House File 610 H-1025 Amend House File 610 as follows: 1 1. Page 8, after line 12 by inserting: 2 < 8. The petition shall provide a brief description of 3 the respondent’s alleged functional limitations that make 4 the respondent unable to communicate or carry out important 5 decisions concerning the respondent’s financial affairs. > 6 2. Page 8, line 13, by striking < 8. > and inserting < 9. > 7 3. Page 9, lines 7 and 8, by striking < rule of civil 8 procedure 1.305 > and inserting < the Iowa rules of civil 9 procedure > 10 4. Page 9, lines 13 and 14, by striking < rule of civil 11 procedure 1.308(5) > and inserting < the Iowa rules of civil 12 procedure > 13 5. Page 9, lines 24 and 25, by striking < rule of civil 14 procedure 1.305(2) > and inserting < the Iowa rules of civil 15 procedure > 16 6. Page 9, lines 28 and 29, by striking < rule of civil 17 procedure 1.305 > and inserting < the Iowa rules of civil 18 procedure > 19 7. Page 9, lines 32 and 33, by striking < rule of civil 20 procedure 1.308(5) > and inserting < the Iowa rules of civil 21 procedure > 22 8. Page 11, after line 10 by inserting: 23 < Sec. ___. NEW SECTION . 633.560A Mediation. 24 1. The district court may, on its own motion or on the 25 motion of any party, order the parties to participate in 26 mediation in any guardianship or conservatorship action. 27 Mediation performed under this section shall comply with the 28 provisions of chapter 679C. The court shall, upon application 29 of a party, grant a waiver from any court-ordered mediation 30 under this section if the party demonstrates that a history 31 of domestic abuse exists similarly as considered in section 32 598.41, subsection 3, paragraph “j” . The court may, upon 33 application of a party, grant a waiver from any court-ordered 34 mediation if the action involves elder abuse pursuant to 35 -1- HF610.821 (3) 88 asf/jh 1/ 12 #1. #2. #3. #4. #5. #6. #7. #8.
chapter 235F. 1 2. Mediation shall comply with all of the following 2 standards: 3 a. The parties will participate in good faith. 4 Participation in mediation shall include attendance at 5 a mediation session with the mediator and the parties to 6 the action, listening to the mediator’s explanation of the 7 mediation process, presentation of one party’s view of the 8 case, and listening to the response of the other party. 9 Participation in mediation does not require that the parties 10 reach an agreement. 11 b. Unless the parties agree upon a mediator, the court shall 12 appoint a mediator. Any mediator appointed by the court shall 13 meet the qualifications established in this section. 14 c. Parties to the mediation shall have the right to 15 representation by an attorney at all times. 16 d. The parties to the mediation shall present any agreement 17 reached through the mediation to their attorneys, if any. 18 A mediation agreement reached by the parties shall not be 19 enforceable until approved by the court. 20 e. The costs of mediation shall be borne by the parties, as 21 agreed to by the parties, or as ordered by the court, and may 22 be taxed as court costs. 23 3. A mediator appointed by the court acting pursuant to this 24 section shall have the following qualifications: 25 a. Completed a one-hour internet seminar or live session 26 regarding the external resources available to a respondent with 27 particular focus on resources for older persons. 28 b. A minimum of twenty-five hours of general mediation 29 training. 30 c. Either of the following: 31 (1) Fifteen hours of probate-specific or elder-specific 32 mediation training. 33 (2) Ten continuous years of practice in Iowa as a licensed 34 attorney with the greater of four hundred hours or forty 35 -2- HF610.821 (3) 88 asf/jh 2/ 12
