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Senate Study Bill 1242 - IntroducedA Bill ForAn Act 1relating to guardianships and conservatorships
2for adults and minors and providing for jurisdiction,
3definitions, proceedings, administration, and closing, and
4including effective date and applicability provisions.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2guardianships and conservatorships
3 Section 1. NEW SECTION. 633F.1 Jurisdiction.
41. The juvenile court shall have exclusive, original
5jurisdiction of all proceedings governing minor guardianships
6for petitions filed on or after January 1, 2020. Prior to
7January 1, 2020, the district court shall have exclusive,
8original jurisdiction of all proceedings governing minor
9guardianships. Existing minor guardianships as of January 1,
102020, shall be transferred to the juvenile court if requested
11by the protected person’s attorney, parent, or guardian, or if
12directed by the court.
132. Proceedings governing the appointment of conservators
14and the appointment of guardians for adults; the granting of
15letters of conservatorship and the granting of letters of
16guardianship for adults; and the administration, settlement,
17and closing of conservatorships and the administration,
18settlement, and closing of guardianships for adults shall be in
19district court, unless moved elsewhere by a court order.
20 Sec. 2. NEW SECTION. 633F.2 Definitions and use of terms.
21When used in this chapter, unless otherwise required by the
22context, the following words and phrases shall be construed as
23follows:
241. “Adult” means an individual eighteen years of age or
25older.
262. “Clerk” means clerk of the court in the county in which
27the matter is pending.
283. “Conservator” means a person appointed by the court to
29have the custody and control of the property of a protected
30person.
314. “Court” means the Iowa district court sitting in probate
32and includes any Iowa district court judge and any Iowa
33district associate court judge or associate probate judge,
34and the Iowa juvenile court, and includes any Iowa juvenile
35judge and Iowa associate juvenile judge, presiding over minor
-1-1guardianships.
25. “Court advisor” means a person appointed by the court to
3investigate and report information relevant to a guardianship
4or conservatorship proceeding.
56. “Demonstrated lack of consistent parental participation”
6means the refusal or inability of a parent to comply with
7the duties and responsibilities imposed upon a parent by
8the parent-child relationship, including but not limited to
9providing the minor with necessary food, clothing, shelter,
10health care, education, and other care and supervision
11necessary for the minor’s physical, mental, and emotional
12health and development.
137. “Fiduciary” includes guardian and conservator.
148. “Full age” means the state of legal majority attained by
15having arrived at the age of eighteen years; having married,
16even if such marriage has been terminated by divorce; or
17having been declared to be emancipated by a court of competent
18jurisdiction.
199. “Functional limitations” means the behavior or condition
20of a person which impairs the person’s ability to care for
21the person’s personal safety, to attend to or provide for
22necessities for the person, or to make, communicate, or carry
23out important decisions concerning the person’s financial
24affairs.
2510. “Guardian” means the person appointed by the court to
26have the custody of the protected person under the provisions
27of this chapter.
2811. “Legal custody” means an award to a parent or guardian
29under which a parent or guardian has custodial rights and
30responsibilities toward a minor child, which includes
31decision making affecting the child’s legal status, medical
32care, education, extracurricular activities, and religious
33instruction.
3412. “Legal representative” includes an attorney; guardian;
35conservator; a person appointed under power of attorney;
-2-1court-appointed custodian; representative payee for social
2security purposes, veterans affairs benefits, or any other
3representative receiving federal or state benefits on behalf of
4a protected person; trustee; or federal fiduciary.
513. “Limited conservatorship” means a conservatorship
6that grants the conservator less than all powers available
7under this chapter or otherwise restricts the powers of the
8conservator.
914. “Limited guardianship” means a guardianship that grants
10the guardian less than all powers available under this chapter
11or otherwise restricts the powers of the guardian.
1215. “Loyalty” means actions solely in the best interests of
13a protected person and with due regard to a protected person’s
14wishes.
1516. “Minor” means an unmarried individual under the age
16of eighteen years who has not become emancipated pursuant to
17chapter 232C.
1817. “Parent” means a biological or adoptive mother or
19father of a child; or an individual whose parental status has
20been established by operation of law due to the individual’s
21marriage to the mother at the time of conception or birth of
22the child, by order of a court of competent jurisdiction, or by
23an administrative order when authorized by state law. “Parent”
24does not include a mother or father whose parental rights have
25been terminated.
2618. “Person” includes natural persons and corporations.
2719. “Property” includes both real and personal property.
2820. “Protected person” means the person for whom a guardian
29or conservator has been appointed, or who is a respondent in a
30proceeding under this chapter.
3121. “Prudence” means being careful in the way a conservator
32makes decisions or spends money so that the conservator
33avoids unnecessary risk by considering the purposes, terms,
34distribution requirements, and other circumstances of the
35conservatorship.
-3- 122. “Respondent” means the proposed protected person,
2including a person who is the subject of other proceedings
3under this chapter.
4 Sec. 3. NEW SECTION. 633F.3 Applicability of chapter 633.
5All relevant provisions of the probate code, chapter 633,
6shall apply to proceedings to the extent not inconsistent with
7the provisions of this chapter.
8 Sec. 4. NEW SECTION. 633F.4 Venue.
91. Venue for proceedings under this subchapter shall be in
10the judicial district where the minor customarily resides at
11the time the proceeding is initiated. The court may transfer
12any minor guardianship proceeding brought under this subchapter
13to the juvenile court of another county if the court determines
14one of the following:
15a. Such a transfer is in the best interest of the minor
16and will assist the court in monitoring and reviewing the
17guardianship.
18b. The respondent minor and the guardian consent to the
19transfer and the court finds good cause for the transfer.
202. The court shall transfer the case by ordering the
21transfer and a continuance by forwarding to the clerk of the
22receiving court a certified copy of all papers filed together
23with an order of transfer. The judge of the receiving court
24shall either accept the filings of the transferring court, or
25direct the filing of a new petition upon a finding that it
26would be in the minor respondent’s best interest to do so.
27 Sec. 5. NEW SECTION. 633F.5 Petition for appointment of
28guardian for a minor.
291. Any adult, or minor at least fourteen years of age for
30whom the petition is sought, may file with the clerk a verified
31petition for the appointment of a guardian of a minor. The
32petition shall include all of the following:
33a. The petitioner’s name, residential and electronic mail
34addresses, and the relationship of the petitioner to the
35respondent.
-4- 1b. The respondent’s name, date of birth, county of
2residence, and, to the extent known, the following: place of
3residence, address, and the address of any other residence and
4the name and address of any facility at which the respondent
5has resided within the six-month period before the filing of
6the petition.
7c. To the extent known, the names, residential and
8electronic mail addresses, and phone numbers of all of the
9following persons:
10(1) The respondent’s parents, if any.
11(2) The respondent’s adult siblings.
12(3) If none of the previous, then at least one adult nearest
13in kinship to the respondent.
14(4) Any adult who has had the primary care or custody of the
15respondent or with whom the respondent has resided within six
16months immediately prior to the filing of the petition, if any.
17(5) Any attorney or other legal representative of the
18respondent.
19(6) Any attorney or other legal representative of the
20respondent’s parents.
21d. The name and address of any qualified and suitable
22proposed guardian and the reason the court should accept the
23proposed guardian.
24e. The reasons why a guardianship is sought and would be in
25the best interests of the respondent.
26f. The powers to be granted to the guardian and whether a
27limited guardianship is appropriate.
28g. Whether the petitioner seeks a change of the respondent’s
29residence or school district.
30h. To the extent known, a statement of any other proceedings
31concerning the care or custody of the respondent pending in any
32court in this state or any other jurisdiction.
332. Except as required by section 633F.6, any persons
34identified pursuant to subsection 1, paragraph “c”, are not
35entitled to notice of the filing of the petition.
-5- 13. If a minor guardianship proceeding under this chapter
2pertains to an Indian child as defined in section 232B.3 and
3the proceeding is subject to the Iowa Indian child welfare Act
4under chapter 232B, the proceeding and other actions taken in
5connection with the proceeding shall comply with chapter 232B.
64. The information required by section 598B.209 shall be
7contained as part of the petition or in an attached affidavit
8to the petition.
9 Sec. 6. NEW SECTION. 633F.6 Notice to minor respondent.
101. If the respondent is at least fourteen years of age
11and subsection 3 does not apply, notice of the filing of the
12petition and the order appointing counsel for the respondent
13and setting hearing on the petition shall be served upon the
14respondent in the manner of an original notice and the content
15of the notice is governed by the rules of civil procedure
16governing original notice. If the respondent has retained an
17attorney or an attorney has been appointed by the court for the
18respondent, the petitioner shall provide the respondent and the
19respondent’s attorney with a copy of the original notice.
202. If the respondent has not attained the age of fourteen
21years of age or if subsection 3 applies, the petitioner shall
22serve such notice upon the respondent by mailing the attorney
23representing the respondent or the court advisor appointed in
24the proceeding, a copy of the original notice.
253. If the respondent is at least fourteen years of age and
26the court, for good cause shown, determines that the respondent
27should not be served an original notice as otherwise required
28under subsection 1, the respondent shall be served as provided
29in subsection 2.
304. Notice shall also be served upon the respondent’s known
31parents listed in the petition in the manner of an original
32notice and the parents’ attorney if appointed in accordance
33with section 633F.7.
345. As stated in the petition, notice shall also be mailed to
35all of the following persons:
-6- 1a. Any adult with whom the respondent has resided in the
2six-month period preceding the filing of the petition.
3b. If the respondent has no parents, to the respondent’s
4adult siblings, or if none, to at least one adult nearest in
5kinship to the respondent.
66. Any notice required to be mailed under this section
7shall conform to the requirements set forth in section 633.40,
8subsection 5.
9 Sec. 7. NEW SECTION. 633F.7 Attendance and participation at
10hearing for appointment of guardian for minor.
111. Unless excused by the court for good cause shown, the
12attorney for the respondent, the petitioner, and the proposed
13guardian shall attend the hearing on the petition.
142. The respondent shall be entitled to attend the hearing
15on the petition if the respondent is of an age appropriate
16to attend the hearing. A presumption shall exist that
17a respondent fourteen years of age or older is of an age
18appropriate to attend the hearing.
193. Any parent of a respondent has the right to attend such
20hearing.
214. A person may request permission to participate in such
22hearing. The court may grant the request, with or without
23hearing, on determining that it is in the best interests of the
24respondent. The court may impose appropriate conditions on the
25person’s participation.
26 Sec. 8. NEW SECTION. 633F.8 Preference for selection of
27guardian for a minor.
281. The court shall appoint as guardian a qualified and
29suitable person who is willing to serve subject to the
30preferences as to the appointment of a guardian set forth in
31subsections 2 and 3.
322. In appointing a guardian for a minor whose parents are
33deceased, the court shall give preference to a person, if
34qualified and suitable, nominated as guardian for the minor by
35a will that was executed by the parent or parents having legal
-7-1custody of the minor at the time of the parent’s or parents’
2death, and that was admitted to probate under chapter 633 or
3635 or delivered to the clerk under section 633.356.
43. In appointing a guardian for a minor, the court shall
5give preference, if qualified and suitable, to a person
6requested by a minor fourteen years of age or older.
7 Sec. 9. NEW SECTION. 633F.9 Standby petition for
8appointment of guardian for a minor.
91. An adult person having physical and legal custody of
10a minor may execute a verified petition for the appointment
11of a guardian of the minor upon the express condition that
12the petition shall be acted upon by the court only upon
13the occurrence of an event specified or the existence of a
14described condition of the mental or physical health of the
15petitioner, the occurrence of which event, or the existence of
16which condition, shall be established in the manner directed
17in the petition. The petition, in addition to containing
18the information required in section 633F.5, shall include a
19statement that the petitioner understands the result of a
20guardian being appointed for the minor. An appointment of a
21guardian for a minor shall only be effective until the minor
22attains full age.
232. A standby petition may nominate a person for appointment
24to serve as guardian as well as alternate guardians if the
25nominated person is unable or unwilling or is removed as
26guardian. The court in appointing the guardian shall appoint
27the person or persons nominated by the petitioner unless the
28person or persons are not qualified or for other good cause and
29shall give due regard to other requests and recommendations
30contained in the petition.
313. A standby petition may be deposited with the clerk of the
32county in which the minor resides or with any person nominated
33by the petitioner to serve as guardian.
344. A standby petition may be revoked by the petitioner
35at any time before appointment of a guardian by the court,
-8-1provided that the petitioner is of sound mind at the time
2of revocation. Revocation shall be accomplished by the
3destruction of the petition by the petitioner, or by the
4execution of an acknowledged instrument of revocation. If the
5petition has been deposited with the clerk, the revocation may
6likewise be deposited there.
75. If the standby petition has been deposited with the
8clerk under the provisions of subsection 3 and has not been
9revoked under the provisions of subsection 4, the petition
10may be filed with the court upon the filing of a verified
11statement to the effect that the occurrence of the event or
12the condition provided for in the petition has occurred. If
13the petition has not been deposited with the clerk under the
14provisions of subsection 3 and has not been revoked under
15the provisions of subsection 4, then the petition shall be
16filed with the court at the time a verified statement that the
17occurrence of the event or the condition provided for in the
18petition has occurred is filed with the court in the county
19where the minor then resides. Upon filing of the petition and
20verified statement, the minor shall then become the respondent
21and the person filing the verified statement shall become the
22petitioner and the proceedings shall be thereafter conducted as
23provided for in this chapter.
24 Sec. 10. NEW SECTION. 633F.10 Appointment of guardian for a
25minor.
261. Upon the filing of the petition for appointment of a
27guardian for a minor, the court shall request records of child
28abuse, dependent adult abuse, sex offender registries, and
29criminal convictions, in the state of the proposed guardian’s
30residence unless the proposed guardian has undergone these
31required background checks within the prior twelve months.
32The court shall consider these records and other information
33regarding the proposed guardian that it deems appropriate prior
34to determining whether the proposed guardian is qualified
35and suitable to serve as guardian for the respondent. The
-9-1petitioner shall be responsible for paying the costs of
2obtaining background information described in this section
3unless the court waives such costs for good cause shown.
42. Prior to granting a petition for guardianship, the
5court shall consider whether the filing of a child in need of
6assistance petition is appropriate under section 232.87. If
7the court determines a child in need of assistance petition
8may be appropriate, the court shall notify the department of
9human services or the county attorney. The court may appoint a
10guardian for a respondent in a child in need of assistance case
11under section 232.101A, 232.103A, or 232.104.
12 Sec. 11. NEW SECTION. 633F.11 Appointment of guardian for
13a minor with parental consent.
141. The court shall appoint a guardian for a minor if the
15court finds all of the following:
16a. The parent or parents having legal custody of the minor
17understand the nature of the guardianship and knowingly and
18voluntarily consent to the guardianship.
19b. The minor is in need of a guardianship because of any of
20the following:
21(1) The parent having legal custody of the minor has a
22physical or mental illness that prevents the parent from
23providing care and supervision of the child.
24(2) The parent having legal custody of the minor is
25incarcerated.
26(3) The parent having legal custody of the minor is on
27active military duty.
28(4) The minor is in need of a guardianship for some other
29reason constituting good cause shown.
30c. Appointment of a guardian for the minor is in the best
31interest of the minor.
322. If the guardianship petition requests a guardianship
33with parental consent, the petition shall include an affidavit
34signed by the parent or parents verifying that the parent or
35parents knowingly and voluntarily consent to the guardianship.
-10-1The consent required by this subsection shall be on a form
2prescribed by the judicial branch.
33. On or before the date of the hearing on the petition,
4the parent or parents and the proposed guardian shall file
5an agreement with the court. This agreement shall state the
6following:
7a. The responsibilities of the guardian.
8b. The responsibilities of the parent or parents.
9c. The expected duration of the guardianship, if known.
