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PAG LIN 1 1 Section 1. Section 237.13, subsection 1, paragraph b, Code 1 2 1995, is amended to read as follows: 1 3 b. Aguardian appointed on a voluntary petition of a ward1 4pursuant to section 633.557, or aconservator appointed on a 1 5 voluntary petition of a ward pursuant to section 633.572, 1 6 provided the ward has an income that does not exceed one 1 7 hundred fifty percent of the current federal office of 1 8 management and budget poverty guidelines and who does not have 1 9 resources in excess of the criteria for resources under the 1 10 federal supplemental security income program. However, the 1 11 ward's ownership of one residence and one vehicle shall not be 1 12 considered in determining resources. 1 13 Sec. 2. Section 633.3, Code 1995, is amended by adding the 1 14 following new subsections: 1 15 NEW SUBSECTION. 9A. "Court evaluator" means a person with 1 16 knowledge of personal care skills, the problems associated 1 17 with disabilities and functional limitations, and the private 1 18 and public resources available to address the type of alleged 1 19 limitations of the proposed ward, including but not limited to 1 20 an attorney at law or a health care professional. "Court 1 21 evaluator" may include a staff representative of the place of 1 22 residence of a proposed ward if the proposed ward resides in a 1 23 health care facility, a hospital, a school, or a chemical 1 24 substance abuse facility, and if the staff representative has 1 25 the specified knowledge required under this subsection. 1 26 NEW SUBSECTION. 18A. "Functional limitations" means the 1 27 behavior or condition of a person which impairs the person's 1 28 ability to care for the person's personal safety or to attend 1 29 to or provide for necessities for the person. 1 30 NEW SUBSECTION. 20A. "Health care professional" means a 1 31 person licensed to practice medicine and surgery pursuant to 1 32 chapter 148, physical therapy pursuant to chapter 148A, 1 33 osteopathy pursuant to chapter 150, osteopathic medicine and 1 34 surgery pursuant to chapter 150A, nursing pursuant to chapter 1 35 152, psychology pursuant to chapter 154B, social work pursuant 2 1 to chapter 154C, or marital and family therapy or mental 2 2 health counseling pursuant to chapter 154D. 2 3 NEW SUBSECTION. 24A. "Legal settlement" means legal 2 4 settlement as acquired pursuant to section 252.16. 2 5 Sec. 3. Section 633.3, subsection 22, Code 1995, is 2 6 amended to read as follows: 2 7 22. Incompetent– includesmeans the condition of any 2 8 person who has been adjudicated by a court tobe incapable of2 9managing the person's property, or caring for the person's own2 10self, or bothhave a decision-making capacity which is so 2 11 impaired that the person is unable to care for the person's 2 12 personal safety or to attend to or provide for necessities for 2 13 the person such as food, shelter, clothing, or medical care, 2 14 without which physical injury or illness may occur. 2 15 Sec. 4. Section 633.12, Code 1995, is amended to read as 2 16 follows: 2 17 633.12 COUNTY OF JURISDICTION. 2 18 The court of each county shall have original and exclusive 2 19 jurisdiction to administer the estates of all persons who are 2 20 residents of the county, or who were residents at the time of 2 21 their death, and all nonresidents of the state who have 2 22 property, or who die leaving property in the county subject to 2 23 administration, or whose property is afterwards brought into 2 24 the county; to appoint conservators for nonresidents having 2 25 property in the county; and to appoint conservators and 2 26 guardians of residents of the county or of persons present in 2 27 the county. 2 28 Sec. 5. Section 633.22, subsection 1, Code 1995, is 2 29 amended to read as follows: 2 30 1. The appointment of personal representatives who are 2 31 residents of the state,guardians and conservators for minors,2 32 the fixing and determining of the amount of the bond, or 2 33 waiving the same when permitted by law or by will, and the 2 34 approval of any and all bonds given by fiduciaries in the 2 35 discharge of their duties. 3 1 Sec. 6. Section 633.552, Code 1995, is amended to read as 3 2 follows: 3 3 633.552 PETITION FOR APPOINTMENT OF GUARDIAN. 3 4 Any person may file with the clerk a verified petition for 3 5 the appointment of a guardian. The petition shall state the 3 6 following information so far as known to the petitioner. 3 7 1. The name,agedate of birth, and post office address of 3 8 the proposed ward. 3 9 2. That the proposed ward is in either of the following 3 10 categories: 3 11a. By reason of mental, physical or other incapacity is3 12unable to make or carry out important decisions concerning the3 13proposed ward's person or affairs, other than financial3 14affairs.3 15b.a. Is a minor. 3 16 b. Is a person whose decision-making capacity is so 3 17 impaired that the person is unable to care for the person's 3 18 personal safety or to attend to or provide for necessities for 3 19 the person such as food, shelter, clothing, or medical care 3 20 without which physical injury or illness might occur. 3 21 3. The name, telephone number, and post office address of 3 22 the proposed guardian,andthat such person is qualified to 3 23 serve in that capacity, and the identity of any ward for whom 3 24 the person is currently acting as guardian or seeking to 3 25 become guardian. 3 26 4. That the proposed ward is a resident of the state of 3 27 Iowa or is present in the state, and that the ward's best3 28interests require the appointment of a guardian in this state. 3 29 5. The name and address of the person or institution, if 3 30 any, having the care, custody, or control of the proposed 3 31 ward. 3 32 6. The name, telephone number, and post office address of 3 33 any nearest relatives or friends of the proposed ward as 3 34 follows: 3 35 a. If the proposed ward is a minor, all of the following, 4 1 if applicable: 4 2 (1) Any parent of the minor, if any. 4 3 (2) Any adult with whom the minor resides, if any. 4 4 b. If the proposed ward is an adult, all of the following, 4 5 if applicable: 4 6 (1) Any spouse and adult children of the proposed ward, if 4 7 any. 4 8 (2) Any adult siblings and any parent of the proposed 4 9 ward, if any. 4 10 (3) Any person with whom the proposed ward resides, if 4 11 any. 4 12 7. If the proposed ward is an adult, the petition shall 4 13 include a brief description of the nature and degree of the 4 14 alleged incompetency including any functional limitations and 4 15 a description of any acts or behavior of the proposed ward 4 16 which warrant the appointment of a guardian. 