledge or other lien upon
property of another person may, in lieu of foreclosure, accept a
conveyance or transfer of encumbered assets from the owner
thereof in satisfaction of the indebtedness secured by lien;
(18) pay in compliance with section 524.3-805, but without
the presentation of a claim, the reasonable and necessary last
illness expenses of the decedent (except as provided in section
524.3-806 (a)), reasonable funeral expenses, debts and taxes
with preference under federal or state law, and other taxes,
assessments, compensation of the personal representative and the
personal representative's attorney, and all other costs and
expenses of administration although the same may be otherwise
barred under section 524.3-803;
(19) sell or exercise stock subscription or conversion
rights; consent, directly or through a committee or other agent,
to the reorganization, consolidation, merger, dissolution, or
liquidation of a corporation or other business enterprise;
(20) allocate items of income or expense to either estate
income or principal, as permitted or provided by law;
(21) employ persons, including attorneys, auditors,
investment advisors, or agents, even if they are associated with
the personal representative, to advise or assist the personal
representative in the performance of administrative duties; act
without independent investigation upon their recommendations;
and instead of acting personally, employ one or more agents to
perform any act of administration, whether or not discretionary;
(22) prosecute or defend claims, or proceedings in any
jurisdiction for the protection of the estate and of the
personal representative in the performance of duties;
(23) sell, mortgage, or lease any real or personal property
of the estate or any interest therein for cash, credit, or for
part cash and part credit, and with or without security for
unpaid balances, provided, however, that the homestead of a
decedent when the spouse takes any interest therein shall not be
sold, mortgaged or leased unless the written consent of the
spouse has been obtained;
(24) continue any unincorporated business or venture in
which the decedent was engaged at the time of death (i) in the
same business form for a period of not more than four months
from the date of appointment of a general personal
representative if continuation is a reasonable means of
preserving the value of the business including good will, (ii)
in the same business form for any additional period of time that
may be approved by order of the court in a formal proceeding to
which the persons interested in the estate are parties; or (iii)
throughout the period of administration if the business is
incorporated by the personal representative and if none of the
probable distributees of the business who are competent adults
object to its incorporation and retention in the estate;
(25) incorporate any business or venture in which the
decedent was engaged at the time of death;
(26) provide for exoneration of the personal representative
from personal liability in any contract entered into on behalf
of the estate;
(27) satisfy and settle claims and distribute the estate as
provided in this chapter;
(28) foreclose a mortgage, lien, or pledge or collect the
debts secured thereby, or complete any such proceeding commenced
by the decedent;
(29) exercise all powers granted to guardians and
conservators by sections 525.67 and 525.68 524.5-101 to
524.5-502.
Sec. 43. Minnesota Statutes 2002, section 609.2325,
subdivision 2, is amended to read:
Subd. 2. [EXEMPTIONS.] For the purposes of this section, a
vulnerable adult is not abused for the sole reason that:
(1) the vulnerable adult or a person with authority to make
health care decisions for the vulnerable adult under sections
144.651, 144A.44, chapter 145B, 145C, or 252A, or section
sections 253B.03, or 525.539 524.5-101 to 525.6199
524.5-502, refuses consent or withdraws consent, consistent with
that authority and within the boundary of reasonable medical
practice, to any therapeutic conduct, including any care,
service, or procedure to diagnose, maintain, or treat the
physical or mental condition of the vulnerable adult or, where
permitted under law, to provide nutrition and hydration
parenterally or through intubation; this paragraph does not
enlarge or diminish rights otherwise held under law by:
(i) a vulnerable adult or a person acting on behalf of a
vulnerable adult, including an involved family member, to
consent to or refuse consent for therapeutic conduct; or
(ii) a caregiver to offer or provide or refuse to offer or
provide therapeutic conduct;
(2) the vulnerable adult, a person with authority to make
health care decisions for the vulnerable adult, or a caregiver
in good faith selects and depends upon spiritual means or prayer
for treatment or care of disease or remedial care of the
vulnerable adult in lieu of medical care, provided that this is
consistent with the prior practice or belief of the vulnerable
adult or with the expressed intentions of the vulnerable adult;
or
(3) the vulnerable adult, who is not impaired in judgment
or capacity by mental or emotional dysfunction or undue
influence, engages in consensual sexual contact with: (i) a
person, including a facility staff person, when a consensual
sexual personal relationship existed prior to the caregiving
relationship; or (ii) a personal care attendant, regardless of
whether the consensual sexual personal relationship existed
prior to the caregiving relationship.