104. If the court grants the petition, the court shall approve
11the guardianship agreement between the custodial parent and the
12proposed guardian and incorporate its terms by reference unless
13the court finds the agreement was not reached knowingly and
14voluntarily or is not in the best interests of the minor.
15 Sec. 12. NEW SECTION. 633F.12 Appointment of guardian for a
16minor without parental consent.
171. The court shall appoint a guardian for a minor without
18the consent of the parent or parents having legal custody of
19the minor if the court finds by clear and convincing evidence
20one of the following:
21a. Appointment of a guardian is in the best interest of
22the minor and no parent of the respondent is willing or able
23to adequately exercise the powers the court would grant to the
24guardian.
25b. The respondent has a person serving as de facto
26guardian, and the court finds a demonstrated lack of consistent
27participation in the respondent’s life by the parent or parents
28with legal custody after considering all of the following:
29(1) The intent and circumstances of the parent or parents
30when placing the respondent in the de facto guardian’s care and
31supervision.
32(2) The amount of communication and visitation by the parent
33or parents with the respondent while in the de facto guardian’s
34care and supervision.
35(3) Whether the parent or parents have refused to comply
-11-1with any conditions for retaining custody of the respondent in
2prior court orders.
32. In appointing a guardian, the court’s order shall address
4all of the following:
5a. Whether a limited guardianship is appropriate.
6b. Whether any terms of any agreement between the custodial
7parents or parents and the proposed guardian should be
8modified, or that the agreement was not reached knowingly and
9voluntarily.
10c. The reasons why the appointment of a guardian is in the
11respondent’s best interests.
12d. That all respondents have been provided with notice of
13the right to representation by an attorney, the right to be
14personally present in hearings on a petition, and evidence of
15whether notification was provided pursuant to the order on
16whether to appoint a guardian.
17e. The reporting period to be covered by the guardian’s
18first annual report.
193. A proceeding under this section shall not create a new
20eligibility category for the department of human services
21protective services.
22 Sec. 13. NEW SECTION. 633F.13 Representation for minor
23respondent.
241. Upon the filing of a petition for appointment of a
25guardian pursuant to section 633F.5, the court shall appoint
26an attorney for the minor, if the court determines that the
27interests of the minor are or may be inadequately represented.
282. An attorney representing the minor shall advocate for the
29wishes and views of the minor to the extent that those wishes
30and views are reasonably ascertainable and advocate for best
31interest of the minor if the wishes and views of the minor are
32not reasonably ascertainable.
33 Sec. 14. NEW SECTION. 633F.14 Representation for indigent
34parent or parents of minor respondent.
35Upon the filing of a petition for appointment of a guardian
-12-1pursuant to section 633F.5, the court shall appoint an attorney
2for the parent identified in the petition if all of the
3following are true:
41. The parent objects to the appointment of a guardian for
5the minor.
62. The parent requests appointment of an attorney and
7the court determines that the parent is unable to pay for an
8attorney in the same manner as in section 232.141.
9 Sec. 15. NEW SECTION. 633F.15 Emergency appointment of
10guardian for a minor.
111. The court may appoint a guardian for a minor ex parte
12only when the petitioner proves by clear and convincing
13evidence that an emergency exists justifying the need for an
14immediate appointment. This subsection does not apply to a
15protected person with an actively serving guardian. The order
16appointing a guardian under this section shall include a list
17of powers of the guardian, which powers shall be only such
18powers as the court deems necessary to address the emergency
19justifying the appointment.
202. The petition for emergency appointment must include the
21contents of section 633F.5, subsection 1, paragraphs “a”, “b”,
22“c”, and “d”.
233. Upon appointment as a guardian under this section,
24the guardian shall provide notice of such appointment to all
25persons required to be given notice under section 633F.6.
264. A protected person shall be entitled to a hearing within
27five days after the filing of a motion by the protected person
28asking that the emergency guardianship be terminated. A motion
29may also be filed by a legal representative of the protected
30person or a parent of the protected person.
315. A guardianship under this section shall terminate
32twenty-eight days after the order of appointment is entered.
33 Sec. 16. NEW SECTION. 633F.16 Duties of guardian for a
34minor.
351. A guardian for a minor is a fiduciary. Except as
-13-1otherwise limited by the court, a guardian for a minor has the
2duties and responsibilities of a parent regarding the minor’s
3safety, care, education, health, and welfare. A guardian shall
4act in the minor’s best interest and exercise reasonable care,
5diligence, and prudence.
62. A guardian of a minor shall do all of the following:
7a. Meet with and maintain sufficient contact with the
8minor to know of the minor’s abilities, limitations, needs,
9opportunities, and physical and mental health.
10b. Take reasonable care of the minor’s personal effects
11and may bring a proceeding for a conservatorship or protective
12arrangement instead of conservatorship, if necessary to protect
13other property of the minor.
14c. Inform the court of any change in the minor’s dwelling,
15address, or school district.
16d. In determining what is in the minor’s best interest, take
17into account the minor’s preferences to the extent actually
18known or reasonably ascertainable by the guardian.
19 Sec. 17. NEW SECTION. 633F.17 Powers of guardian for a
20minor.
211. Except as otherwise limited by the court, a guardian of
22a minor has the powers a parent would otherwise have regarding
23the minor’s safety, care, education, health, and welfare.
242. A guardian of a minor may do any of the following:
25a. If consistent with the terms of any order by a court
26of competent jurisdiction relating to custody of the minor,
27take custody of the minor and establish the minor’s place of
28dwelling, but shall not establish or move the minor’s dwelling
29outside the state without prior authorization of the court.
30b. Consent to and arrange for emergency and routine medical,
31dental or other care, treatment, or service for the minor.
32c. To the extent reasonable, delegate to the minor
33responsibilities for decisions affecting the minor’s
34well-being.
35d. Any other powers the court may specify.
-14- 13. The court may authorize a guardian of a minor to consent
2to adopt the minor who does not have a living parent.
34. A guardian of a minor may consent to the marriage of the
4minor upon receipt of prior court authorization.
5 Sec. 18. NEW SECTION. 633F.18 Petitions to transition from
6minor to adult guardianships.
7Within six months of a protected person’s eighteenth
8birthday, the guardian may petition the court to continue the
9guardianship beyond the protected person’s eighteenth birthday
10for the reasons stated in the guardian’s petition. The court
11shall set a hearing date on a petition under this section to
12be between twenty days after the order setting the hearing
13is entered, and sixty days before the protected person’s
14eighteenth birthday. The respondent shall be present at the
15hearing unless the court finds good cause for the absence of
16the respondent. If the respondent is not present, the court
17shall make a record of the lack of presence. The court shall
18make reasonable accommodations to enable the respondent to be
19present at the hearing. Notice of the hearing shall be mailed
20to all persons who would be entitled to notice of a hearing on
21a petition for guardianship by the same petitioner for the same
22respondent, if the respondent was of full age.
23 Sec. 19. NEW SECTION. 633F.19 Petition for appointment of
24guardian.
25Any adult person may file with the clerk a verified petition
26for the appointment of guardian. The petition shall state all
27of the following:
281. The petitioner’s name, address, and electronic mail
29address, the relationship of the petitioner to the respondent,
30and, to the extent known, all of the following:
31a. The respondent’s name, age, county of residence, place
32of residence, address, the address of any other residence, and
33the name and address of any facility at which the respondent
34has resided within the six-month period before the filing of
35the petition.
-15- 1b. The names and addresses of:
2(1) Respondent’s spouse and all adult children of the
3respondent.
4(2) If there are no persons in subparagraph (1), then
5respondent’s living parents and adult siblings.
6(3) If there are no persons in subparagraphs (1) and (2),
7then at least one adult nearest in kinship to the respondent.
8(4) If there are no persons in subparagraphs (1) through
9(3), then any adults with whom the respondent has resided
10within the six months before the filing of the petition.
11(5) Any legal representative of the respondent.
12(6) Any person nominated as guardian by the respondent and
13the document in which the person was nominated.
142. The name and address of any proposed guardian and the
15reason the court should accept the proposed guardian.
163. The reasons why the guardianship is necessary, including
17a brief description of the respondent’s alleged functional
18limitations which make the respondent unable to care for the
19respondent’s personal safety or to attend to or provide for
20necessities such as food, shelter, clothing, or medical care,
21without which physical injury or illness may occur.
224. Whether the petitioner seeks a change of the respondent’s
23residence.
245. The powers to be granted to the guardian and the reasons
25a limited guardianship is inappropriate.
266. That a guardianship is the least restrictive means to
27protect the best interests of the respondent.
287. Whether the respondent is capable of requesting an
29attorney and whether appointment of a court advisor is
30appropriate.
318. Except as required by section 633F.20, any persons
32identified pursuant to subsection 1, paragraph “b”, are not
33entitled to notice of hearings on the petition.
34 Sec. 20. NEW SECTION. 633F.20 Notice to respondent.
351. Except where the respondent is the petitioner, notice of
-16-1the filing of a petition to appoint a guardian shall be served
2upon the respondent in the manner of an original notice and
3the content of the notice is governed by the rules of civil
4procedure governing original notice.
52. Notice shall also be mailed to the following persons, to
6the extent known to the petitioner:
7a. The respondent’s legal representative.
8b. The spouse and adult children of the respondent.
9c. If there are no persons in paragraphs “a” and “b”, then
10to the respondent’s adult grandchildren.
11d. If there are no persons in paragraphs “a” through “c”,
12then to the respondent’s parents and adult siblings.
13e. If there are no persons in paragraphs “a” through “d”,
14then to any adult with whom respondent has resided in the
15six-month period preceding the filing of the petition, and any
16adult who has assisted the respondent with decision making for
17such period.
18f. If there are no persons in paragraphs “a” through “e”,
19then at least one adult in the priority shown in section
20633.219.
213. Any notice required to be mailed under this section shall
22conform to section 633.40, subsection 5.
23 Sec. 21. NEW SECTION. 633F.21 Notification of guardianship
24powers.
25 In a proceeding for the appointment of a guardian, the
26respondent shall be given written notice, as provided in
27section 633F.20, which advises the respondent that, if
28a guardian is appointed, the guardian may, without court
29approval, provide for the care of the respondent, manage
30the respondent’s personal property and effects, assist
31the respondent in developing self-reliance and receiving
32professional care, counseling, treatment, or services as
33needed, and ensure that the respondent receives necessary
34emergency medical services. The notice shall also advise
35the respondent that, upon the court’s approval, the guardian
-17-1may change the respondent’s permanent residence to a more
2restrictive residence. The notice shall also advise the
3respondent that, without court approval, the guardian may
4arrange for certain routine medical procedures for the
5respondent. The notice shall clearly advise the respondent in
6boldface type of a minimum size of ten points, of the right
7to counsel and the potential deprivation of the respondent’s
8civil rights. The notice shall also state that the respondent
9may use the respondent’s own attorney instead of an attorney
10appointed by the court.
11 Sec. 22. NEW SECTION. 633F.22 Appointment of guardian.
121. If the court finds by clear and convincing evidence
13that the respondent’s decision-making capacity is so impaired
14that the respondent is unable to care for the respondent’s
15personal safety or to attend to or provide for the respondent’s
16necessities such as food, shelter, clothing, or medical
17care, without which physical injury or illness may occur, and
18the court finds there are no less restrictive alternatives
19that will protect the respondent, the court shall appoint a
20guardian.
212. In appointing a guardian, the court shall consider the
22functional abilities and limitations of the respondent and
23whether a limited guardianship is appropriate.
243. If the court appoints a guardian for a respondent who has
25been diagnosed as having an intellectual disability, the court
26shall make a separate determination as to the respondent’s
27competency to vote. The court shall find a respondent
28incompetent to vote only upon determining that the person lacks
29sufficient mental capacity to comprehend and exercise the right
30to vote.
314. Upon the filing of the petition for appointment of a
32guardian, the court shall request records of child abuse,
33dependent adult abuse, sex offender registries, and criminal
34convictions, in the state of the proposed guardian’s residence
35unless the proposed guardian has undergone these required
-18-1background checks within the prior twelve months. The court
2shall consider these records and other information regarding
3the proposed guardian that it deems appropriate prior to
4determining whether the proposed guardian is qualified
5and suitable to serve as guardian for the respondent. The
6petitioner shall be responsible for paying the costs of
7obtaining background information described in this subsection
8unless the court waives such costs for good cause shown.
95. In appointing a guardian, the court’s order shall address
10all of the following:
11a. Whether a limited guardianship is appropriate.
12b. The reasons why the appointment of a guardian is in the
13respondent’s best interests.
14c. That the respondent has been provided with notice of
15the right to representation by an attorney, the right to be
16personally present in hearings on a petition, and evidence of
17whether notification was provided pursuant to the order on
18whether to appoint a guardian.
19d. The reporting period to be covered by the guardian’s
20first annual report.
21 Sec. 23. NEW SECTION. 633F.23 Emergency appointment of
22guardian.
231. The court may appoint a guardian ex parte only when
24the petitioner proves by clear and convincing evidence that
25an emergency exists justifying the need for an immediate
26appointment. This subsection does not apply to a protected
27person with an actively serving guardian. The order appointing
28a guardian under this section shall include a list of powers
29of the guardian, which powers shall be only such powers as the
30court deems necessary to address the emergency justifying the
31appointment.
322. Upon appointment as a guardian under this section,
33the guardian shall provide notice of such appointment to all
34persons required to be given notice under section 633F.20.
353. A protected person shall be entitled to a hearing within
-19-1five days after the filing of a motion by the protected person
2asking that the emergency guardianship be terminated.
34. A guardianship under this section shall terminate
4twenty-eight days after the order of appointment is entered.
5 Sec. 24. NEW SECTION. 633F.24 Preference as to appointment
6of guardian.
7The court shall appoint as guardian a qualified and
8suitable person who is willing to serve in that capacity. The
9same person may be appointed to serve as both guardian and
10conservator.
11 Sec. 25. NEW SECTION. 633F.25 Appointment of guardian on a
12standby basis.
131. A petition for the appointment of a guardian on a standby
14basis may be filed by any adult person under the same procedure
15and requirements as provided in sections 633.596, 633.597,
16and 633F.41 for appointment of standby conservator, insofar
17as applicable. In all proceedings to appoint a guardian,
18the court shall consider whether a limited guardianship is
19appropriate.
202. If prior to the time of hearing on a petition for the
21appointment of a guardian or a conservator, a petition is
22filed under the provisions of this section or section 633F.19,
23633F.28, or 633F.41, subsection 1, the court shall combine the
24hearing on such petitions and determine who shall be appointed
25guardian or conservator, and such petition shall be triable to
26the court.
27 Sec. 26. NEW SECTION. 633F.26 Responsibilities of guardian.
281. A guardian is a fiduciary. A guardian shall have the
29following responsibilities:
30a. Treat protected persons with dignity and respect.
31b. Promote self-determination of the protected persons, to
32the extent reasonably possible, by involving them in decisions
33that affect them and by considering their wishes, values, and
34preferences in making decisions on their behalf.
35c. In making decisions for a protected person, make the
-20-1decisions known or reasonably believed the protected person
2would make if able unless such a decision would unreasonably
3harm or endanger the protected person’s welfare or interest.
4If the guardian does not know or cannot reasonably ascertain
5the decisions that the protected person would make if able, or
6if making such a decision would unreasonably harm or endanger
7the protected person’s welfare, the guardian shall act in the
8protected person’s best interest.
9d. Maintain regular contact with the protected person to the
10extent reasonably possible.
11e. Make a good-faith effort to cooperate with other legal
12representatives of the protected person.
132. Based upon evidence produced at the hearing, the court
14may grant a guardian the following powers and duties which may
15be exercised without additional court approval:
16a. Providing for the care, comfort, and maintenance of the
17protected person, including appropriate training and education
18to maximize the protected person’s potential.
19b. Taking reasonable care of the protected person’s
20clothing, furniture, vehicle, and other personal effects.
21c. Ensuring the protected person receives necessary
22emergency medical services.