4 17 8. Any standby, current, or prior guardianship, in any 4 18 state, concerning the proposed ward, including the name of the 4 19 guardian and the current status of the guardianship. 4 20 9. The name, telephone number, and post office address of 4 21 any agent designated under a durable power of attorney of 4 22 which the proposed ward is the principal. The petitioner 4 23 shall attach a copy of any power of attorney, if available. 4 24 10. Any other information which the petitioner believes 4 25 will assist the court in determining the need for the 4 26 appointment of a guardian. 4 27 Sec. 7. NEW SECTION. 633.552A EVALUATION OF PROPOSED 4 28 WARD. 4 29 An evaluation by a health care professional of the proposed 4 30 ward's physical and mental condition, including a description 4 31 of the nature, type, and extent of the proposed ward's 4 32 functional limitations, shall be attached to the petition or 4 33 filed with the court at least fourteen days prior to the 4 34 hearing on the petition. 4 35 Sec. 8. Section 633.554, Code 1995, is amended to read as 5 1 follows: 5 2 633.554 NOTICETO PROPOSED WARD. 5 3 1. If the proposed ward is an adult, notice: 5 4 a. Notice of the filing of the petition shall be served 5 5 upon proposed ward in the manner of an original notice and the 5 6 content of the notice is governed by the rules of civil 5 7 procedure governing original notice. 5 8 b. Notice shall be provided to all persons designated in 5 9 the petition pursuant to section 633.552, subsections 6, 8, 9, 5 10 and 10, unless the person designated is the petitioner. 5 11 2. If the proposed ward is a minor, notice in the manner 5 12 of original notice shall be provided to the parents or 5 13 guardian of the proposed ward and to any adult persons with 5 14 whom the minor resides, unless the parent or adult person is 5 15 the petitioner. 5 16 3. If the proposed ward is a minor or if the proposed ward 5 17 is an adult under a standby petition and the court determines, 5 18 pursuant to section 633.561, subsection 1, that the proposed 5 19 ward is entitled to representation, notice in the manner of 5 20 original notice, or another form of notice ordered by the 5 21 court, given to the attorney appointed to represent the ward 5 22 is notice to the proposed ward. 5 23 Sec. 9. Section 633.555, Code 1995, is amended to read as 5 24 follows: 5 25 633.555 PLEADINGS AND TRIAL– RULES OF CIVIL PROCEDURE5 26 EVALUATION. 5 27 1. After the petition has been filed, the court shall set 5 28 a date for hearing on the issue of incompetency, and shall 5 29 provide notice of the hearing in the manner provided for 5 30 notice of the filing of the petition pursuant to section 5 31 633.554. 5 32 2. The court may appoint a court evaluator who shall 5 33 submit a written report to the court following completion of 5 34 the court evaluator's duties. The court may appoint 5 35 additional court evaluators as necessary. The duties of the 6 1 court evaluator include all of the following: 6 2 a. Retaining a medical expert to evaluate the proposed 6 3 ward. If the petition includes an evaluation by a health care 6 4 professional who is a medical expert, the court evaluator may 6 5 submit the previously completed evaluation. The court 6 6 evaluator may review and inspect the records of any previously 6 7 completed evaluation or any other medical, psychological, or 6 8 psychiatric examinations of the proposed ward if the court 6 9 determines that the records will assist the court evaluator in 6 10 completing the report. 6 11 b. Meeting with the proposed ward and discussing, in a 6 12 manner which the proposed ward is reasonably expected to 6 13 understand, the nature and possible consequences of the 6 14 proceedings, the general powers and duties of a guardian, and 6 15 the rights of the proposed ward, including the right to 6 16 counsel. 6 17 c. Interviewing the petitioner, or, if the petitioner is a 6 18 facility or agency, an individual within the facility or 6 19 agency who is familiar with the proposed ward's condition, 6 20 affairs, and situation. 6 21 d. Interviewing other persons listed in the petition. 6 22 e. Interviewing or consulting with professionals having 6 23 specialized knowledge in the area of geriatrics or in the 6 24 proposed ward's alleged incompetency including functional 6 25 limitations including but not limited to mental retardation, 6 26 developmental disabilities, and chemical or substance abuse 6 27 dependency. 6 28 f. Preparing a report for the court, which is dated and 6 29 signed by the court evaluator, which includes all of the 6 30 following recommendations or information: 6 31 (1) The need for legal counsel for the proposed ward. 6 32 (2) The proposed ward's ability to be present at or to 6 33 participate in any hearing on the petition. 6 34 (3) Third-party assistance resources available to the 6 35 proposed ward and the sufficiency and reliability of the 7 1 resources to meet the proposed ward's needs. 7 2 (4) The functional limitations of the proposed ward with 7 3 respect to activities of daily living and any prognosis as to 7 4 the possibility of improvement or possibility of reversibility 7 5 of any physical or mental disability or chemical or substance 7 6 abuse dependency. 7 7 (5) The proposed ward's understanding and appreciation of 7 8 the nature and consequences of an inability to manage the 7 9 activities of daily living. 7 10 (6) The proposed ward's preferences, wishes, and values 7 11 with regard to managing the activities of daily living. 7 12 (7) The least restrictive form of intervention consistent 7 13 with the proposed ward's functional limitations and the 7 14 recommended extent of the powers to be assigned to the 7 15 guardian. 7 16 (8) The financial resources and approximate value of the 7 17 proposed ward's property. 7 18 (9) The existence, if any, of persons financially 7 19 dependent on the proposed ward and the assistance they 7 20 require. 7 21 (10) The suitability of the petitioner in identifying and 7 22 meeting the needs of the proposed ward. 7 23 (11) Potential conflicts of interest, including but not 7 24 limited to, financial interests if any, existing between or 7 25 among family members and other interested parties. 7 26 (12) Additional parties who should be provided notice and 7 27 the opportunity to be heard. 7 28 (13) Any other issues to be addressed at the request of 7 29 the court. 