Sec. 44. Minnesota Statutes 2002, section 609.233,
subdivision 2, is amended to read:
Subd. 2. [EXEMPTIONS.] A vulnerable adult is not neglected
for the sole reason that:
(1) the vulnerable adult or a person with authority to make
health care decisions for the vulnerable adult under sections
144.651, 144A.44, 253B.03, or 525.539 524.5-101 to 525.6199
524.5-502, or chapter 145B, 145C, or 252A, refuses consent or
withdraws consent, consistent with that authority and within the
boundary of reasonable medical practice, to any therapeutic
conduct, including any care, service, or procedure to diagnose,
maintain, or treat the physical or mental condition of the
vulnerable adult or, where permitted under law, to provide
nutrition and hydration parenterally or through intubation; this
paragraph does not enlarge or diminish rights otherwise held
under law by:
(i) a vulnerable adult or a person acting on behalf of a
vulnerable adult, including an involved family member, to
consent to or refuse consent for therapeutic conduct; or
(ii) a caregiver to offer or provide or refuse to offer or
provide therapeutic conduct;
(2) the vulnerable adult, a person with authority to make
health care decisions for the vulnerable adult, or a caregiver
in good faith selects and depends upon spiritual means or prayer
for treatment or care of disease or remedial care of the
vulnerable adult in lieu of medical care, provided that this is
consistent with the prior practice or belief of the vulnerable
adult or with the expressed intentions of the vulnerable adult;
or
(3) the vulnerable adult, who is not impaired in judgment
or capacity by mental or emotional dysfunction or undue
influence, engages in consensual sexual contact with: (i) a
person including a facility staff person when a consensual
sexual personal relationship existed prior to the caregiving
relationship; or (ii) a personal care attendant, regardless of
whether the consensual sexual personal relationship existed
prior to the caregiving relationship.
Sec. 45. Minnesota Statutes 2002, section 626.557,
subdivision 10, is amended to read:
Subd. 10. [DUTIES OF COUNTY SOCIAL SERVICE AGENCY.] (a)
Upon receipt of a report from the common entry point staff, the
county social service agency shall immediately assess and offer
emergency and continuing protective social services for purposes
of preventing further maltreatment and for safeguarding the
welfare of the maltreated vulnerable adult. In cases of
suspected sexual abuse, the county social service agency shall
immediately arrange for and make available to the vulnerable
adult appropriate medical examination and treatment. When
necessary in order to protect the vulnerable adult from further
harm, the county social service agency shall seek authority to
remove the vulnerable adult from the situation in which the
maltreatment occurred. The county social service agency may
also investigate to determine whether the conditions which
resulted in the reported maltreatment place other vulnerable
adults in jeopardy of being maltreated and offer protective
social services that are called for by its determination.
(b) County social service agencies may enter facilities and
inspect and copy records as part of an investigation. The
county social service agency has access to not public data, as
defined in section 13.02, and medical records under section
144.335, that are maintained by facilities to the extent
necessary to conduct its investigation. The inquiry is not
limited to the written records of the facility, but may include
every other available source of information.
(c) When necessary in order to protect a vulnerable adult
from serious harm, the county social service agency shall
immediately intervene on behalf of that adult to help the
family, vulnerable adult, or other interested person by seeking
any of the following:
(1) a restraining order or a court order for removal of the
perpetrator from the residence of the vulnerable adult pursuant
to section 518B.01;
(2) the appointment of a guardian or conservator pursuant
to sections 525.539 524.5-101 to 525.6198 524.5-502, or
guardianship or conservatorship pursuant to chapter 252A;
(3) replacement of a guardian or conservator suspected of
maltreatment and appointment of a suitable person as guardian or
conservator, pursuant to sections 525.539 524.5-101 to 525.6198
524.5-502; or
(4) a referral to the prosecuting attorney for possible
criminal prosecution of the perpetrator under chapter 609.
The expenses of legal intervention must be paid by the
county in the case of indigent persons, under section 525.703
524.5-502 and chapter 563.
In proceedings under sections 525.539 524.5-101 to 525.6198
524.5-502, if a suitable relative or other person is not
available to petition for guardianship or conservatorship, a
county employee shall present the petition with representation
by the county attorney. The county shall contract with or
arrange for a suitable person or organization to provide ongoing
guardianship services. If the county presents evidence to the
court exercising probate jurisdiction that it has made a
diligent effort and no other suitable person can be found, a
county employee may serve as guardian or conservator. The
county shall not retaliate against the employee for any action
taken on behalf of the ward or conservatee protected person even
if the action is adverse to the county's interest. Any person
retaliated against in violation of this subdivision shall have a
cause of action against the county and shall be entitled to
reasonable attorney fees and costs of the action if the action
is upheld by the court.
Sec. 46. Minnesota Statutes 2002, section 626.5572,
subdivision 17, is amended to read:
Subd. 17. [NEGLECT.] "Neglect" means:
(a) The failure or omission by a caregiver to supply a
vulnerable adult with care or services, including but not
limited to, food, clothing, shelter, health care, or supervision
which is:
(1) reasonable and necessary to obtain or maintain the
vulnerable adult's physical or mental health or safety,
considering the physical and mental capacity or dysfunction of
the vulnerable adult; and
(2) which is not the result of an accident or therapeutic
conduct.
