SSB 3038 (LSB 5389XC (5) 88)

SENATE FILE _____ 

BY  (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ZAUN)

A BILL FOR

An Act relating to the opening, administration, and termination of adult and minor guardianships and conservatorships, and including effective date and applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 232D.301, subsection 4, Code 2020, is amended to read as follows:
   4.  The petition shall state whether a limited guardianship is appropriate, and whether a conservatorship for the minor is needed or already in existence.
    Sec. 2.  Section 232D.302, subsection 2, Code 2020, is amended to read as follows:
   2.  Notice shall be served upon the minor’s known parents listed in the petition in accordance with the rules of civil procedure.  If the parent has not filed a consent to the appointment of a guardian, the notice shall inform any parent named in the petition that the parent may be entitled to representation under the conditions described in section 232D.304. 
    Sec. 3.  Section 232D.305, subsection 1, Code 2020, is amended to read as follows:
   1.  The court may appoint a court visitor for the minor.  A person is qualified to serve as a court visitor if the person has demonstrated sufficient knowledge of guardianships to adequately perform the duties in subsection 3. 
    Sec. 4.  Section 232D.401, subsections 1 and 2, Code 2020, are amended to read as follows:
   1.  The order by the court appointing a guardian for a minor shall state the basis for the order and the date on which the first reporting period for the guardianship will end.
   2.  The order by the court appointing a guardian for a minor shall state whether the guardianship is a limited guardianship and whether a conservator for the minor exists or a petition for a conservatorship has been filed.
    Sec. 5.  Section 232D.401, subsection 3, paragraph e, Code 2020, is amended to read as follows:
   e.  Applying for and receiving funds and benefits payable for the support of the minor if the minor does not have a conservator. If the minor has a conservator, the guardian shall notify the conservator at least ten days before applying for funds or benefits for the support of the minor.
    Sec. 6.  Section 232D.501, subsection 1, paragraph a, Code 2020, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (7)  The guardian’s plan, if any, for applying for funds or benefits to support the minor.
    Sec. 7.  Section 232D.501, subsection 1, paragraph b, Code 2020, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (11)  The results of the guardian’s efforts to apply for funds or benefits for the minor, and an accounting for the use of such funds or benefits by the guardian.
    Sec. 8.  Section 232D.501, subsection 4, Code 2020, is amended to read as follows:
   4.  Reports of the guardian shall be reviewed and approved by the court.  If the total value of funds or benefits retained by the guardian for the minor’s benefit exceeds the amount specified in section 633.555, the court shall determine whether a conservatorship is appropriate for the minor.
    Sec. 9.  Section 633.556, subsection 5, paragraph a, Code 2020, is amended to read as follows:
   a.  The name and address of the proposed guardian or conservator and the reason the proposed guardian or conservator should be selected.
    Sec. 10.  Section 633.556, subsection 8, Code 2020, is amended to read as follows:
   8.  The A petition for conservator shall provide a brief description of the respondent’s alleged functional limitations that make the respondent unable to communicate or carry out important decisions concerning the respondent’s financial affairs.  A petition for guardianship shall provide a brief description of the respondent’s alleged functional limitations that make the respondent unable to provide for the respondent’s safety, or to provide for necessities.
    Sec. 11.  Section 633.560, subsection 3, Code 2020, is amended to read as follows:
   3.  The court shall require the proposed guardian or conservator to attend the hearing on the petition but the court may excuse the proposed guardian’s or conservator’s attendance for good cause shown.
    Sec. 12.  Section 633.561, subsection 1, paragraph a, Code 2020, is amended to read as follows:
   a.  If the respondent is an adult and is not the petitioner, the respondent is entitled to representation by an attorney. Upon the filing of the petition, the court shall appoint an attorney to represent the respondent, set a hearing on the petition, and provide for notice of the appointment of counsel and the date for hearing.
    Sec. 13.  Section 633.561, subsection 4, paragraphs c and f, Code 2020, are amended to read as follows:
   c.  Ensure that the respondent has been properly advised of the respondent’s rights in a guardianship or conservatorship proceeding.
   f.  Ensure that the guardianship or conservatorship procedures conform to the statutory and due process requirements of Iowa law.
    Sec. 14.  Section 633.561, subsection 5, paragraphs a and b, Code 2020, are amended to read as follows:
   a.  Inform the respondent of the effects of the order entered for appointment of guardian or conservator.
   b.  Advise the respondent of the respondent’s rights to petition for modification or termination of the guardianship or conservatorship.
    Sec. 15.  Section 633.561, subsection 6, Code 2020, is amended to read as follows:
   6.  If the court determines that it would be in the respondent’s best interest to have legal representation with respect to any further proceedings in a guardianship or conservatorship, the court may appoint an attorney to represent the respondent at the expense of the respondent or the respondent’s estate, or if the respondent is indigent the cost of the court appointed attorney shall be assessed against the county in which the proceedings are pending.