7 30 g. The notes, records, and reports collected by the court 7 31 evaluator shall be available to the court, to the proposed 7 32 ward or the ward's legal counsel, to the petitioner or the 7 33 petitioner's legal counsel, and to any other person who the 7 34 court determines has a need. 7 35 h. The cost of the court evaluator and the expenses 8 1 associated with performing the evaluator's duties shall be 8 2 paid by the proposed ward, or, if the proposed ward is 8 3 indigent, by the county of legal settlement. If no county of 8 4 legal settlement exists, the costs shall be borne by the 8 5 state. 8 6 3. The proposed ward shall be present at any hearing on 8 7 the petition, unless there is good cause shown for the 8 8 absence. The hearing may be closed upon the request of the 8 9 proposed ward for good cause shown. 8 10 4. All other pleadings and the trial of the cause shall be 8 11 governed by the Rules of Civil Procedure. The cause shall be 8 12 tried as a law action, and either party shall be entitled to a 8 13 jury trial if demand is made therefor as provided by the Rules 8 14 of Civil Procedure. 8 15 Sec. 10. NEW SECTION. 633.555A JURISDICTION AND VENUE. 8 16 1. If the court appoints a guardian, the court shall 8 17 appoint a guardian who is a resident of this state. 8 18 2. Venue for a guardianship proceeding is in the district 8 19 court of the county of residence of the proposed ward or where 8 20 the proposed ward is present. 8 21 3. The court may transfer the proceeding to another court 8 22 if the court finds that it is in the interest of justice. 8 23 4. Any guardianship involving a minor shall meet the 8 24 requirements of the uniform child custody jurisdiction Act 8 25 pursuant to chapter 598A. 8 26 Sec. 11. Section 633.556, Code 1995, is amended to read as 8 27 follows: 8 28 633.556 APPOINTMENT OF GUARDIAN. 8 29If the allegations of the petition as to the status of the8 30proposed ward and the necessity for the appointment of a8 31guardian are proved, the court may appoint a guardian.8 32 The determination as to the appointment of a guardian, the 8 33 type of guardianship, and the specific areas of protection, 8 34 management, and assistance to be granted, shall be the 8 35 exclusive decision of the court. In order to appoint a 9 1 guardian, the court must find that the proposed ward meets the 9 2 criteria of section 633.552, subsection 2. In making the 9 3 determination, the court shall consider the proposed ward's 9 4 functional limitations and the extent to which any functional 9 5 limitations impair the proposed ward's ability to care for the 9 6 person's personal safety or to attend to or provide for 9 7 necessities. The court shall grant specific powers to the 9 8 guardian which constitute the least restrictive form of 9 9 intervention consistent with the findings regarding the 9 10 proposed ward's functional limitations. Prior to 9 11 establishing, modifying, or terminating a guardianship, the 9 12 court shall consider whether a guardianship pursuant to 9 13 section 633.635 is appropriate and whether third-party 9 14 assistance is available to meet a ward's or proposed ward's 9 15 need for necessities, if credible evidence of third-party 9 16 assistance is adduced from any source. 9 17 Sec. 12. NEW SECTION. 633.556A STANDARD OF PROOF AND 9 18 BURDEN OF PERSUASION. 9 19 1. The determination of incompetency of the proposed ward 9 20 or ward and the determination of the need for the appointment 9 21 of a guardian or of the modification or termination of a 9 22 guardianship shall be supported by clear and convincing 9 23 evidence. 9 24 2. The burden of persuasion is on the petitioner in an 9 25 initial proceeding to appoint a guardian. Following a prima 9 26 facie showing that the proposed ward or ward has some 9 27 decision-making capacity, the burden of persuasion is on the 9 28 guardian in a proceeding to modify or terminate a 9 29 guardianship. 9 30 Sec. 13. Section 633.559, Code 1995, is amended by adding 9 31 the following new unnumbered paragraph: 9 32 NEW UNNUMBERED PARAGRAPH. A person who is qualified and 9 33 suitable or who is nominated as a proposed guardian in a 9 34 standby petition may be appointed as the guardian of an adult 9 35 ward. 10 1 Sec. 14. Section 633.560, Code 1995, is amended by 10 2 striking the section and inserting in lieu thereof the 10 3 following: 10 4 633.560 GUARDIANSHIP – STANDBY BASIS. 10 5 1. An individual who has sufficient capacity to form a 10 6 preference may at any time nominate another person to act as 10 7 the individual's guardian on a standby basis. 10 8 2. The individual may execute a petition for the 10 9 appointment of a standby guardian upon the express condition 10 10 that the petition shall be acted upon by the court only upon 10 11 the occurrence of an event specified in the petition or if the 10 12 individual is determined to meet the criteria pursuant to 10 13 section 633.552, subsection 2, paragraph "b". 10 14 3. The standby petition may be deposited with the clerk of 10 15 the county in which the individual resides or with any other 10 16 person. The standby petition may be revoked at any time prior 10 17 to the appointment of a guardian by destruction of the 10 18 petition by the petitioner or by executing an acknowledged 10 19 instrument of revocation. 10 20 4. If the petition is filed with the clerk, the petition 10 21 may be brought for hearing upon the filing of a verified 10 22 statement that the requisite event has occurred or the 10 23 requisite criteria have been met. If the petition has not 10 24 been filed with the clerk, the petition may be brought for 10 25 hearing by filing with the clerk both the petition and the 10 26 verified statement. 10 27 5. Following the filing of both the petition and the 10 28 verified statement, the court, without notice, may support the 10 29 person nominated as guardian or may set the petition for 10 30 hearing. 10 31 6. The powers of the guardian shall be limited to the 10 32 powers specified in the petition or by the court following a 10 33 hearing on the petition. 10 34 Sec. 15. Section 633.561, subsection 4, Code 1995, is 10 35 amended by adding the following new paragraph after paragraph 11 1 d and by relettering the subsequent paragraphs: 11 2 NEW PARAGRAPH. e. Provide notice to all persons 11 3 identified in the petition pursuant to section 633.552, 11 4 subsections 6, 8, 9, and 10. In the course of representation, 11 5 an attempt shall be made to identify and inform persons within 11 6 the categories specified in the petition who have not been 11 7 included in the petition. Notice may also be provided to any 11 8 other person who has information which will assist the court. 11 9 Sec. 16. Section 633.562, Code 1995, is amended to read as 11 10 follows: 11 11 633.562 NOTIFICATION OF GUARDIANSHIP POWERS. 