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PAG LIN 1 1 Section 1. Section 237.13, subsection 1, paragraph b, Code 1 2 1997, 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 proposed ward pursuant to section 1 6 633.572, provided the ward has an income that does not exceed 1 7 one 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 1997, is amended by adding the 1 14 following new subsections: 1 15 NEW SUBSECTION. 9A. COURT EVALUATOR – means a person 1 16 with knowledge of personal care skills, the problems 1 17 associated with disabilities and functional limitations, and 1 18 the private and public resources available to address the type 1 19 of alleged limitations of the proposed ward, including but not 1 20 limited to an attorney at law or a health care professional. 1 21 "Court evaluator" may include a staff representative of the 1 22 place of residence of a proposed ward if the proposed ward 1 23 resides in a health care facility, a hospital, a school, or a 1 24 chemical substance abuse facility, and if the staff 1 25 representative has the specified knowledge required under this 1 26 subsection. 1 27 NEW SUBSECTION. 18A. FUNCTIONAL LIMITATIONS – means the 1 28 behavior or condition of a person which impairs the person's 1 29 ability to care for the person's personal safety or to attend 1 30 to or provide for necessities for the person. 1 31 NEW SUBSECTION. 20A. HEALTH CARE PROFESSIONAL – means a 1 32 person licensed to practice medicine and surgery pursuant to 1 33 chapter 148, physical therapy pursuant to chapter 148A, 1 34 osteopathy pursuant to chapter 150, osteopathic medicine and 1 35 surgery pursuant to chapter 150A, nursing pursuant to chapter 2 1 152, psychology pursuant to chapter 154B, social work pursuant 2 2 to chapter 154C, or marital and family therapy or mental 2 3 health counseling pursuant to chapter 154D. 2 4 NEW SUBSECTION. 24A. LEGAL SETTLEMENT – means legal 2 5 settlement as acquired pursuant to section 252.16. 2 6 Sec. 3. Section 633.3, subsection 22, Code 1997, is 2 7 amended to read as follows: 2 8 22. INCOMPETENT –includesmeans the condition of any 2 9 person who has been adjudicated by a court tobe incapable of2 10managing the person's property, or caring for the person's own2 11self, or bothhave a decision-making capacity which is so 2 12 impaired that the person is unable to care for the person's 2 13 personal safety or to attend to or provide for necessities for 2 14 the person such as food, shelter, clothing, or medical care, 2 15 without which physical injury or illness may occur. 2 16 Sec. 4. Section 633.12, Code 1997, is amended to read as 2 17 follows: 2 18 633.12 COUNTY OF JURISDICTION. 2 19 The court of each county shall have original and exclusive 2 20 jurisdiction to administer the estates of all persons who are 2 21 residents of the county, or who were residents at the time of 2 22 their death, and all nonresidents of the state who have 2 23 property, or who die leaving property in the county subject to 2 24 administration, or whose property is afterwards brought into 2 25 the county; to appoint conservators for nonresidents having 2 26 property in the county; and to appoint conservators and 2 27 guardians of residents of the county or of persons present in 2 28 the county. 2 29 Sec. 5. Section 633.22, subsection 1, Code 1997, is 2 30 amended to read as follows: 2 31 1. The appointment of personal representatives who are 2 32 residents of the state,guardians and conservators for minors,2 33 the fixing and determining of the amount of the bond, or 2 34 waiving the same when permitted by law or by will, and the 2 35 approval of any and all bonds given by fiduciaries in the 3 1 discharge of their duties. 3 2 Sec. 6. NEW SECTION. 633.551A GUARDIANSHIPS AND 3 3 CONSERVATORSHIPS – GENERAL PROVISIONS. 3 4 1. The determination of incompetency of the proposed ward 3 5 or ward and the determination of the need for the appointment 3 6 of a guardian or conservator or of the modification or 3 7 termination of a guardianship or conservatorship shall be 3 8 supported by clear and convincing evidence. 3 9 2. The burden of persuasion is on the petitioner in an 3 10 initial proceeding to appoint a guardian or conservator. In a 3 11 proceeding to modify or terminate a guardianship or 3 12 conservatorship, if the guardian or conservator is the 3 13 petitioner, the burden of persuasion remains with the guardian 3 14 or conservator. In a proceeding to terminate a guardianship 3 15 or conservatorship, if the ward is the petitioner, the ward 3 16 shall make a prima facie showing of some decision-making 3 17 capacity. Once a prima facie showing is made, the burden of 3 18 persuasion is on the guardian or conservator to show by clear 3 19 and convincing evidence that the ward is incompetent. 3 20 3. In determining whether a guardianship or 3 21 conservatorship is to be established, modified, or terminated, 3 22 the district court shall consider if a limited guardianship or 3 23 conservatorship pursuant to section 633.635 or 633.637 is 3 24 appropriate. In making the determination, the court shall 3 25 make findings of fact to support the powers conferred on the 3 26 guardian or conservator. 3 27 4. In proceedings to establish, modify, or terminate a 3 28 guardianship or conservatorship, in determining if the 3 29 proposed ward or ward is incompetent as defined in section 3 30 633.3, the court shall consider credible evidence from any 3 31 source to the effect of third-party assistance in meeting the 3 32 needs of the proposed ward or ward. However, neither party to 3 33 the action shall have the burden to produce such evidence 3 34 relating to third-party assistance. 3 35 Sec. 7. Section 633.552, Code 1997, is amended to read as 4 1 follows: 4 2 633.552 PETITION FOR APPOINTMENT OF GUARDIAN. 4 3 Any person may file with the clerk a verified petition for 4 4 the appointment of a guardian. The petition shall state the 4 5 following information so far as known to the petitioner. 4 6 1. The name,agedate of birth, and post office address of 4 7 the proposed ward. 4 8 2. That the proposed ward is in either of the following 4 9 categories: 4 10 a.By reason of mental, physical or other incapacity is4 11unable to make or carry out important decisions concerning the4 12proposed ward's person or affairs, other than financial4 13affairs.Is a person whose decision-making capacity is so 4 14 impaired that the person is unable to care for the person's 4 15 personal safety or to attend to or provide for necessities for 4 16 the person such as food, shelter, clothing, or medical care 4 17 without which physical injury or illness might occur. 4 18 b. Is a minor. 4 19 3. The name, telephone number, and post office address of 4 20 the proposed guardian,andthat such person is qualified to 4 21 serve in that capacity, and the identity of any ward for whom 4 22 the person is currently acting as guardian or seeking to 4 23 become guardian. 4 24 4. That the proposed ward is a resident of the state of 4 25 Iowa or is present in the state, and that the ward's best4 26interests require the appointment of a guardian in this state. 4 27 5. The name and address of the person or institution, if 4 28 any, having the care, custody, or control of the proposed 4 29 ward. 4 30 6. The names, telephone numbers, and post office addresses 4 31 of the nearest relatives or friends of the proposed ward, if 4 32 any, as follows: 4 33 a. If the proposed ward is a minor, all of the following, 4 34 if applicable: 4 35 (1) Any parent of the minor. 5 1 (2) Any adult with whom the minor resides. 5 2 b. If the proposed ward is an adult, all of the following, 5 3 if applicable: 5 4 (1) Any spouse and any adult children of the proposed 5 5 ward. 5 6 (2) Any adult siblings and any parent of the proposed 5 7 ward. 5 8 (3) Any person with whom the proposed ward resides. 5 9 7. If the proposed ward is an adult, the petition shall 5 10 include a brief description of the nature and degree of the 5 11 alleged incompetency including any functional limitations and 5 12 a description of any acts or behavior of the proposed ward 5 13 which warrant the appointment of a guardian. 5 14 8. Any standby, current, or prior guardianship, in any 5 15 state, concerning the proposed ward, including the name of the 5 16 guardian and the current status of the guardianship. 5 17 9. The name, telephone number, and post office address of 5 18 any agent designated under a durable power of attorney of 5 19 which the proposed ward is the principal. The petitioner 5 20 shall attach a copy of any power of attorney, if available. 5 21 10. Any other information which the petitioner believes 5 22 will assist the court in determining the need for the 5 23 appointment of a guardian. 5 24 Sec. 8. NEW SECTION. 633.552A EVALUATION OF PROPOSED 5 25 WARD. 5 26 An evaluation by a health care professional of the proposed 5 27 ward's physical and mental condition, including a description 5 28 of the nature, type, and extent of the proposed ward's 5 29 functional limitations, shall be attached to the petition or 5 30 filed with the court at least fourteen days prior to the 5 31 hearing on the petition. 5 32 Sec. 9. Section 633.554, Code 1997, is amended to read as 5 33 follows: 5 34 633.554 NOTICE TO PROPOSED WARD. 5 35 1. If the proposed ward is an adult, notice: 6 1 a. Notice of the filing of the petition shall be served 6 2 upon the proposed ward in the manner of an original notice and 6 3 the content of the notice is governed by the rules of civil 6 4 procedure governing original notice. 6 5 b. Notice shall be provided to all persons designated in 6 6 the petition pursuant to section 633.552, subsections 6, 8, 9, 6 7 and 10, unless the person designated is the petitioner. 6 8 2. If the proposed ward is a minor, notice in the manner 6 9 of original notice shall be provided to the parents or legal 6 10 guardian of the proposed ward and to any adult persons with 6 11 whom the minor resides, unless the parent or adult person is 6 12 the petitioner. 6 13 3. If the proposed ward is a minor or if the proposed ward 6 14 is an adult under a standby petition and the court determines, 6 15 pursuant to section 633.561, subsection 1, that the proposed 6 16 ward is entitled to representation, notice in the manner of 6 17 original notice, or another form of notice ordered by the 6 18 court, given to the attorney appointed to represent the ward 6 19 is notice to the proposed ward. 6 20 Sec. 10. Section 633.555, Code 1997, is amended to read as 6 21 follows: 6 22 633.555 PLEADINGS AND TRIAL –RULES OF CIVIL PROCEDURE6 23 EVALUATION. 6 24 1. After the petition has been filed, the court shall set 6 25 a date for hearing on the issue of incompetency, and shall 6 26 provide notice of the hearing in the manner provided for 6 27 notice of the filing of the petition pursuant to section 6 28 633.554. 6 29 2. The court may appoint a court evaluator who shall 6 30 submit a written report to the court following completion of 6 31 the court evaluator's duties. The court may appoint 6 32 additional court evaluators as necessary. The duties of the 6 33 court evaluator include all of the following: 6 34 a. Retaining a medical expert to evaluate the proposed 6 35 ward. If the petition includes an evaluation by a health care 7 1 professional who is a medical expert, the court evaluator may 7 2 submit the previously completed evaluation. The court 7 3 evaluator may review and inspect the records of any previously 7 4 completed evaluation or any other medical, psychological, or 7 5 psychiatric examinations of the proposed ward if the court 7 6 determines that the records will assist the court evaluator in 7 7 completing the report. 7 8 b. Meeting with the proposed ward and discussing, in a 7 9 manner which the proposed ward is reasonably expected to 7 10 understand, the nature and possible consequences of the 7 11 proceedings, the general powers and duties of a guardian, and 7 12 the rights of the proposed ward, including the right to 7 13 counsel. 7 14 c. Interviewing the petitioner, or, if the petitioner is a 7 15 facility or agency, an individual within the facility or 7 16 agency who is familiar with the proposed ward's condition, 7 17 affairs, and situation. 7 18 d. Interviewing other persons listed in the petition. 7 19 e. Interviewing or consulting with professionals having 7 20 specialized knowledge in the area of geriatrics or in the area 7 21 of the proposed ward's alleged incompetency including but not 7 22 limited to mental retardation, developmental disabilities, and 7 23 chemical or substance abuse dependency. 7 24 f. Preparing a written report for the court, which is 7 25 dated and signed by the court evaluator, which includes all of 7 26 the following recommendations or information: 7 27 (1) The need for legal counsel for the proposed ward. 7 28 (2) The proposed ward's ability to be present at or to 7 29 participate in any hearing on the petition. 7 30 (3) Third-party assistance resources available to the 7 31 proposed ward and the sufficiency and reliability of the 7 32 resources to meet the proposed ward's needs. 7 33 (4) The functional limitations of the proposed ward with 7 34 respect to activities of daily living and any prognosis as to 7 35 the possibility of improvement, of reversal of any physical or 8 1 mental disability, or of rehabilitation from chemical or 8 2 substance abuse dependency. 8 3 (5) The proposed ward's understanding and appreciation of 8 4 the nature and consequences of an inability to manage the 8 5 activities of daily living. 8 6 (6) The proposed ward's preferences, wishes, and values 8 7 with regard to managing the activities of daily living. 8 8 (7) The least restrictive form of intervention consistent 8 9 with the proposed ward's functional limitations and the 8 10 recommended extent of the powers to be assigned to the 8 11 guardian. 8 12 (8) The financial resources and approximate value of the 8 13 proposed ward's property. 8 14 (9) The existence, if any, of persons financially 8 15 dependent on the proposed ward and the financial assistance 8 16 they require. 8 17 (10) The ability of the petitioner to identify and meet 8 18 the needs of the proposed ward. 8 19 (11) Potential conflicts of interest, including but not 8 20 limited to financial interests, if any, existing between or 8 21 among family members and other interested parties. 8 22 (12) The names and addresses of any additional parties who 8 23 should be provided notice and the opportunity to be heard. 8 24 (13) Any other issues to be addressed at the request of 8 25 the court. 8 26 g. The notes, records, and reports collected by the court 8 27 evaluator shall be available to the court, to the proposed 8 28 ward or the ward's legal counsel, to the petitioner or the 8 29 petitioner's legal counsel, and to any other person who the 8 30 court determines has a need. 8 31 h. The cost of the court evaluator and the expenses 8 32 associated with performing the evaluator's duties shall be 8 33 paid by the proposed ward, or, if the proposed ward is 8 34 indigent, by the county of legal settlement. If no county of 8 35 legal settlement exists, the costs shall be borne by the 9 1 state. 9 2 3. The proposed ward shall be present at any hearing on 9 3 the petition, unless there is good cause shown for the 9 4 absence. The hearing may be closed upon the request of the 9 5 proposed ward for good cause shown. 9 6 4. All other pleadings and the trial of the cause shall be 9 7 governed by theRulesrules ofCivil Procedurecivil 9 8 procedure. The cause shall be tried as a law action, and 9 9 either party shall be entitled to a jury trial if demand is 9 10 made therefor as provided by theRulesrules ofCivil9 11Procedurecivil procedure. 9 12 Sec. 11. NEW SECTION. 633.555A JURISDICTION AND VENUE. 9 13 1. Venue for a guardianship proceeding is in the district 9 14 court of the county of residence of the proposed ward or where 9 15 the proposed ward is present. 9 16 2. The court may transfer the proceeding to another court 9 17 if the court finds that it is in the interest of justice. 9 18 3. Any guardianship involving a minor shall meet the 9 19 requirements of the uniform child custody jurisdiction Act 9 20 pursuant to chapter 598A. 9 21 Sec. 12. Section 633.556, Code 1997, is amended to read as 9 22 follows: 9 23 633.556 APPOINTMENT OF GUARDIAN. 9 24 1. If the allegations of the petition as to the status of 9 25 the proposed ward and the necessity for the appointment of a 9 26 guardian are proved by clear and convincing evidence, the 9 27 court may appoint a guardian. 9 28 2. The determination as to the appointment of a guardian, 9 29 the type of guardianship, and the specific areas of 9 30 protection, management, and assistance to be granted to the 9 31 guardian, shall be the exclusive decision of the court. 9 32 3. In making a determination regarding appointment of a 9 33 guardian, the court shall consider the proposed ward's 9 34 functional limitations. The court shall grant specific powers 9 35 to the guardian which constitute the least restrictive form of 10 1 intervention consistent with the findings regarding the 10 2 proposed ward's functional limitations. 10 3 4. Section 633.551A applies to an appointment of guardian 10 4 proceeding. 10 5 5. If the court appoints a guardian, the court shall 10 6 appoint a guardian who is a resident of this state. 10 7 Sec. 13. Section 633.559, Code 1997, is amended by adding 10 8 the following new unnumbered paragraph: 10 9 NEW UNNUMBERED PARAGRAPH. A person who is qualified and 10 10 suitable or who is nominated as a proposed guardian in a 10 11 standby petition may be appointed as the guardian of an adult 10 12 ward. 10 13 Sec. 14. Section 633.560, Code 1997, is amended by 10 14 striking the section and inserting in lieu thereof the 10 15 following: 10 16 633.560 GUARDIANSHIP – STANDBY BASIS. 10 17 1. An individual who has sufficient capacity to form a 10 18 preference may at any time nominate another person to act as 10 19 the individual's guardian on a standby basis. 10 20 2. The individual may execute a petition for the 10 21 appointment of a standby guardian upon the express condition 10 22 that the petition shall be acted upon by the court only upon 10 23 the occurrence of an event specified in the petition or upon 10 24 determination by the court that the individual meets the 10 25 criteria in section 633.552, subsection 2, paragraph "b". 10 26 3. The standby petition may be deposited with the clerk of 10 27 the county in which the individual resides or with any other 10 28 person. The standby petition may be revoked at any time prior 10 29 to the appointment of a guardian by destruction of the 10 30 petition by the petitioner or by executing an acknowledged 10 31 instrument of revocation. 10 32 4. If the petition is filed with the clerk, the petition 10 33 may be brought for hearing upon the filing of a verified 10 34 statement that the requisite event has occurred or the 10 35 requisite criteria have been met. If the petition has not 11 1 been filed with the clerk, the petition may be brought for 11 2 hearing by filing with the clerk both the petition and the 11 3 verified statement. 11 4 5. Following the filing of both the petition and the 11 5 verified statement, the court, without notice, may support the 11 6 person nominated as guardian or may set the petition for 11 7 hearing. 11 8 6. The powers of the guardian shall be limited to the 11 9 powers specified in the petition or by the court following a 11 10 hearing on the petition. 11 11 Sec. 15. Section 633.561, subsection 4, Code 1997, is 11 12 amended by inserting the following new paragraph after 11 13 paragraph d and by relettering the subsequent paragraphs: 11 14 NEW PARAGRAPH. e. Provide notice to all persons 11 15 identified in the petition pursuant to section 633.552, 11 16 subsections 6, 8, 9, and 10. In the course of representation, 11 17 an attempt shall be made to identify and inform persons within 11 18 the categories specified in the petition who have not been 11 19 included in the petition. Notice may also be provided to any 11 20 other person who has information which will assist the court. 11 21 Sec. 16. Section 633.562, Code 1997, is amended to read as 11 22 follows: 11 23 633.562 NOTIFICATION OF GUARDIANSHIP POWERS. 11 24 In a proceeding for the appointment of a guardian, the 11 25 proposed ward shall be given written notice which advises the 11 26 proposed ward that if a guardian is appointed, the guardian 11 27 may, without court approval,make decisions regarding the 11 28 ward's personal safety or provide forthe care of the ward,11 29manage the ward's personal property and effects, assist the11 30ward in developing self-reliance and receiving professional11 31care, counseling, treatment or services as needed, and ensure11 32that the ward receives necessary emergency medical services11 33 necessities. The notice shall also advise the proposed ward 11 34 that, upon the court's approval, the guardian maychange the11 35ward's permanent residence to a more restrictive residence,12 1andarrange for major elective surgery or any other 12 2 nonemergency major medical procedure or consent to the 12 3 withholding or withdrawal of life-sustaining procedures. The 12 4 notice shall clearly advise the proposed ward in boldfaced 12 5 type of a minimum size oftenfourteen points, of the right to 12 6 counsel and the potential deprivation of the proposed ward's 12 7 civil rights.In an involuntary guardianship proceeding, the12 8 The notice shall be served upon the proposed ward with the 12 9 notice of the filing of the petition as provided in section 12 10 633.554. 12 11 Sec. 17. NEW SECTION. 633.562A GUARDIAN INSTRUCTION AND 12 12 TRAINING REQUIREMENTS. 12 13 1. A ward is entitled to a guardian whom the court 12 14 determines to be sufficiently competent to perform the duties 12 15 of a guardian necessary to protect the interests of the ward. 12 16 2. A person appointed by the court as guardian shall 12 17 receive a minimum of two hours of instruction and training 12 18 related to, but not limited to, all of the following: 12 19 a. The legal duties and responsibilities of a guardian. 12 20 b. The rights of a ward. 12 21 c. The availability of local resources to aid the ward. 12 22 d. The preparation of habilitation plans and annual 12 23 guardianship reports. 12 24 3. A person appointed by the court as a guardian shall 12 25 complete the two required hours of instruction and training 12 26 within the three-month period following the appointment as 12 27 guardian. The instruction and training shall be completed 12 28 through a course approved by the Iowa supreme court. 12 29 4. Expenses incurred by the guardian in satisfying the 12 30 instruction and training requirements under this section may 12 31 be reimbursed by the ward's estate. 12 32 5. The court, for good cause shown, may waive the 12 33 instruction and training requirements or may impose additional 12 34 instruction and training requirements. 12 35 Sec. 18. Section 633.566, subsection 2, paragraph a, Code 13 1 1997, is amended to read as follows: 13 2a. By reason of mental, physical or other incapacity is13 3unable to make or carry out important decisions concerning the13 4proposed ward's financial affairs.13 5 a. Is a person whose decision-making capacity is so 13 6 impaired that the person is unable to care for the person's 13 7 personal safety or property or to attend to or provide for 13 8 necessities for the person such as food, shelter, clothing, or 13 9 medical care, without which physical injury or illness might 13 10 occur. 13 11 Sec. 19. Section 633.570, Code 1997, is amended to read as 13 12 follows: 13 13 633.570 APPOINTMENT OF CONSERVATOR. 13 14 1. If the allegations of the petition as to the status of 13 15 the proposed ward and the necessity for the appointment of a 13 16 conservator are proved by clear and convincing evidence, the 13 17 court may appoint a conservator. 13 18 2. Section 633.551A applies to an appointment of 13 19 conservator proceeding. 13 20 Sec. 20. Section 633.634, Code 1997, is amended to read as 13 21 follows: 13 22 633.634 COMBINATION OFVOLUNTARY ANDSTANDBYPETITIONS13 23 PETITION WITHINVOLUNTARYPETITION FORHEARINGAPPOINTMENT OF 13 24 GUARDIAN. 13 25 If prior to the time of hearing on a petition for the 13 26 appointment of a guardian or a conservator, a petition is 13 27 filed under the provisions of section633.557633.560, 13 28 633.572, or 633.591, the court shall combine the hearing on 13 29 such petitions and determine who shall be appointed guardian 13 30 or conservator, and such petition shall be triable to the 13 31 court. 13 32 Sec. 21. Section 633.635, Code 1997, is amended to read as 13 33 follows: 13 34 633.635 RESPONSIBILITIES OF GUARDIAN. 13 351. A guardian may be granted the following powers and14 1duties which may be exercised without prior court approval:14 2a. Providing for the care, comfort and maintenance of the14 3ward, including the appropriate training and education to14 4maximize the ward's potential.14 5b. Taking reasonable care of the ward's clothing,14 6furniture, vehicle and other personal effects.14 7c. Assisting the ward in developing maximum self-reliance14 8and independence.14 9d. Ensuring the ward receives necessary emergency medical14 10services.14 11e. Ensuring the ward receives professional care,14 12counseling, treatment or services as needed.14 13f. Any other powers or duties the court may specify.14 142. A guardian may be granted the following powers which14 15may only be exercised upon court approval:14 16a. Changing, at the guardian's request, the ward's14 17permanent residence if the proposed new residence is more14 18restrictive of the ward's liberties than the current14 19residence.14 20 1. A guardian shall have only the powers specified by the 14 21 court, consistent with the findings of the court regarding the 14 22 proposed ward's or ward's functional limitations. 14 23 2. In addition to the powers of the guardian specified 14 24 pursuant to subsection 1, the guardian may be granted 14 25 additional powers, only with the prior approval of the court, 14 26 including any of the following: 14 27b.a. Arranging the provision of major elective surgery or 14 28 any other nonemergency major medical procedure. 14 29c.b.ConsentConsenting to the withholding or withdrawal 14 30 of life-sustaining procedures in accordance with chapter 144A. 14 31 3. The court may take into account all available 14 32 information concerning the capabilities of the ward and any 14 33 additional evaluation deemed necessary, including the 14 34 availability of third-party assistance to meet the needs of 14 35 the ward or proposed ward, and may direct that the guardian 15 1 have only a specially limited responsibility for the ward. In 15 2 that event, the court shall state those areas of 15 3 responsibility which shall be supervised by the guardian and 15 4 all others shall be retained by the ward. The court may make 15 5 a finding that the ward lacks the capacity to contract a valid 15 6 marriage. 15 7 4. From time to time, upon a proper showing, the court may 15 8altermodify the respective responsibilities of the guardian 15 9 and the ward, after notice to the ward and an opportunity to 15 10 be heard. Any modification that would be more restrictive or 15 11 burdensome for the ward shall be based on clear and convincing 15 12 evidence that the ward continues to fall within the categories 15 13 of section 633.552, subsection 2, paragraph "a" or "b", and 15 14 that the facts justify a modification of the guardianship. 15 15 Section 633.551A applies to the modification proceedings. 15 16 5. A ward retains all rights not delegated to a guardian 15 17 by the court, including but not limited to any rights to legal 15 18 representation and the right to provide records to the ward's 15 19 attorney. 15 20 Sec. 22. Section 633.641, Code 1997, is amended by adding 15 21 the following new unnumbered paragraph: 15 22 NEW UNNUMBERED PARAGRAPH. From time to time, upon a proper 15 23 showing, the court may modify the respective responsibilities 15 24 of the conservator and the ward, after notice to the ward and 15 25 an opportunity to be heard. Any modification that would be 15 26 more restrictive or burdensome for the ward shall be based on 15 27 clear and convincing evidence that the ward continues to fall 15 28 within the categories of section 633.566, subsection 2, 15 29 paragraph "a" or "b", and that the facts justify a 15 30 modification of the conservatorship. Section 633.551A applies 15 31 to the modification proceedings. 15 32 Sec. 23. Section 633.669, subsection 2, Code 1997, is 15 33 amended to read as follows: 15 34 2. Reports required by this section must include: 15 35 a. The current mental and physical condition of the ward, 16 1 including the necessity for any physical, dental, or mental 16 2 health examinations to determine the current needs of the 16 3 ward. 16 4 b. The present living arrangement of the ward, including a 16 5 description of each residence where the ward has resided 16 6 during the reporting period as well as a statement as to the 16 7 suitability of the ward's current residence in meeting the 16 8 needs of the ward. 16 9 c. A summary of the medical, educational, vocational, 16 10 dental, habilitative, and other professional services provided 16 11 for the ward and a plan for provision of those services during 16 12 the subsequent year. 16 13 d. A description of the guardian's visits with and 16 14 activities on behalf of the ward. 16 15 e. A recommendation as to the need for continued 16 16 guardianship and any recommendations relating to the scope of 16 17 the guardianship. 16 18 f. A statement of the social and personal services 16 19 utilized by the ward and a statement addressing the social 16 20 skills of the ward and maintenance of interpersonal 16 21 relationships. 16 22f.g. Other information requested by the court or useful 16 23 in the opinion of the guardian. 16 24 Sec. 24. Section 633.669, Code 1997, is amended by adding 16 25 the following new subsections: 16 26 NEW SUBSECTION. 7. If the annual report sets forth any 16 27 reason for modification of the powers authorized by the court, 16 28 the guardian shall make an application for modification within 16 29 ten days of the filing of the report and shall provide notice 16 30 to the persons entitled to notice in accordance with section 16 31 633.554. 16 32 NEW SUBSECTION. 8. Any interested person may request a 16 33 hearing on the report. The court may order the guardian to 16 34 attend the hearing on the report on the court's own motion or 16 35 on the petition of any interested person. 17 1 Sec. 25. NEW SECTION. 633.669A EXAMINATION OF INITIAL 17 2 AND ANNUAL REPORTS. 17 3 1. Within thirty days of the filing of an initial or 17 4 annual report, the chief judge of the judicial district shall 17 5 examine, or cause to be examined by a person designated by the 17 6 presiding judge, all reports filed by a guardian. 17 7 2. a. If the guardian fails to file the initial or annual 17 8 report, the person authorized to examine the report shall 17 9 demand that the guardian file the report within fifteen days 17 10 after service of the demand upon the guardian. A copy of the 17 11 demand shall be served upon the guardian by certified mail. 17 12 b. If the person authorized to examine the report 17 13 determines that a more complete or satisfactory report should 17 14 be filed, the person authorized to examine the report shall 17 15 demand that the guardian file a revised report within fifteen 17 16 days of service of the demand upon the guardian. A copy of 17 17 the demand shall be served upon the guardian by certified 17 18 mail. 17 19 c. If the guardian fails to comply with a demand under 17 20 this subsection, the court may enter an order requiring 17 21 compliance with the demand and may deny or reduce the amount 17 22 of compensation of the guardian or may remove the guardian. 17 23 Sec. 26. Section 633.675, Code 1997, is amended to read as 17 24 follows: 17 25 633.675 CAUSE FOR MODIFICATION OR TERMINATION. 17 26 A guardianship shall cease or shall be subject to 17 27 modification, and a conservatorship shall terminate, upon the 17 28 occurrence of any of the following circumstances: 17 29 1. If the ward is a minor, when the ward reaches full age. 17 30 2. The death of the ward. 17 31 3. A determination by the court that the ward iscompetent17 32and capable of managing the ward's property and affairs, and17 33 no longer a person whose decision-making capacity is so 17 34 impaired as to bring the ward within the categories of section 17 35 633.552, subsection 2, paragraph "a", or section 633.566, 18 1 subsection 2, paragraph "a", and that the continuance of the 18 2 guardianship or conservatorship would not be in the ward's 18 3 best interests. Section 633.551A applies to a termination 18 4 proceeding. 18 5 4. Upon the disability, illness, or death of the guardian 18 6 or conservator. 