23d. Ensuring the protected person receives appropriate
24professional care, counseling, and medical treatment and
25services limited to preventive and diagnostic services and
26treatment related to a specific illness, symptom, complaint,
27or injury.
28e. Changing the protected person’s permanent residence to an
29arrangement that is less restrictive of the protected person’s
30ability to leave or have visitors than the arrangement at the
31time of the guardian’s appointment.
32f. Placing reasonable time, place, or manner restrictions on
33communication, visitation, or interaction between the protected
34person and another person.
35g. Any other powers or duties the court may specify.
-21- 13. The court in issuing any order shall take into account
2all the available information concerning the capabilities of
3the protected person including any additional evaluation deemed
4necessary and the availability of third-party assistance to
5meet the needs of the protected person.
64. The court may direct that the guardian have only limited
7responsibility for the protected person. If the responsibility
8is limited, the court shall state those areas of responsibility
9which shall be the guardian’s, and all others shall be retained
10by the protected person.
115. Following hearing and notice to the protected person and
12court advisor, the court, by specific reference to the power
13being granted, may authorize a guardian to exercise any of the
14following powers:
15a. Changing, at the guardian’s request, the protected
16person’s permanent residence to a nursing home, or other secure
17facility or secure portion of a facility, or a facility that
18restricts the protected person’s ability to leave or have
19visitors.
20b. Arranging for health, including mental health, or other
21care, treatment, or services for the protected person that were
22not granted in subsection 2.
23c. Consenting to the withholding or withdrawal of
24life-sustaining procedures in accordance with chapter 144A for
25the protected person.
26d. Upon a showing to the court of good cause, denying all
27communication, visitation, or interaction by the protected
28person with a person with whom the protected person has
29expressed a desire to communicate, visit, or interact, or with
30a person who seeks to communicate, visit, or interact with the
31protected person.
326. If the court makes a separate determination that the
33protected person lacks sufficient mental capacity to comprehend
34and exercise the right to vote then the court shall order that
35the protected person may not vote without further order of the
-22-1court.
27. If the court makes a separate determination that the
3protected person lacks sufficient mental capacity to contract a
4valid marriage then the court shall order that the protected
5person may not marry without further order of the court.
6 Sec. 27. NEW SECTION. 633F.27 Rights of protected person
7under guardianship.
8An adult protected person under a guardianship has the right
9of communication, visitation, or interaction with other persons
10upon the consent of the adult protected person, subject to
11section 633F.26, subsection 2, paragraph “f”. If an adult
12protected person is unable to give express consent to such
13communication, visitation, or interaction with a person due to
14a physical or mental condition, consent of an adult protected
15person may be presumed by a guardian or a court based on an
16adult protected person’s prior relationship with such person.
17 Sec. 28. NEW SECTION. 633F.28 Petition for appointment of
18conservator.
191. Any adult person may file with the clerk a verified
20petition for the appointment of a conservator. The petition
21shall state all of the following information:
22a. The petitioner’s name, address, and electronic mail
23address, and relationship to the respondent.
24b. To the extent known, the respondent’s name, age, county
25of residence, mailing address, and current location.
26c. To the extent known, the name, address, electronic mail
27address, and phone number of the following persons:
28(1) The respondent’s spouse, if any, and respondent’s adult
29children.
30(2) If there are no persons in subparagraph (1), the
31respondent’s living parents and adult siblings.
32(3) If there are no persons in subparagraphs (1) and (2),
33then, one or all of the below:
34(a) Any adult with whom the respondent has resided in a
35noninstitutional setting for more than six months immediately
-23-1prior to the filing of the petition, if any.
2(b) Any person or institution primarily responsible for the
3care or having custody of the respondent, if any.
4(4) Any nominated or presently acting legal representative
5of the respondent.
62. Any person nominated as conservator by the respondent,
7and the document in which the person was nominated.
83. The name and address of any proposed conservator, and
9the reasons the court should accept the proposed conservator.
10If the respondent has nominated a conservator other than the
11proposed conservator, the reasons the proposed conservator
12should be appointed in lieu of the respondent’s nominee.
134. The reasons why the conservatorship is necessary,
14including a brief description of the respondent’s alleged
15functional limitations which make the respondent unable to
16make, communicate, or carry out important decisions concerning
17the respondent’s financial affairs.
185. A list of what alternatives to the appointment of a
19conservator have been considered or attempted and why these
20alternatives do not address the limitations in the respondent’s
21ability to make, communicate, or carry out the respondent’s
22financial decisions.
236. The powers to be granted to the limited conservator, or,
24the reasons a limited conservatorship is inappropriate.
257. The estimated present value of the real estate, the
26estimated value of the personal property, and the estimated
27gross annual income of the estate. If any money is payable,
28or to become payable, to the respondent by the United States
29through the United States department of veterans affairs, the
30petition shall so state.
318. Whether the respondent is capable of requesting an
32attorney and whether appointment of a court advisor is
33appropriate.
349. Except as required by section 633F.20, any persons
35identified pursuant to section 1, paragraph “c”, are not
-24-1entitled to notice of hearings on the petition.
2 Sec. 29. NEW SECTION. 633F.29 Notice to respondent.
31. Except where the respondent is the petitioner, notice of
4the filing of the petition shall be served upon the respondent
5in the manner of an original notice and the content of the
6notice is governed by the rules of civil procedure governing
7original notice.
82. Notice shall be mailed to the following persons, to the
9extent known to the petitioner:
10a. The respondent’s legal representative.
11b. The spouse and adult children of the respondent.
12c. If there are no persons in paragraphs “a” and “b”, then
13to the respondent’s adult grandchildren.
14d. If there are no persons in paragraphs “a” through “c”,
15then to the respondent’s parents and adult siblings.
16e. If there are no persons in paragraphs “a” through “d”,
17then to any adult with whom the respondent has resided in the
18six-month period preceding the filing of the petition, and any
19adult who has assisted the respondent with decision making for
20such period.
21f. If there are no persons in paragraphs “a” through “e”,
22then at least one adult in the priority shown in section
23633.219.
243. Notice shall also be mailed to the United States
25department of veterans affairs in the event the respondent is
26receiving a veterans benefit.
274. Any notice required to be mailed hereunder shall conform
28to section 633.40, subsection 5.
29 Sec. 30. NEW SECTION. 633F.30 Notification of
30conservatorship powers.
31In a proceeding for the appointment of a conservator, the
32respondent shall be given written notice which advises the
33respondent that if a conservator is appointed, the conservator
34may, without court approval, manage the respondent’s principal,
35income, and investments, sue and defend any claim by or against
-25-1the respondent, sell and transfer personal property, and vote
2at corporate meetings. The notice shall also advise the
3respondent that, upon the court’s approval, the conservator
4may, after approval of the conservator’s plan and without
5further approval, invest the respondent’s funds, execute
6leases, make payments to or for the benefit of the respondent,
7support the respondent’s legal dependents, compromise or settle
8any claim, and do any other thing that the court determines
9is in the respondent’s best interests. The notice shall
10clearly advise the respondent, in boldface type of a minimum
11size of ten points, of the right to counsel and the potential
12deprivation of the respondent’s civil rights. The notice shall
13also state that the respondent may use the respondent’s own
14attorney instead of an attorney appointed by the court. In an
15involuntary conservatorship proceeding, the notice shall be
16served upon the respondent with the notice of the filing of the
17petition as provided in section 633F.29.
18 Sec. 31. NEW SECTION. 633F.31 Appointment of conservator.
191. If the court finds by clear and convincing evidence that
20the respondent’s functional limitations prevent the respondent
21from making, communicating, or carrying out important decisions
22concerning the respondent’s financial affairs, and the court
23finds there are no less-restrictive alternatives that will
24protect the respondent, the court shall appoint a conservator.
252. In appointing a conservator, the court shall consider
26the functional abilities and limitations of the respondent and
27whether a limited conservatorship is appropriate.
283. Upon the filing of the petition for appointment of a
29conservator, the court shall request records of child abuse,
30dependent adult abuse, sex offender registries, and criminal
31convictions, in the state of the proposed conservator’s
32residence unless the proposed conservator has undergone these
33required background checks within the prior twelve months,
34or unless the proposed conservator is an Iowa financial
35institution with trust powers. The court shall consider
-26-1these records and other information regarding the proposed
2conservator that it deems appropriate prior to determining
3whether the proposed conservator is qualified and suitable to
4serve as conservator for the respondent. The petitioner shall
5be responsible for paying the costs of obtaining background
6information described in this section unless the court waives
7such costs for good cause shown.
84. In appointing a conservator, the court’s order shall
9address all of the following:
10a. Whether a limited conservatorship is appropriate.
11b. The reasons why the appointment of a conservator is in
12the respondent’s best interests.
13c. That all respondents have been provided with notice of
14the right to representation by an attorney, the right to be
15personally present in hearings on a petition, and evidence of
16whether notification was provided pursuant to the order on
17whether to appoint a conservator.
18d. The reporting period to be covered by the conservator’s
19first annual report.
20 Sec. 32. NEW SECTION. 633F.32 Emergency appointment of
21conservator.
221. The court may appoint a conservator ex parte only when
23the petitioner proves by clear and convincing evidence that
24an emergency exists justifying the need for an immediate
25appointment. This subsection does not apply to a protected
26person with an actively serving conservator. The order
27appointing a conservator under this section shall include
28a list of powers of the conservator, which powers shall be
29only such powers as the court deems necessary to address the
30emergency justifying the appointment.
312. Upon appointment as a conservator under this section,
32the conservator shall provide notice of such appointment to all
33persons required to be given notice under section 633F.29.
343. A protected person shall be entitled to a hearing within
35five days after the filing of a motion by the protected person
-27-1asking that the emergency conservatorship be terminated.
24. A conservatorship under this section shall terminate
3twenty-eight days after the order of appointment is entered.
4 Sec. 33. NEW SECTION. 633F.33 Selection of conservator.
5The court shall appoint as conservator a qualified and
6suitable person who is willing to serve in that capacity. The
7same person may be appointed to serve as both guardian and
8conservator.
9 Sec. 34. NEW SECTION. 633F.34 Combining petitions for
10appointment of guardian and conservator.
111. The petition for the appointment of a guardian for an
12adult and a petition for a conservator for an adult may be
13combined and the cause tried in the same manner as a petition
14for the appointment of a conservator.
152. The petition for the appointment of a guardian for a
16minor and the petition for the appointment of a conservator of
17a minor shall not be combined.
18 Sec. 35. NEW SECTION. 633F.35 Powers of protected person
19in conservatorship.
201. A protected person for whom a conservator has been
21appointed shall not have the power to convey, encumber, or
22dispose of property in any manner, other than by will if the
23protected person possesses the requisite testamentary capacity,
24unless the court determines that the protected person has a
25limited ability to handle the protected person’s own funds. If
26the court makes such a finding, it shall specify to what extent
27the protected person may possess and use the protected person’s
28own funds.
292. Any modification of the powers of the protected person
30that would be more restrictive of the protected person’s
31control over the protected person’s financial affairs shall
32be based upon clear and convincing evidence and the burden of
33persuasion is on the conservator. Any modification that would
34be less restrictive of the protected person’s control over the
35protected person’s financial affairs shall be based upon proof
-28-1in accordance with the requirements of section 633F.55.
2 Sec. 36. NEW SECTION. 633F.36 Title and possession of
3protected person’s property.
41. The title to all property of the protected person is
5in the protected person and not the conservator, subject,
6however, to possession by the conservator and to the control of
7the court for the purposes of administration, sale, or other
8disposition. Any real property of the protected person titled
9at any time in the name of a conservatorship shall be deemed
10to be titled in the protected person’s name subject to the
11conservator’s right of possession.
122. Every conservator shall have a right to, and shall take,
13possession of all of the real and personal property of the
14protected person. The conservator shall pay the taxes and
15collect the income from the property until the conservatorship
16is terminated. The conservator may maintain an action for the
17possession of the property, and to determine the title to the
18property.
19 Sec. 37. NEW SECTION. 633F.37 Duties of conservator.
201. A conservator is a fiduciary and has duties of prudence
21and loyalty to the protected person.
222. A conservator shall promote the self-determination of
23the protected person and, to the extent feasible, encourage
24the protected person to participate in decisions, act on the
25protected person’s own behalf, and develop or regain the
26capacity to manage the protected person’s financial affairs.
273. In making decisions for a protected person, the
28conservator shall make the decision the conservator reasonably
29believes the protected person would make if able, unless doing
30so would fail to preserve the resources needed to maintain
31the protected person’s well-being and lifestyle or otherwise
32unreasonably harm or endanger the welfare or personal or
33financial interests of the protected person. To determine
34the decision the protected person would make if able, the
35conservator shall consider the protected person’s prior or
-29-1current directions, preferences, opinions, values, and actions,
2to the extent actually known or reasonably ascertainable by the
3conservator.
44. If a conservator cannot make a decision under subsection
53 because the conservator does not know and cannot reasonably
6determine the decision the protected person would make if
7able, or the conservator reasonably believes the decision the
8protected person would make would fail to preserve resources
9needed to maintain the protected person’s well-being and
10lifestyle or otherwise unreasonably harm or endanger the
11welfare or personal or financial interests of the protected
12person, the conservator shall act in accordance with the best
13interests of the protected person. In determining the best
14interests of the protected person, the conservator shall
15consider all of the following:
16a. Information received from professionals and persons that
17demonstrate sufficient interest in the welfare of the protected
18person.
19b. Other information the conservator believes the protected
20person would have considered if the protected person were able
21to act.
22c. Other factors a reasonable person in the circumstances
23of the protected person would consider, including consequences
24to others.
255. Except when inconsistent with the conservator’s duties
26under subsections 1 through 4, a conservator shall invest and
27manage the protected person’s assets as a prudent investor
28would, by considering the circumstances and property of the
29protected person.
306. The propriety of a conservator’s investment and
31management of the conservatorship estate is determined in light
32of the facts and circumstances existing when the conservator
33decides or acts and not by hindsight.
347. A conservator that has special skills or expertise,
35or is named conservator in reliance on the conservator’s
-30-1representation of special skills or expertise, has a duty
2to use the special skills or expertise in carrying out the
3conservator’s duties.
48. In investing and selecting specific property for
5distribution, a conservator shall consider any estate plan or
6other donative, nominative, or appointive instrument of the
7protected person, known to the conservator.
89. A conservator shall maintain insurance on the insurable
9real and personal property of the protected person, unless
10the conservatorship estate lacks sufficient funds to pay for
11insurance or the court finds any of the following:
12a. The property lacks sufficient equity to justify the
13insurance premium.
14b. Insuring the property would unreasonably dissipate the
15conservatorship estate.
16c. Insuring the property would not be in the best interest
17of the protected person.
1810. If a protected person has executed a valid power of
19attorney under chapter 633B, the conservator shall act in
20accordance with the applicable provisions of chapter 633B.
2111. The conservator shall report to the department of
22human services the protected person’s assets and income, if
23the protected person is receiving medical assistance under
24chapter 249A. Such reports shall be made upon establishment of
25a conservatorship for an individual applying for or receiving
26medical assistance, upon application for benefits on behalf
27of the protected person, upon annual or semiannual review of
28continued medical assistance eligibility, when any significant
29change in the protected person’s assets or income occurs, or
30as otherwise requested by the department of human services.
31Written reports shall be provided to the department of human
32services office for the county in which the protected person
33resides or the office in which the protected person’s medical
34assistance is administered.
35 Sec. 38. NEW SECTION. 633F.38 Powers of conservator.
-31- 11. The conservator, acting reasonably and consistent
2with the fiduciary duties of the conservator to accomplish
3the purpose of the conservatorship, and acting in a manner
4consistent with the conservator’s plan, and consistent with
5the order establishing the conservatorship, including any
6limitations in the order, shall, without the necessity of prior
7court approval, have all the following powers on behalf of the
8protected person:
9a. Collect, receive, receipt for any principal or income,
10and to enforce, defend against, or prosecute any claim by or
11against the protected person or the conservator; and to sue on
12and defend claims in favor of or against the protected person
13or the conservator.