11 12 In a proceeding for the appointment of a guardian, the 11 13 proposed ward shall be given written notice which advises the 11 14 proposed ward that if a guardian is appointed, the guardian 11 15 may, without court approval,make decisions regarding the 11 16 ward's personal safety or provide forthe care of the ward,11 17manage the ward's personal property and effects, assist the11 18ward in developing self-reliance and receiving professional11 19care, counseling, treatment or services as needed, and ensure11 20that the ward receives necessary emergency medical services11 21 necessities. The notice shall also advise the proposed ward 11 22 that, upon the court's approval, the guardian maychange the11 23ward's permanent residence to a more restrictive residence,11 24andarrange for major elective surgery or any other 11 25 nonemergency major medical procedure or consent to the 11 26 withholding or withdrawal of life-sustaining procedures 11 27 pursuant to chapter 144A. The notice shall clearly advise the 11 28 proposed ward in boldfaced type of a minimum size often11 29 fourteen points, of the right to counsel and the potential 11 30 deprivation of the proposed ward's civil rights.In an11 31involuntary guardianship proceeding, theThe notice shall be 11 32 served upon the proposed ward with the notice of the filing of 11 33 the petition as provided in section 633.554. 11 34 Sec. 17. Section 633.634, Code 1995, is amended to read as 11 35 follows: 12 1 633.634 COMBINATION OFVOLUNTARY ANDSTANDBY PETITIONS 12 2 WITHINVOLUNTARYPETITION FORHEARINGAPPOINTMENT OF GUARDIAN. 12 3 If prior to the time of hearing on a petition for the 12 4 appointment of a guardian or a conservator, a petition is 12 5 filed under the provisions of section633.557633.560, 12 6 633.572, or 633.591, the court shall combine the hearing on 12 7 such petitions and determine who shall be appointed guardian 12 8 or conservator, and such petition shall be triable to the 12 9 court. 12 10 Sec. 18. Section 633.635, Code 1995, is amended to read as 12 11 follows: 12 12 633.635 RESPONSIBILITIES OF GUARDIAN. 12 131. A guardian may be granted the following powers and12 14duties which may be exercised without prior court approval:12 15a. Providing for the care, comfort and maintenance of the12 16ward, including the appropriate training and education to12 17maximize the ward's potential.12 18b. Taking reasonable care of the ward's clothing,12 19furniture, vehicle and other personal effects.12 20c. Assisting the ward in developing maximum self-reliance12 21and independence.12 22d. Ensuring the ward receives necessary emergency medical12 23services.12 24e. Ensuring the ward receives professional care,12 25counseling, treatment or services as needed.12 26f. Any other powers or duties the court may specify.12 272. A guardian may be granted the following powers which12 28may only be exercised upon court approval:12 29a. Changing, at the guardian's request, the ward's12 30permanent residence if the proposed new residence is more12 31restrictive of the ward's liberties than the current12 32residence.12 33 1. A guardian shall have only the powers specified by the 12 34 court, consistent with the findings of the court regarding the 12 35 proposed ward's or ward's functional limitations. 13 1 2. In addition to the powers of the guardian specified 13 2 pursuant to subsection 1, the guardian may be granted 13 3 additional powers, only with the prior approval of the court, 13 4 including any of the following: 13 5b.a. Arranging the provision of major elective surgery or 13 6 any other nonemergency major medical procedure. 13 7c.b.ConsentConsenting to the withholding or withdrawal 13 8 of life-sustaining procedures in accordance with chapter 144A. 13 93. The court may take into account all available13 10information concerning the capabilities of the ward and any13 11additional evaluation deemed necessary, and may direct that13 12the guardian have only a specially limited responsibility for13 13the ward. In that event, the court shall state those areas of13 14responsibility which shall be supervised by the guardian and13 15all others shall be retained by the ward. The court may make13 16a finding that the ward lacks the capacity to contract a valid13 17marriage.13 184. From time to time, upon a proper showing, the court may13 19alter the respective responsibilities of the guardian and the13 20ward, after notice to the ward and an opportunity to be heard.13 21 3. A ward retains all rights not delegated to a guardian 13 22 by the court, including but not limited to any rights to legal 13 23 representation and the right to provide records to the ward's 13 24 attorney. 13 25 Sec. 19. NEW SECTION. 633.668A GUARDIAN EDUCATION 13 26 REQUIREMENTS. 13 27 1. A ward is entitled to a guardian whom the court 13 28 determines to be sufficiently competent to perform the duties 13 29 of a guardian necessary to protect the interests of the ward. 13 30 2. A person appointed by the court as guardian shall 13 31 receive a minimum of two hours of instruction and training 13 32 related to, but not limited to, all of the following: 13 33 a. The legal duties and responsibilities of a guardian. 13 34 b. The rights of a ward. 13 35 c. The availability of local resources to aid the ward. 14 1 d. The preparation of habilitation plans and annual 14 2 guardianship reports. 14 3 3. A person appointed by the court as a guardian shall 14 4 complete the two required hours of instruction and training 14 5 within the three-month period following the appointment as 14 6 guardian. The instruction and training shall be completed 14 7 through a course approved by the Iowa supreme court. 14 8 4. Expenses incurred by the guardian in satisfying the 14 9 education and training requirements under this section may be 14 10 reimbursed by the ward's estate. 14 11 5. The court, for good cause shown, may waive the 14 12 education and training requirements or may impose additional 14 13 education and training requirements. 14 14 Sec. 20. Section 633.669, subsection 2, Code 1995, is 14 15 amended to read as follows: 14 16 2. Reports required by this section must include: 14 17 a. The current mental and physical condition of the ward, 14 18 including the necessity for any physical, dental, or mental 14 19 health examinations to determine the current needs of the 14 20 ward. 14 21 b. The present living arrangement of the ward, including a 14 22 description of each residence where the ward has resided 14 23 during the reporting period as well as a statement as to the 14 24 suitability of the ward's current residence in meeting the 14 25 needs of the ward. 14 26 c. A summary of the medical, educational, vocational, 14 27 dental, habilitative, and other professional services provided 14 28 for the ward and a plan for provision of those services during 14 29 the subsequent year. 14 30 d. A description of the guardian's visits with and 14 31 activities on behalf of the ward. 14 32 e. A recommendation as to the need for continued 14 33 guardianship and any recommendations relating to the scope of 14 34 the guardianship. 14 35 f. A statement of the social and personal services 15 1 utilized by the ward, including the social skills of the ward 15 2 and maintenance of interpersonal relationships. 15 3f.g. Other information requested by the court or useful 15 4 in the opinion of the guardian. 15 5 Sec. 21. Section 633.669, Code 1995, is amended by adding 15 6 the following new subsections: 15 7 NEW SUBSECTION. 7. If the annual report sets forth any 15 8 reason for modification of the powers authorized by the court, 15 9 the guardian shall make an application for modification within 15 10 ten days of the filing of the report and shall provide notice 15 11 to the persons entitled to notice in accordance with section 15 12 633.554. 15 13 NEW SUBSECTION. 8. Any interested person may request a 15 14 hearing on the report. The court may order the guardian to 15 15 attend the hearing on the report on the court's own motion or 15 16 on the petition of any interested person. 15 17 Sec. 22. NEW SECTION. 633.669A EXAMINATION OF INITIAL 15 18 AND ANNUAL REPORTS. 15 19 1. Within thirty days of the filing of the initial and 15 20 annual reports, the chief judge of the judicial district shall 15 21 examine, or cause to be examined by a person designated by the 15 22 presiding judge, all reports filed by the guardian. 15 23 2. a. If the guardian fails to file the initial or annual 15 24 report, the person authorized to examine the report shall 15 25 demand that the guardian file the report within fifteen days 15 26 after the service of the demand upon the guardian. A copy of 15 27 the demand shall be served upon the guardian by certified 15 28 mail. 15 29 b. If the person authorized to examine the report 15 30 determines that a more complete or satisfactory report should 15 31 be filed, the person authorized to examine the report shall 15 32 demand that the guardian file a revised report within fifteen 15 33 days of the service of the demand upon the guardian. A copy 15 34 of the demand shall be served upon the guardian by certified 15 35 mail. 16 1 c. If the guardian fails to comply with a demand under 16 2 this subsection, the court may enter an order requiring 16 3 compliance with the demand and may deny or reduce the amount 16 4 of compensation of the guardian or may remove the guardian. 16 5 Sec. 23. Section 633.675, Code 1995, is amended to read as 16 6 follows: 16 7 633.675 CAUSE FOR MODIFICATION OR TERMINATION. 16 8 A guardianship shall cease or shall be subject to 16 9 modification, and a conservatorship shall terminate, upon the 16 10 occurrence of any of the following circumstances: 16 11 1. If the ward is a minor, when the ward reaches full age. 16 12 2. The death of the ward. 16 13 3.AIn the case of a conservatorship, upon a 16 14 determination by the court that the ward is competent and 16 15 capable of managing the ward's property and affairs, and that 16 16 the continuance of theguardianship orconservatorship would 16 17 not be in the ward's best interests. 16 18 4. In the case of a guardianship, upon a determination by 16 19 the court that the ward is not incompetent. Additionally, the 16 20 court shall consider the availability of third-party 16 21 assistance in meeting the ward's necessities if credible 16 22 evidence of such assistance is provided by any source. 16 23 5. Upon the disability, illness, or death of the guardian. 16 24 6. Upon the removal of the ward from this state or if 16 25 reasonable access to the ward by the guardian is not possible. 16 264.7. Upon determination by the court that the 16 27 conservatorship or guardianship is no longer necessary for any 16 28 other reason. 16 29 Sec. 24. Section 633.679, Code 1995, is amended to read as 16 30 follows: 16 31 633.679 PETITION TO MODIFY OR TERMINATE. 16 32 At any time after the appointment of a guardian or 16 33 conservator, the person under guardianship or conservatorship, 16 34 the guardian, the conservator, or any interested party may 16 35 apply to the court by petition, alleging that the person is no17 1longer a proper subject thereof, andasking that the 17 2 guardianship or conservatorship be modified or terminated. 17 3 Upon the filing of a petition, the court may order 17 4 modification or termination of the guardianship, the 17 5 conservatorship, or both. Prior to the issuance of the order, 17 6 notice of the petition to modify or terminate shall be 17 7 provided to all persons entitled to notice pursuant to section 17 8 633.554 and all persons entitled to notice shall be provided 17 9 the opportunity to provide evidence supporting continuance, 17 10 modification, or termination of the conservatorship or 17 11 guardianship at a hearing on the petition. The action shall 17 12 be triable as a proceeding in equity. The ward is entitled to 17 13 representation in the same manner as provided in section 17 14 633.561 and the court shall make every reasonable effort to 17 15 enable the ward to be present and to participate in the 17 16 proceedings. In making a determination, the court may appoint 17 17 a court evaluator to investigate the situation. A 17 18 determination to continue, modify, or terminate a guardianship 17 19 or conservatorship shall be based upon clear and convincing 17 20 evidence. The burden of persuasion in the continuation, 17 21 modification, or termination of a guardianship or 17 22 conservatorship is on the petitioner. In a petition to 17 23 terminate a guardianship or conservatorship, a ward shall make 17 24 a prima facie showing that the ward has decision-making 17 25 capacity. Following the initial showing by the ward, the 17 26 guardian or conservator shall have the burden of persuasion to 17 27 demonstrate by clear and convincing evidence any incompetency 17 28 on the part of the ward. 17 29 Sec. 25. NEW SECTION. 633.680A PETITION TO REMOVE 17 30 GUARDIAN OR CONSERVATOR – BASIS FOR REMOVAL. 17 31 Upon a petition by any interested person or on the court's 17 32 own motion, the court may remove a guardian or conservator or 17 33 order other appropriate relief if the guardian or conservator 17 34 meets any of the following: 17 35 1. Is acting under letters secured by material 18 1 misrepresentation or mistake, whether fraudulent or innocent. 18 2 2. Is incapacitated or is suffering from an illness, 18 3 including substance abuse, which affects fitness for office, 18 4 or is a ward in this state or any other jurisdiction. 18 5 3. Is convicted of a crime which reflects on fitness for 18 6 office. 18 7 4. Wastes or mismanages the estate, unreasonably withholds 18 8 distributions or makes distributions in a negligent manner, or 18 9 otherwise abuses powers or fails to discharge duties. 18 10 5. Neglects the care and custody of the ward. 18 11 6. Has an interest adverse to the faithful performance of 18 12 duties such that there is a substantial risk that the guardian 18 13 or conservator will fail to properly perform specified duties. 18 14 7. Fails to file reports or accountings when required, or 18 15 fails to comply with any order of court. 18 16 8. Acts in a manner which threatens the personal or 18 17 financial security of a co-guardian or co-conservator or 18 18 endangers surety on the bond. 18 19 9. Fails to file sufficient bond after being ordered by 18 20 the court to do so. 18 21 10. Avoids service of process or notice. 18 22 11. Becomes incapable of or unsuitable for the discharge 18 23 of duties. 18 24 12. Is not acting in the best interests of the ward. 18 25 Sec. 26. NEW SECTION. 633.682A COURT EVALUATOR EDUCATION 18 26 REQUIREMENTS. 18 27 A ward or proposed ward is entitled to a court evaluator 18 28 whom the court finds to be sufficiently capable of performing 18 29 the duties of a court evaluator necessary to ensure that all 18 30 the relevant information regarding a petition for the 18 31 appointment, modification, or termination of a guardian comes 18 32 before the court and to assist the court in reaching a 18 33 decision regarding the appointment, modification, or 18 34 termination of a guardian. A person appointed as a court 18 35 evaluator shall complete a training program approved by the 19 1 Iowa supreme court. The supreme court may waive some or all 19 2 requirements if the proposed court evaluator demonstrates an 19 3 educational background or experience sufficient to meet the 19 4 requirements. The training program shall include all of the 19 5 following: 19 6 1. The legal duties and responsibilities of the court 19 7 evaluator. 19 8 2. The rights of a ward with an emphasis on due process 19 9 rights to aid the court evaluator in determining 19 10 recommendations regarding the appointment of counsel and the 19 11 conduct of the hearing. 19 12 3. The available resources to aid the ward or proposed 19 13 ward. 19 14 4. An orientation relating to medical terminology, 19 15 particularly medical terminology related to the diagnostic and 19 16 assessment procedures used to characterize the extent and 19 17 reversibility of any impairment. 19 18 5. Entitlements. 19 19 6. Psychological and social concerns relating to disabled 19 20 elders and frail elders as defined by rule of the department 19 21 of elder affairs. 19 22 Sec. 27. NEW SECTION. 633.682B FILING. 19 23 The supreme court administrator shall establish a system of 19 24 notification for the following: 19 25 1. The filing of guardianship cases and records which 19 26 distinguish these cases from probate cases. 19 27 2. Monitoring the filing of annual reports to assure that 19 28 the court will be notified of annual reports as the reports 19 29 become due and whether the reports are filed. 19 30 Sec. 28. NEW SECTION. 633.682C CREATION OF OFFICE OF 19 31 PUBLIC GUARDIAN – APPOINTMENTS, POWERS, DUTIES, COSTS. 19 32 1. The general assembly finds that private guardianship is 19 33 inadequate if there is no willing and responsible person 19 34 available to serve as guardian for an incompetent person, and 19 35 if the incompetent person does not have adequate income or 20 1 wealth for the compensation of a private guardian. It is the 20 2 intent of the general assembly to establish the office of 20 3 public guardian for the purpose of providing guardianship 20 4 services for incompetent persons when no private guardian is 20 5 available. The general assembly further finds that 20 6 alternatives to guardianship and less intrusive means of 20 7 assistance should always be explored before a person's 20 8 incompetency rights are limited through an adjudication of 20 9 incapacity. A public guardian shall be provided only to 20 10 persons whose needs cannot be met through less drastic means 20 11 of intervention. 20 12 2. The chief judge of the judicial district, after 20 13 consultation with the other judges within the district and 20 14 with appropriate advocacy groups and individuals and 20 15 organizations with knowledge of the needs of incompetent 20 16 persons, may establish, within the judicial district, an 20 17 office of public guardian and create a list of persons best 20 18 qualified to serve as the public guardian. The public 20 19 guardian shall have knowledge of the legal process and 20 20 knowledge of social services available to meet the needs of 20 21 incompetent persons. A nonprofit corporation may be appointed 20 22 a public guardian only if all of the following conditions are 20 23 met: 20 24 a. The corporation provides no services other than 20 25 guardianship. 20 26 b. The corporation has been granted tax-exempt status from 20 27 the United States internal revenue service. 20 28 c. The corporation maintains a staff of professionally 20 29 qualified individuals to carry out the guardianship functions. 20 30 3. The chief judge shall appoint the public guardian. A 20 31 public guardian shall meet the qualifications for a guardian 20 32 prescribed in section 633.668A. 20 33 4. If a district does not require a full-time public 20 34 guardian, a part-time guardian may be appointed at reduced 20 35 compensation. 21 1 5. A public guardian shall not hold any other public 21 2 position in any city, county, or state government or federal 21 3 agency, or any other position which would create a conflict of 21 4 interest. 21 5 6. A public guardian may serve as a guardian of a person 21 6 adjudicated incompetent under this chapter under the following 21 7 conditions and with the following powers: 21 8 a. No other person is willing and qualified to serve as 21 9 guardian. 21 10 b. The public guardian is vested with all the powers and 21 11 duties of a guardian under this chapter, except as otherwise 21 12 provided by law. 21 13 c. The public guardian may employ sufficient staff to 21 14 carry out the duties of the office. 21 15 d. The public guardian may delegate to assistants and 21 16 other members of the staff the powers and duties of the office 21 17 of public guardian, except as otherwise limited by law. The 21 18 public guardian shall retain ultimate responsibility for the 21 19 discharge of duties and responsibilities. 