18 7 5. Upon the removal of the ward from this state or if 18 8 reasonable access to the ward by the guardian or conservator 18 9 is not possible. 18 104.6. Upon determination by the court that the 18 11 conservatorship or guardianship is no longer necessary for any 18 12 other reason. 18 13 Sec. 27. Section 633.679, Code 1997, is amended to read as 18 14 follows: 18 15 633.679 PETITION TO MODIFY OR TERMINATE. 18 16 1. At any time after the appointment of a guardian or 18 17 conservator, the person under guardianship or conservatorship, 18 18 the guardian, the conservator, or any interested party may 18 19 apply to the court by petition, alleging that the person is no18 20longer a proper subject thereof, andasking that the 18 21 guardianship or conservatorship be modified or terminated. 18 22 2. Upon the filing of a petition, the court may order 18 23 modification or termination of the guardianship, the 18 24 conservatorship, or both. Prior to the issuance of the order, 18 25 notice of the petition to modify or terminate shall be 18 26 provided to all persons entitled to notice pursuant to section 18 27 633.554 and all persons entitled to notice shall be provided 18 28 the opportunity to provide evidence supporting continuance, 18 29 modification, or termination of the conservatorship or 18 30 guardianship at a hearing on the petition. The action shall 18 31 be triable as a proceeding in equity. The ward is entitled to 18 32 representation in the same manner as provided in section 18 33 633.561 and the court shall make every reasonable effort to 18 34 enable the ward to be present and to participate in the 18 35 proceedings. 19 1 3. In making a determination on the proposed modification 19 2 or termination, the court may appoint a court evaluator to 19 3 investigate the situation. A determination to continue, 19 4 modify, or terminate a guardianship or conservatorship shall 19 5 be based upon clear and convincing evidence. The burden of 19 6 persuasion in the continuation, modification, or termination 19 7 of a guardianship or conservatorship is on the petitioner. In 19 8 a petition to terminate a guardianship or conservatorship, a 19 9 ward shall make a prima facie showing that the ward has some 19 10 decision-making capacity. Following the initial showing by 19 11 the ward, the guardian or conservator shall have the burden of 19 12 persuasion to demonstrate by clear and convincing evidence any 19 13 incompetency on the part of the ward. 19 14 Sec. 28. NEW SECTION. 633.680A PETITION TO REMOVE 19 15 GUARDIAN OR CONSERVATOR – BASIS FOR REMOVAL. 19 16 Upon a petition by an interested person or on the court's 19 17 own motion, the court may remove a guardian or conservator or 19 18 order other appropriate relief if the guardian or conservator 19 19 does any of the following: 19 20 1. Acts under letters secured by material 19 21 misrepresentation or mistake, whether fraudulent or innocent. 19 22 2. Is incapacitated or is suffering from an illness, 19 23 including substance abuse, which affects fitness for office, 19 24 or is a ward in this state or any other jurisdiction. 19 25 3. Is convicted of a crime which reflects on fitness for 19 26 office. 19 27 4. Wastes or mismanages the estate, unreasonably withholds 19 28 distributions or makes distributions in a negligent manner, or 19 29 otherwise abuses powers or fails to discharge duties. 19 30 5. Neglects the care and custody of the ward. 19 31 6. Has an interest adverse to the faithful performance of 19 32 duties such that there is a substantial risk that the guardian 19 33 or conservator will fail to properly perform specified duties. 19 34 7. Fails to file reports or accountings when required, or 19 35 fails to comply with any order of the court. 20 1 8. Acts in a manner which threatens the personal or 20 2 financial security of a co-guardian or co-conservator or 20 3 endangers surety on the bond. 20 4 9. Fails to file sufficient bond after being ordered by 20 5 the court to do so. 20 6 10. Avoids service of process or notice regarding matters 20 7 related to the guardianship or conservatorship. 20 8 11. Becomes incapable of or unsuitable for the discharge 20 9 of duties. 20 10 12. Is not acting in the best interests of the ward. 20 11 Sec. 29. NEW SECTION. 633.682A COURT EVALUATOR EDUCATION 20 12 REQUIREMENTS. 20 13 A ward or proposed ward is entitled to a court evaluator 20 14 whom the court finds to be sufficiently capable of performing 20 15 the duties of a court evaluator necessary to ensure that all 20 16 the relevant information regarding a petition for the 20 17 appointment, modification, or termination of a guardian comes 20 18 before the court and of assisting the court in reaching a 20 19 decision regarding the appointment, modification, or 20 20 termination of a guardian. A person appointed as a court 20 21 evaluator shall complete a training program approved by the 20 22 Iowa supreme court. The supreme court may waive some or all 20 23 requirements if the proposed court evaluator demonstrates an 20 24 educational background or experience sufficient to meet the 20 25 requirements. The training program shall include all of the 20 26 following: 20 27 1. The legal duties and responsibilities of the court 20 28 evaluator. 20 29 2. The rights of a ward with an emphasis on due process 20 30 rights to aid the court evaluator in determining 20 31 recommendations regarding the appointment of counsel and the 20 32 conduct of the hearing. 20 33 3. The available resources to aid the ward or proposed 20 34 ward. 20 35 4. An orientation relating to medical terminology, 21 1 particularly medical terminology related to the diagnostic and 21 2 assessment procedures used to characterize the extent and 21 3 reversibility of any impairment. 21 4 5. Entitlements. 21 5 6. Psychological and social concerns relating to disabled 21 6 elders and frail elders as defined by rule of the department 21 7 of elder affairs. 21 8 Sec. 30. NEW SECTION. 633.682B FILING. 21 9 The supreme court administrator shall establish a system of 21 10 notification for the following: 21 11 1. The filing of guardianship cases and records which 21 12 distinguish these cases from probate cases. 21 13 2. The filing of annual reports by guardians and 21 14 conservators to assure that the court will be notified of 21 15 annual reports as the reports become due and whether the 21 16 reports are filed. 21 17 Sec. 31. Sections 633.557 and 633.680, Code 1997, are 21 18 repealed. 