Text: S05447                            Text: S05449
Text: S05400 - S05499                   Text: S Index
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Senate Amendment 5448

Amendment Text

PAG LIN
  1  1    Amend Senate File 2414 as follows:
  1  2    #1.  By striking everything after the enacting
  1  3 clause and inserting the following:
  1  4    "Section 1.  Section 633.3, Code 1995, is amended
  1  5 by adding the following new subsection:
  1  6    NEW SUBSECTION.  18A.  "Functional limitations"
  1  7 means the behavior or condition of a person which
  1  8 impairs the person's ability to care for the person's
  1  9 personal safety or to attend to or provide for
  1 10 necessities for the person.
  1 11    Sec. 2.  Section 633.3, subsection 22, Code 1995,
  1 12 is amended to read as follows:
  1 13    22.  Incompetent – includes means the condition of
  1 14 any person who has been adjudicated by a court to be
  1 15 incapable of managing the person's property, or caring
  1 16 for the person's own self, or both have a decision-
  1 17 making capacity which is so impaired that the person
  1 18 is unable to care for the person's personal safety or
  1 19 to attend to or provide for necessities for the person
  1 20 such as food, shelter, clothing, or medical care,
  1 21 without which physical injury or illness may occur.
  1 22    Sec. 3.  Section 633.552, subsection 2, paragraphs
  1 23 a and b, Code 1995, are amended by striking the
  1 24 paragraphs and inserting in lieu thereof the
  1 25 following:
  1 26    a.  Is a minor.
  1 27    b.  Is a person whose decision-making capacity is
  1 28 so impaired that the person is unable to care for the
  1 29 person's personal safety or to attend to or provide
  1 30 for necessities for the person such as food, shelter,
  1 31 clothing, or medical care without which physical
  1 32 injury or illness might occur.
  1 33    Sec. 4.  Section 633.556, Code 1995, is amended to
  1 34 read as follows:
  1 35    633.556  APPOINTMENT OF GUARDIAN.
  1 36    If the allegations of the petition as to the status
  1 37 of the proposed ward and the necessity for the
  1 38 appointment of a guardian are proved, the court may
  1 39 appoint a guardian.
  1 40    The determination as to the appointment of a
  1 41 guardian, the type of guardianship, and the specific
  1 42 areas of protection, management, and assistance to be
  1 43 granted, shall be the exclusive decision of the court.
  1 44 In order to appoint a guardian, the court must find
  1 45 that the proposed ward meets the criteria of section
  1 46 633.552, subsection 2.  In making the determination,
  1 47 the court shall consider the proposed ward's
  1 48 functional limitations and the extent to which any
  1 49 functional limitations impair the proposed ward's
  1 50 ability to care for the person's personal safety or to
  2  1 attend to or provide for necessities.  The court shall
  2  2 grant specific powers to the guardian which constitute
  2  3 the least restrictive form of intervention consistent
  2  4 with the findings regarding the proposed ward's
  2  5 functional limitations.  Prior to establishing,
  2  6 modifying, or terminating a guardianship, the court
  2  7 shall consider whether a guardianship pursuant to
  2  8 section 633.635 is appropriate and whether third-party
  2  9 assistance is available to meet a ward's or proposed
  2 10 ward's need for necessities, if credible evidence of
  2 11 third-party assistance is adduced from any source.
  2 12    Sec. 5.  NEW SECTION.  633.556A  STANDARD OF PROOF
  2 13 AND BURDEN OF PERSUASION.
  2 14    1.  The determination of incompetency of the
  2 15 proposed ward or ward and the determination of the
  2 16 need for the appointment of a guardian or of the
  2 17 modification or termination of a guardianship shall be
  2 18 supported by clear and convincing evidence.
  2 19    2.  The burden of persuasion is on the petitioner
  2 20 in an initial proceeding to appoint a guardian.
  2 21 Following a prima facie showing that the proposed ward
  2 22 or ward has some decision-making capacity, the burden
  2 23 of persuasion is on the guardian in a proceeding to
  2 24 modify or terminate a guardianship.