21 20 e. To the extent that the guardian is granted 21 21 responsibilities pursuant to section 633.635. 21 22 7. a. Each public guardian shall annually prepare a 21 23 budget for the operation of the office to be submitted to the 21 24 chief judge of the district for inclusion in the courts' 21 25 budget request. This shall not be construed to preclude the 21 26 financing of the office of the public guardian through local 21 27 funding sources. 21 28 b. All costs of administration of the office of public 21 29 guardian, including filing fees, shall be paid through 21 30 expenditure of the budget of the office of public guardian. 21 31 In any proceeding for appointment of a public guardian, or in 21 32 any proceeding involving the estate of a ward for whom a 21 33 public guardian has been appointed guardian, the court may 21 34 waive any court costs or filing fees. 21 35 Sec. 29. Sections 633.557 and 633.680, Code 1995, are 22 1 repealed. 22 2 EXPLANATION 22 3 This bill amends the portions of the Code relating to 22 4 guardianship. The bill includes many changes based upon the 22 5 Iowa Supreme Court decision in In Re Guardianship of Hedin, 22 6 528 N.W.2d 567 (Iowa 1995). In Hedin, the court held all of 22 7 the following: 22 8 1. In proceedings to establish, modify, or terminate a 22 9 guardianship, the district court may make a finding of 22 10 incompetency only if the ward's or proposed ward's decision- 22 11 making capacity is so impaired that the ward is unable to care 22 12 for the ward's or proposed ward's personal safety or to attend 22 13 to and provide for such necessities as food, shelter, 22 14 clothing, and medical care, without which physical injury or 22 15 illness may occur. Additionally, in making the determination 22 16 of incompetency, the court is required to consider credible 22 17 evidence from any source of the effect of third-party 22 18 assistance. 22 19 2. In determining whether a guardianship is to be 22 20 established, modified, or terminated, the district court shall 22 21 consider if a limited guardianship is appropriate. 22 22 3. The standard of proof for determining incompetency in a 22 23 proceeding to establish, modify, or terminate a guardianship 22 24 is clear and convincing evidence. 22 25 4. The burden of persuasion is on the party petitioning 22 26 for guardianship and remains with the guardian in proceedings 22 27 to modify or terminate the guardianship. If the ward 22 28 petitions to terminate the guardianship, the ward must make a 22 29 prima facie showing that the ward has some decision-making 22 30 capacity. Once the prima facie showing is made, the guardian 22 31 has the burden of persuasion to show by clear and convincing 22 32 evidence that the ward is incompetent. 22 33 The bill provides definitions of "court evaluator", 22 34 "functional limitations", "health care professional", and 22 35 "legal settlement", and redefines the term "incompetent" to 23 1 reflect the holding of the court. 23 2 The bill amends the section relating to the petition for 23 3 guardianship to include new information and to change the 23 4 basis upon which a person is alleged to require a guardian: 23 5 that the person is a minor or that the person is incompetent 23 6 as redefined in the bill. The new information required also 23 7 includes the providing of the names and addresses of 23 8 additional interested parties and of any additional 23 9 information which might assist the court in making its 23 10 determination. The bill requires that an evaluation by a 23 11 health care professional of the proposed ward's physical and 23 12 mental condition be attached to the petition or provided at 23 13 least 14 days prior to the hearing on the petition. 23 14 The notice provisions include that if the proposed ward is 23 15 an adult, notice of the filing of the petition is to be 23 16 provided to the proposed ward and to all persons included in 23 17 the petition as interested parties; if the proposed ward is a 23 18 minor, notice is to be provided to the parents or guardian and 23 19 to any adult person with whom the minor resides unless any of 23 20 these is the petitioner. 23 21 The bill amends the pleadings and trial portion of the 23 22 proceedings to include provisions which allow the court to 23 23 appoint a court evaluator to provide for the evaluation of the 23 24 proposed ward to carry out additional information-gathering 23 25 duties to assist the court in its determination. The costs of 23 26 the court evaluator are to be paid by the proposed ward or if 23 27 the proposed ward is indigent, by the county of legal 23 28 settlement and if there is no county of legal settlement, then 23 29 by the state. The bill requires that the proposed ward be 23 30 present at the hearing unless good cause is shown for the 23 31 absence and provides that the hearing may be closed upon 23 32 request of the proposed ward for good cause shown. 23 33 The bill provides that if a guardian is appointed, the 23 34 court shall appoint a resident of this state as guardian, that 23 35 venue for the proceeding is in the district court of the 24 1 county of residence of the proposed ward or where the proposed 24 2 ward is present, that the court may transfer the proceeding to 24 3 another court if in the interest of justice, and that any 24 4 guardianship involving a minor is to meet the requirements of 24 5 the uniform child custody jurisdiction Act. 24 6 Regarding the appointment of a guardian, instead of the 24 7 current provision that if the allegations of the petition for 24 8 the appointment of a guardian are proved, the court may 24 9 appoint a guardian, the bill provides that it is the exclusive 24 10 decision of the court to make a determination as to the 24 11 appointment of a guardian, the type of guardianship, and the 24 12 specific areas of protection, management, and assistance to be 24 13 granted the guardian. The court is directed to make its 24 14 determination based upon its consideration of the proposed 24 15 ward's functional limitations, is to grant specific powers to 24 16 the guardian which are the least restrictive, and is to 24 17 consider a limited guardianship and the appropriateness of 24 18 third-party assistance. 24 19 The bill provides that the determination of incompetence of 24 20 a proposed ward and the determination of the appointment of a 24 21 guardian is to be supported by clear and convincing evidence. 