    Sec. 16.  Section 633.562, subsection 1, Code 2020, is amended to read as follows:
   1.  If the court determines that the appointment of a court visitor would be in the best interest of the respondent, the court shall appoint a court visitor at the expense of the respondent or the respondent’s estate, or, if the respondent is indigent, the cost of the court visitor shall be assessed against the county in which the proceedings are pending. The court may appoint any qualified person as a court visitor in a guardianship or conservatorship proceeding.  A person is qualified to serve in this capacity if the person has demonstrated sufficient knowledge of guardianships or conservatorships to adequately perform the duties in subsection 3.
    Sec. 17.  Section 633.562, subsection 5, paragraphs a and b, Code 2020, are amended to read as follows:
   a.  A recommendation regarding the appropriateness of a limited guardianship or conservatorship for the respondent, including whether less restrictive alternatives are available.
   b.  A statement of the qualifications of the guardian or conservator together with a statement of whether the respondent has expressed agreement with the appointment of the proposed guardian or conservator.
    Sec. 18.  Section 633.569, Code 2020, is amended to read as follows:
   633.569  Emergency appointment of temporary guardian or conservator.
   1.  A person authorized to file a petition under section 633.552, 633.553, or 633.554 633.556 or 633.557 may file an application for the emergency appointment of a temporary guardian or conservator.
   2.  Such application shall state all of the following:
   0a.  The name and address of the petitioner and the petitioner’s relationship to the respondent.
   a.  The name and address of the respondent.
   b.  The name and address of the proposed guardian or conservator and the reason the proposed guardian or conservator should be selected.
   0c.  The names and addresses, to the extent known, of any other persons who must be named in a petition for appointment of a guardian or conservator under section 633.556 or 633.557.
   c.  The reason the emergency appointment of a temporary guardian or conservator is sought.
   3.  The court may enter an ex parte order appointing a temporary guardian or conservator on an emergency basis under this section if the court finds by clear and convincing evidence that all of the following conditions are met:
   a.  There is not sufficient time to file a petition and hold a hearing pursuant to section 633.552, 633.553, or 633.554 633.556, 633.557, or 633.560.
   b.  The appointment of a temporary guardian or conservator is necessary to avoid immediate or and irreparable harm to the respondent before a hearing with notice to the respondent can be held.
   c.  There is reason to believe that the basis for appointment of guardian or conservator exists under section 633.552, 633.553, or 633.554.
   04.  Immediately on filing of an application for the emergency appointment of a temporary guardian or conservator, the court shall appoint an attorney to represent the respondent in the proceeding.
   4.  Notice of a petition for the appointment of a temporary guardian or conservator and the issuance of an ex parte order appointing a temporary guardian or conservator shall be provided not later than forty-eight hours after issuance of the order of appointment to the respondent, the respondent’s attorney, and any other person the court determines should receive notice.  Notice shall be provided by personal service unless otherwise directed by the court.
   5.  Upon the issuance of an ex parte order, if the respondent is an adult, the respondent may file a request for a hearing. If the respondent is a minor, the respondent, a parent having legal custody of the respondent, or any other person having legal custody of the respondent may file a written request for a hearing. Such hearing shall be held no later than seven days after the filing of a written request.  A hearing shall be held not more than seven days after the issuance of an ex parte order appointing a temporary guardian or conservator.
   6.  The powers of the temporary guardian or conservator set forth in the order of the court shall be limited to those necessary to address the emergency situation requiring the appointment of a temporary guardian or conservator.
   7.  The temporary guardianship or conservatorship shall terminate within thirty days after the order is issued.
   8.  The temporary guardian or conservator shall submit any report the court requires.
    Sec. 19.  Section 633.570, subsections 1 and 2, Code 2020, are amended to read as follows:
   1.  In a proceeding for the appointment of a guardian, the respondent shall be given written notice which advises the respondent of the powers that a guardian may exercise without court approval pursuant to section 633.635, subsection 2, and the powers that the guardian may exercise only with court approval pursuant to section 633.635, subsection 3, and the pertinent powers the guardian may exercise as a fiduciary.
   2.  In a proceeding for the appointment of a conservator, the respondent shall be given written notice which advises the respondent of the powers that a conservator may exercise without court approval pursuant to section 633.646, including the pertinent powers the conservator may exercise as a fiduciary, and the powers that the guardian conservator may exercise only with court approval pursuant to section 633.647.
    Sec. 20.  Section 633.635, subsection 1, Code 2020, is amended to read as follows:
   1.  The order by the court appointing a guardian shall state the basis for the guardianship pursuant to section 633.552 and the date on which the first reporting period for the guardianship shall end.