percent of the total hours of law practice per year being 1 devoted to matters concerning wills, trusts, and estate work 2 for each of the ten continuous years. For mediations involving 3 guardianship of juveniles, the mediator shall also be currently 4 qualified as a family law mediator and have completed a 5 one-hour live session concerning guardianship procedures. > 6 9. Page 14, line 12, by striking < may > and inserting < shall > 7 10. By striking page 15, line 28, through page 16, line 2, 8 and inserting: 9 < 1. At or before a hearing on petition for the appointment 10 of a guardian or conservator or the modification or termination 11 of a guardianship or conservatorship, the court shall order a 12 professional evaluation of the respondent unless one of the 13 following criteria are met: 14 a. The court finds it has sufficient information to 15 determine whether the criteria for a guardianship or 16 conservatorship are met. 17 b. The petitioner or respondent has filed a professional 18 evaluation. 19 2. Notwithstanding subsection 1, if the respondent has 20 filed a professional evaluation and the court determines an 21 additional professional evaluation will assist the court in 22 understanding the decision-making capacity and functional 23 abilities and limitations of the respondent, the court may 24 order a professional evaluation of the respondent. > 25 11. Page 16, line 3, by striking < 2. > and inserting < 3. > 26 12. Page 16, after line 6 by inserting: 27 < 4. Unless otherwise directed by the court, the report must 28 contain all of the following: 29 a. A description of the nature, type, and extent of the 30 respondent’s cognitive and functional abilities and limitation. 31 b. An evaluation of the respondent’s mental and physical 32 condition and, if appropriate, educational potential, adaptive 33 behavior, and social skills. 34 c. A prognosis for improvement and recommendation for the 35 -3- HF610.821 (3) 88 asf/jh 3/ 12 #9. #10. #11. #12.
appropriate treatment, support, or habilitation plan. 1 d. The evaluator’s qualifications to evaluate the 2 respondent’s cognitive and functional abilities limitations and 3 lack of conflict of interest. 4 e. The date of examination on which the report is based. 5 5. The cost of the professional evaluation shall be paid by 6 the respondent unless the respondent is indigent as defined in 7 section 633.561, subsection 3, in which case the costs shall 8 be paid by the county in which the proceedings are pending or 9 unless the court orders otherwise. > 10 13. Page 16, line 7, by striking < 3. > and inserting < 6. > 11 14. Page 16, line 9, by striking < 4. > and inserting < 7. > 12 15. Page 16, line 10, by striking < 4. > and inserting < 7. > 13 16. Page 23, after line 28 by inserting: 14 < Sec. ___. Section 633.641, Code 2019, is amended by 15 striking the section and inserting in lieu thereof the 16 following: 17 633.641 Duties of conservator. 18 1. A conservator is a fiduciary and has duties of prudence 19 and loyalty to the protected person. 20 2. A conservator shall promote the self-determination of 21 the protected person and, to the extent feasible, encourage 22 the protected person to participate in decisions, act on the 23 protected person’s own behalf, and develop or regain the 24 capacity to manage the protected person’s financial affairs. 25 3. In making decisions for a protected person, the 26 conservator shall make the decision the conservator reasonably 27 believes the protected person would make if able, unless doing 28 so would fail to preserve the resources needed to maintain 29 the protected person’s well-being and lifestyle or otherwise 30 unreasonably harm or endanger the welfare or personal or 31 financial interests of the protected person. To determine 32 the decision the protected person would make if able, the 33 conservator shall consider the protected person’s prior or 34 current directions, preferences, opinions, values, and actions, 35 -4- HF610.821 (3) 88 asf/jh 4/ 12 #13. #14. #15. #16.
