Text: H01696                            Text: H01698
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House Amendment 1697

Amendment Text

PAG LIN
  1  1    Amend Senate File 241 as amended, passed, and
  1  2 reprinted by the Senate, as follows:
  1  3    #1.  Page 1, by inserting before line 1 the
  1  4 following:
  1  5    "Section 1.  Section 633.3, Code 1997, is amended
  1  6 by adding the following new subsection:
  1  7    NEW SUBSECTION.  18A.  FUNCTIONAL LIMITATIONS –
  1  8 means the behavior or condition of a person which
  1  9 impairs the person's ability to care for the person's
  1 10 personal safety or to attend to or provide for
  1 11 necessities for the person.
  1 12    Sec. 2.  Section 633.3, subsection 22, Code 1997,
  1 13 is amended to read as follows:
  1 14    22.  INCOMPETENT – includes means the condition of
  1 15 any person who has been adjudicated by a court to be
  1 16 incapable of managing the person's property, or caring
  1 17 for the person's own self, or both to meet at least
  1 18 one of the following conditions:
  1 19    a.  To have a decision-making capacity which is so
  1 20 impaired that the person is unable to care for the
  1 21 person's personal safety or to attend to or provide
  1 22 for necessities for the person such as food, shelter,
  1 23 clothing, or medical care, without which physical
  1 24 injury or illness may occur.
  1 25    b.  To have a decision-making capacity which is so
  1 26 impaired that the person is unable to make,
  1 27 communicate, or carry out important decisions
  1 28 concerning the person's financial affairs.
  1 29    c.  To have a decision-making capacity which is so
  1 30 impaired that both paragraphs "a" and "b" are
  1 31 applicable to the person."
  1 32    #2.  Page 1, by inserting after line 6 the
  1 33 following:
  1 34    "Sec.    .  NEW SECTION.  633.551A  GUARDIANSHIPS
  1 35 AND CONSERVATORSHIPS – GENERAL PROVISIONS.
  1 36    1.  The determination of incompetency of the
  1 37 proposed ward or ward and the determination of the
  1 38 need for the appointment of a guardian or conservator
  1 39 or of the modification or termination of a
  1 40 guardianship or conservatorship shall be supported by
  1 41 clear and convincing evidence.
  1 42    2.  The burden of persuasion is on the petitioner
  1 43 in an initial proceeding to appoint a guardian or
  1 44 conservator.  In a proceeding to modify or terminate a
  1 45 guardianship or conservatorship, if the guardian or
  1 46 conservator is the petitioner, the burden of
  1 47 persuasion remains with the guardian or conservator.
  1 48 In a proceeding to terminate a guardianship or
  1 49 conservatorship, if the ward is the petitioner, the
  1 50 ward shall make a prima facie showing of some
  2  1 decision-making capacity.  Once a prima facie showing
  2  2 is made, the burden of persuasion is on the guardian
  2  3 or conservator to show by clear and convincing
  2  4 evidence that the ward is incompetent.
  2  5    3.  In determining whether a guardianship or
  2  6 conservatorship is to be established, modified, or
  2  7 terminated, the district court shall consider if a
  2  8 limited guardianship or conservatorship pursuant to
  2  9 section 633.635 or 633.637 is appropriate.  In making
  2 10 the determination, the court shall make findings of
  2 11 fact to support the powers conferred on the guardian
  2 12 or conservator.
  2 13    4.  In proceedings to establish, modify, or
  2 14 terminate a guardianship or conservatorship, in
  2 15 determining if the proposed ward or ward is
  2 16 incompetent as defined in section 633.3, the court
  2 17 shall consider credible evidence from any source to
  2 18 the effect of third-party assistance in meeting the
  2 19 needs of the proposed ward or ward.  However, neither
  2 20 party to the action shall have the burden to produce
  2 21 such evidence relating to third-party assistance.
  2 22    Sec.    .  Section 633.552, subsection 2, paragraph
  2 23 a, Code 1997, is amended to read as follows:
  2 24    a.  By reason of mental, physical or other
  2 25 incapacity is unable to make or carry out important
  2 26 decisions concerning the proposed ward's person or
  2 27 affairs, other than financial affairs.
  2 28    a.  Is a person whose decision-making capacity is
  2 29 so impaired that the person is unable to care for the
  2 30 person's personal safety or to attend to or provide
  2 31 for necessities for the person such as food, shelter,
  2 32 clothing, or medical care, without which physical
  2 33 injury or illness might occur.
  2 34    Sec.    .  Section 633.556, Code 1997, is amended
  2 35 to read as follows:
  2 36    633.556  APPOINTMENT OF GUARDIAN.