14b. Sell and transfer personal property of a perishable
15nature and tangible personal property for which there is a
16regularly established market.
17c. Vote at corporate meetings in person or by proxy.
18d. Receive additional property from any source.
19e. Notwithstanding the provisions of section 633.123,
20continue to hold any investment or other property originally
21received by the conservator, and also any increase thereof,
22pending the timely filing of the first annual report.
23f. Pay court costs, bond premiums, and court-approved
24expenses.
25g. Open a depository account.
26h. Receive bank statements and investment reports and
27correspond with financial institutions.
28i. Buy, sell, invest, or reinvest assets, except real
29estate, pursuant to section 633.123.
30j. Make payments on any existing mortgage, including for
31real estate taxes and for property and liability insurance.
32k. Pay for the protected person’s housing under an existing
33agreement.
34l. Pay health care insurance premiums and prescription
35medications, medical expenses, hospital expenses, and ambulance
-32-1bills.
2m. Authorize preparation and filing of, and pay any amount
3due for, state and federal income taxes.
4n. Pay utilities on the real property owned or leased by the
5protected person.
6o. Purchase clothing.
7p. Purchase food, cleaning supplies, toiletries, and
8personal grooming for the protected person.
9q. Reimburse the guardian or guardians for reasonable
10out-of-pocket expenses advanced on behalf of the protected
11person for health care and other items upon presentation of a
12receipt or statement to the conservator.
13r. Pay reasonable wages and any required employment taxes
14to individuals or organizations that can assist the protected
15person as needed with cooking, cleaning, shopping, and other
16activities of daily living.
172. Except as otherwise ordered by the court, a conservator
18must give notice to persons entitled to notice and receive
19specific prior authorization by the court before the
20conservator may take any other action on behalf of the
21protected person. These other powers requiring court approval
22include the authority of the conservator to:
23a. Invest the protected person’s assets consistent with
24section 633.123.
25b. Make gifts on the protected person’s behalf from
26conservatorship assets to persons or religious, educational,
27scientific, charitable, or other nonprofit organizations to
28whom or to which such gifts were regularly made prior to the
29conservator’s appointment; or on a showing that such gifts
30would benefit the protected person from the perspective of
31gift, estate, inheritance, or other taxes. No gift shall be
32allowed which would foreseeably prevent adequate provision for
33the protected person’s best interest.
34c. Make payments consistent with the conservator’s plan
35described above directly to the protected person or to others
-33-1for the protected person’s education and training needs.
2d. Use the protected person’s income or assets to provide
3for any person that the protected person is legally obligated
4to support.
5e. Compromise, adjust, arbitrate, or settle any claim by or
6against the protected person or the conservator.
7f. Make elections for a protected person who is the
8surviving spouse as provided in sections 633.236 and 633.240.
9g. Exercise the right to disclaim on behalf of the protected
10person as provided in section 633E.5.
11h. Sell, mortgage, exchange, pledge, or lease the protected
12person’s real and personal property consistent with subchapter
13VII, part 6 of chapter 633 regarding sale of property from a
14decedent’s estate.
15 Sec. 39. NEW SECTION. 633F.39 Presumption of fraud in
16conservatorship.
17If a conservator is appointed, all contracts, transfers,
18and gifts made by the protected person after the filing of the
19petition shall be presumed to be a fraud against the rights and
20interest of the protected person except as otherwise directed
21by the court pursuant to section 633.637.
22 Sec. 40. NEW SECTION. 633F.40 Procedure in lieu of
23conservatorship.
24If a conservator has not been appointed, money due a minor or
25other property to which a minor is entitled, not exceeding in
26the aggregate fifty thousand dollars in value, shall be paid
27or delivered to a custodian under any uniform transfers to
28minors Act. The written receipt of the custodian constitutes
29an acquittance of the person making the payment of money or
30delivery of property.
31 Sec. 41. NEW SECTION. 633F.41 Standby petition for
32appointment of conservator for adult.
331. Any adult person of sound mind may execute a verified
34petition for the appointment of a conservator of the person’s
35property upon the express condition that such petition shall
-34-1be acted upon by the court only upon the occurrence of an event
2specified or the existence of a described condition of the
3mental or physical health of the petitioner, the occurrence
4of which event, or the existence of which condition, shall
5be established in the manner directed in the petition. The
6petition, in addition to containing the information required in
7section 633F.28, shall include a statement in substantially the
8language of section 633F.30 that the petitioner understands the
9result of a conservator being appointed for the petitioner.
102. Such petition may nominate a person for appointment to
11serve as such conservator as well as alternate conservators
12if the nominated person is unable or unwilling or is removed
13as conservator, and may request that the appointment be made
14without bond, or with bond of a certain stated sum. The
15court in appointing the conservator shall appoint the person
16or persons nominated by the petitioner unless the person or
17persons are not qualified or for other good cause and shall
18give due regard to other requests and recommendations contained
19in the petition.
203. Such petition may be deposited with the clerk of the
21county in which the party resides, or with any person, firm,
22bank, or trust company nominated by the petitioner.
234. Such petition may be revoked by the petitioner at any
24time before appointment of a conservator by the court, provided
25that the petitioner is of sound mind at the time of revocation.
26Revocation shall be accomplished by the destruction of
27the petition by the petitioner, or by the execution of an
28acknowledged instrument of revocation. If the petition has
29been deposited with the clerk, the revocation may likewise be
30deposited there.
315. If the petition has been deposited with the clerk under
32the provisions of subsection 3 and has not been revoked, the
33petition may be filed with the court upon the filing of a
34verified statement to the effect that the occurrence of the
35event or the condition provided for in the petition has come
-35-1to pass. If the petition has not been deposited with the clerk
2under the provisions of subsection 3 and has not been revoked,
3then the petition shall be filed with the court at the time
4a verified statement that the occurrence of the event or the
5condition provided for in the petition has come to pass is
6filed with the court in the county where the petitioner then
7resides. Upon filing of the petition and verified statement,
8the person who filed the petition under subsection 1 shall
9then become the respondent and the person filing the verified
10statement under this subsection shall become the petitioner
11and the proceedings shall be thereafter conducted as provided
12for in sections 633F.29 through 633F.40, except as otherwise
13provided for in this section.
146. If prior to the time of hearing on a petition for the
15appointment of a guardian or a conservator, a petition is filed
16under the provisions of section 633F.19, 633F.25, 633F.28,
17or subsection 1 of this section, the court shall combine the
18hearing on such petitions and determine who shall be appointed
19guardian or conservator, and such petition shall be triable to
20the court.
21 Sec. 42. NEW SECTION. 633F.42 Standby petition for
22appointment of conservator for a minor.
231. An adult person having physical and legal custody of
24a minor may execute a verified petition for the appointment
25of a conservator of the minor upon the express condition
26that the petition shall be acted upon by the court only upon
27the occurrence of an event specified or the existence of a
28described condition of the mental or physical health of the
29petitioner, the occurrence of which event, or the existence of
30which condition, shall be established in the manner directed
31in the petition. The petition, in addition to containing
32the information required in section 633F.28, shall include
33a statement that the petitioner understands the result of a
34conservator being appointed for the minor. An appointment of a
35conservator for a minor shall only be effective until the minor
-36-1attains full age.
22. A standby petition may nominate a person for appointment
3to serve as such conservator as well as alternate conservator
4if the nominated person is unable or unwilling or is removed
5as conservator. The court in appointing the conservator shall
6appoint the person or persons nominated by the petitioner
7unless the person or persons are not qualified or for other
8good cause and shall give due regard to other requests and
9recommendations contained in the petition.
103. A standby petition may be deposited with the clerk of the
11county in which the minor resides or with any person nominated
12by the petitioner to serve as guardian.
134. A standby petition may be revoked by the petitioner at
14any time before appointment of a conservator by the court,
15provided that the petitioner is of sound mind at the time
16of revocation. Revocation shall be accomplished by the
17destruction of the petition by the petitioner, or by the
18execution of an acknowledged instrument of revocation. If the
19petition has been deposited with the clerk, the revocation may
20likewise be deposited there.
215. If the standby petition has been deposited with the
22clerk under the provisions of subsection 3 and has not been
23revoked under the provisions of subsection 4, the petition may
24be filed with the court upon the filing of a verified statement
25to the effect that the occurrence of the event or the condition
26provided for in the petition has come to pass. If the petition
27has not been deposited with the clerk under the provisions of
28subsection 3 and has not been revoked under the provisions of
29subsection 4, then the petition shall be filed with the court
30at the time a verified statement that the occurrence of the
31event or the condition provided for in the petition has come to
32pass is filed with the court in the county where the minor then
33resides. Upon filing of the petition and verified statement,
34the minor shall then become the respondent and the person
35filing the verified statement shall become the petitioner and
-37-1the proceedings shall be thereafter conducted as provided for
2in this chapter.
3 Sec. 43. NEW SECTION. 633F.43 Appointing conservator for
4absentee.
51. When a person owns property located in this state,
6the person’s whereabouts are unknown, and no provision for
7the care, control, and supervision of such property has been
8made, with the result that such property may be lost, damaged,
9or diminished in value, or that the dependents of such owner
10are likely to be deprived of means of support because of such
11absence, any adult person may file with the clerk a petition
12for the appointment of a conservator of such property of the
13absentee. The petition shall state the petitioner’s name,
14address, and electronic mail address, relationship to the
15absentee, and all of the following:
16a. The absentee’s name, county of residence, and last known
17address.
18b. To the extent known, the name, address, electronic mail
19address, and telephone number of the absentee’s:
20(1) Spouse, if any.
21(2) Adult children, or if the absentee has none, the
22absentee’s living parents and adult siblings.
23(3) If there are no persons in subparagraphs (1) and (2),
24then:
25(a) Any adult with whom the absentee has resided in a
26noninstitutional setting for more than six months immediately
27prior to the filing of the petition, if any.
28(b) Any person or institution primarily responsible for the
29care or having had custody of the absentee within six months
30immediately prior to the filing of the petition, if any.
31(4) Any nominated or presently acting legal representative
32of the absentee.
33(5) Any person nominated as conservator by the absentee and
34the document in which the person was nominated.
35c. The name and address of the proposed conservator, and the
-38-1reasons that the court should accept the proposed conservator.
2If the absentee has nominated a conservator other than the
3proposed conservator, the reasons that the proposed conservator
4should be appointed in lieu of the absentee’s nominee.
5d. The facts concerning the disappearance of the absentee,
6including the reasons why the conservatorship is necessary.
7e. A general description of the property of the absentee
8within this state and of the absentee’s right to receive
9property, the estimated value of the absentee’s real estate,
10the estimated value of the absentee’s personal property, and
11the estimated gross annual income of the property. If any
12money is payable, or to become payable, to the absentee by the
13United States through the United States department of veterans
14affairs, the petition shall so state.
15f. Except as required by section 633F.29, any persons
16identified pursuant to paragraph “b” of this section are not
17entitled to notice.
182. Notice of the filing of a petition under this section:
19a. Shall be served together with notice of the hearing on
20the petition on the absentee by publication in the manner of
21an original notice and the rules of civil procedure governing
22original notices by publication shall also govern such a notice
23as to content.
24b. Shall be mailed to the following persons, to the extent
25known to the petitioner:
26(1) The legal representative of the absentee.
27(2) The spouse and adult children of the absentee.
28(3) If there are no persons in subparagraphs (1) and (2),
29then to the absentee’s adult grandchildren.
30(4) If there are no persons in subparagraphs (1) through
31(3), then to the absentee’s parents and adult siblings.
32(5) If there are no persons in subparagraphs (1) through
33(4), then to any adults with whom the absentee has resided in
34the six-month period preceding the filing of the petition, and
35any adult who has assisted the absentee with decision making
-39-1in such period.
2(6) If there are no persons in subparagraphs (1) through
3(5), then at least one adult in the priority shown in section
4633.219.
5c. Notice of any other subsequent hearings related to the
6petition hereunder shall be mailed in conformity with section
7633.40, subsection 5.
83. In the event that the absentee does not appear at the
9hearing on the petition, the court shall hear the petition and
10the proof offered. All evidence shall be made part of the
11record of the proceeding. If the allegations of the petition
12are proved by clear and convincing evidence, the court shall
13appoint a conservator.
14 Sec. 44. NEW SECTION. 633F.44 Appointing foreign
15conservator.
161. When there is no conservatorship or pending application
17for a conservatorship in this state, the duly qualified foreign
18conservator or guardian of a nonresident protected person may,
19upon application, be appointed conservator of the property of
20the protected person in this state if a resident conservator is
21appointed to serve with the foreign conservator. However, for
22good cause shown, the court may appoint the foreign conservator
23to act alone without the appointment of a resident conservator.
242. The application for appointment of a foreign conservator
25or guardian as conservator in this state shall include the name
26and address of the nonresident protected person, and of the
27nonresident conservator or guardian, and the name and address
28of the resident conservator to be appointed, if applicable.
29The application shall be accompanied by a certified copy of
30the original letters or other authority conferring the power
31upon the foreign conservator or guardian to act as conservator
32or guardian. The application shall state the cause for
33the appointment of the foreign conservator to act as sole
34conservator, if applicable.
353. A foreign conservator or guardian of a nonresident may
-40-1be authorized by the court of the county where the protected
2person has personal property to receive the personal property
3upon compliance with the provisions of subsections 4, 5, and 6.
44. A foreign conservator or guardian shall file in the
5office of the clerk in the county where the property is
6situated a certified copy of the conservator’s or guardian’s
7official bond, if any, duly authenticated by the court granting
8the letters. The foreign conservator or guardian shall also
9execute a receipt for the property received by the conservator
10or guardian.
115. Upon the filing of the bond as provided in subsection
124, if the court determines that the amount of the bond is
13sufficient security, the court shall order the personal
14property of the protected person delivered to the foreign
15conservator or guardian.
166. The clerk shall record the bonds and the receipt,
17and notify by mail the court which granted the letters of
18conservatorship or guardianship of the amount of property
19delivered to the fiduciary and the date of delivery.
20 Sec. 45. NEW SECTION. 633F.45 Disposition of protected
21person’s will.
221. When a conservator receives an instrument purporting
23to be the will of the protected person, the conservator shall
24immediately deliver the instrument to the court.
252. Upon receiving an instrument purporting to be the
26will of a living protected person under this section, the
27court may open and read the instrument. The court, with or
28without notice, may enter orders in the conservatorship as the
29court deems advisable for the proper administration of the
30conservatorship in light of the expressed testamentary intent
31of the protected person.
323. An instrument purporting to be the will of a protected
33person that the court receives under this section shall then be
34resealed by the court and deposited with the clerk to be held
35by the clerk as provided in sections 633.286 through 633.289.
-41-1 Sec. 46. NEW SECTION. 633F.46 Claims against protected
2person or conservator.
31. Claims accruing before or after the appointment of
4the conservator, and whether arising in contract or tort or
5otherwise, after being allowed or established as provided in
6subsections 3 through 5, shall be paid by the conservator from
7the assets of the conservatorship.
82. The provision of medical care or services to a protected
9person who is a recipient of medical assistance under chapter
10249A creates a claim for the amount owed to the provider under
11the medical assistance program for the care or services. The
12amount of the claim, after being allowed or established as
13provided in this subchapter, shall be paid by the conservator
14from the assets of the conservatorship.
153. A claim shall not be allowed against a protected person’s
16conservatorship unless the claim is in writing, filed with the
17clerk, states the claimant’s name and address, and describes
18the nature and the amount of the claim, if ascertainable. The
19claim shall be accompanied by the affidavit of the claimant,
20or of someone for the claimant, that the amount is justly due,
21or if not due, when the amount will or may become due, that no
22payments have been made on the amount which are not credited,
23and that there are no offsets against the amount, to the
24knowledge of the affiant, except as stated in the claim. Valid
25contract claims arising in the ordinary course of the conduct
26of the business or affairs of the protected person by the
27conservator may be paid by the conservator without requiring
28affidavit or filing.