to the extent actually known or reasonably ascertainable by the 1 conservator. 2 4. If a conservator cannot make a decision under subsection 3 3 because the conservator does not know and cannot reasonably 4 determine the decision the protected person would make if 5 able, or the conservator reasonably believes the decision the 6 protected person would make would fail to preserve resources 7 needed to maintain the protected person’s well-being and 8 lifestyle or otherwise unreasonably harm or endanger the 9 welfare or personal or financial interests of the protected 10 person, the conservator shall act in accordance with the best 11 interests of the protected person. In determining the best 12 interests of the protected person, the conservator shall 13 consider all of the following: 14 a. Information received from professionals and persons that 15 demonstrate sufficient interest in the welfare of the protected 16 person. 17 b. Other information the conservator believes the protected 18 person would have considered if the protected person were able 19 to act. 20 c. Other factors a reasonable person in the circumstances 21 of the protected person would consider, including consequences 22 to others. 23 5. Except when inconsistent with the conservator’s duties 24 under subsections 1 through 4, a conservator shall invest and 25 manage the protected person’s assets as a prudent investor 26 would, by considering the circumstances and property of the 27 protected person. 28 6. The propriety of a conservator’s investment and 29 management of the conservatorship estate is determined in light 30 of the facts and circumstances existing when the conservator 31 decides or acts and not by hindsight. 32 7. A conservator that has special skills or expertise, 33 or is named conservator in reliance on the conservator’s 34 representation of special skills or expertise, has a duty 35 -5- HF610.821 (3) 88 asf/jh 5/ 12
to use the special skills or expertise in carrying out the 1 conservator’s duties. 2 8. In investing and selecting specific property for 3 distribution, a conservator shall consider any estate plan or 4 other donative, nominative, or appointive instrument of the 5 protected person, known to the conservator. 6 9. A conservator shall maintain insurance on the insurable 7 real and personal property of the protected person, unless 8 the conservatorship estate lacks sufficient funds to pay for 9 insurance or the court finds any of the following: 10 a. The property lacks sufficient equity to justify the 11 insurance premium. 12 b. Insuring the property would unreasonably dissipate the 13 conservatorship estate. 14 c. Insuring the property would not be in the best interest 15 of the protected person. 16 10. If a protected person has executed a valid power of 17 attorney under chapter 633B, the conservator shall act in 18 accordance with the applicable provisions of chapter 633B. 19 11. The conservator shall report to the department of 20 human services the protected person’s assets and income, if 21 the protected person is receiving medical assistance under 22 chapter 249A. Such reports shall be made upon establishment of 23 a conservatorship for an individual applying for or receiving 24 medical assistance, upon application for benefits on behalf 25 of the protected person, upon annual or semiannual review of 26 continued medical assistance eligibility, when any significant 27 change in the protected person’s assets or income occurs, or 28 as otherwise requested by the department of human services. 29 Written reports shall be provided to the department of human 30 services office for the county in which the protected person 31 resides or the office in which the protected person’s medical 32 assistance is administered. 33 Sec. ___. NEW SECTION . 633.642 Responsibilities of 34 conservator. 35 -6- HF610.821 (3) 88 asf/jh 6/ 12
1. The conservator, acting reasonably and consistent 1 with the fiduciary duties of the conservator to accomplish 2 the purpose of the conservatorship, and acting in a manner 3 consistent with the conservator’s plan, and consistent with 4 the order establishing the conservatorship, including any 5 limitations in the order, shall, without the necessity of prior 6 court approval, have all the following powers on behalf of the 7 protected person: 8 a. Collect, receive, receipt for any principal or income, 9 and to enforce, defend against, or prosecute any claim by or 10 against the protected person or the conservator; and to sue on 11 and defend claims in favor of or against the protected person 12 or the conservator. 13 b. Sell and transfer personal property of a perishable 14 nature and tangible personal property for which there is a 15 regularly established market. 