(b) The absence or likelihood of absence of care or
services, including but not limited to, food, clothing, shelter,
health care, or supervision necessary to maintain the physical
and mental health of the vulnerable adult which a reasonable
person would deem essential to obtain or maintain the vulnerable
adult's health, safety, or comfort considering the physical or
mental capacity or dysfunction of the vulnerable adult.
(c) For purposes of this section, a vulnerable adult is not
neglected for the sole reason that:
(1) the vulnerable adult or a person with authority to make
health care decisions for the vulnerable adult under sections
144.651, 144A.44, chapter 145B, 145C, or 252A, or section
sections 253B.03, or 525.539 524.5-101 to 525.6199
524.5-502, refuses consent or withdraws consent, consistent with
that authority and within the boundary of reasonable medical
practice, to any therapeutic conduct, including any care,
service, or procedure to diagnose, maintain, or treat the
physical or mental condition of the vulnerable adult, or, where
permitted under law, to provide nutrition and hydration
parenterally or through intubation; this paragraph does not
enlarge or diminish rights otherwise held under law by:
(i) a vulnerable adult or a person acting on behalf of a
vulnerable adult, including an involved family member, to
consent to or refuse consent for therapeutic conduct; or
(ii) a caregiver to offer or provide or refuse to offer or
provide therapeutic conduct; or
(2) the vulnerable adult, a person with authority to make
health care decisions for the vulnerable adult, or a caregiver
in good faith selects and depends upon spiritual means or prayer
for treatment or care of disease or remedial care of the
vulnerable adult in lieu of medical care, provided that this is
consistent with the prior practice or belief of the vulnerable
adult or with the expressed intentions of the vulnerable adult;
(3) the vulnerable adult, who is not impaired in judgment
or capacity by mental or emotional dysfunction or undue
influence, engages in sexual contact with:
(i) a person including a facility staff person when a
consensual sexual personal relationship existed prior to the
caregiving relationship; or
(ii) a personal care attendant, regardless of whether the
consensual sexual personal relationship existed prior to the
caregiving relationship; or
(4) an individual makes an error in the provision of
therapeutic conduct to a vulnerable adult which does not result
in injury or harm which reasonably requires medical or mental
health care; or
(5) an individual makes an error in the provision of
therapeutic conduct to a vulnerable adult that results in injury
or harm, which reasonably requires the care of a physician, and:
(i) the necessary care is provided in a timely fashion as
dictated by the condition of the vulnerable adult;
(ii) if after receiving care, the health status of the
vulnerable adult can be reasonably expected, as determined by
the attending physician, to be restored to the vulnerable
adult's preexisting condition;
(iii) the error is not part of a pattern of errors by the
individual;
(iv) if in a facility, the error is immediately reported as
required under section 626.557, and recorded internally in the
facility;
(v) if in a facility, the facility identifies and takes
corrective action and implements measures designed to reduce the
risk of further occurrence of this error and similar errors; and
(vi) if in a facility, the actions required under items
(iv) and (v) are sufficiently documented for review and
evaluation by the facility and any applicable licensing,
certification, and ombudsman agency.
(d) Nothing in this definition requires a caregiver, if
regulated, to provide services in excess of those required by
the caregiver's license, certification, registration, or other
regulation.
(e) If the findings of an investigation by a lead agency
result in a determination of substantiated maltreatment for the
sole reason that the actions required of a facility under
paragraph (c), clause (5), item (iv), (v), or (vi), were not
taken, then the facility is subject to a correction order. An
individual will not be found to have neglected or maltreated the
vulnerable adult based solely on the facility's not having taken
the actions required under paragraph (c), clause (5), item (iv),
(v), or (vi). This must not alter the lead agency's
determination of mitigating factors under section 626.557,
subdivision 9c, paragraph (c).
Sec. 47. [INSTRUCTION TO REVISOR.]
The revisor of statutes shall change "sections 525.54 to
525.61" to "sections 524.5-101 to 524.5-502" in the following
sections of Minnesota Statutes: 146A.03, subdivision 6;
146A.09, subdivision 6; 147.111, subdivision 6; 147A.14,
subdivision 6; 148.102, subdivision 4; 148.262, subdivision 2;
148.263, subdivision 5; 148B.07, subdivision 6; 148B.175,
subdivision 8; 148B.281, subdivision 9; 148B.283, subdivision 7;
148B.63, subdivision 6; 148B.69, subdivision 5; 148C.091,
subdivision 4; 150A.13, subdivision 6; and 153.24, subdivision 5.
Presented to the governor March 25, 2004
Signed by the governor March 26, 2004, 7:05 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes