House File 120 - Introduced
HOUSE FILE
BY SMITH
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to substitute decision making and guardians and
2 conservators, providing for the collection and appropriation
3 of fees, and making an appropriation.
4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
5 TLSB 1569HH 81
6 pf/pj/5
PAG LIN
1 1 Section 1. NEW SECTION. 231E.1 TITLE.
1 2 This chapter shall be known and may be cited as the "Iowa
1 3 Substitute Decision Maker Act".
1 4 Sec. 2. NEW SECTION. 231E.2 OFFICE OF SUBSTITUTE
1 5 DECISION MAKER == FINDINGS AND INTENT.
1 6 1. a. The general assembly finds that many adults in this
1 7 state are unable to meet essential requirements to maintain
1 8 their physical health or to manage essential aspects of their
1 9 financial resources and are in need of substitute decision=
1 10 making services. However, a willing and responsible person
1 11 may not be available to serve as a private substitute decision
1 12 maker or the adult may not have adequate income or resources
1 13 to compensate a private substitute decision maker.
1 14 b. The general assembly further finds that a process
1 15 should exist to assist individuals in finding alternatives to
1 16 substitute decision=making services and less intrusive means
1 17 of assistance before an individual's independence or rights
1 18 are limited.
1 19 c. The general assembly further finds that a substitute
1 20 decision maker may be necessary to finalize a person's affairs
1 21 after death when there is no willing and appropriate person
1 22 available to serve as the person's personal representative.
1 23 2. a. It is, therefore, the intent of the general
1 24 assembly to establish a state office of substitute decision
1 25 maker and authorize the establishment of local offices of
1 26 substitute decision maker to provide substitute decision=
1 27 making services to adults and their estates after their
1 28 deaths, when no private substitute decision maker is
1 29 available.
1 30 b. It is also the intent of the general assembly that the
1 31 office of substitute decision maker provide assistance to both
1 32 public and private substitute decision makers throughout the
1 33 state in securing necessary services for their wards,
1 34 principals, clients, and decedents and to assist substitute
1 35 decision makers, wards, principals, clients, courts, and
2 1 attorneys in the orderly and expeditious handling of
2 2 substitute decision=making proceedings.
2 3 Sec. 3. NEW SECTION. 231E.3 DEFINITIONS.
2 4 As used in this chapter, unless the context otherwise
2 5 requires:
2 6 1. "Advisory council" means the substitute decision maker
2 7 advisory council.
2 8 2. "Client" means an individual for whom a representative
2 9 payee is appointed.
2 10 3. "Commission" means the commission of elder affairs.
2 11 4. "Conservator" means conservator as defined in section
2 12 633.3.
2 13 5. "Court" means court as defined in section 633.3.
2 14 6. "Decedent" means the individual for whom an estate is
2 15 administered or executed.
2 16 7. "Department" means the department of elder affairs
2 17 established in section 231.21.
2 18 8. "Director" means the director of the department of
2 19 elder affairs.
2 20 9. "Estate" means estate as defined in section 633.3.
2 21 10. "Guardian" means guardian as defined in section 633.3.
2 22 11. "Incompetent" means incompetent as defined in section
2 23 633.3.
2 24 12. "Local office" means a local office of substitute
2 25 decision maker.
2 26 13. "Local substitute decision maker" means an individual
2 27 under contract with the department to act as a substitute
2 28 decision maker.
2 29 14. "Personal representative" means personal
2 30 representative as defined in section 633.3.
2 31 15. "Planning and service area" means a geographic area of
2 32 the state designated by the commission for the purpose of
2 33 planning, developing, delivering, and administering services
2 34 for elders.
2 35 16. "Power of attorney" means a durable power of attorney
3 1 for health care as defined in section 144B.1 or a power of
3 2 attorney that becomes effective upon the disability of the
3 3 principal as described in section 633.705.
3 4 17. "Principal" means an individual for whom a power of
3 5 attorney is established.