  2 25    Sec. 6.  Section 633.562, Code 1995, is amended to
  2 26 read as follows:
  2 27    633.562  NOTIFICATION OF GUARDIANSHIP POWERS.
  2 28    In a proceeding for the appointment of a guardian,
  2 29 the proposed ward shall be given written notice which
  2 30 advises the proposed ward that if a guardian is
  2 31 appointed, the guardian may, without court approval,
  2 32 make decisions regarding the ward's personal safety or
  2 33 provide for the care of the ward, manage the ward's
  2 34 personal property and effects, assist the ward in
  2 35 developing self-reliance and receiving professional
  2 36 care, counseling, treatment or services as needed, and
  2 37 ensure that the ward receives necessary emergency
  2 38 medical services necessities.  The notice shall also
  2 39 advise the proposed ward that, upon the court's
  2 40 approval, the guardian may change the ward's permanent
  2 41 residence to a more restrictive residence, and arrange
  2 42 for major elective surgery or any other nonemergency
  2 43 major medical procedure or consent to the withholding
  2 44 or withdrawal of life-sustaining procedures pursuant
  2 45 to chapter 144A.  The notice shall clearly advise the
  2 46 proposed ward in boldfaced type of a minimum size of
  2 47 ten fourteen points, of the right to counsel and the
  2 48 potential deprivation of the proposed ward's civil
  2 49 rights.  In an involuntary guardianship proceeding,
  2 50 the The notice shall be served upon the proposed ward
  3  1 with the notice of the filing of the petition as
  3  2 provided in section 633.554.
  3  3    Sec. 7.  Section 633.566, subsection 2, paragraphs
  3  4 a and b, Code 1995, are amended by striking the
  3  5 paragraphs and inserting in lieu thereof the
  3  6 following:
  3  7    a.  Is a minor.
  3  8    b.  Is a person whose decision-making capacity is
  3  9 so impaired that the person is unable to make,
  3 10 communicate, or carry out important decisions
  3 11 concerning the person's own financial affairs.
  3 12    Sec. 8.  Section 633.570, Code 1995, is amended to
  3 13 read as follows:
  3 14    633.570  APPOINTMENT OF CONSERVATOR.
  3 15    1.  If the allegations of the petition as to the
  3 16 status of the proposed ward and the necessity for the
  3 17 appointment of a conservator are proved by clear and
  3 18 convincing evidence, the court may appoint a
  3 19 conservator.
  3 20    2.  In the determination as to the appointment of a
  3 21 conservator, the court shall consider whether a
  3 22 limited conservatorship is appropriate.
  3 23    Sec. 9.  Section 633.635, Code 1995, is amended to
  3 24 read as follows:
  3 25    633.635  RESPONSIBILITIES OF GUARDIAN.
  3 26    1.  A guardian may be granted the following powers
  3 27 and duties which may be exercised without prior court
  3 28 approval:
  3 29    a.  Providing for the care, comfort and maintenance
  3 30 of the ward, including the appropriate training and
  3 31 education to maximize the ward's potential.
  3 32    b.  Taking reasonable care of the ward's clothing,
  3 33 furniture, vehicle and other personal effects.
  3 34    c.  Assisting the ward in developing maximum self-
  3 35 reliance and independence.
  3 36    d.  Ensuring the ward receives necessary emergency
  3 37 medical services.
  3 38    e.  Ensuring the ward receives professional care,
  3 39 counseling, treatment or services as needed.
  3 40    f.  Any other powers or duties the court may
  3 41 specify.
  3 42    2.  A guardian may be granted the following powers
  3 43 which may only be exercised upon court approval:
  3 44    a.  Changing, at the guardian's request, the ward's
  3 45 permanent residence if the proposed new residence is
  3 46 more restrictive of the ward's liberties than the
  3 47 current residence.
  3 48    1.  A guardian shall have only the powers specified
  3 49 by the court, consistent with the findings of the
  3 50 court regarding the proposed ward's or ward's
  4  1 functional limitations.
  4  2    2.  In addition to the powers of the guardian
  4  3 specified pursuant to subsection 1, the guardian may
  4  4 be granted additional powers, only with the prior
  4  5 approval of the court, including any of the following:
  4  6    b. a.  Arranging the provision of major elective
  4  7 surgery or any other nonemergency major medical
  4  8 procedure.
  4  9    c. b.  Consent Consenting to the withholding or
  4 10 withdrawal of life-sustaining procedures in accordance
  4 11 with chapter 144A.
  4 12    3.  The court may take into account all available
  4 13 information concerning the capabilities of the ward
  4 14 and any additional evaluation deemed necessary, and
  4 15 may direct that the guardian have only a specially
  4 16 limited responsibility for the ward.  In that event,
  4 17 the court shall state those areas of responsibility
  4 18 which shall be supervised by the guardian and all
  4 19 others shall be retained by the ward.  The court may
  4 20 make a finding that the ward lacks the capacity to
  4 21 contract a valid marriage.
  4 22    4.  From time to time, upon a proper showing, the
  4 23 court may alter the respective responsibilities of the
  4 24 guardian and the ward, after notice to the ward and an
  4 25 opportunity to be heard.
  4 26    3.  A ward retains all rights not delegated to a
  4 27 guardian by the court.
  4 28    Sec. 10.  Section 633.675, Code 1995, is amended to
  4 29 read as follows:
  4 30    633.675  CAUSE FOR MODIFICATION OR TERMINATION.
  4 31    A guardianship shall cease or shall be subject to
  4 32 modification, and a conservatorship shall terminate,
  4 33 upon the occurrence of any of the following
  4 34 circumstances:
  4 35    1.  If the ward is a minor, when the ward reaches
  4 36 full age.
  4 37    2.  The death of the ward.
  4 38    3.  A In the case of a conservatorship, upon a
  4 39 determination by the court that the decision-making
  4 40 capacity of the ward is competent and capable of
  4 41 managing the ward's property and affairs, and that the
  4 42 continuance of the guardianship or conservatorship
  4 43 would not be in the ward's best interests no longer
  4 44 impaired to the extent alleged in the petition
  4 45 pursuant to section 633.566, subsection 2.
  4 46    4.  In the case of a guardianship, upon a
  4 47 determination by the court that the ward is not
  4 48 incompetent.  Additionally, the court shall consider
  4 49 the availability of third-party assistance in meeting
  4 50 the ward's necessities if credible evidence of such
  5  1 assistance is provided by any source.
  5  2    4. 5.  Upon determination by the court that the
  5  3 conservatorship or guardianship is no longer necessary
  5  4 for any other reason.
  5  5    Sec. 11.  Section 633.679, Code 1995, is amended to
  5  6 read as follows:
  5  7    633.679  PETITION TO MODIFY OR TERMINATE.
  5  8    At any time after the appointment of a guardian or
  5  9 conservator, the person under guardianship or
  5 10 conservatorship may apply to the court by petition,
  5 11 alleging that the person is no longer a proper subject
  5 12 thereof, and asking that the guardianship or
  5 13 conservatorship be modified or terminated.
  5 14    Upon the filing of a petition, the court may order
  5 15 modification or termination of the guardianship, the
  5 16 conservatorship, or both.  The action shall be triable
  5 17 as a proceeding in equity.  A determination to
  5 18 continue, modify, or terminate a guardianship or
  5 19 conservatorship shall be based upon clear and
  5 20 convincing evidence.  The burden of persuasion in the
  5 21 continuation, modification, or termination of a
  5 22 guardianship or conservatorship is on the petitioner.
  5 23 In a petition to terminate a guardianship or
  5 24 conservatorship, a ward shall make a prima facie
  5 25 showing that the ward has some decision-making
  5 26 capacity.  Following the initial showing by the ward,
  5 27 the guardian or conservator shall have the burden of
  5 28 persuasion to demonstrate by clear and convincing
  5 29 evidence any incompetency on the part of the ward."
  5 30    #2.  Title page, line 2, by striking the words "and
  5 31 providing penalties".  
  5 32 
  5 33 
  5 34                              
  5 35 JOHNIE HAMMOND
  5 36 SF 2414.701 76
  5 37 pf/sc
     

Text: S05447                            Text: S05449
Text: S05400 - S05499                   Text: S Index
Bills and Amendments: General Index     Bill History: General Index

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