21 19 EXPLANATION 21 20 This bill amends the portions of the Code relating to 21 21 guardianships and conservatorships. The bill includes many 21 22 changes based upon the Iowa Supreme Court decision in In Re 21 23 Guardianship of Hedin, 528 N.W.2d 567 (Iowa 1995). In Hedin, 21 24 the court held all of the following: 21 25 1. In proceedings to establish, modify, or terminate a 21 26 guardianship, the district court may make a finding of 21 27 incompetency only if the ward's or proposed ward's decision- 21 28 making capacity is so impaired that the ward is unable to care 21 29 for the ward's or proposed ward's personal safety or to attend 21 30 to and provide for such necessities as food, shelter, 21 31 clothing, and medical care, without which physical injury or 21 32 illness may occur. Additionally, in making the determination 21 33 of incompetency, the court is required to consider credible 21 34 evidence from any source of the effect of third-party 21 35 assistance. 22 1 2. In determining whether a guardianship is to be 22 2 established, modified, or terminated, the district court shall 22 3 consider if a limited guardianship is appropriate. 22 4 3. The standard of proof for determining incompetency in a 22 5 proceeding to establish, modify, or terminate a guardianship 22 6 is clear and convincing evidence. 22 7 4. The burden of persuasion is on the party petitioning 22 8 for guardianship and remains with the guardian in proceedings 22 9 to modify or terminate the guardianship. If the ward 22 10 petitions to terminate the guardianship, the ward must make a 22 11 prima facie showing that the ward has some decision-making 22 12 capacity. Once the prima facie showing is made, the guardian 22 13 has the burden of persuasion to show by clear and convincing 22 14 evidence that the ward is incompetent. 22 15 The bill provides definitions of "court evaluator", 22 16 "functional limitations", "health care professional", and 22 17 "legal settlement", and redefines the term "incompetent". 22 18 The bill provides general provisions which apply to all 22 19 guardianship and conservatorship proceedings. In the 22 20 appointment, modification, or termination of a guardianship, 22 21 incompetency of the proposed ward or ward must be supported by 22 22 clear and convincing evidence. The bill establishes the 22 23 burden of persuasion in guardianship and conservatorship 22 24 proceedings, requires the court to consider establishment of a 22 25 limited guardianship or conservatorship, and requires the 22 26 court to consider credible evidence from any source as to the 22 27 effect of third-party assistance in meeting the needs of the 22 28 proposed ward or ward. 22 29 The bill amends the sections relating to the petition for 22 30 guardianships and conservatorships to change the basis upon 22 31 which a person is alleged to require a guardian or conservator 22 32 to be that the person is a minor or is incompetent as defined 22 33 in the bill. The bill also requires new information to be 22 34 included in the petition for guardianship. The new 22 35 information required includes the names and addresses of 23 1 additional interested parties, the nature and degree of the 23 2 alleged incompetency, and any additional information which 23 3 might assist the court in making its determination. The bill 23 4 requires that an evaluation by a health care professional of 23 5 the proposed ward's physical and mental condition be attached 23 6 to the petition or provided at least 14 days prior to the 23 7 hearing on the petition. 23 8 The bill amends the notice provisions to include, if the 23 9 proposed ward is an adult, notice of the filing of the 23 10 petition to the proposed ward and to all persons included in 23 11 the petition as interested parties; if the proposed ward is a 23 12 minor, notice is to be provided to the parents or guardian and 23 13 to any adult person with whom the minor resides unless any of 23 14 these is the petitioner. 23 15 The bill amends the pleadings and trial portion of the 23 16 proceedings to include provisions which allow the court to 23 17 appoint a court evaluator to provide for an evaluation of the 23 18 proposed ward to carry out additional information-gathering 23 19 duties to assist the court in its determination. The costs of 23 20 the court evaluator are to be paid by the proposed ward or if 23 21 the proposed ward is indigent, by the county of legal 23 22 settlement and if there is no county of legal settlement, then 23 23 by the state. The bill requires that the proposed ward be 23 24 present at the hearing unless good cause is shown for the 23 25 absence and provides that the hearing may be closed upon 23 26 request of the proposed ward for good cause shown. 23 27 The bill provides that venue for the proceeding is in the 23 28 district court of the county of residence of the proposed ward 23 29 or where the proposed ward is present, that the court may 23 30 transfer the proceeding to another court if in the interest of 23 31 justice, and that any guardianship involving a minor is to 23 32 meet the requirements of the uniform child custody 23 33 jurisdiction Act. 23 34 The bill amends sections 633.556 and 633.570 regarding 23 35 appointment of a guardian and appointment of a conservator to 24 1 provide that the court may provide for the appointment of a 24 2 guardian or conservator if the allegations of the petition are 24 3 proved by clear and convincing evidence. In a guardianship 24 4 proceeding, the court is to grant specific powers to the 24 5 guardian that are the least restrictive for the ward, is to 24 6 consider if a limited guardianship is appropriate, and is to 24 7 consider whether third-party assistance is available to meet 24 8 the ward's needs. In a conservatorship proceeding, the court 24 9 may appoint a conservator if the allegations of the petition 24 10 are proved by clear and convincing evidence and the court is 24 11 to consider if a limited conservatorship is appropriate. 24 12 Regarding the appointment of a guardian, the bill provides 24 13 that the court may appoint a guardian if the allegations of 24 14 the petition as to the status of the proposed ward and 24 15 necessity for the appointment are proven by clear and 24 16 convincing evidence. If a guardian is appointed, the court is 24 17 directed to appoint a resident of this state as guardian, and 24 18 it is the exclusive decision of the court to make a 24 19 determination as to the appointment of a guardian, the type of 24 20 guardianship, and the specific areas of protection, 24 21 management, and assistance to be granted the guardian. The 24 22 court is directed to make its determination based upon its 24 23 consideration of the proposed ward's functional limitations, 24 24 to grant specific powers to the guardian which are the least 24 25 restrictive, and to consider a limited guardianship and the 24 26 availability of third-party assistance. 