294. If a claim is founded upon a written instrument, the
30original or a copy of the instrument, with all endorsements,
31must be attached to the claim. The original instrument must be
32shown to the conservator or to the court, upon demand, unless
33the original instrument has been lost or destroyed, in which
34case, the original instrument’s loss or destruction must be
35stated in the claim.
-42- 15. All claims filed against a protected person’s
2conservatorship shall be titled in the name of the claimant
3against the conservator as conservator, naming the conservator,
4and in all further proceedings on the claim, this title shall
5be preserved.
66. The filing of a claim in the conservatorship tolls the
7statute of limitations applicable to the claim.
87. No claimant shall have the right to compel payment until
9the claimant’s claim has been duly filed and allowed.
108. When a claim has been filed and has been admitted in
11writing by the conservator, the claim shall be deemed allowed,
12in the absence of fraud or collusion.
139. Execution shall not issue upon, and levy shall not
14be made against, any property of the protected person’s
15conservatorship under any judgment against the protected
16person or the protected person’s conservator, but this
17section shall not be construed to prevent the enforcement of a
18mortgage, pledge, or other lien upon property in an appropriate
19proceeding.
2010. If the conservator is a creditor of the protected
21person, the conservator shall file the claim as other
22creditors, and the court shall appoint a temporary conservator
23to protect the conservatorship estate at the hearing on the
24conservator’s claim. The same procedure shall be followed in
25the case of co-conservators where all such conservators are
26creditors of the protected person. However, if one of the
27co-conservators is not a creditor of the protected person, the
28disinterested conservator shall protect the conservatorship
29estate at the hearing on the co-conservator’s claim.
3011. The court may determine whether or not the applicable
31statute of limitation shall be invoked to bar a claim which the
32conservator recommends be allowed.
3312. This section shall not affect or prevent an action or
34proceeding to enforce any mortgage, pledge, or other lien upon
35the property of the protected person.
-43- 113. a. Any action pending against the protected person at
2the time the conservator is appointed shall also be considered
3a claim filed in the conservatorship if notice of substitution
4is served on the conservator as defendant, and proof of service
5of notice of such proceeding is filed in the conservatorship
6proceeding.
7b. A separate action based on a debt or other liability
8of the protected person may be commenced against the
9conservator as conservator in lieu of filing a claim in the
10conservatorship. Such an action shall be commenced by serving
11an original notice on the conservator and filing proof of
12service of notice of such proceeding in the conservatorship
13proceeding. Such an action shall also be considered a claim
14filed in the conservatorship. Such an action may be commenced
15only in a county where the venue would have been proper if
16there were no conservatorship and the action had been commenced
17against the protected person.
1814. The provisions of sections 633.438 to 633.448 shall
19be applicable to the denial and contest of claims against
20conservatorships, but shall not be applicable to actions
21continued or commenced under this section.
2215. When it appears that the assets in a conservatorship
23are insufficient to pay in full all the claims against the
24conservatorship, the conservator shall report such matter to
25the court, and the court shall, upon hearing, with notice to
26all persons who have filed claims in the conservatorship, make
27an order for the pro rata payment of claims giving claimants
28the same priority as in section 633.425.
29 Sec. 47. NEW SECTION. 633F.47 Professional evaluation.
301. For purposes of this section:
31a. “Professional evaluation” means an evaluation by
32a licensed or certified person qualified to evaluate
33a respondent’s cognitive and functional abilities and
34limitations.
35b. “Respondent” includes, when appropriate, a protected
-44-1person.
22. A petitioner or respondent may submit a professional
3evaluation in a matter concerning the granting, modifying,
4or terminating a guardianship or conservatorship for the
5respondent.
63. a. At or before a hearing on a petition for the
7appointment of a guardian or conservator or the modification
8or termination of a guardianship or conservatorship, the court
9shall order a professional evaluation of the respondent unless
10one of the following criteria are met:
11(1) The court finds it has sufficient information
12to determine whether the criteria for a guardianship or
13conservatorship are met.
14(2) The petitioner or respondent has filed a professional
15evaluation.
16b. If the respondent has filed a professional evaluation and
17the court determines an additional professional evaluation will
18assist the court in understanding the decision-making capacity
19and functional abilities and limitations of the respondent, the
20court may order a professional evaluation of the respondent.
214. If the court orders an evaluation, the respondent must be
22examined by a licensed or certified person, appointed by the
23court, who is qualified to evaluate the respondent’s cognitive
24and functional abilities and limitations.
255. The court shall not appoint an individual to conduct the
26examination if the individual has a conflict of interest.
276. The individual conducting the evaluation shall promptly
28file a written report with the court and, if so ordered, shall
29attend a court hearing and be available for cross-examination.
307. Unless otherwise directed by the court, the report must
31contain all of the following:
32a. A description of the nature, type, and extent of
33the respondent’s cognitive and functional abilities and
34limitations.
35b. An evaluation of the respondent’s mental and physical
-45-1condition and, if appropriate, educational potential, adaptive
2behavior, and social skills.
3c. A prognosis for improvement and recommendation for the
4appropriate treatment, support, or habilitation plan.
5d. The evaluator’s qualifications to evaluate the
6respondent’s cognitive and functional abilities limitations and
7lack of conflict of interest.
8e. The date of the examination on which the report is based.
98. The cost of the professional evaluation shall be paid
10by the respondent unless the respondent is indigent under the
11provisions of section 633.561, in which case the costs shall
12be paid by the county in which the proceedings are pending, or
13unless the court otherwise orders.
149. The court may order the production of any existing
15professional evaluation that is relevant to the determination
16of whether a guardian or a conservator should be appointed, as
17well as whether a guardianship or conservatorship should be
18modified or terminated.
1910. In a proceeding to establish a guardianship or
20conservatorship, any professional evaluation provided in the
21proceeding, whether voluntarily or pursuant to a court order,
22shall be confidential and shall be sealed and available to only
23the court, the respondent, the petitioner, the respondent’s
24attorney, the petitioner’s attorney for purposes of the
25proceeding, a court advisor, and other persons the court orders
26for good cause and limited for the purposes set out in the
27court’s order.
2811. In a proceeding to modify or terminate a guardianship
29or conservatorship, the court upon good cause shown and for
30such purposes as the court orders may grant access to any
31professional evaluation that was sealed in a proceeding to
32establish the guardianship or conservatorship.
33 Sec. 48. NEW SECTION. 633F.48 Appointment and role of court
34advisor.
351. The court may appoint any qualified person as a court
-46-1advisor in a guardianship or conservatorship proceeding. The
2role of the court advisor is to gather and report factual
3information that will assist the court in making custody,
4visitation, or other decisions related to the welfare of the
5respondent. Unless the appointing judge specifies otherwise,
6the court advisor role is limited to gathering and reporting
7information to the court. The court advisor may include
8recommendations in the report in subsection 6 only if the
9court’s appointment order authorizes inclusion of such
10recommendations.
112. The court shall not appoint a guardian ad litem in a
12guardianship or conservatorship proceeding.
133. The same person shall not serve both as the attorney
14representing the respondent and as court advisor.
154. Unless otherwise enlarged or circumscribed by the court,
16the court advisor shall do all of the following:
17a. Conduct an initial in-person interview with the
18respondent.
19b. Discuss with the respondent the substance of the
20petition, the purpose and effect of the proceeding, the rights
21of the respondent at the hearing, and the general powers and
22duties of a guardian or conservator.
23c. Determine the views of the respondent regarding the
24proposed guardian or conservator, the proposed guardian’s or
25conservator’s powers and duties, and the scope and duration of
26the proposed guardianship or conservatorship.
275. In addition, if directed by the court, the court advisor
28shall do the following:
29a. Interview the petitioner and an appointed or proposed
30guardian or conservator.
31b. Visit, to the extent feasible, the residence where it
32is reasonably believed that the respondent will live if the
33appointment of a guardian or conservator is made.
34c. Make any other investigation the court directs including
35but not limited to interviewing any persons providing medical,
-47-1mental health, educational, social, and other services to the
2respondent.
3d. Determining the financial resources available to the
4respondent.
56. The court advisor shall submit a written report to the
6court that shall contain all of the following:
7a. A recommendation regarding the appropriateness of a
8limited guardianship or conservatorship for the respondent,
9including whether less restrictive alternatives are available.
10b. A statement of the qualifications of the proposed
11guardian or conservator together with a statement of whether
12the respondent has expressed agreement with the appointment of
13the proposed guardian or conservator.
14c. Any other matters the court advisor deems relevant to
15the petition for guardianship or conservatorship and the best
16interests of the respondent.
17d. Any other matters the court directs.
187. The report of the court advisor shall be made part of the
19court record unless otherwise ordered by the court.
20 Sec. 49. NEW SECTION. 633F.49 Attorneys for minor and adult
21respondents and protected persons in conservatorships and for
22adult respondents and protected persons in guardianships.
231. Upon the filing of a petition to appoint or remove a
24guardian for an adult or conservator for a minor or adult, the
25court shall appoint an attorney to represent the respondent,
26provided that the respondent is not the petitioner. The court
27shall set a hearing on the petition and provide for notice of
28the appointment of counsel and the date of hearing.
29a. The court may reconsider the determination regarding
30representation by an attorney upon application by any
31interested person.
32b. The court may discharge an attorney appointed by the
33court if the respondent has privately retained an attorney who
34has filed an appearance on behalf of the respondent.
352. An attorney representing a respondent or protected
-48-1person shall, to the extent feasible:
2a. Ensure that the respondent or protected person has been
3properly advised of the nature and purpose of the proceeding.
4b. Ensure that the respondent or protected person has been
5advised of the respondent’s or protected person’s rights in the
6proceeding.
7c. Personally interview the respondent.
8d. Advocate for the respondent’s or protected person’s
9position to the extent that the position is reasonably
10ascertainable. If the respondent’s or protected person’s
11position is not reasonably ascertainable, the attorney shall
12advocate for the result that is the least restrictive option in
13type, duration, and scope, consistent with the respondent’s or
14protected person’s interests.
15e. Represent the respondent or protected person.
16f. Ensure that guardianship and conservatorship procedures
17conform to the statutory and due process requirements under
18law.
19g. File a written report stating whether there is evidence
20on file showing that proper service on the respondent has been
21made and also stating that specific compliance with paragraphs
22“a”, “b”, and “c” has been made or stating the inability to
23comply by reason of the respondent’s condition.
243. If the court determines, on application, that it is
25appropriate or necessary, the court may order that the attorney
26representing the respondent or protected person be given copies
27of and access to the respondent’s or protected person’s health
28information. Such an order must describe, with reasonable
29specificity, the health information to be disclosed or accessed
30for purposes of fulfilling the attorney’s responsibilities
31pursuant to this section.
324. If an order appointing a guardian or conservator
33is entered, the respondent’s attorney shall do all of the
34following:
35a. Inform the respondent of the effects of the order.
-49- 1b. Advise the respondent of the respondent’s rights to
2petition for modification or termination of the guardianship
3or conservatorship.
4c. Advise the respondent of the rights retained by the
5respondent.
65. Following the appointment of a guardian or conservator,
7if the court determines that it would be in the protected
8person’s best interest to be represented by an attorney
9with respect to any further proceedings in a guardianship or
10conservatorship, the court may appoint an attorney to represent
11the protected person at the protected person’s expense or at
12the county’s expense for indigents as provided in subsection 6.
136. The cost of court-appointed attorneys for indigents
14shall be assessed against the county in which the proceedings
15are pending. For purposes of this section, the court shall
16find a person indigent if the person’s income and resources do
17not exceed one hundred fifty percent of the federal poverty
18level or the person would be unable to pay such costs without
19prejudicing the person’s financial ability to provide economic
20necessities for the respondent or the respondent’s dependents.
21 Sec. 50. NEW SECTION. 633F.50 Mediation.
221. The district court may, on its own motion or on the
23motion of any party, order the parties to participate in
24mediation in any guardianship or conservatorship action.
25Mediation performed under this section shall comply with the
26provisions of chapter 679C. The court shall, upon application
27of a party, grant a waiver from any court-ordered mediation
28under this section if the party demonstrates that a history
29of domestic abuse exists similarly as considered in section
30598.41, subsection 3, paragraph “j”. The court may, upon
31application of a party, grant a waiver from any court-ordered
32mediation if the action involves elder abuse pursuant to
33chapter 235F.
342. Mediation shall comply with all of the following
35standards:
-50- 1a. The parties will participate in good faith.
2Participation in mediation shall include attendance at
3a mediation session with the mediator and the parties to
4the action, listening to the mediator’s explanation of the
5mediation process, presentation of one party’s view of the
6case, and listening to the response of the other party.
7Participation in mediation does not require that the parties
8reach an agreement.
9b. Unless the parties agree upon a mediator, the court shall
10appoint a mediator. Any mediator appointed by the court shall
11meet the qualifications established in this section.
12c. Parties to the mediation shall have the right to
13representation by an attorney at all times.
14d. The parties to the mediation shall present any agreement
15reached through the mediation to their attorneys, if any.
16A mediation agreement reached by the parties shall not be
17enforceable until approved by the court.
18e. The costs of mediation shall be borne by the parties, as
19agreed to by the parties, or as ordered by the court, and may
20be taxed as court costs.
213. A mediator appointed by the court acting pursuant to this
22section shall have the following qualifications:
23a. Completed a one-hour internet seminar or live session
24regarding the external resources available to a respondent with
25particular focus on resources for older persons.
26b. A minimum of twenty-five hours of general mediation
27training.
28c. Either of the following:
29(1) Fifteen hours of probate-specific or elder-specific
30mediation training.
31(2) Ten continuous years of practice in Iowa as a licensed
32attorney with the greater of four hundred hours or forty
33percent of the total hours of law practice per year being
34devoted to matters concerning wills, trusts, and estate work
35for each of the ten continuous years. For mediations involving
-51-1guardianship of juveniles, the mediator shall also be currently
2qualified as a family law mediator and have completed a
3one-hour live session concerning guardianship procedures.
4 Sec. 51. NEW SECTION. 633F.51 Presumption regarding
5testamentary capacity.
6The appointment of a guardian or conservator does not create
7a presumption that the protected person lacks testamentary
8capacity.
9 Sec. 52. NEW SECTION. 633F.52 Reports by guardians.
101. A guardian appointed under this chapter shall file with
11the court the following written verified reports, which the
12court shall not waive:
13a. An initial care plan within sixty days of the guardian’s
14appointment. The initial care plan must include all of the
15following:
16(1) The protected person’s current residence and the
17guardian’s plan for the protected person’s living arrangements.
18(2) The guardian’s plan for payment of the protected
19person’s living expenses and other expenses.
20(3) The protected person’s health status and the guardian’s
21plan for meeting the protected person’s health needs.
22(4) The protected person’s educational, training, and
23vocational needs and the guardian’s plan for meeting the
24protected person’s educational needs.
25(5) The guardian’s plan for facilitating contacts of the
26protected person with the family members of the protected
27person.
28(6) The guardian’s plan for contact with and activities on
29behalf of the protected person.
30b. An annual report, within sixty days of the close of
31the reporting period, unless the court otherwise orders an
32extension for good cause shown in accordance with rules of
33probate procedure.
34c. A final report within thirty days of the termination of
35the guardianship unless that time is extended by the court.
-52- 12. Annual reports and the final report shall include all of
2the following:
3a. The current mental and physical condition of the
4protected person.
5b. The present living arrangement of the protected person,
6including a description of each residence where the protected
7person has resided during the reporting period.
8c. A summary of the medical, educational, vocational, and
9technical, and other professional services provided for the
10protected person.
11d. A description of the guardian’s visits with and
12activities on behalf of the protected person.
13e. Any changes in the care plan.
14f. A recommendation as to the need for continued
15guardianship.
16g. When the guardianship is for a minor protected person:
17(1) The nature and extent of parental visits and
18communication with the minor.
19(2) The ability of the guardian to continue as guardian and
20arranging for the provision of care for the minor protected
21person.
22h. Other information requested by the court or useful in the
23opinion of the guardian.
243. In accordance with the requirements of subsections 1 and
252, the court shall provide simplified uniform reporting forms
26for use in filing the required reports.
274. The clerk of the court shall notify the guardian in
28writing of the reporting requirements and shall provide
29information and assistance to the guardian in filing the
30reports.
315. Reports of guardians shall be submitted to the court for
32approval.
336. Reports required by this section shall be served on the
34attorney representing the respondent or the protected person
35and, if requested, all other parties who have filed appearances
-53-1in the proceeding.
2 Sec. 53. NEW SECTION. 633F.53 Reports by conservators.
31. A conservator shall file an initial plan for protecting,
4managing, investing, expending, and distributing the assets
5of the conservatorship estate within ninety days after
6appointment. The plan must be based on the needs of the
7protected person and take into account the best interest of the
8protected person as well as the protected person’s preference,
9values, and prior directions to the extent known to, or
10reasonably ascertainable by, the conservator.
11a. The initial plan shall include all of the following:
12(1) A budget containing projected expenses and resources,
13including an estimate of the total amount of fees the
14conservator anticipates charging per year and a statement or
15list of the amount the conservator proposes to charge for each
16service the conservator anticipates providing to the protected
17person.
18(2) A statement as to how the conservator will involve
19the protected person in decisions about management of the
20conservatorship estate.
21(3) If ordered by the court, any step the conservator plans
22to take to develop or restore the ability of the protected
23person to manage the conservatorship estate.
24(4) An estimate of the duration of the conservatorship.
25b. Within two days after filing the initial plan, the
26conservator shall give notice of the filing of the initial plan
27with a copy of the plan to the protected person, the protected
28person’s attorney and court advisor, if any, and others as
29directed by the court. The notice must state that any person
30entitled to a copy of the plan must file any objections to the
31plan not later than fifteen days after it is filed.
32c. At least twenty days after the plan has been filed, the
33court shall review and determine whether the plan should be
34approved or revised, after considering objections filed and
35whether the plan is consistent with the conservator’s powers
-54-1and duties.
2d. After approval by the court, the conservator shall
3provide a copy of the approved plan and order approving the
4plan to the protected person, the protected person’s attorney
5and court advisor, if any, and others as directed by the court.
6e. The conservator shall file an amended plan when there has
7been a significant change in circumstances or the conservator
8seeks to deviate significantly from the plan. Before the
9amended plan is implemented, the provisions for court approval
10of the plan shall be followed as provided in paragraphs “b”,
11“c”, and “d”.
122. A conservator shall file an inventory of the protected
13person’s assets within ninety days after appointment which
14includes an oath or affirmation that the inventory is believed
15to be complete and accurate as far as information permits.
16Copies of the inventory shall be provided to the protected
17person, the protected person’s attorney and court advisor
18(if any), and others as directed by the court. When the
19conservator receives additional property of the protected
20person, or becomes aware of its existence, a description of the
21property shall be included in the conservator’s next annual
22report.
233. A conservator shall file a written and verified report
24for the period since the end of the preceding report period.
25The court shall not waive these reports.
26a. These reports shall include all of the following:
27(1) Balance of funds on hand at the beginning and end of the
28period.
29(2) Disbursements made.
30(3) Changes in the conservator’s plan.
31(4) List of assets as of the end of the period.
32(5) Bond amount and surety’s name.
33(6) Residence and physical location of the protected
34person.
35(7) General physical and mental condition of the protected
-55-1person.
2(8) Other information reflecting the condition of the
3conservatorship estate.
4b. These reports shall be filed:
5(1) On an annual basis within sixty days of the end of the
6reporting period unless the court orders an extension for good
7cause shown in accordance with the rules of probate procedure.
8(2) Within thirty days following removal of the
9conservator.
10(3) Upon the conservator’s filing of a resignation and
11before the resignation is accepted by the court.
12(4) Within sixty days following the termination of the
13conservatorship.
14(5) At other times as ordered by the court.
15c. Reports required by this section shall be served on the
16protected person’s attorney and court advisor, if any, and the
17veterans administration if the protected person is receiving
18veterans benefits.
19 Sec. 54. NEW SECTION. 633F.54 Removal of guardian and
20conservator.
211. The court may conduct a hearing to determine whether the
22removal of a guardian or conservator is appropriate upon any
23of the following:
24a. The filing of a petition by a protected person, a
25guardian, a conservator, or other person with an interest in
26the welfare of such a person.
27b. The receipt of a written communication from a protected
28person, a guardian, a conservator, or other person with an
29interest in the welfare of such a person, indicating that
30removal may be appropriate.
31c. The court’s determination that such a hearing would be in
32the best interest of a protected person.
332. A person who is not the guardian, conservator, or
34protected person may request permission to participate in such
35hearing. The court may grant the request, with or without
-56-1hearing, on determining that the person’s participation is
2in the best interest of the protected person. The court may
3impose appropriate limitations on the person’s participation.
43. Following a hearing, the court may remove a guardian
5and conservator for failure to perform the guardian or
6conservator’s duties or for other good cause, and appoint a
7successor guardian or conservator to assume the duties of the
8guardian or conservator, if needed under the circumstances.
94. The court may decline to hold a hearing under subsection
101 if the same or substantially similar facts were alleged in a
11petition or written communication filed in the preceding six
12months.
13 Sec. 55. NEW SECTION. 633F.55 Termination and modification
14of guardianships and conservatorships.
151. Guardianships and conservatorships shall terminate upon
16the occurrence of any of the following circumstances:
17a. Death of the protected person.
18b. A finding by the court that the basis for appointment no
19longer exists.
20c. A determination by the court that the guardianship or
21conservatorship is no longer necessary for any other reason.
222. A protected person, a guardian, a conservator, or a
23person interested in the welfare of the protected person may
24petition for or request one of the following:
25a. Termination of the guardianship or conservatorship
26because the basis for appointment no longer exists.
27b. Modification of the guardianship or conservatorship
28because the extent of protection or assistance granted is no
29longer appropriate.
303. The court shall conduct a hearing to determine
31whether termination or modification of a guardianship or
32conservatorship is appropriate upon the filing of a petition
33under subsection 2 that contains allegations that, if
34true, would support a reasonable belief that termination or
35modification of the guardianship or conservatorship may be
-57-1appropriate. The court may also conduct a hearing upon any of
2the following:
3a. The receipt of written communication from a protected
4person, a guardian, a conservator, or other person interested
5in the welfare of the protected person indicating that
6termination or modification may be appropriate.
7b. The court’s determination that such a hearing would be in
8the best interest of a protected person.
9c. A report from a guardian or conservator.
104. A person seeking termination or modification has the
11burden of making a prima facie showing that the guardianship
12or conservatorship should be terminated or modified. If such
13a showing is made, the guardian, the conservator, or other
14person resisting termination or modification has the burden to
15prove by clear and convincing evidence that the guardianship or
16conservatorship should not be terminated or modified.
175. The court shall modify the powers granted to the
18guardian or conservator if the court finds that the powers are
19either more than needed or less than needed in view of the
20decision-making capacity, functional abilities and limitations
21of the protected person, the availability of third‐party
22assistance and decision‐making supports for the protected
23person, or other circumstances.
246. Except as otherwise ordered by the court for good
25cause, before terminating or modifying a guardianship or
26conservatorship, the court shall follow the same procedures
27to safeguard the rights of the protected person as apply to a
28petition for a guardianship or conservatorship, including the
29right to representation by an attorney.
30 Sec. 56. NEW SECTION. 633F.56 Pleadings and hearings.
31In proceedings to establish, modify, or terminate a
32guardianship or conservatorship, or remove a guardian or
33conservator, the case shall be tried as a law action and
34be governed by the rules of civil procedure subject to the
35following requirements:
-58- 11. The respondent shall be entitled to a hearing on
2appointment, modification, removal, or termination.
32. The respondent shall be present at the hearing and at
4all other stages of the proceedings unless the court finds good
5cause for the absence of the respondent. If the respondent
6is not present, the court shall make a record of the lack of
7presence. The court shall make reasonable accommodations to
8enable the respondent to be present at the hearing and at all
9other stages of the proceedings.
103. The respondent may subpoena witnesses and documents,
11examine witnesses and documents, present evidence, and
12otherwise participate in the hearing.
134. The court shall require the proposed or existing guardian
14or conservator to attend the hearing except upon a showing of
15good cause.
165. The court shall require any court advisor it has
17appointed to attend the hearing.
186. Any person may file a written application to participate
19in a hearing or other proceeding. The court may grant the
20request without hearing unless a resistance to such application
21is filed within five days. If a resistance is filed within
22five days, the court shall hold a hearing on the application.
237. All hearings and proceedings shall be reported.
248. For purposes of this section, the term respondent
25includes, when appropriate, a protected person.
26 Sec. 57. NEW SECTION. 633F.57 Compensation of guardians,
27conservators, and attorneys.
28The compensation of guardians, conservators, guardian’s
29attorneys, and conservator’s attorneys shall be fixed according
30to section 633.200.
31 Sec. 58. NEW SECTION. 633F.58 Liability of guardians and
32conservators.
33Guardians and conservators shall not be held personally
34liable for actions or omissions taken or made in the official
35discharge of the guardian’s or conservator’s duties, except for
-59-1any of the following:
21. A breach of fiduciary duty imposed by the provisions of
3chapter 633 or this chapter.
42. Willful or wanton misconduct in the official discharge of
5the guardian’s or conservator’s duties.
6 Sec. 59. NEW SECTION. 633F.59 Tort liability of guardians
7and conservators.
8The fact that a person is a guardian or conservator shall
9not make the person personally liable for damages for the acts
10of the protected person.
11 Sec. 60. NEW SECTION. 633F.60 Court costs in guardianships
12and conservatorships.
13A protected person shall be charged with the court costs
14of the protected person’s guardianship and conservatorship
15proceedings, including guardian’s and conservator’s fees, and
16the fees of attorneys representing guardians and conservators.
17The court may, upon application, enter an order waiving
18payment of the court costs in indigent cases. However, if the
19protected person becomes financially capable of paying any
20waived costs, the costs shall no longer be waived and shall be
21immediately payable.
22 Sec. 61. NEW SECTION. 633F.61 Provisions applicable to all
23fiduciaries shall govern.
24The provisions of chapter 633 applicable to all fiduciaries
25shall govern the appointment, qualification, oath, and bond of
26guardians and conservators with the following exceptions:
271. Guardians shall not be required to give bond unless the
28court, for good cause, finds that the best interests of the
29protected person require a bond.
302. Notwithstanding section 633.175, conservators other
31than Iowa financial institutions with trust powers must give
32surety bonds unless the court finds there is an alternative
33to such a bond that will provide sufficient protection of the
34conservatorship assets. The conservator shall submit a plan
35for any proposed alternative to a bond for review and approval
-60-1by the court.
2 Sec. 62. CODE EDITOR DIRECTIVES.
31. The Code editor shall designate sections 633F.1
4through 633F.3, as enacted by this division of this Act,
5as a subchapter entitled “JURISDICTION, DEFINITIONS, AND
6APPLICABILITY”.
72. The Code editor shall designate sections 633F.4 through
8633F.18, as enacted by this division of this Act, as a
9subchapter entitled “GUARDIANSHIPS FOR MINORS”.
103. The Code editor shall designate sections 633F.19
11through 633F.27, as enacted by this division of this Act, as a
12subchapter entitled “GUARDIANSHIPS FOR ADULTS”.
134. The Code editor shall designate sections 633F.28
14through 633F.46, as enacted by this division of this Act, as a
15subchapter entitled “CONSERVATORSHIPS”.
165. The Code editor shall designate sections 633F.47
17through 633F.61, as enacted by this division of this Act, as a
18subchapter entitled “PROCEEDINGS, ADMINISTRATION, AND CLOSING”.
19DIVISION II
20conforming changes
21 Sec. 63. Section 10.1, subsection 7, Code 2019, is amended
22to read as follows:
237. “Farm estate” means the real and personal property of a
24decedent, a ward protected person, or a trust as provided in
25chapters 633, and 633A, and 633F, if at least sixty percent of
26the gross receipts from the estate comes from farming.
27 Sec. 64. Section 48A.2, subsection 4, Code 2019, is amended
28to read as follows:
294. “Person who is incompetent to vote” means a person with an
30intellectual disability who has been found to lack the mental
31capacity to vote in a proceeding held pursuant to section
32633.556 633F.22.
33 Sec. 65. Section 135C.24, subsection 5, Code 2019, is
34amended to read as follows:
355. The provisions of this section notwithstanding, upon
-61-1the verified petition of the county board of supervisors the
2district court may appoint the administrator of a county care
3facility as conservator or guardian, or both, of a resident of
4such county care facility, in accordance with the provisions
5of chapter chapters 633 and 633F. Such administrator shall
6serve as conservator or guardian, or both, without fee. The
7county attorney shall serve as attorney for the administrator
8in such conservatorship or guardianship, or both, without fee.
9The administrator may establish either separate or common bank
10accounts for cash funds of such resident wards.
11 Sec. 66. Section 141A.1, subsection 15, Code 2019, is
12amended to read as follows:
1315. “Legal guardian” means a person appointed by a court
14pursuant to chapter 633 or 633F or an attorney in fact as
15defined in section 144B.1. In the case of a minor, “legal
16guardian” also means a parent or other person responsible for
17the care of the minor.
18 Sec. 67. Section 144A.7, subsection 1, paragraph b, Code
192019, is amended to read as follows:
20b. The guardian of the person of the patient if one has been
21appointed, provided court approval is obtained in accordance
22with section 633.635, subsection 2, paragraph “c” 633F.26,
23subsection 5, paragraph “c”. This paragraph does not require
24the appointment of a guardian in order for a treatment decision
25to be made under this section.
26 Sec. 68. Section 144B.6, subsection 1, Code 2019, is amended
27to read as follows:
281. Unless the district court sitting in equity specifically
29finds that the attorney in fact is acting in a manner contrary
30to the wishes of the principal or the durable power of attorney
31for health care provides otherwise, an attorney in fact who is
32known to the health care provider to be available and willing
33to make health care decisions has priority over any other
34person, including a guardian appointed pursuant to chapter 633
35or 633F, to act for the principal in all matters of health
-62-1care decisions. The attorney in fact has authority to make
2a particular health care decision only if the principal is
3unable, in the judgment of the attending physician, to make the
4health care decision. If the principal objects to a decision
5to withhold or withdraw health care, the principal shall be
6presumed to be able to make a decision.
7 Sec. 69. Section 217.13, subsection 3, Code 2019, is amended
8to read as follows:
93. All volunteers registered with the department and
10in compliance with departmental rules are considered state
11employees for purposes of chapter 669. However, this section
12does not except a conservator or guardian from an action
13brought under section 658.1A or 658.3. This section does not
14relieve a guardian or conservator from duties under chapter 633
15or 633F.
16 Sec. 70. Section 222.34, Code 2019, is amended to read as
17follows:
18222.34 Guardianship proceedings.
19If a guardianship is proposed for a person with an
20intellectual disability, guardianship proceedings shall be
21initiated and conducted as provided in chapter 633 633F.
22 Sec. 71. Section 229.27, subsection 3, unnumbered paragraph
231, Code 2019, is amended to read as follows:
24A hearing limited to the question of the person’s competence
25and conducted in substantially the manner prescribed in
26sections 633.552 to 633.556 633F.19, 633F.20, 633F.22, and
27633F.56 shall be held when:
28 Sec. 72. Section 231E.5, subsection 2, paragraph g,
29subparagraph (6), Code 2019, is amended to read as follows:
30(6) If determined necessary, file a petition for the
31appointment of a guardian or conservator pursuant to chapter
32633 633F.
