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PAG LIN 1 1 Section 1. Section 633.3, Code 1997, is amended by adding 1 2 the following new subsection: 1 3 NEW SUBSECTION. 18A. FUNCTIONAL LIMITATIONS – means the 1 4 behavior or condition of a person which impairs the person's 1 5 ability to care for the person's personal safety or to attend 1 6 to or provide for necessities for the person. 1 7 Sec. 2. Section 633.3, subsection 22, Code 1997, is 1 8 amended to read as follows: 1 9 22. INCOMPETENT –includesmeans the condition of any 1 10 person who has been adjudicated by a court tobe incapable of1 11managing the person's property, or caring for the person's own1 12self, or bothhave a decision-making capacity which is so 1 13 impaired that the person is unable to care for the person's 1 14 personal safety or to attend to or provide for necessities for 1 15 the person such as food, shelter, clothing, or medical care, 1 16 without which physical injury or illness may occur. 1 17 Sec. 3. NEW SECTION. 633.551A GUARDIANSHIPS AND 1 18 CONSERVATORSHIPS – GENERAL PROVISIONS. 1 19 1. The determination of incompetency of the proposed ward 1 20 or ward and the determination of the need for the appointment 1 21 of a guardian or conservator or of the modification or 1 22 termination of a guardianship or conservatorship shall be 1 23 supported by clear and convincing evidence. 1 24 2. The burden of persuasion is on the petitioner in an 1 25 initial proceeding to appoint a guardian or conservator. In a 1 26 proceeding to modify or terminate a guardianship or 1 27 conservatorship, if the guardian or conservator is the 1 28 petitioner, the burden of persuasion remains with the guardian 1 29 or conservator. In a proceeding to terminate a guardianship 1 30 or conservatorship, if the ward is the petitioner, the ward 1 31 shall make a prima facie showing of some decision-making 1 32 capacity. Once a prima facie showing is made, the burden of 1 33 persuasion is on the guardian or conservator to show by clear 1 34 and convincing evidence that the ward is incompetent. 1 35 3. In determining whether a guardianship or 2 1 conservatorship is to be established, modified, or terminated, 2 2 the district court shall consider if a limited guardianship or 2 3 conservatorship pursuant to section 633.635 or 633.637 is 2 4 appropriate. In making the determination, the court shall 2 5 make findings of fact to support the powers conferred on the 2 6 guardian or conservator. 2 7 4. In proceedings to establish, modify, or terminate a 2 8 guardianship or conservatorship, in determining if the 2 9 proposed ward or ward is incompetent as defined in section 2 10 633.3, the court shall consider credible evidence from any 2 11 source to the effect of third-party assistance in meeting the 2 12 needs of the proposed ward or ward. However, neither party to 2 13 the action shall have the burden to produce such evidence 2 14 relating to third-party assistance. 2 15 Sec. 4. Section 633.552, subsection 2, paragraph a, Code 2 16 1997, is amended to read as follows: 2 17a. By reason of mental, physical or other incapacity is2 18unable to make or carry out important decisions concerning the2 19proposed ward's person or affairs, other than financial2 20affairs.2 21 a. Is a person whose decision-making capacity is so 2 22 impaired that the person is unable to care for the person's 2 23 personal safety or to attend to or provide for necessities for 2 24 the person such as food, shelter, clothing, or medical care, 2 25 without which physical injury or illness might occur. 2 26 Sec. 5. Section 633.556, Code 1997, is amended to read as 2 27 follows: 2 28 633.556 APPOINTMENT OF GUARDIAN. 2 29 1. If the allegations of the petition as to the status of 2 30 the proposed ward and the necessity for the appointment of a 2 31 guardian are proved by clear and convincing evidence, the 2 32 court may appoint a guardian. 2 33 2. In all proceedings to appoint a guardian, the court 2 34 shall consider the functional limitations of the proposed ward 2 35 and whether a limited guardianship, as authorized in section 3 1 633.635, is appropriate. 3 2 3. Section 633.551A applies to the appointment of a 3 3 conservator. 3 4 Sec. 6. Section 633.557, Code 1997, is amended to read as 3 5 follows: 3 6 633.557 APPOINTMENT OF GUARDIAN ON VOLUNTARY PETITION. 3 7 1. A guardian may also be appointed by the court upon the 3 8 verified petition of the proposed ward, without further 3 9 notice, if the proposed ward is other than a minor under the 3 10 age of fourteen years, provided the court determines that such 3 11 an appointment will inure to the best interest of the 3 12 applicant. However, if an involuntary petition is pending, 3 13 the court shall be governed by section 633.634. The petition 3 14 shall provide the proposed ward notice of a guardian's powers 3 15 as provided in section 633.562. 3 16 2. In all proceedings to appoint a guardian, the court 3 17 shall consider whether a limited guardianship, as authorized 3 18 in section 633.635, is appropriate. 3 19 Sec. 7. Section 633.560, Code 1997, is amended to read as 3 20 follows: 3 21 633.560 APPOINTMENT OF GUARDIAN ON A STANDBY BASIS. 