24 22 Regarding the burden of persuasion, in an initial proceeding 24 23 to appoint a guardian, the burden of persuasion is on the 24 24 petitioner and in a proceeding to modify or terminate a 24 25 guardianship, following a prima facie showing that the ward 24 26 has some decision-making capacity, the burden is on the 24 27 guardian to prove by clear and convincing evidence the ward's 24 28 incompetency, if any. 24 29 The bill provides that in the preference as to appointment 24 30 of a guardian for an adult ward, any person who is qualified 24 31 and suitable or any person nominated by a ward in a standby 24 32 guardianship petition may be appointed. The bill replaces the 24 33 current standby guardianship language by stating that any 24 34 person with sufficient capacity to form a preference may 24 35 petition for a standby guardianship. The bill provides that 25 1 the petition must specify the event or conditions which must 25 2 occur for the petition to be filed, provides for deposit of 25 3 the petition, provides for revocation of the petition prior to 25 4 the appointment of a guardian, provides for the filing upon 25 5 the receipt by the clerk of court of both the petition and a 25 6 verified statement that the event or condition has occurred, 25 7 provides for the appointment of the person nominated as 25 8 guardian without a hearing or the setting of the petition for 25 9 hearing, and provides that the powers of the guardian are to 25 10 be limited to only those powers expressed in the petition or 25 11 only those powers specified by the court following a hearing 25 12 on the petition. 25 13 The bill provides that an attorney appointed to represent a 25 14 proposed ward, in addition to existing duties, is to provide 25 15 notice to all interested parties specified in the petition and 25 16 to notify other interested parties not included in the 25 17 petition but who are identified during the course of the 25 18 representation. 25 19 The notification of guardianship powers provisions are 25 20 amended to limit the powers of the guardian to making 25 21 decisions regarding the ward's personal safety or providing 25 22 for necessities and including powers which must receive 25 23 approval including arranging for major elective surgery or any 25 24 other nonemergency major medical procedure or consent to the 25 25 withholding or withdrawal of life-sustaining procedures. The 25 26 notice provided to the proposed ward is to be in 14 point type 25 27 rather than the existing 10 point. 25 28 The bill deletes the provisions for the appointment of a 25 29 guardian under a voluntary guardianship petition, so that a 25 30 guardian may only be appointed under involuntary or standby 25 31 provisions. 25 32 The bill amends the provisions which specify the powers 25 33 which may be granted to a guardian by limiting the powers 25 34 without court approval to those powers specified by the court, 25 35 consistent with the findings of the court regarding the ward's 26 1 or proposed ward's functional limitations and by limiting the 26 2 powers with court approval to those related to major elective 26 3 surgery or nonemergency major medical procedures and 26 4 consenting to the withholding or withdrawal of life-sustaining 26 5 procedures. The bill also specifies that the ward retains all 26 6 rights not delegated to the guardian by the court. 26 7 The bill provides new requirements for education of a 26 8 guardian which consist of a minimum of two hours of 26 9 instruction and training in specified subjects, to be 26 10 completed by the guardian within the three-month period 26 11 following the appointment. The bill provides for waiver of 26 12 the education requirements for good cause shown and provides 26 13 for payment of expenses by the ward's estate. 26 14 The bill expands the reporting requirements of the 26 15 guardian, provides that if an annual report sets forth any 26 16 reason for modification of the powers authorized, the guardian 26 17 is to make application for modification within 10 days of the 26 18 filing of the report and provide notice of the filing to all 26 19 interested parties, and provides that any interested party may 26 20 request a hearing on the report. The bill includes new 26 21 provisions for the examination of the initial and annual 26 22 reports by the chief judge of the judicial district or a 26 23 designee of the presiding judge, provides that the person 26 24 authorized to examine the report may demand that a report be 26 25 filed if the guardian fails to do so, and provides that the 26 26 person authorized to examine the reports may demand a revised 26 27 report if the report submitted is incomplete or 26 28 unsatisfactory. Failure of a guardian to comply with a demand 26 29 is grounds for entry of an order of compliance, denial, or 26 30 reduction in the compensation of the guardian, or removal of 26 31 the guardian. 26 32 The bill provides new grounds for the modification or 26 33 removal of a guardian including a determination that the ward 26 34 is not incompetent, that the guardian has become disabled, 26 35 ill, or has died, or that the ward has been removed from the 27 1 state or if reasonable access to the ward by the guardian is 27 2 not possible. 27 3 The bill provides that any interested party may petition 27 4 for modification or termination of a guardianship and that all 27 5 of the procedural requirements that apply to an initial 27 6 guardianship appointment apply to the modification or 27 7 termination proceedings. The bill provides several grounds 27 8 for the removal of a guardian or conservator including 27 9 incapacity, criminal conviction, wasting or mismanaging the 27 10 estate, neglecting the ward, failure to file required reports, 27 11 and others. 27 12 The bill provides court evaluator education requirements, 27 13 provides for the establishment of an office of public guardian 27 14 at the discretion of the chief judge of each judicial district 27 15 and provides the required qualifications for a public 27 16 guardian. 27 17 The bill requires the supreme court administrator to 27 18 establish a system of notification for the filing of 27 19 guardianship cases and records distinct from probate cases and 27 20 for the monitoring of the filing of annual reports so that the 27 21 court will be notified of annual reports as they become due 27 22 and whether the reports have been filed. 27 23 The bill repeals the section of the Code providing for the 27 24 appointment of a guardian on a voluntary petition and the 27 25 section which limits the applications to terminate a 27 26 guardianship or conservatorship by stating that if a petition 27 27 is denied, no other petition shall be filed until at least 6 27 28 months following the date of the denial of the petition. 27 29 LSB 3356SV 76 27 30 pf/sc/14.1
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