3 6 18. "Representative payee" means an individual appointed
3 7 by a government entity to receive funds on behalf of a client
3 8 pursuant to federal regulation.
3 9 19. "State agency" means any executive department,
3 10 commission, board, institution, division, bureau, office,
3 11 agency, or other executive entity of state government.
3 12 20. "State office" means the state office of substitute
3 13 decision maker.
3 14 21. "State substitute decision maker" means the
3 15 administrator of the state office of substitute decision
3 16 maker.
3 17 22. "Substitute decision maker" means a guardian,
3 18 conservator, representative payee, attorney in fact under a
3 19 power of attorney, or personal representative.
3 20 23. "Substitute decision making" or "substitute decision=
3 21 making services" means the provision of services of a
3 22 guardian, conservator, representative payee, attorney in fact
3 23 under a power of attorney, or personal representative.
3 24 24. "Ward" means the individual for whom a guardianship or
3 25 conservatorship is established.
3 26 Sec. 4. NEW SECTION. 231E.4 STATE OFFICE OF SUBSTITUTE
3 27 DECISION MAKER == ESTABLISHED == DUTIES == DEPARTMENT RULES.
3 28 1. A state office of substitute decision maker is
3 29 established within the department to create and administer a
3 30 statewide network of substitute decision makers who provide
3 31 substitute decision=making services if other substitute
3 32 decision makers are not available to provide the services.
3 33 2. The director shall appoint an administrator of the
3 34 state office who shall serve as the state substitute decision
3 35 maker. The state substitute decision maker shall be qualified
4 1 for the position by training and expertise in substitute
4 2 decision=making law. The state substitute decision maker
4 3 shall also have knowledge of social services available to meet
4 4 the needs of persons adjudicated incompetent or in need of
4 5 substitute decision making.
4 6 3. The state office shall do all of the following:
4 7 a. Select persons through a request for proposals process
4 8 to establish local offices of substitute decision maker in
4 9 each of the planning and service areas. Local offices shall
4 10 be established statewide on or before July 1, 2015.
4 11 b. Monitor and terminate contracts with local offices
4 12 based on criteria established by rule of the department.
4 13 c. Retain oversight responsibilities for all local
4 14 substitute decision makers.
4 15 d. Act as substitute decision maker if a local office is
4 16 not available to so act.
4 17 e. Work with the department of human services, the Iowa
4 18 department of public health, the governor's developmental
4 19 disabilities council, and other agencies to establish a
4 20 referral system for the provision of substitute decision=
4 21 making services.
4 22 f. Develop and maintain a current listing of public and
4 23 private services and programs available to assist wards,
4 24 principals, clients, personal representatives, and their
4 25 families and establish and maintain relationships with public
4 26 and private entities to assure the availability of effective
4 27 substitute decision=making services for wards, principals,
4 28 clients, and estates.
4 29 g. Provide information and referrals to the public
4 30 regarding substitute decision=making services.
4 31 h. Provide personal representatives for estates where a
4 32 person is not available for that purpose.
4 33 i. Maintain statistical data on the local offices
4 34 including various methods of funding, the types of services
4 35 provided, and the demographics of the wards, principals,
5 1 clients, and decedents and report to the general assembly on
5 2 or before November 1, annually, regarding the local offices
5 3 and recommend any appropriate legislative action.
5 4 j. Develop, in cooperation with the judicial council as
5 5 established in section 602.1202, a substitute decision=maker
5 6 education and training program. The program may be offered to
5 7 both public and private substitute decision makers. The state
5 8 office shall establish a curriculum committee, which includes
5 9 but is not limited to probate judges, to develop the education
5 10 and training program.
5 11 4. The state office may do any of the following:
5 12 a. Accept and receive gifts, grants, or donations from any
5 13 public or private entity in support of the state office.
5 14 b. Accept the services of individual volunteers and
5 15 volunteer organizations.
5 16 c. Employ staff necessary to administer the state office
5 17 and enter into contracts as necessary.
5 18 5. The department shall provide administrative support to
5 19 the state office.
5 20 6. The department shall adopt rules in accordance with
5 21 chapter 17A necessary to create and administer the state and
5 22 local offices, relating to but not limited to all of the
5 23 following:
5 24 a. An application and intake process and standards for
5 25 receipt of substitute decision=making services from the state
5 26 or a local office.
5 27 b. A process for the removal or termination of the state
5 28 or a local substitute decision maker.
5 29 c. An ideal range of staff=to=client ratios for the state
5 30 and local substitute decision makers.
5 31 d. Minimum training and experience requirements for
5 32 professional staff and volunteers.
5 33 e. A fee schedule. The department may establish by rule a
5 34 schedule of reasonable fees for the costs of substitute
5 35 decision=making services provided under this chapter. The fee
6 1 schedule established may be based upon the ability of the
6 2 ward, principal, client, or estate to pay for the services but
6 3 shall not exceed the actual cost of providing the services.
6 4 The state office or a local office may waive collection of a
6 5 fee upon a finding that collection is not economically
6 6 feasible. The rules may provide that the state office or a
6 7 local office may investigate the financial status of a ward,
6 8 principal, or client who, or an estate that requests
6 9 substitute decision=making services or for whom or which the
6 10 state or a local substitute decision maker has been appointed
6 11 for the purpose of determining the fee to be charged by
6 12 requiring the ward, principal, client, or estate to provide
6 13 any written authorizations necessary to provide access to
6 14 records of public or private sources, otherwise confidential,
6 15 needed to evaluate the individual's or estate's financial
6 16 eligibility. The rules may also provide that the state or a
6 17 local substitute decision maker may, upon request and without
6 18 payment of fees otherwise required by law, obtain information
6 19 necessary to evaluate the individual's or estate's financial
6 20 eligibility from any office of the state or of a political
6 21 subdivision or agency of the state that possesses public
6 22 records. In estate proceedings, the state or local decision
6 23 maker shall be compensated pursuant to chapter 633, division
6 24 III, part 8.
6 25 f. Standards and performance measures for evaluation of
6 26 local offices.
6 27 g. Recordkeeping and accounting procedures to ensure that
6 28 each local office maintains confidential, accurate, and up=to=
6 29 date records, and files with the state office an account of
6 30 all public and private funds received.
6 31 Sec. 5. NEW SECTION. 231E.5 LOCAL OFFICE OF SUBSTITUTE
6 32 DECISION MAKER.
6 33 1. The state substitute decision maker shall select
6 34 persons to provide local substitute decision=making services
6 35 in each of the planning and service areas, based upon a
7 1 request for proposals process developed by the department.
7 2 2. The local office shall comply with all requirements
7 3 established for the local office by the department and shall
7 4 do all of the following:
7 5 a. Maintain a staff of professionally qualified
7 6 individuals to carry out the substitute decision=making
7 7 functions.
7 8 b. Identify client needs and local resources to provide
7 9 necessary support services to recipients of substitute
7 10 decision=making services.
7 11 c. Collect program data as required by the state office.
7 12 d. Meet standards established for the local office.
7 13 e. Comply with minimum staffing requirements and caseload
7 14 restrictions.
7 15 f. Conduct background checks on employees and volunteers.
7 16 g. With regard to a proposed ward, the local office shall
7 17 do all of the following:
7 18 (1) Determine the most appropriate form of substitute
7 19 decision making needed, if any, giving preference to the least
7 20 restrictive alternative.
7 21 (2) Determine whether the needs of the proposed ward
7 22 require the appointment of guardian or conservator.
7 23 (3) Assess the financial resources of the proposed ward
7 24 based on the information supplied to the local office at the
7 25 time of the determination.
7 26 (4) Inquire and, if appropriate, search to determine
7 27 whether any other person may be willing and able to serve as
7 28 the proposed ward's guardian or conservator.