16 c. Vote at corporate meetings in person or by proxy. 17 d. Receive additional property from any source. 18 e. Notwithstanding the provisions of section 633.123, 19 continue to hold any investment or other property originally 20 received by the conservator, and also any increase thereof, 21 pending the timely filing of the first annual report. 22 f. Pay court costs, bond premiums, and court-approved 23 expenses. 24 g. Open a depository account. 25 h. Receive bank statements and investment reports and 26 correspond with financial institutions. 27 i. Buy, sell, invest, or reinvest assets, except real 28 estate, pursuant to section 633.123. 29 j. Make payments on any existing mortgage, including for 30 real estate taxes and for property and liability insurance. 31 k. Pay for the protected person’s housing under an existing 32 agreement. 33 l. Pay health care insurance premiums and prescription 34 medications, medical expenses, hospital expenses, and ambulance 35 -7- HF610.821 (3) 88 asf/jh 7/ 12
bills. 1 m. Authorize preparation and filing of, and pay any amount 2 due for, state and federal income taxes. 3 n. Pay utilities on the real property owned or leased by the 4 protected person. 5 o. Purchase clothing. 6 p. Purchase food, cleaning supplies, toiletries, and 7 personal grooming for the protected person. 8 q. Reimburse the guardian or guardians for reasonable 9 out-of-pocket expenses advanced on behalf of the protected 10 person for health care and other items upon presentation of a 11 receipt or statement to the conservator. 12 r. Pay reasonable wages and any required employment taxes 13 to individuals or organizations that can assist the protected 14 person as needed with cooking, cleaning, shopping, and other 15 activities of daily living. 16 2. Except as otherwise ordered by the court, a conservator 17 must give notice to persons entitled to notice and receive 18 specific prior authorization by the court before the 19 conservator may take any other action on behalf of the 20 protected person. These other powers requiring court approval 21 include the authority of the conservator to: 22 a. Invest the protected person’s assets consistent with 23 section 633.123. 24 b. Make gifts on the protected person’s behalf from 25 conservatorship assets to persons or religious, educational, 26 scientific, charitable, or other nonprofit organizations to 27 whom or to which such gifts were regularly made prior to the 28 conservator’s appointment; or on a showing that such gifts 29 would benefit the protected person from the perspective of 30 gift, estate, inheritance, or other taxes. No gift shall be 31 allowed which would foreseeably prevent adequate provision for 32 the protected person’s best interest. 33 c. Make payments consistent with the conservator’s plan 34 described above directly to the protected person or to others 35 -8- HF610.821 (3) 88 asf/jh 8/ 12
for the protected person’s education and training needs. 1 d. Use the protected person’s income or assets to provide 2 for any person that the protected person is legally obligated 3 to support. 4 e. Compromise, adjust, arbitrate, or settle any claim by or 5 against the protected person or the conservator. 6 f. Make elections for a protected person who is the 7 surviving spouse as provided in sections 633.236 and 633.240. 8 g. Exercise the right to disclaim on behalf of the protected 9 person as provided in section 633E.5. 10 h. Sell, mortgage, exchange, pledge, or lease the protected 11 person’s real and personal property consistent with subchapter 12 VII, part 6 of this chapter regarding sale of property from a 13 decedent’s estate. 14 Sec. ___. Section 633.648, Code 2019, is amended to read as 15 follows: 16 633.648 Appointment of attorney in compromise of personal 17 injury settlements. 18 Notwithstanding the provisions of section 633.647 633.642 19 prior to authorizing a compromise of a claim for damages on 20 account of personal injuries to the ward, the court may order 21 an independent investigation by an attorney other than by the 22 attorney for the conservator. The cost of such investigation, 23 including a reasonable attorney fee, shall be taxed as part of 24 the cost of the conservatorship. > 25 17. Page 26, by striking lines 9 through 23 and inserting: 26 < Sec. ___. Section 633.670, Code 2019, is amended by 27 striking the section and inserting in lieu thereof the 28 following: 29 633.670 Reports by conservators. 30 1. A conservator shall file an initial plan for protecting, 31 managing, investing, expending, and distributing the assets 32 of the conservatorship estate within ninety days after 33 appointment. The plan must be based on the needs of the 34 protected person and take into account the best interest of the 35 -9- HF610.821 (3) 88 asf/jh 9/ 12 #17.