24 27 The bill provides that in the preference as to appointment 24 28 of a guardian for an adult ward, any person who is qualified 24 29 and suitable or any person nominated by a ward in a standby 24 30 guardianship petition may be appointed. The bill replaces the 24 31 current standby guardianship language by stating that any 24 32 person with sufficient capacity to form a preference may 24 33 petition for a standby guardianship. The bill provides that 24 34 the petition must specify the event or conditions which must 24 35 occur for the petition to be filed or acted upon by the court, 25 1 provides for deposit of the petition, provides for revocation 25 2 of the petition prior to the appointment of a guardian, 25 3 provides for the filing upon the receipt by the clerk of court 25 4 of both the petition and a verified statement that the event 25 5 or condition has occurred, provides for the appointment of the 25 6 person nominated as guardian without a hearing or the setting 25 7 of the petition for hearing, and provides that the powers of 25 8 the guardian are to be limited to only those powers expressed 25 9 in the petition or only those powers specified by the court 25 10 following a hearing on the petition. 25 11 The bill provides that an attorney appointed to represent a 25 12 proposed ward, in addition to existing duties, is to provide 25 13 notice to all interested parties specified in the petition and 25 14 to notify other interested parties not included in the 25 15 petition but who are identified during the course of the 25 16 representation. 25 17 The notification of guardianship powers provisions are 25 18 amended to provide notice to the proposed ward of the powers 25 19 of the guardian to make decisions regarding the ward's 25 20 personal safety or to provide for necessities and to include 25 21 notice of powers which must receive approval including 25 22 arranging for major elective surgery or any other nonemergency 25 23 major medical procedure or consent to the withholding or 25 24 withdrawal of life-sustaining procedures. The notice provided 25 25 to the proposed ward is to be in 14 point type rather than the 25 26 existing 10 point. 25 27 The bill deletes the provisions for the appointment of a 25 28 guardian under a voluntary guardianship petition, so that a 25 29 guardian may only be appointed under involuntary or standby 25 30 provisions. 25 31 The bill amends the provisions which specify the powers 25 32 which may be granted to a guardian by limiting the powers 25 33 granted without court approval to those powers specified by 25 34 the court, consistent with the findings of the court regarding 25 35 the ward's or proposed ward's functional limitations and by 26 1 limiting the powers granted with court approval to those 26 2 related to major elective surgery or nonemergency major 26 3 medical procedures and consenting to the withholding or 26 4 withdrawal of life-sustaining procedures. The bill also 26 5 specifies that the ward retains all rights not delegated to 26 6 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 also provides that if a guardianship or 26 15 conservatorship is modified, any modification which would be 26 16 more restrictive for the ward must be based on clear and 26 17 convincing evidence that the ward still falls into the 26 18 category noted in the petition and that the facts justify the 26 19 modification. 26 20 The bill expands the reporting requirements of the 26 21 guardian, provides that if an annual report sets forth any 26 22 reason for modification of the powers authorized, the guardian 26 23 is to make application for modification within 10 days of the 26 24 filing of the report and provide notice of the filing to all 26 25 interested parties, and provides that any interested party may 26 26 request a hearing on the report. The bill includes new 26 27 provisions for the examination of the initial and annual 26 28 reports by the chief judge of the judicial district or a 26 29 designee of the presiding judge, provides that the person 26 30 authorized to examine the report may demand that a report be 26 31 filed if the guardian fails to do so, and provides that the 26 32 person authorized to examine the reports may demand a revised 26 33 report if the report submitted is incomplete or 26 34 unsatisfactory. Failure of a guardian to comply with a demand 26 35 is grounds for entry of an order of compliance, denial or 27 1 reduction in the compensation of the guardian, or removal of 27 2 the guardian. 27 3 The bill provides new grounds for the modification or 27 4 termination of a guardianship or conservatorship including a 27 5 determination that the ward is no longer incompetent, that the 27 6 guardian or conservator has become disabled, ill, or has died, 27 7 or that the ward has been removed from the state or if 27 8 reasonable access to the ward by the guardian or conservator 27 9 is not possible. 27 10 The bill provides that any interested party may petition 27 11 for modification or termination of a guardianship or 27 12 conservatorship and that all of the procedural requirements 27 13 that apply to an initial guardianship or conservatorship 27 14 appointment apply to the modification or termination 27 15 proceedings. The bill provides several grounds for the 27 16 removal of a guardian or conservator including incapacity, 27 17 criminal conviction, wasting or mismanaging the estate, 27 18 neglecting the ward, failure to file required reports, and 27 19 other grounds. 27 20 The bill provides court evaluator education requirements 27 21 and requires the supreme court administrator to establish a 27 22 system of notification for the filing of guardianship cases 27 23 and records distinct from probate cases and for the filing of 27 24 annual reports so that the court will be notified of annual 27 25 reports as they become due and whether the reports have been 27 26 filed. 27 27 The bill repeals the section of the Code providing for the 27 28 appointment of a guardian on a voluntary petition and the 27 29 section which limits the applications to terminate a 27 30 guardianship or conservatorship by stating that if a petition 27 31 is denied, no other petition shall be filed until at least 6 27 32 months following the date of the denial of the petition. 27 33 LSB 1462SS 77 27 34 pf/sc/14
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