7 29 (5) Determine the form of guardianship or conservatorship
7 30 to request of a court, if any, giving preference to the least
7 31 restrictive form.
7 32 (6) If determined necessary, file a petition for the
7 33 appointment of a guardian or conservator pursuant to chapter
7 34 633.
7 35 h. With regard to an estate, the local office may appoint
8 1 a personal representative to file a petition to open an estate
8 2 who shall do all of the following:
8 3 (1) Retain legal counsel as described in section 231E.12
8 4 to be compensated from the proceeds of the estate pursuant to
8 5 chapter 633, division III, part 8.
8 6 (2) Liquidate all assets of the estate.
8 7 (3) Distribute the assets of the estate pursuant to
8 8 chapter 633, division VII, parts 7 and 8, and other applicable
8 9 provisions of law.
8 10 4. A local office may do any of the following:
8 11 a. Contract for or arrange for provision of services
8 12 necessary to carry out the duties of a local substitute
8 13 decision maker.
8 14 b. Accept the services of volunteers or consultants and
8 15 reimburse them for necessary expenses.
8 16 c. Employ staff and delegate to members of the staff the
8 17 powers and duties of the local substitute decision maker.
8 18 However, the local office shall retain responsibility for the
8 19 proper performance of the delegated powers and duties. All
8 20 delegations shall be to persons who meet the eligibility
8 21 requirements of the specific type of substitute decision
8 22 maker.
8 23 5. An individual acting as the state or a local substitute
8 24 decision maker shall comply with applicable requirements for
8 25 guardians, conservators, or personal representatives pursuant
8 26 to chapter 633, attorneys in fact under a power of attorney
8 27 pursuant to chapter 633 or a durable power of attorney for
8 28 health care pursuant to chapter 144B, or representative payees
8 29 pursuant to federal law and regulations.
8 30 6. Notwithstanding any provision to the contrary, an
8 31 individual acting as the state or a local substitute decision
8 32 maker shall not be subject to the posting of a bond pursuant
8 33 to chapter 633. An individual acting as the state or a local
8 34 substitute decision maker shall complete at least eight hours
8 35 of training annually as certified by the department.
9 1 Sec. 6. NEW SECTION. 231E.6 COURT=INITIATED OR PETITION=
9 2 INITIATED APPOINTMENT OF STATE OR LOCAL SUBSTITUTE DECISION
9 3 MAKER == GUARDIANSHIP OR CONSERVATORSHIP == DISCHARGE.
9 4 The court may appoint on its own motion or upon petition of
9 5 any person, the state office or local office of substitute
9 6 decision maker, to serve as guardian or conservator for any
9 7 proposed ward in cases in which the court determines that the
9 8 proceeding will establish the least restrictive form of
9 9 substitute decision making suitable for the proposed ward and
9 10 if the proposed ward meets all of the following criteria:
9 11 1. Is a resident of the planning and service area in which
9 12 the local office is located from which services would be
9 13 provided or is a resident of the state, if the state office
9 14 would provide the services.
9 15 2. Is eighteen years of age or older.
9 16 3. Does not have suitable family or another appropriate
9 17 entity willing and able to serve as guardian or conservator.
9 18 4. Is incompetent as defined in section 633.3.
9 19 5. Is an individual for whom guardianship or
9 20 conservatorship services are the least restrictive means of
9 21 meeting the individual's needs.
9 22 Sec. 7. NEW SECTION. 231E.7 SUBSTITUTE DECISION MAKER=
9 23 INITIATED APPOINTMENT.
9 24 The state office or local office may on its own motion or
9 25 at the request of the court intervene in a guardianship or
9 26 conservatorship proceeding if the state office or local office
9 27 or the court considers the intervention to be justified
9 28 because of any of the following:
9 29 1. An appointed guardian or conservator is not fulfilling
9 30 prescribed duties or is subject to removal under section
9 31 633.65.
9 32 2. A willing and qualified guardian or conservator is not
9 33 available.