protected person as well as the protected person’s preference, 1 values, and prior directions to the extent known to, or 2 reasonably ascertainable by, the conservator. 3 a. The initial plan shall include all of the following: 4 (1) A budget containing projected expenses and resources, 5 including an estimate of the total amount of fees the 6 conservator anticipates charging per year and a statement or 7 list of the amount the conservator proposes to charge for each 8 service the conservator anticipates providing to the protected 9 person. 10 (2) A statement as to how the conservator will involve 11 the protected person in decisions about management of the 12 conservatorship estate. 13 (3) If ordered by the court, any step the conservator plans 14 to take to develop or restore the ability of the protected 15 person to manage the conservatorship estate. 16 (4) An estimate of the duration of the conservatorship. 17 b. Within two days after filing the initial plan, the 18 conservator shall give notice of the filing of the initial plan 19 with a copy of the plan to the protected person, the protected 20 person’s attorney and court advisor, if any, and others as 21 directed by the court. The notice must state that any person 22 entitled to a copy of the plan must file any objections to the 23 plan not later than fifteen days after it is filed. 24 c. At least twenty days after the plan has been filed, the 25 court shall review and determine whether the plan should be 26 approved or revised, after considering objections filed and 27 whether the plan is consistent with the conservator’s powers 28 and duties. 29 d. After approval by the court, the conservator shall 30 provide a copy of the approved plan and order approving the 31 plan to the protected person, the protected person’s attorney 32 and court advisor, if any, and others as directed by the court. 33 e. The conservator shall file an amended plan when there has 34 been a significant change in circumstances or the conservator 35 -10- HF610.821 (3) 88 asf/jh 10/ 12
seeks to deviate significantly from the plan. Before the 1 amended plan is implemented, the provisions for court approval 2 of the plan shall be followed as provided in paragraphs “b” , 3 “c” , and “d” . 4 2. A conservator shall file an inventory of the protected 5 person’s assets within ninety days after appointment which 6 includes an oath or affirmation that the inventory is believed 7 to be complete and accurate as far as information permits. 8 Copies of the inventory shall be provided to the protected 9 person, the protected person’s attorney and court advisor, if 10 any, and others as directed by the court. When the conservator 11 receives additional property of the protected person, or 12 becomes aware of its existence, a description of the property 13 shall be included in the conservator’s next annual report. 14 3. A conservator shall file a written and verified report 15 for the period since the end of the preceding report period. 16 The court shall not waive these reports. 17 a. These reports shall include all of the following: 18 (1) Balance of funds on hand at the beginning and end of the 19 period. 20 (2) Disbursements made. 21 (3) Changes in the conservator’s plan. 22 (4) List of assets as of the end of the period. 23 (5) Bond amount and surety’s name. 24 (6) Residence and physical location of the protected 25 person. 26 (7) General physical and mental condition of the protected 27 person. 28 (8) Other information reflecting the condition of the 29 conservatorship estate. 30 b. These reports shall be filed: 31 (1) On an annual basis within sixty days of the end of the 32 reporting period unless the court orders an extension for good 33 cause shown in accordance with the rules of probate procedure. 34 (2) Within thirty days following removal of the 35 -11- HF610.821 (3) 88 asf/jh 11/ 12
conservator. 1 (3) Upon the conservator’s filing of a resignation and 2 before the resignation is accepted by the court. 3 (4) Within sixty days following the termination of the 4 conservatorship. 5 (5) At other times as ordered by the court. 6 c. Reports required by this section shall be served on the 7 protected person’s attorney and court advisor, if any, and the 8 veterans administration if the protected person is receiving 9 veterans benefits. > 10 18. Page 28, line 32, by striking < and > 11 19. Page 28, line 32, after < 633.576, > by inserting 12 < 633.646, 633.647, 633.649, 633.650, and 633.652, > 13 20. By renumbering, redesignating, and correcting internal 14 references as necessary. 15 ______________________________ HINSON of Linn -12- HF610.821 (3) 88 asf/jh 12/ 12 #18. #19. #20.