3 22 A petition for the appointment of a guardian on a standby 3 23 basis may be filed by any person under the same procedure and 3 24 requirements as provided in sections 633.591 to 633.597, for 3 25 appointment of standby conservator, insofar as applicable. In 3 26 all proceedings to appoint a guardian, the court shall 3 27 consider whether a limited guardianship, as authorized in 3 28 section 633.635, is appropriate. 3 29 Sec. 8. Section 633.566, subsection 2, paragraph a, Code 3 30 1997, is amended to read as follows: 3 31a. By reason of mental, physical or other incapacity is3 32unable to make or carry out important decisions concerning the3 33proposed ward's financial affairs.3 34 a. Is a person whose decision-making capacity is so 3 35 impaired that the person is unable to make, communicate, or 4 1 carry out important decisions concerning the person's 4 2 financial affairs. 4 3 Sec. 9. Section 633.570, Code 1997, is amended to read as 4 4 follows: 4 5 633.570 APPOINTMENT OF CONSERVATOR. 4 6 1. If the allegations of the petition as to the status of 4 7 the proposed ward and the necessity for the appointment of a 4 8 conservator are proved by clear and convincing evidence, the 4 9 court may appoint a conservator. 4 10 2. In all proceedings to appoint a conservator, the court 4 11 shall consider the functional limitations of the person and 4 12 whether a limited conservatorship, as authorized in section 4 13 633.637, is appropriate. 4 14 3. Section 633.551A applies to the appointment of a 4 15 conservator. 4 16 Sec. 10. Section 633.572, Code 1997, is amended to read as 4 17 follows: 4 18 633.572 APPOINTMENT OF CONSERVATOR ON VOLUNTARY PETITION. 4 19 1. A conservator may also be appointed by the court upon 4 20 the verified petition of the proposed ward, without further 4 21 notice, if the proposed ward is other than a minor under the 4 22 age of fourteen years, provided the court determines that such 4 23 an appointment will inure to the best interest of the 4 24 applicant. However, if an involuntary petition is pending, 4 25 the court shall be governed by section 633.634. The petition 4 26 shall provide the proposed ward notice of a conservator's 4 27 powers as provided in section 633.576. 4 28 2. In all proceedings to appoint a conservator, the court 4 29 shall consider whether a limited conservatorship, as 4 30 authorized in section 633.637, is appropriate. 4 31 Sec. 11. Section 633.596, Code 1997, is amended to read as 4 32 follows: 4 33 633.596TIME OFCONSIDERATIONS – APPOINTMENT OF 4 34 CONSERVATOR. 4 35 At the timesucha standby petition is filed under this 5 1 part, the court, without any notice, may appoint the5 2conservator nominated in such petition or may set the petition5 3for hearing on such notice as the court may prescribeshall 5 4 consider whether a limited conservatorship, as authorized in 5 5 section 633.637, is appropriate. 5 6 Sec. 12. Section 633.635, subsection 1, unnumbered 5 7 paragraph 1, Code 1997, is amended to read as follows: 5 8ABased upon the evidence produced at the hearing, the 5 9 court may grant a guardianmay be grantedthe following powers 5 10 and duties which may be exercised without prior court 5 11 approval: 5 12 Sec. 13. Section 633.635, subsections 3 and 4, Code 1997, 5 13 are amended to read as follows: 5 14 3. The court may take into account all available 5 15 information concerning the capabilities of the ward and any 5 16 additional evaluation deemed necessary, including the 5 17 availability of third-party assistance to meet the needs of 5 18 the ward or proposed ward, and may direct that the guardian 5 19 have only a specially limited responsibility for the ward. In 5 20 that event, the court shall state those areas of 5 21 responsibility which shall be supervised by the guardian and 5 22 all others shall be retained by the ward. The court may make 5 23 a finding that the ward lacks the capacity to contract a valid 5 24 marriage. 5 25 4. From time to time, upon a proper showing, the court may 5 26altermodify the respective responsibilities of the guardian 5 27 and the ward, after notice to the ward and an opportunity to 5 28 be heard. Any modification that would be more restrictive or 5 29 burdensome for the ward shall be based on clear and convincing 5 30 evidence that the ward continues to fall within the categories 5 31 of section 633.552, subsection 2, paragraph "a" or "b", and 5 32 that the facts justify a modification of the guardianship. 5 33 Section 633.551A applies to the modification proceedings. Any 5 34 modification that would be less restrictive for the ward shall 5 35 be based upon proof in accordance with the requirements of 6 1 section 633.675. 6 2 Sec. 14. Section 633.637, Code 1997, is amended to read as 6 3 follows: 6 4 633.637 POWERS OF WARD. 6 5 A ward for whom a conservator has been appointed shall not 6 6 have the power to convey, encumber, or dispose of property in 6 7 any manner, other than by will if the ward possesses the 6 8 requisite testamentary capacity, unless the court determines 6 9 that the ward has a limited ability to handle the ward's own 6 10 funds. If the court makes such a finding, it shall specify to 6 11 what extent the ward may possess and use the ward's own funds. 