9 34 3. The best interests of the ward require the
9 35 intervention.
10 1 Sec. 8. NEW SECTION. 231E.8 PROVISIONS APPLICABLE TO ALL
10 2 APPOINTMENTS AND DESIGNATIONS == DISCHARGE.
10 3 1. The court shall only appoint or intervene on its own
10 4 motion or act upon the petition of any person under section
10 5 231E.6 or 231E.7 if such appointment or intervention would
10 6 comply with staffing ratios established by the department and
10 7 if sufficient resources are available to the state office or
10 8 local office. Notice of the proposed appointment shall be
10 9 provided to the state office or local office prior to the
10 10 granting of such appointment.
10 11 2. The state office or local office shall maintain
10 12 reasonable personal contact with each ward, principal, or
10 13 client for whom the state office or local office is appointed
10 14 or designated in order to monitor the ward's, principal's, or
10 15 client's care and progress. For any estates in which the
10 16 state office or local office is involved, the state office or
10 17 local office shall move estate proceedings forward in a
10 18 reasonable and expeditious manner and shall monitor the
10 19 progress of any legal counsel retained on a regular basis.
10 20 3. Notwithstanding any provision of law to the contrary,
10 21 the state office or local office appointed by the court or
10 22 designated under a power of attorney document may access all
10 23 confidential records concerning the ward or principal for whom
10 24 the state office or local office is appointed or designated,
10 25 including medical records and abuse reports.
10 26 4. In any proceeding in which the state or local office is
10 27 appointed or is acting as guardian or conservator, the court
10 28 shall waive court costs or filing fees. In any estate
10 29 proceeding, the court costs shall be paid in accordance with
10 30 chapter 633, division VII, part 7.
10 31 5. The state or a local substitute decision maker shall be
10 32 subject to discharge or removal, by the court, on the grounds
10 33 and in the manner in which other guardians, conservators, or
10 34 personal representatives are discharged or removed pursuant to
10 35 chapter 633.
11 1 Sec. 9. NEW SECTION. 231E.9 FEES == APPROPRIATED.
11 2 Fees received by the state office and by local offices for
11 3 services provided as state or local substitute decision maker
11 4 shall be deposited in the general fund of the state and the
11 5 amounts received are appropriated to the department for the
11 6 purposes of administering this chapter.
11 7 Sec. 10. NEW SECTION. 231E.10 CONFLICTS OF INTEREST ==
11 8 LIMITATIONS.
11 9 Notwithstanding section 633.63 or any other provision to
11 10 the contrary, a local substitute decision maker shall not
11 11 provide direct services to or have an actual or the appearance
11 12 of any conflict of interest relating to any individual for
11 13 whom the local substitute decision maker acts in a substitute
11 14 decision=making capacity unless such provision of direct
11 15 services or the appearance of a conflict of interest is
11 16 approved and monitored by the state office in accordance with
11 17 rules adopted by the department.
11 18 Sec. 11. NEW SECTION. 231E.11 SUBSTITUTE DECISION=MAKER
11 19 ADVISORY COUNCIL == ESTABLISHED == DUTIES.
11 20 1. The director shall designate a substitute decision=
11 21 maker advisory council. The director shall determine the
11 22 membership and representation of the advisory council, and
11 23 members shall serve at the pleasure of the director.
11 24 2. The advisory council may include but is not limited to
11 25 inclusion of members who are or who represent any of the
11 26 following:
11 27 a. The legal services developer for the department.
11 28 b. The dependent adult abuse program of the department of
11 29 human services.
11 30 c. The state substitute medical decision=making board
11 31 established pursuant to section 135.28.
11 32 d. The chief justice of the supreme court.
11 33 e. The governor's developmental disabilities council.
11 34 f. The area agencies on aging.
11 35 g. The office of the attorney general.
12 1 h. A volunteer guardianship program of an office of county
12 2 attorney.
12 3 i. A local office of the United States social security
12 4 administration.