    Sec. 21.  Section 633.635, subsection 3, paragraph b, Code 2020, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (4)  Any major elective surgery or any other nonemergency major medical procedure, unless advance notice of the procedure was included in the guardian’s initial care plan that was approved by the court. For purposes of this subparagraph, “major elective surgery” and “nonemergency major medical procedure” do not include the provision of routine physical and dental examinations and procedures under anesthesia, if the use of anesthesia is necessitated by the physical or mental disability of the protected person, and if the anesthesia is provided within the scope of the health care practitioner’s scope of practice.
    Sec. 22.  Section 633.641, subsection 3, Code 2020, is amended to read as follows:
   3.  If a protected person has executed a valid power of attorney under chapter 633B, the conservator shall act in accordance with the applicable provisions of chapter 633B. If the court appoints a conservator for a protected person who has previously executed a valid power of attorney under chapter 633B, the power of attorney is suspended unless the power of attorney provides otherwise or the court appointing the conservator orders that the power of attorney should continue. If the power of attorney continues, the agent is accountable to the conservator as well as to the principal. The power of attorney shall be reinstated upon termination of the conservatorship as a result of the principal regaining capacity. 
    Sec. 23.  Section 633.642, unnumbered paragraph 1, Code 2020, is amended to read as follows:
   Except as expressly modified in this section, conservators shall have the pertinent powers relating to fiduciaries and the authority to collect, receive, and receipt for any principal, income, or other asset of the protected person. Unless the court orders otherwise ordered by the court, a conservator must give notice to persons entitled to notice and receive specific prior authorization by the court before the conservator may take any other action on behalf of the protected person. These other powers requiring court approval include the authority of the conservator to:
    Sec. 24.  Section 633.669, subsection 1, paragraph a, unnumbered paragraph 1, Code 2020, is amended to read as follows:
   An initial care plan filed within sixty days of appointment.  In the case of guardianships established before January 1, 2020, a guardian shall file the plan within sixty days after the close of the next reporting period of the guardianship following January 1, 2020. The information in the initial care plan shall include but not be limited to the following information:
    Sec. 25.  Section 633.669, subsection 1, paragraph a, subparagraph (7), Code 2020, is amended to read as follows:
   (7)  The guardian’s plan for facilitating contacts between the protected person and the protected person’s family members and other significant persons significant in the life of the protected person.
    Sec. 26.  Section 633.669, subsection 1, paragraph a, Code 2020, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (9)  The guardian shall file an amended plan when there has been a significant change in circumstance or the guardian seeks to deviate significantly from the plan. The guardian must obtain court approval of the amended plan before implementing any of its provisions.
    Sec. 27.  Section 633.669, subsection 1, paragraph b, unnumbered paragraph 1, Code 2020, is amended to read as follows:
   An annual report, filed within sixty days of the close of the reporting period, unless the court otherwise orders on good cause shown. The information in the annual report shall include but not be limited to the following information:
    Sec. 28.  Section 633.670, subsection 1, unnumbered paragraph 1, Code 2020, is amended to read as follows:
   A conservator shall file an initial plan for protecting, managing, investing, expending, and distributing the assets of the conservatorship estate within ninety days after appointment.  In the case of conservatorships established before January 1, 2020, a conservator shall file the plan within ninety days after the close of the next reporting period ending after January 1, 2020. The plan must be based on the needs of the protected person and take into account the best interest of the protected person as well as the protected person’s preference, values, and prior directions to the extent known to, or reasonably ascertainable by, the conservator.
    Sec. 29.  Section 633.670, subsection 1, paragraph a, subparagraph (4), Code 2020, is amended by striking the subparagraph.
    Sec. 30.  Section 633.670, subsection 1, paragraphs b, c, and d, Code 2020, are amended to read as follows:
   b.  Within two days after filing the initial plan, the The conservator shall give provide notice of the filing of the initial plan with and a copy of the initial plan to the protected person, the protected person’s attorney and court advisor visitor, if any, and others as directed by the court. The notice must state that any person entitled to a copy of the plan must file any objections to the plan not later than fifteen days after it is filed twenty days from the date of mailing notice of filing the initial plan.
   c.  At least If no objections have been filed within twenty days after the plan has been filed, the court shall review and determine whether the plan should be approved or revised, after considering objections filed and whether the plan is consistent with the conservator’s powers and duties mailing notice of filing the initial plan, the conservator shall submit a proposed order to the court approving the initial plan. Upon the court’s approval of the plan under this subsection, the conservator shall provide a copy of the approved plan and order approving the plan to the protected person, the protected person’s attorney and court visitor, if any, and others as directed by the court.
   d.  After approval by the court, the conservator shall provide a copy of the approved plan and order approving the plan to the protected person, the protected person’s attorney and court advisor, if any, and others as directed by the court. If any objections to the proposed plan are filed within twenty days after the conservator has mailed notice of filing the plan, the court shall set the matter for hearing and provide notice of the hearing date, time, and place to the same parties who were sent copies of the initial plan. Following the hearing on the conservator’s proposed plan, the conservator shall provide a copy of the approved plan and order approving the plan to the protected person, the protected person’s attorney and court visitor, if any, and others as directed by the court.