6 12 Any modification of the powers of the ward that would be 6 13 more restrictive of the ward's control over the ward's 6 14 financial affairs shall be based upon clear and convincing 6 15 evidence and the burden of persuasion is on the conservator. 6 16 Any modification that would be less restrictive of the ward's 6 17 control over the ward's financial affairs shall be based upon 6 18 proof in accordance with the requirements of section 633.675. 6 19 Sec. 15. Section 633.675, subsection 3, Code 1997, is 6 20 amended to read as follows: 6 21 3. A determination by the court that the ward iscompetent6 22and capable of managing the ward's property and affairs, and6 23that the continuance of the guardianship or conservatorship6 24would not be in the ward's best interestsno longer a person 6 25 whose decision-making capacity is so impaired as to bring the 6 26 ward within the categories of section 633.552, subsection 2, 6 27 paragraph "a", or section 633.566, subsection 2, paragraph 6 28 "a". In a proceeding to terminate a guardianship or a 6 29 conservatorship, the ward shall make a prima facie showing 6 30 that the ward has some decision-making capacity. Once the 6 31 ward has made that showing, the guardian or conservator has 6 32 the burden to prove by clear and convincing evidence that the 6 33 ward's decision-making capacity is so impaired, as provided in 6 34 section 633.552, subsection 2, paragraph "a", or section 6 35 633.566, subsection 2, paragraph "a", that the guardianship or 7 1 conservatorship should not be terminated. 7 2 EXPLANATION 7 3 This bill amends the portions of the Code relating to 7 4 guardianships and conservatorships. The bill includes many 7 5 changes based upon the Iowa Supreme Court decision in In Re 7 6 Guardianship of Hedin, 528 N.W.2d 567 (Iowa 1995). In Hedin, 7 7 the court held all of the following: 7 8 1. In proceedings to establish, modify, or terminate a 7 9 guardianship, the district court may make a finding of 7 10 incompetency only if the ward's or proposed ward's decision- 7 11 making capacity is so impaired that the ward is unable to care 7 12 for the ward's or proposed ward's personal safety or to attend 7 13 to and provide for such necessities as food, shelter, 7 14 clothing, and medical care, without which physical injury or 7 15 illness may occur. Additionally, in making the determination 7 16 of incompetency, the court is required to consider credible 7 17 evidence from any source of the effect of third-party 7 18 assistance. 7 19 2. In determining whether a guardianship is to be 7 20 established, modified, or terminated, the district court shall 7 21 consider if a limited guardianship is appropriate. 7 22 3. The standard of proof for determining incompetency in a 7 23 proceeding to establish, modify, or terminate a guardianship 7 24 is clear and convincing evidence. 7 25 4. The burden of persuasion is on the party petitioning 7 26 for guardianship and remains with the guardian in proceedings 7 27 to modify or terminate the guardianship. If the ward 7 28 petitions to terminate the guardianship or conservatorship, 7 29 the ward must make a prima facie showing that the ward has 7 30 some decision-making capacity. Once the prima facie showing 7 31 is made, the guardian or conservator has the burden of 7 32 persuasion to show by clear and convincing evidence that the 7 33 ward is incompetent. 7 34 The bill provides a definition of "functional limitations" 7 35 and redefines the term "incompetent". 8 1 The bill provides general provisions which apply to all 8 2 guardianship and conservatorship proceedings. In the 8 3 appointment, modification, or termination of a guardianship, 8 4 incompetency of the proposed ward or ward must be supported by 8 5 clear and convincing evidence. The bill establishes the 8 6 burden of persuasion in guardianship and conservatorship 8 7 proceedings, requires the court to consider establishment of a 8 8 limited guardianship or conservatorship, and requires the 8 9 court to consider credible evidence from any source as to the 8 10 effect of third-party assistance in meeting the needs of the 8 11 proposed ward or ward. 8 12 The bill amends Code sections 633.552 and 633.566 relating 8 13 to petitions for guardianships or conservatorships to change 8 14 the bases upon which a person is alleged to require a guardian 8 15 or conservator to be that the proposed ward is a minor or is 8 16 incompetent as redefined in the bill. 8 17 The bill also provides that if a guardianship or 8 18 conservatorship is modified, any modification which would be 8 19 more restrictive for the ward must be based on clear and 8 20 convincing evidence that the ward still falls into the 8 21 category noted in the petition and that the facts justify the 8 22 modification. 8 23 The bill provides that in a termination proceeding the ward 8 24 must only make a prima facie showing of some decision-making 8 25 capacity and then the guardian or conservator must prove the 8 26 ward's incompetency by clear and convincing evidence. 8 27 The bill also makes conforming changes in other 8 28 guardianship and conservatorship sections to reflect the new 8 29 requirements relating to burden of persuasion and the 8 30 considerations of the court. 8 31 LSB 1729SV 77 8 32 pf/sc/14
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