12 5 j. The Iowa medical society.
12 6 k. The Iowa hospital association.
12 7 l. The Iowa state association of counties.
12 8 m. The Iowa state bar association, probate section.
12 9 n. The long=term care industry.
12 10 o. Community services organizations.
12 11 p. The Iowa protection and advocacy agency.
12 12 q. The department of veterans affairs.
12 13 r. The Iowa department of public health.
12 14 3. The advisory council shall do all of the following:
12 15 a. Recommend policy for the state and local offices.
12 16 b. Establish a mechanism for systematic and regular review
12 17 of existing policy and for consideration of policy changes.
12 18 c. Review alternatives for funding.
12 19 d. Serve as a resource to the state and local offices.
12 20 e. Assist the department in developing the request for
12 21 proposals process for selection of local offices.
12 22 Sec. 12. NEW SECTION. 231E.12 DUTY OF ATTORNEY GENERAL,
12 23 COUNTY ATTORNEY, OR OTHER COUNSEL.
12 24 1. The attorney general shall advise the state office on
12 25 legal matters and represent the state office in legal
12 26 proceedings.
12 27 2. Upon the request of the attorney general, a county
12 28 attorney may represent the state office or a local office in
12 29 connection with the filing of a petition for appointment as
12 30 guardian or conservator and with routine, subsequent
12 31 appearances.
12 32 3. A local attorney experienced in probate matters may
12 33 represent the personal representative for all routine matters
12 34 associated with probating an estate.
12 35 Sec. 13. NEW SECTION. 231E.13 LIABILITY.
13 1 All employees and volunteers of the state office and local
13 2 offices operating under this chapter and other applicable
13 3 chapters and pursuant to rules adopted under this and other
13 4 applicable chapters are considered employees of the state and
13 5 state volunteers for the purposes of chapter 669 and shall be
13 6 afforded protection under section 669.21 or 669.24, as
13 7 applicable. This section does not relieve a guardian or
13 8 conservator from performing duties prescribed under chapter
13 9 633.
13 10 Sec. 14. NEW SECTION. 231E.14 REPORTS == INFORMATION
13 11 SHARING.
13 12 1. The state office and local offices shall keep and
13 13 maintain proper financial, case, and statistical records as
13 14 prescribed by rule.
13 15 2. A local office shall file, in writing, by September 1,
13 16 with the state office an annual report regarding the
13 17 operations of the local office for the preceding fiscal year.
13 18 3. Notwithstanding any other provision of law to the
13 19 contrary, any medical, financial, or mental health records
13 20 held by a state agency or the court, which are necessary to
13 21 evaluate the state office or local offices, to assess the need
13 22 for additional local substitute decision makers, or to develop
13 23 required reports, shall be provided to the state office upon
13 24 the state office's request. Any confidential information
13 25 provided to the state office shall continue to be held
13 26 confidential as otherwise provided by law.
13 27 Sec. 15. NEW SECTION. 9J.1 SUBSTITUTE DECISION MAKERS ==
13 28 REGISTRATION.
13 29 1. For the purposes of this chapter, "substitute decision
13 30 makers" means all of the following:
13 31 a. A guardian or conservator as defined in section 633.3.
13 32 b. A representative payee as defined in section 231E.3.
13 33 c. An attorney in fact under a durable power of attorney
13 34 for health care as defined in section 144B.1 or a power of
13 35 attorney that becomes effective upon the disability of the
14 1 principal as described in section 633.705.
14 2 2. The secretary of state shall develop and distribute a
14 3 form for the registration and revocation of registration of
14 4 substitute decision makers in accordance with this chapter.
14 5 The secretary of state shall adopt rules necessary for the
14 6 implementation and administration of this chapter.
14 7 3. a. A person appointed by the court as a guardian or
14 8 conservator, a person appointed by a government entity as a
14 9 representative payee, and a person designated as an attorney
14 10 in fact shall file a copy of the completed substitute decision
14 11 maker form with the secretary of state within fifteen business
14 12 days of the appointment or designation as a substitute
14 13 decision maker.