33 Sec. 73. Section 231E.5, subsections 4 and 5, Code 2019, are
34amended to read as follows:
354. An individual acting as the state public guardian or a
-63-1local public guardian shall comply with applicable requirements
2for guardians and conservators pursuant to chapter 633 633F, or
3representative payees pursuant to federal law and regulations.
45. Notwithstanding any provision to the contrary, an
5individual acting as the state public guardian or a local
6public guardian shall not be subject to the posting of a bond
7pursuant to chapter 633 633F. An individual acting as the
8state public guardian or a local public guardian shall complete
9at least eight hours of training annually as certified by the
10department.
11 Sec. 74. Section 231E.6, subsection 2, Code 2019, is amended
12to read as follows:
132. For all appointments made pursuant to this section,
14notice shall be provided to the state office or local office
15prior to appointment. For appointments made pursuant to this
16section, the state office or local office shall only accept
17appointments made pursuant to the filing of an involuntary
18petition for appointment of a conservator or guardianship
19pursuant to chapter 633 633F.
20 Sec. 75. Section 231E.8, subsection 5, Code 2019, is amended
21to read as follows:
225. The state public guardian or a local public guardian
23shall be subject to discharge or removal, by the court, on
24the grounds and in the manner in which other guardians or
25conservators are discharged or removed pursuant to chapter 633
26 633F.
27 Sec. 76. Section 231E.12, Code 2019, is amended to read as
28follows:
29231E.12 Liability.
30All employees and volunteers of the state office and local
31offices operating under this chapter and other applicable
32chapters and pursuant to rules adopted under this and other
33applicable chapters are considered employees of the state
34and state volunteers for the purposes of chapter 669 and
35shall be afforded protection under section 669.21 or 669.24,
-64-1as applicable. This section does not relieve a guardian or
2conservator from performing duties prescribed under chapter 633
3or 633F.
4 Sec. 77. Section 232.3, subsection 1, Code 2019, is amended
5to read as follows:
61. During the pendency of an action under this chapter, a
7party to the action is estopped from litigating concurrently
8the custody, guardianship, or placement of a child who
9is the subject of the action, in a court other than the
10juvenile court. A district judge, district associate judge,
11magistrate, or judicial hospitalization referee, upon notice
12of the pendency of an action under this chapter, shall not
13issue an order, finding, or decision relating to the custody,
14guardianship, or placement of the child who is the subject of
15the action, under any law, including but not limited to chapter
16598, 598B, or 633, or 633F.
17 Sec. 78. Section 232.101A, subsection 2, Code 2019, is
18amended to read as follows:
192. If the court transfers guardianship pursuant to
20subsection 1, the court may close the child in need of
21assistance case by transferring jurisdiction over the child’s
22guardianship to the probate court. The court shall inform the
23proposed guardian of the guardian’s reporting duties under
24section 633.669 633F.52 and other duties under chapter 633
25 633F. Upon transferring jurisdiction, the court shall direct
26the probate clerk, once the proposed guardian has filed an
27oath of office and identification in accordance with section
28602.6111, to issue letters of appointment for guardianship and
29docket the case in probate. Records contained in the probate
30case file that were copied or transferred from the juvenile
31court file concerning the case shall be subject to section
32232.147 and other confidentiality provisions of this chapter
33for cases not involving juvenile delinquency.
34 Sec. 79. Section 232.104, subsection 8, paragraph b, Code
352019, is amended to read as follows:
-65- 1b. In lieu of the procedures specified in paragraph “a”,
2the court may close the child in need of assistance case
3by transferring jurisdiction over the child’s guardianship
4to the probate court. The court shall inform the proposed
5guardian of the guardian’s reporting duties under section
6633.669 633F.52 and other duties under the probate code. Upon
7transferring jurisdiction, the court shall direct the probate
8clerk, once the proposed guardian has filed an oath of office
9and identification in accordance with section 602.6111, to
10issue letters of appointment for guardianship and docket the
11case in probate. Records contained in the probate case file
12that were copied or transferred from the juvenile court file
13concerning the case shall be subject to section 232.147 and
14other confidentiality provisions of this chapter for cases not
15involving juvenile delinquency.
16 Sec. 80. Section 235B.2, subsection 5, paragraph b,
17subparagraph (3), Code 2019, is amended to read as follows:
18(3) The withholding or withdrawing of health care from
19a dependent adult who is terminally ill in the opinion of a
20licensed physician, when the withholding or withdrawing of
21health care is done at the request of the dependent adult or at
22the request of the dependent adult’s next of kin, attorney in
23fact, or guardian pursuant to the applicable procedures under
24chapter 125, 144A, 144B, 222, 229, or 633 633F.
25 Sec. 81. Section 235B.3, subsection 9, paragraph a, Code
262019, is amended to read as follows:
27a. If, upon completion of the evaluation or upon referral
28from the department of inspections and appeals, the department
29determines that the best interests of the dependent adult
30require court action, the department shall initiate action
31for the appointment of a guardian or conservator or for
32admission or commitment to an appropriate institution or
33facility pursuant to the applicable procedures under chapter
34125, 222, 229, or 633 633F, or shall pursue other remedies
35provided by law. The appropriate county attorney shall assist
-66-1the department in the preparation of the necessary papers
2to initiate the action and shall appear and represent the
3department at all district court proceedings.
4 Sec. 82. Section 235B.18, subsections 4 and 5, Code 2019,
5are amended to read as follows:
64. If, at the hearing, the judge finds by clear and
7convincing evidence that the dependent adult is in need of
8protective services and lacks the capacity to consent to the
9receipt of protective services, the judge may issue an order
10authorizing the provision of protective services. The order
11may include the designation of a person to be responsible for
12performing or obtaining protective services on behalf of the
13dependent adult or otherwise consenting to the receipt of
14protective services on behalf of the dependent adult. Within
15sixty days of the appointment of such a person the court
16shall conduct a review to determine if a petition shall be
17initiated in accordance with section 633.552 633F.19 for good
18cause shown. The court may extend the sixty-day period for
19an additional sixty days, at the end of which the court shall
20conduct a review to determine if a petition shall be initiated
21in accordance with section 633.552 633F.19. A dependent adult
22shall not be committed to a mental health facility under this
23section.
245. A determination by the court that a dependent adult lacks
25the capacity to consent to the receipt of protective services
26under this chapter shall not affect incompetency proceedings
27under sections 633.552 through 633.556 633F.19, 633F.20,
28633F.22, and 633F.56 or any other proceedings, and incompetency
29proceedings under sections 633.552 through 633.556 633F.19,
30633F.20, 633F.22, and 633F.56 shall not have a conclusive
31effect on the question of capacity to consent to the receipt of
32protective services under this chapter. A person previously
33adjudicated as incompetent under the relevant provisions of
34chapter 633 633F is entitled to the care, protection, and
35services under this chapter.
-67-1 Sec. 83. Section 235B.19, subsection 5, paragraph a,
2unnumbered paragraph 1, Code 2019, is amended to read as
3follows:
4Notwithstanding sections 633.552 633F.19 and 633.573
5 633F.32, upon a finding that there is probable cause to believe
6that the dependent adult abuse presents an immediate danger to
7the health or safety of the dependent adult or is producing
8irreparable harm to the physical or financial resources or
9property of the dependent adult, and that the dependent adult
10lacks capacity to consent to the receipt of services, the court
11may order the appointment of a temporary guardian or temporary
12conservator without notice to the dependent adult or the
13dependent adult’s attorney if all of the following conditions
14are met:
15 Sec. 84. Section 235E.1, subsection 5, paragraph b,
16subparagraph (3), Code 2019, is amended to read as follows:
17(3) The withholding or withdrawing of health care from
18a dependent adult who is terminally ill in the opinion of a
19licensed physician, when the withholding or withdrawing of
20health care is done at the request of the dependent adult or at
21the request of the dependent adult’s next of kin, attorney in
22fact, or guardian pursuant to the applicable procedures under
23chapter 125, 144A, 144B, 222, 229, or 633 633F.
24 Sec. 85. Section 235E.2, subsection 6, paragraph a, Code
252019, is amended to read as follows:
26a. If, upon completion of an investigation, the department
27determines that the best interests of the dependent adult
28require court action, the department shall notify the
29department of human services of the potential need for a
30guardian or conservator or for admission or commitment to an
31appropriate institution or facility pursuant to the applicable
32procedures under chapter 125, 222, 229, or 633 633F, or shall
33pursue other remedies provided by law. The appropriate county
34attorney shall assist the department of human services in the
35preparation of the necessary papers to initiate the action and
-68-1shall appear and represent the department of human services at
2all district court proceedings.
3 Sec. 86. Section 235F.1, subsection 5, paragraph b,
4subparagraph (3), Code 2019, is amended to read as follows:
5(3) The withholding or withdrawing of health care from
6a vulnerable elder who is terminally ill in the opinion of
7a licensed physician, when the withholding or withdrawing of
8health care is done at the request of the vulnerable elder or
9at the request of the vulnerable elder’s next of kin, attorney
10in fact, or guardian pursuant to the applicable procedures
11under chapter 125, 144A, 144B, 222, 229, or 633 633F.
12 Sec. 87. Section 235F.6, subsection 3, paragraph b, Code
132019, is amended to read as follows:
14b. Grants relief that is more appropriately obtained in a
15protective proceeding filed under chapter 633 633F including
16but not limited to giving control and management of the funds,
17benefits, property, resources, belongings, or assets of the
18vulnerable elder to a guardian, conservator, or attorney in
19fact for any purpose other than the relief granted under
20subsection 2.
21 Sec. 88. Section 239B.13, subsection 2, Code 2019, is
22amended to read as follows:
232. The department may order the cash assistance under
24this chapter to be paid to a protective payee if it has
25been demonstrated that the specified relative with whom
26the child is residing is unable to manage the assistance in
27the best interest of the child. Protective payment of cash
28assistance shall not be made beyond a period of two years. The
29department may petition the district court sitting in probate
30to establish, pursuant to chapter 633 633F, a conservatorship
31over a participant. If a conservatorship is established, the
32participant’s cash assistance shall be paid to the conservator.
33In addition to the cash assistance, an amount not to exceed ten
34dollars per case per month may be allowed for conservatorship
35or guardianship fees if authorized by court order. The
-69-1department may pay cash assistance or other cash benefits to
2a third party if the department determines that a third-party
3payment is essential to assure the proper use of the assistance
4or benefits.
5 Sec. 89. Section 252B.6A, subsection 4, Code 2019, is
6amended to read as follows:
74. For the purposes of this section, a “judicial proceeding”
8means an action to enforce support filed with a court of
9competent jurisdiction in which the court issues an order which
10identifies the amount of the support collection which is a
11direct result of the court proceeding. “Judicial proceedings”
12include but are not limited to those pursuant to chapters 598,
13626, 633, 633F, 642, 654, or 684 and also include contempt
14proceedings if the collection payment is identified in the
15court order as the result of such a proceeding. “Judicial
16proceedings” do not include enforcement actions which the unit
17is required to implement under federal law including, but not
18limited to, income withholding.
19 Sec. 90. Section 565B.24, Code 2019, is amended to read as
20follows:
21565B.24 Other laws not applicable.
22Chapter Chapters 633 and 633F and all other laws of this
23state to the extent contrary to this chapter do not apply to
24the custodial property of a minor held by the custodian under
25this chapter.
26 Sec. 91. Section 602.6306, subsection 2, Code 2019, is
27amended to read as follows:
282. District associate judges also have jurisdiction
29in civil actions for money judgment where the amount in
30controversy does not exceed ten thousand dollars; jurisdiction
31over involuntary commitment, treatment, or hospitalization
32proceedings under chapters 125 and 229; jurisdiction of
33indictable misdemeanors, class “D” felony violations, and other
34felony arraignments; jurisdiction to enter a temporary or
35emergency order of protection under chapter 235F or 236, and to
-70-1make court appointments and set hearings in criminal matters;
2jurisdiction to enter orders in probate which do not require
3notice and hearing and to set hearings in actions under chapter
4633, or 633A, or 633F; and the jurisdiction provided in section
5602.7101 when designated as a judge of the juvenile court.
6While presiding in these subject matters a district associate
7judge shall employ district judges’ practice and procedure.
8 Sec. 92. Section 602.8102, subsections 105 and 105A, Code
92019, are amended to read as follows:
10105. Carry out duties of the clerk of the probate court as
11provided in chapter chapters 633 and 633F.
12105A. Provide written notice to all duly appointed
13guardians and conservators of their liability as provided in
14sections 633.633A 633F.58 and 633.633B 633F.59.
15 Sec. 93. Section 633.27A, unnumbered paragraph 1, Code
162019, is amended to read as follows:
17When a petition is filed for a conservatorship or
18guardianship, or a combined petition as provided in section
19633.627 633F.34, the administration thereof shall be treated as
20one proceeding, with one docket number, from the date of the
21filing of the petition. The separate reporting requirements
22for conservatorships and guardianships shall continue to apply
23in a combined petition. The clerk shall clearly indicate on
24the docket whether the proceedings are voluntary or involuntary
25and whether a guardianship, a conservatorship, or combined.
26 Sec. 94. Section 633.551, subsections 3 and 5, Code 2019,
27are amended to read as follows:
283. In determining whether a guardianship or conservatorship
29is to be established, modified, or terminated, the
30district court shall consider if a limited guardianship or
31conservatorship pursuant to section 633.635 633F.26 or 633.637
32 633F.35 is appropriate. In making the determination, the court
33shall make findings of fact to support the powers conferred on
34the guardian or conservator.
355. Except as otherwise provided in sections 633.672 and
-71-1633.673 section 633F.57 or 633F.60, in proceedings to establish
2a guardianship or conservatorship, the costs, including
3attorney fees and expert witness fees, shall be assessed
4against the ward protected person or the ward’s protected
5person’s estate unless the proceeding is dismissed either
6voluntarily or involuntarily, in which case fees and costs may
7be assessed against the petitioner for good cause shown.
8 Sec. 95. Section 633.562, Code 2019, is amended to read as
9follows:
10633.562 Notification of guardianship powers.
11In a proceeding for the appointment of a guardian, the
12proposed ward respondent shall be given written notice which
13advises the proposed ward respondent that if a guardian is
14appointed, the guardian may, without court approval, provide
15for the care of the ward protected person, manage the ward’s
16 protected person’s personal property and effects, assist the
17ward protected person in developing self-reliance and receiving
18professional care, counseling, treatment or services as needed,
19and ensure that the ward protected person receives necessary
20emergency medical services. The notice shall also advise the
21proposed ward respondent that, upon the court’s approval, the
22guardian may change the ward’s protected person’s permanent
23residence to a more restrictive residence, and arrange for
24major elective surgery or any other nonemergency major medical
25procedure. The notice shall clearly advise the proposed ward
26 respondent in boldface type of a minimum size of ten points,
27of the right to counsel and the potential deprivation of the
28proposed ward’s respondent’s civil rights. The notice shall
29also state that the proposed ward respondent may use the ward’s
30 respondent’s own attorney instead of an attorney appointed by
31the court. In an involuntary guardianship proceeding, the
32notice shall be served upon the proposed ward respondent with
33the notice of the filing of the petition as provided in section
34633.554 633F.20.
35 Sec. 96. Section 633.634, Code 2019, is amended to read as
-72-1follows:
2633.634 Combination of voluntary and standby petitions with
3involuntary petition for hearing.
4If prior to the time of hearing on a petition for the
5appointment of a guardian or a conservator, a petition is filed
6under the provisions of section 633.557, 633.572 633F.19 or
7633.591 section 633F.41, subsection 1, the court shall combine
8the hearing on such petitions and determine who shall be
9appointed guardian or conservator, and such petition shall be
10triable to the court.