    Sec. 31.  Section 633.670, subsection 2, Code 2020, is amended to read as follows:
   2.  A conservator shall file an inventory of the protected person’s assets within ninety days after appointment which includes an oath or affirmation that the inventory is believed to be complete and accurate as far as information permits. Copies of the inventory shall be provided to the protected person, the protected person’s attorney and court advisor visitor, if any, and others as directed by the court. When the conservator receives additional property of the protected person, or becomes aware of its existence, a description of the property shall be included in the conservator’s next annual report.
    Sec. 32.  Section 633.670, subsection 3, paragraph b, subparagraph (1), Code 2020, is amended to read as follows:
   (1)  On an annual basis within Within sixty days of the end of the reporting period unless the court orders an extension for good cause shown in accordance with the rules of probate procedure.
    Sec. 33.  Section 633.670, subsection 3, paragraph c, Code 2020, is amended to read as follows:
   c.  Reports required by this section shall be served on the protected person’s attorney and court advisor visitor, if any, and the veterans administration if the protected person is receiving veterans benefits.
    Sec. 34.  Section 633.675, subsections 2 and 3, Code 2020, are amended to read as follows:
   2.  The court shall terminate a guardianship if it the court finds by clear and convincing evidence that the basis for appointing a guardian pursuant to section 633.552 is not satisfied.
   3.  The court shall terminate a conservatorship if the court finds by clear and convincing evidence that the basis for appointing a conservator pursuant to section 633.553 or 633.554 is not satisfied.
    Sec. 35.  EFFECTIVE DATE.  The following, being deemed of immediate importance, take effect upon enactment:
   1.  The sections of this Act amending section 633.669.
   2.  The sections of this Act amending section 633.670.
    Sec. 36.  RETROACTIVE APPLICABILITY.  The following apply retroactively to January 1, 2020:
   1.  The sections of this Act amending section 633.669.
   2.  The sections of this Act amending section 633.670.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to the opening, administration, and termination of adult and minor guardianships and conservatorships, and includes effective date and applicability provisions.
   The bill provides that a petition for a minor guardianship must state whether a minor needs or currently has a conservatorship. The bill requires that notice that a petition has been filed be given to a parent who has not consented to a guardianship and that court may appoint an attorney to represent the parent.
   The bill describes who is qualified to serve as a court visitor for a minor. 
   The bill adds additional report requirements for cases where a minor has a conservatorship, requires the guardian to report to the district court in the case of minor conservatorships, and requires that the reporting period be listed on the report. 
   The bill also amends information in a guardian report when guardians are authorized to apply for funds or benefits for a minor.
   As relates to a petition for an adult guardianship or conservatorship, the bill amends several Code sections to include both guardians and conservators. 
   The bill amends current law to provide that a petition must name the proposed guardian or conservator. Further, the petition must provide a brief description of the adult’s alleged functional limitations which makes the person unable to provide for the person’s safety or to provide for necessities. 
   The bill describes who is qualified to serve as a court visitor for an adult. 
   The bill amends the provisions involved in the emergency appointment of a temporary guardian or conservator, and provides that any person authorized to file a petition for guardianship or conservatorship may file for the emergency appointment of a guardian or conservator. Prior law only authorized a guardian to file an emergency petition. 
   The bill provides that conservators have all of the pertinent powers of a fiduciary unless limited by the court or their personalized financial plan.
   The bill requires that a guardian have a prior court order for major elective surgeries or other major nonemergency medical procedures outside the initial care plan, and requires that the dates of the reporting period should be contained in the order.
   The bill provides that if a court appoints a conservator for a protected person who has previously executed a valid power of attorney, the power of attorney is suspended unless the power of attorney provides otherwise or the court appointing the conservator orders that the power of attorney should continue. Further, if the power of attorney continues, the agent is accountable to the conservator, and the power of attorney will be reinstated at the termination of the conservatorship as a result of the protected person regaining capacity.
   The bill amends reporting requirements for guardians, and requires that guardians must obtain court approval prior to any significant deviation from the initial care plan filed with the court. These changes are immediately effective and retroactive to January 1, 2020.
   The bill amends reporting requirements for conservators. The conservator must give notice of filing a plan, and if no objection is made within 20 days, the conservator must submit a proposed order to the court approving the initial plan. If there are objections to the plan, the court must set the matter for hearing. These changes are immediately effective and retroactive to January 1, 2020. 
   The bill removes the language “by clear and convincing evidence” from the Code section concerning the causes for termination of a guardianship or conservatorship.