  2 37    1.  If the allegations of the petition as to the
  2 38 status of the proposed ward and the necessity for the
  2 39 appointment of a guardian are proved by clear and
  2 40 convincing evidence, the court may appoint a guardian.
  2 41    2.  In all proceedings to appoint a guardian, the
  2 42 court shall consider the functional limitations of the
  2 43 proposed ward and whether a limited guardianship, as
  2 44 authorized in section 633.635, is appropriate.
  2 45    3.  Section 633.551A applies to the appointment of
  2 46 a conservator.
  2 47    Sec.    .  Section 633.557, Code 1997, is amended
  2 48 to read as follows:
  2 49    633.557  APPOINTMENT OF GUARDIAN ON VOLUNTARY
  2 50 PETITION.
  3  1    1.  A guardian may also be appointed by the court
  3  2 upon the verified petition of the proposed ward,
  3  3 without further notice, if the proposed ward is other
  3  4 than a minor under the age of fourteen years, provided
  3  5 the court determines that such an appointment will
  3  6 inure to the best interest of the applicant.  However,
  3  7 if an involuntary petition is pending, the court shall
  3  8 be governed by section 633.634.  The petition shall
  3  9 provide the proposed ward notice of a guardian's
  3 10 powers as provided in section 633.562.
  3 11    2.  In all proceedings to appoint a guardian, the
  3 12 court shall consider whether a limited guardianship,
  3 13 as authorized in section 633.635, is appropriate.
  3 14    Sec.    .  Section 633.560, Code 1997, is amended
  3 15 to read as follows:
  3 16    633.560  APPOINTMENT OF GUARDIAN ON A STANDBY
  3 17 BASIS.
  3 18    A petition for the appointment of a guardian on a
  3 19 standby basis may be filed by any person under the
  3 20 same procedure and requirements as provided in
  3 21 sections 633.591 to 633.597, for appointment of
  3 22 standby conservator, insofar as applicable.  In all
  3 23 proceedings to appoint a guardian, the court shall
  3 24 consider whether a limited guardianship, as authorized
  3 25 in section 633.635, is appropriate.
  3 26    Sec.    .  Section 633.566, subsection 2, paragraph
  3 27 a, Code 1997, is amended to read as follows:
  3 28    a.  By reason of mental, physical or other
  3 29 incapacity is unable to make or carry out important
  3 30 decisions concerning the proposed ward's financial
  3 31 affairs.
  3 32    a.  Is a person whose decision-making capacity is
  3 33 so impaired that the person is unable to make,
  3 34 communicate, or carry out important decisions
  3 35 concerning the person's financial affairs.
  3 36    Sec.    .  Section 633.570, Code 1997, is amended
  3 37 to read as follows:
  3 38    633.570  APPOINTMENT OF CONSERVATOR.
  3 39    1.  If the allegations of the petition as to the
  3 40 status of the proposed ward and the necessity for the
  3 41 appointment of a conservator are proved by clear and
  3 42 convincing evidence, the court may appoint a
  3 43 conservator.
  3 44    2.  In all proceedings to appoint a conservator,
  3 45 the court shall consider the functional limitations of
  3 46 the person and whether a limited conservatorship, as
  3 47 authorized in section 633.637, is appropriate.
  3 48    3.  Section 633.551A applies to the appointment of
  3 49 a conservator.
  3 50    Sec.    .  Section 633.572, Code 1997, is amended
  4  1 to read as follows:
  4  2    633.572  APPOINTMENT OF CONSERVATOR ON VOLUNTARY
  4  3 PETITION.
  4  4    1.  A conservator may also be appointed by the
  4  5 court upon the verified petition of the proposed ward,
  4  6 without further notice, if the proposed ward is other
  4  7 than a minor under the age of fourteen years, provided
  4  8 the court determines that such an appointment will
  4  9 inure to the best interest of the applicant.  However,
  4 10 if an involuntary petition is pending, the court shall
  4 11 be governed by section 633.634.  The petition shall
  4 12 provide the proposed ward notice of a conservator's
  4 13 powers as provided in section 633.576.
  4 14    2.  In all proceedings to appoint a conservator,
  4 15 the court shall consider whether a limited
  4 16 conservatorship, as authorized in section 633.637, is
  4 17 appropriate.
  4 18    Sec.    .  Section 633.596, Code 1997, is amended
  4 19 to read as follows:
  4 20    633.596  TIME OF CONSIDERATIONS – APPOINTMENT OF
  4 21 CONSERVATOR.
  4 22    At the time such a standby petition is filed under
  4 23 this part, the court, without any notice, may appoint
  4 24 the conservator nominated in such petition or may set
  4 25 the petition for hearing on such notice as the court
  4 26 may prescribe shall consider whether a limited
  4 27 conservatorship, as authorized in section 633.637, is
  4 28 appropriate.
  4 29    Sec.    .  Section 633.635, subsection 1,
  4 30 unnumbered paragraph 1, Code 1997, is amended to read
  4 31 as follows:
  4 32    A Based upon the evidence produced at the hearing,
  4 33 the court may grant a guardian may be granted the
  4 34 following powers and duties which may be exercised
  4 35 without prior court approval:
  4 36    Sec.    .  Section 633.635, subsections 3 and 4,
  4 37 Code 1997, are amended to read as follows:
  4 38    3.  The court may take into account all available
  4 39 information concerning the capabilities of the ward
  4 40 and any additional evaluation deemed necessary,
  4 41 including the availability of third-party assistance
  4 42 to meet the needs of the ward or proposed ward, and
  4 43 may direct that the guardian have only a specially
  4 44 limited responsibility for the ward.  In that event,
  4 45 the court shall state those areas of responsibility
  4 46 which shall be supervised by the guardian and all
  4 47 others shall be retained by the ward.  The court may
  4 48 make a finding that the ward lacks the capacity to
  4 49 contract a valid marriage.
  4 50    4.  From time to time, upon a proper showing, the
  5  1 court may alter modify the respective responsibilities
  5  2 of the guardian and the ward, after notice to the ward
  5  3 and an opportunity to be heard.  Any modification that
  5  4 would be more restrictive or burdensome for the ward
  5  5 shall be based on clear and convincing evidence that
  5  6 the ward continues to fall within the categories of
  5  7 section 633.552, subsection 2, paragraph "a" or "b",
  5  8 and that the facts justify a modification of the
  5  9 guardianship.  Section 633.551A applies to the
  5 10 modification proceedings.  Any modification that would
  5 11 be less restrictive for the ward shall be based upon
  5 12 proof in accordance with the requirements of section
  5 13 633.675.
  5 14    Sec.    .  Section 633.637, Code 1997, is amended
  5 15 to read as follows:
  5 16    633.637  POWERS OF WARD.
  5 17    A ward for whom a conservator has been appointed
  5 18 shall not have the power to convey, encumber, or
  5 19 dispose of property in any manner, other than by will
  5 20 if the ward possesses the requisite testamentary
  5 21 capacity, unless the court determines that the ward
  5 22 has a limited ability to handle the ward's own funds.
  5 23 If the court makes such a finding, it shall specify to
  5 24 what extent the ward may possess and use the ward's
  5 25 own funds.
  5 26    Any modification of the powers of the ward that
  5 27 would be more restrictive of the ward's control over
  5 28 the ward's financial affairs shall be based upon clear
  5 29 and convincing evidence and the burden of persuasion
  5 30 is on the conservator.  Any modification that would be
  5 31 less restrictive of the ward's control over the ward's
  5 32 financial affairs shall be based upon proof in
  5 33 accordance with the requirements of section 633.675.
  5 34    Sec.    .  Section 633.675, subsection 3, Code
  5 35 1997, is amended to read as follows:
  5 36    3.  A determination by the court that the ward is
  5 37 competent and capable of managing the ward's property
  5 38 and affairs, and that the continuance of the
  5 39 guardianship or conservatorship would not be in the
  5 40 ward's best interests no longer a person whose
  5 41 decision-making capacity is so impaired as to bring
  5 42 the ward within the categories of section 633.552,
  5 43 subsection 2, paragraph "a", or section 633.566,
  5 44 subsection 2, paragraph "a".  In a proceeding to
  5 45 terminate a guardianship or a conservatorship, the
  5 46 ward shall make a prima facie showing that the ward
  5 47 has some decision-making capacity.  Once the ward has
  5 48 made that showing, the guardian or conservator has the
  5 49 burden to prove by clear and convincing evidence that
  5 50 the ward's decision-making capacity is so impaired, as
  6  1 provided in section 633.552, subsection 2, paragraph
  6  2 "a", or section 633.566, subsection 2, paragraph "a",
  6  3 that the guardianship or conservatorship should not be
  6  4 terminated."
  6  5    #3.  Title page, line 1, by inserting after the
  6  6 word "Act" the following:  "relating to the probate
  6  7 code including guardianships and conservatorships
  6  8 and".
  6  9    #4.  By renumbering as necessary.  
  6 10 
  6 11 
  6 12                               
  6 13 DINKLA of Guthrie 
  6 14 
  6 15 
  6 16                               
  6 17 CHAPMAN of Linn 
  6 18 
  6 19 
  6 20                               
  6 21 LAMBERTI of Polk 
  6 22 SF 241.301 77
  6 23 pf/cf/28  
     

Text: H01696                            Text: H01698
Text: H01600 - H01699                   Text: H Index
Bills and Amendments: General Index     Bill History: General Index

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