14 14 b. The person filing the form shall pay a fee of twenty=
14 15 five dollars at the time of registration. Five dollars of
14 16 each fee shall be retained by the secretary of state. Twenty
14 17 dollars of each fee shall be deposited in the general fund of
14 18 the state and that amount is appropriated to the Iowa
14 19 department of elder affairs for administering a substitute
14 20 decision=makers education and training program.
14 21 4. A registrant under this chapter whose powers or duties
14 22 as a substitute decision maker are terminated or revoked shall
14 23 file a revocation of registration form with the secretary of
14 24 state within fifteen business days of the termination or
14 25 revocation.
14 26 5. A person acting as a substitute decision maker through
14 27 the state office or local office of substitute decision maker
14 28 pursuant to chapter 231E is not subject to the registration or
14 29 fee payment requirements of this chapter.
14 30 Sec. 16. Section 144B.3, subsection 1, Code 2005, is
14 31 amended by adding the following new paragraph:
14 32 NEW PARAGRAPH. c. The attorney in fact registers with the
14 33 secretary of state in accordance with chapter 9J.
14 34 Sec. 17. Section 235B.6, subsection 2, paragraph e, Code
14 35 2005, is amended by adding the following new subparagraph:
15 1 NEW SUBPARAGRAPH. (11) The state office or a local office
15 2 of substitute decision maker as defined in section 231E.3,
15 3 appointed by the court as a guardian or conservator of the
15 4 adult named in a report as the victim of abuse or the person
15 5 designated to be responsible for performing or obtaining
15 6 protective services on behalf of a dependent adult pursuant to
15 7 section 235B.18.
15 8 Sec. 18. Section 633.63, subsection 3, Code 2005, is
15 9 amended to read as follows:
15 10 3. A private nonprofit corporation organized under chapter
15 11 504, Code 1989, or current chapter 504 or 504A is qualified to
15 12 act as a guardian, as defined in section 633.3, subsection 20,
15 13 or a conservator, as defined in section 633.3, subsection 7,
15 14 where the assets subject to the conservatorship at the time
15 15 when such corporation is appointed conservator are less than
15 16 or equal to seventy=five thousand dollars and if the
15 17 corporation does not possess a proprietary or legal interest
15 18 in an organization which provides direct services to the
15 19 individual.
15 20 Sec. 19. Section 633.63, Code 2005, is amended by adding
15 21 the following new subsection:
15 22 NEW SUBSECTION. 4. The state or a local substitute
15 23 decision maker as defined in section 231E.3 is authorized to
15 24 act in a fiduciary capacity in this state in accordance with
15 25 chapter 231E.
15 26 Sec. 20. NEW SECTION. 633.636A REGISTRATION == GUARDIANS
15 27 AND CONSERVATORS.
15 28 A person appointed as a guardian or conservator shall
15 29 register such appointment with the secretary of state within
15 30 fifteen days of the appointment pursuant to section 9J.1.
15 31 Sec. 21. NEW SECTION. 633.706A REGISTRATION.
15 32 A person designated as attorney in fact by a power of
15 33 attorney that becomes effective upon the disability of the
15 34 principal as described in section 633.705 and a person
15 35 designated as attorney in fact by a durable power of attorney
16 1 for health care pursuant to chapter 144B shall register with
16 2 the secretary of state pursuant to chapter 9J.
16 3 DIVISION XVIIIA
16 4 REGISTRATION OF REPRESENTATIVE PAYEE
16 5 Sec. 22. NEW SECTION. 633.712 REGISTRATION OF
16 6 REPRESENTATIVE PAYEE.
16 7 A person acting as a representative payee pursuant to
16 8 federal law and regulations shall register with the secretary
16 9 of state pursuant to chapter 9J within thirty days of the
16 10 person's appointment.
16 11 Sec. 23. STATE AND LOCAL OFFICES OF SUBSTITUTE DECISION
16 12 MAKER == INITIAL SITES == APPROPRIATION. There is
16 13 appropriated from the general fund of the state to the
16 14 department of elder affairs for the fiscal year beginning July
16 15 1, 2005, and ending June 30, 2006, the following amount, or so
16 16 much thereof as is necessary, for the purposes designated, and
16 17 for not more than the following full=time equivalent
16 18 positions:
16 19 For the state office of substitute decision maker and for
16 20 the establishment of two local offices of substitute decision
16 21 maker, pursuant to chapter 231E. One local office shall be
16 22 located in a rural area and one local office shall be located
16 23 in an urban area:
16 24 .................................................. $ 689,600
16 25 ............................................... FTEs 3.00
16 26 EXPLANATION
16 27 This bill establishes a state office of substitute decision
16 28 maker within the department of elder affairs and additionally
16 29 provides for the establishment of local offices within each of
16 30 the department planning and service areas by July 1, 2015.
16 31 The bill provides findings and intent and definitions. The
16 32 bill establishes the office of substitute decision maker to
16 33 provide substitute decision=making services, which include the
16 34 services of a guardian, conservator, representative payee,
16 35 attorney in fact under a power of attorney, and personal
17 1 representative for estates, to adults and estates for whom or
17 2 which no other substitute decision maker is available to
17 3 provide the services.
17 4 The bill specifies the duties of the state office, the
17 5 state substitute decision maker, and the local offices. The
17 6 bill specifies the requirements for the appointing of the
17 7 state or a local substitute decision maker as a guardian or
17 8 conservator and provides that the requirements for a guardian
17 9 or conservator established in Code chapter 633 (probate code)
17 10 apply to the state or a local substitute decision maker acting
17 11 in that capacity.
17 12 The bill provides for the establishment of fees for the
17 13 services of the state or a local substitute decision maker,
17 14 which may be based on income, and provides that the fees
17 15 collected are to be deposited in the general fund of the state
17 16 and are appropriated to the department of elder affairs for
17 17 the purposes of administering the chapter.
17 18 The bill provides limitations on the provision of direct
17 19 services by or the appearance of any conflict of interest on
17 20 the part of a local substitute decision maker to or toward an
17 21 individual for whom the local substitute decision maker is
17 22 acting in a substitute decision=making capacity.
17 23 The bill establishes a substitute decision=maker advisory
17 24 council to recommend policy and ensure that the purposes of
17 25 the offices are carried out.
17 26 The bill also includes provisions directing the attorney
17 27 general to advise the state office on legal matters and
17 28 represent the state office in legal proceedings and directing
17 29 that the county attorney may represent the state or local
17 30 offices in guardianship and conservatorship proceedings. The
17 31 bill also provides that a local attorney experienced in
17 32 probate matters may represent the personal representative for
17 33 matters associated with probating an estate. The bill
17 34 provides that employees and volunteers of the offices are
17 35 considered employees of the state and state volunteers under
18 1 the state tort claims Act, and provides that certain
18 2 information is to be collected in the form of reports and
18 3 allows certain information to be shared. The bill provides
18 4 for the sharing of information regarding founded cases of
18 5 dependent adult abuse with the state and local offices if
18 6 appointed as a guardian or conservator of the adult named in
18 7 the report as the victim of abuse or if designated as the
18 8 person responsible for obtaining protective services for the
18 9 adult named in the report as the victim of abuse.
18 10 The bill provides for the registering of guardians,
18 11 conservators, representative payees, and attorneys in fact
18 12 with the secretary of state and provides for collection of
18 13 fees and the retaining and appropriation of fees collected to
18 14 be used for a substitute decision=makers program.
18 15 The bill provides an appropriation for FY 2005=2006 for the
18 16 state office and for the establishment of two local offices.
18 17 LSB 1569HH 81
18 18 pf:rj/pj/5