11 Sec. 97. Section 633.717, subsection 8, Code 2019, is
12amended to read as follows:
138. The denial by a court of this state of a petition to
14accept a guardianship or conservatorship transferred from
15another state does not affect the ability of the guardian or
16conservator to seek appointment as guardian or conservator in
17this state under section 633.551, 633.552 633F.19, or 633.566
18 633F.28, if the court has jurisdiction to make an appointment
19other than by reason of the provisional order of transfer.
20 Sec. 98. Section 633B.102, subsections 2 and 6, Code 2019,
21are amended to read as follows:
222. “Conservator” or “conservatorship” means a conservator
23appointed or conservatorship established pursuant to sections
24633.570 and 633.572 section 633F.31 or a similar provision of
25the laws of another state.
266. “Guardian” or “guardianship” means a guardian appointed
27or a guardianship established pursuant to sections 633.556
28 633F.22 and 633.560 633F.25 or a similar provision of the laws
29of another state.
30 Sec. 99. Section 633B.108, subsection 1, Code 2019, is
31amended to read as follows:
321. Under a power of attorney, a principal may nominate
33a conservator of the principal’s estate or guardian of
34the principal’s person for consideration by the court if
35proceedings for the principal’s estate or person are begun
-73-1after the principal executes the power of attorney. Except
2for good cause shown or disqualification, the court shall make
3its appointment in accordance with the principal’s most recent
4nomination. This section does not prohibit an individual
5from executing a petition for the voluntary appointment of a
6guardian or conservator on a standby basis pursuant to sections
7633.560 633F.25 and 633.591 633F.41.
8 Sec. 100. Section 815.11, Code 2019, is amended to read as
9follows:
10815.11 Appropriations for indigent defense — fund created.
11Costs incurred for legal representation by a court-appointed
12attorney under chapter 229A, 665, 822, or 908, or section
13232.141, subsection 3, paragraph “d”, or section 598.23A,
14600A.6B, 814.9, 814.10, 814.11, 815.4, 815.7, or 815.10 on
15behalf of an indigent shall be paid from moneys appropriated by
16the general assembly to the office of the state public defender
17in the department of inspections and appeals and deposited in
18an account to be known as the indigent defense fund. Costs
19incurred representing an indigent defendant in a contempt
20action, or representing an indigent juvenile in a juvenile
21court proceeding, are also payable from the fund. However,
22costs incurred in any administrative proceeding or in any other
23proceeding under this chapter or chapter 598, 600, 600A, 633,
24633A, 633F, 814, or 915 or other provisions of the Code or
25administrative rules are not payable from the fund.
26 Sec. 101. CODE EDITOR DIRECTIVE.
271. Section 633.3, subsections 7, 15, 20, and 21, section
28633.78, subsection 1, unnumbered paragraph 1 and paragraph
29“b”, and subsection 4, paragraph “a”, sections 633.80, 633.93,
30and 633.112, section 633.123, subsection 1, paragraph “a”, and
31subparagraph (3), section 633.551, subsections 1, 2, and 4,
32and sections 633.617, 633.662, 633.676, 633.677, 633.681, and
33633.682, Code 2019, are amended by striking the word “ward” and
34inserting in lieu thereof the words “protected person”.
352. Section 633.551, subsections 1 and 4, and section
-74-1633.557, subsection 1, Code 2019, are amended by striking the
2words “proposed ward” and inserting in lieu thereof the word
3“respondent”.
43. The Code editor is directed to make changes in any Code
5sections amended or enacted by any other Act to correspond with
6the changes made in this section of this Act if there appears
7to be no doubt as to the proper method of making the changes and
8the changes would not be contrary to or inconsistent with the
9purposes of this Act or any other Act.
10 Sec. 102. REPEAL. Sections 633.552, 633.554, 633.555,
11633.556, 633.557, 633.558, 633.559, 633.560, 633.561, 633.562,
12633.566, 633.568, 633.569, 633.570, 633.571, 633.572, 633.573,
13633.574, 633.575, 633.576, 633.580, 633.581, 633.582, 633.584,
14633.585, 633.591, 633.591A, 633.592, 633.593, 633.594,
15633.595, 633.596, 633.603, 633.604, 633.605, 633.606, 633.607,
16633.608, 633.627, 633.628, 633.633, 633.633A, 633.633B,
17633.635, 633.636, 633.637, 633.637A, 633.638, 633.639, 633.640,
18633.641, 633.643, 633.644, 633.645, 633.646, 633.647, 633.648,
19633.649, 633.650, 633.652, 633.653, 633.653A, 633.654, 633.655,
20633.656, 633.657, 633.658, 633.659, 633.660, 633.661, 633.663,
21633.664, 633.665, 633.666, 633.667, 633.668, 633.669, 633.670,
22633.671, 633.672, 633.673, 633.675, and 633.679, Code 2019, are
23repealed.
24DIVISION III
25effective date and applicability provisions
26 Sec. 103. EFFECTIVE DATE. This Act takes effect January 1,
272020.
28 Sec. 104. APPLICABILITY. This Act applies January 1, 2020,
29to guardianships and conservatorships proceedings occurring on
30or after that date.
31EXPLANATION
32The inclusion of this explanation does not constitute agreement with
33the explanation’s substance by the members of the general assembly.
34This bill relates to guardianships and conservatorships for
35adults and minors and provides for jurisdiction, definitions,
-75-1proceedings, administration, and closing. The bill creates
2new Code chapter 633F and repeals similar provisions from Code
3chapter 633. The new Code chapter is organized into five
4subchapters: jurisdictions, definitions, and applicability;
5guardianships for minors; guardianships for adults;
6conservatorships; and proceedings, administration, and closing.
7JURISDICTION, DEFINITIONS, AND APPLICABILITY. The bill
8provides the jurisdiction for minor and adult guardianships and
9conservatorships. The bill provides that district courts have
10jurisdiction over all conservatorships and adult guardianships.
11The bill provides that effective for petitions filed January
121, 2020, the juvenile court shall have exclusive, original
13jurisdiction for minor guardianships. The bill provides that
14existing guardianships as of that date shall be transferred
15to the juvenile court if requested by the protected person’s
16attorney, parent, or guardian, or if requested by the court.
17Prior to January 1, 2020, the district court shall have
18jurisdiction over minor guardianships.
19The bill provides definitions for the following terms:
20adult, clerk, conservator, court, court advisor, demonstrated
21lack of consistent parental participation, fiduciary, full
22age, functional limitation, guardian, legal custody, legal
23representative, limited conservatorship, limited guardianship,
24loyalty, minor, parent, person, property, protected person,
25prudence, and respondent.
26“Court advisor” is defined as a person appointed by the
27court to investigate and report information relevant to
28a guardianship or conservatorship proceeding. “Protected
29person” is used in lieu of the former term “ward” and is
30defined as the person for whom a guardian or conservator has
31been appointed, or who is a respondent in a proceeding under
32the new Code chapter. “Respondent” is used in lieu of the
33former term “proposed ward” and is defined as the proposed
34protected person, including a person who is the subject of
35other proceedings under the new Code chapter. The bill makes
-76-1corresponding term changes to the use of the terms “ward” and
2“proposed ward” in Code chapter 633.
3The bill provides that all relevant provisions of the
4probate code, Code chapter 633, shall apply to proceedings to
5the extent not inconsistent with the provisions of Code chapter
6633F.
7GUARDIANSHIPS FOR MINORS. The bill prescribes the venue
8for a minor guardianship and provides for the transferring of
9a case in the best interests of a minor. The bill sets forth
10the requirements of what must be submitted in a petition for
11appointment of a guardian for a minor. The bill prescribes
12who shall receive notice of the filing of the petition of
13appointment of a guardian for a minor, order appointing counsel
14for the respondent, and setting a hearing on the petition. The
15bill prescribes who shall be required and who has a right to
16participate in the hearing for appointment of a guardian for
17a minor. The bill sets forth preferences for selection of a
18guardian for a minor.
19The bill provides for a process for a standby petition for
20appointment of a guardian for a minor where an adult person
21having physical and legal custody of a minor may execute a
22verified petition for the appointment of a guardian of the
23minor upon the express condition that the petition shall be
24acted upon by the court only upon the occurrence of an event
25specified or the existence of a described condition of the
26mental or physical health of the petitioner, the occurrence of
27which event, or the existence of which conditions, shall be
28established in the manner directed in the petition.
29The bill provides a process for appointment of a guardian for
30a minor, which includes a background check and consideration
31of filing a child in need of assistance petition. The bill
32provides for two processes for the appointment of a guardian:
33one that provides for the appointment of a guardian for a minor
34without parental consent and one that provides for appointment
35of a guardian with parental consent. The bill provides for
-77-1representation of a minor respondent, providing for an attorney
2for the minor respondent if the court determines that the
3interests of the minor are or may be inadequately represented.
4The bill also provides for representation for indigent
5parents of a minor respondent, providing that the court shall
6appoint an attorney for the parent identified in the petition
7for appointment of a guardian if the parent objects to the
8appointment of a guardian, the parent requests appointment of
9an attorney, and the court determines that the parent is unable
10to pay for an attorney in accordance with Code section 232.141.
11The bill provides for emergency appointment of a guardian
12for a minor when the petitioner proves by a clear and
13convincing evidence that an emergency exists justifying
14the need for an immediate appointment. The bill provides
15rights for the protected person to terminate the emergency
16guardianship. The bill details the duties and powers of
17a guardian for a minor. The bill provides a process to
18transition a minor guardianship to an adult guardianship.
19GUARDIANSHIPS FOR ADULTS. The bill sets forth the
20requirements of what must be submitted in a petition for
21appointment of a guardian for an adult. The bill prescribes
22who shall receive notice of the filing of the petition to
23appoint a guardian. The bill provides that in a proceeding
24for the appointment of a guardian, the respondent shall be
25given written notice of a guardian’s powers, including the
26potential deprivation of the respondent’s civil rights. The
27bill provides the process for determining whether to appoint
28a guardian or whether a limited guardianship might be more
29appropriate. The bill requires that upon a filing of a
30petition for appointment of a guardian, a background check
31shall be conducted when determining who the proposed guardian
32shall be. The bill discusses all of the areas that the court’s
33order shall address in the appointment of a guardian.
34The bill provides for emergency appointment of a guardian
35for an adult when the petitioner proves by a clear and
-78-1convincing evidence that an emergency exists justifying
2the need for an immediate appointment. The bill provides
3rights for the protected person to terminate the emergency
4guardianship.
5The bill provides that the court shall appoint as guardian a
6qualified and suitable person who is willing to serve in that
7capacity and the same person may be appointed to serve as both
8guardian and conservator. The bill provides for a process
9for a petition for the appointment of a guardian on a standby
10basis. The bill prescribes the responsibilities of a guardian.
11The bill sets forth the rights of a protected person under a
12guardianship.
13CONSERVATORSHIPS. The bill sets forth the requirements
14of what must be submitted in a petition for appointment
15of a conservator. The bill prescribes who shall receive
16notice of the filing petition for a conservatorship. The
17bill provides that in a proceeding for the appointment of a
18conservator, the respondent shall be given written notice of a
19conservator’s powers, including the potential deprivation of
20a respondent’s civil rights. The bill provides the process
21for determining whether to appoint a conservator or whether a
22limited conservatorship might be more appropriate. The bill
23requires that upon a filing of a petition for appointment of
24a conservatorship, a background check shall be conducted when
25determining who the proposed guardian shall be. The bill
26discusses all of the areas that the court’s order shall address
27in the appointment of a conservator.
28The bill provides for emergency appointment of a conservator
29when the petitioner proves by a clear and convincing evidence
30that an emergency exists justifying the need for an immediate
31appointment. The bill provides rights for the protected person
32to terminate the emergency conservatorship.
33The bill provides that the court shall appoint as
34conservator a qualified and suitable person who is willing to
35serve in that capacity and the same person may be appointed
-79-1to serve as both guardian and conservator. The bill provides
2that the petition for appointment of a guardian for an adult
3and a petition for a conservator for an adult may be combined
4and the cause tried in the same manner as a petition for the
5appointment of a conservator. The bill provides the petition
6for appointment of a guardian for a minor and the petition
7for the appointment of a conservator of a minor shall not be
8combined. The bill sets forth the powers of a protected person
9in a conservatorship. The bill sets forth who has title and
10who has possession of a protected person’s property. The bill
11details the duties and powers of a conservator.
12The bill provides that there is a presumption of fraud in a
13conservatorship if a contract, transfer, or gift is made by a
14protected person after a conservator has been appointed. The
15bill provides for a procedure in lieu of a conservatorship for
16money or other property due to a minor when a conservatorship
17is not in place.
18The bill provides for a procedure for the appointment of a
19conservator for an adult on a standby basis in which an adult
20person of sound mind may execute a verified petition for the
21appointment of a conservator of the person’s property upon the
22express condition that such petition shall be acted upon by the
23court only upon the occurrence of an event specified or the
24existence of a described condition of the mental or physical
25health of the petitioner, the occurrence of which event, or
26the existence of which condition, shall be established in the
27manner directed in the petition.
28The bill provides for a procedure for a standby petition for
29appointment of a conservator for a minor. The bill provides
30that an adult person having physical and legal custody of a
31minor may execute a verified petition for the appointment
32of a conservator of the minor upon the express condition
33that the petition shall be acted upon by the court only upon
34the occurrence of an event specified or the existence of a
35described condition of the mental or physical health of the
-80-1petitioner, the occurrence of which event, or the existence of
2which condition, shall be established in the manner directed
3in the petition. The petition, in addition to containing the
4information required in new Code section 633F.28, shall include
5a statement that the petitioner understands the result of a
6conservator being appointed for the minor. An appointment of a
7conservator for a minor shall only be effective until the minor
8attains full age.
9The bill provides a process for when a person owns property
10located in the state of Iowa, the person’s whereabouts
11are unknown, and no provision for the care, control, and
12supervision of such property has been made, with the result
13that such property may be lost, damaged, or diminished in
14value, or that the dependents of such owners are likely to be
15deprived of means of support because of such absence. The
16bill allows any adult person to file with the clerk a petition
17for the appointment of a conservator of such property of the
18absentee. The bill provides a process for the appointment of
19a foreign conservator. The bill provides a process for the
20disposition of a protected person’s will. The bill provides
21for rules governing claims against protected persons or
22conservators.
23PROCEEDINGS, ADMINISTRATION, AND CLOSING. The bill provides
24that a petitioner or respondent may submit a professional
25evaluation in a matter concerning the granting, modifying,
26or terminating of a guardianship or conservatorship for
27the respondent. The bill requires that the court order
28a professional evaluation unless the court finds it has
29sufficient information to determine whether the criteria for a
30guardianship or conservatorship are met or the petition or the
31petitioner or respondent has filed a professional evaluation.
32The bill provides additional guidelines to govern professional
33evaluations and how a court shall consider professional
34evaluations.
35The bill provides direction for the position of a court
-81-1advisor including what the court advisor shall do when
2appointed by the court. The bill specifies that the role of
3the court advisor is to gather and report factual information
4that will assist the court in making custody, visitation, or
5other decisions related to the welfare of the respondent. The
6bill specifies that the same person shall not serve both as
7the attorney representing the respondent and as court advisor.
8Additionally, the bill specifies that in a guardianship
9or conservatorship proceeding, the court shall not appoint
10a guardian ad litem. The bill sets forth what the court
11advisor’s written report shall entail and that the report shall
12be made part of the court record unless otherwise ordered by
13the court.
14The bill provides for the appointment of an attorney for
15adult respondents and protected persons in conservatorships and
16adult respondents and protected persons in guardianships and
17sets forth the duties of the attorney representing a respondent
18or protected person. The bill provides for the cost of
19court-appointed attorneys for indigents to be assessed against
20the county in which the proceedings are pending.
21The bill provides that the district court may, on its own
22motion or on the motion of any party, order the parties to
23participate in mediation in any guardianship or conservatorship
24action. The bill provides that the mediation shall be
25conducted in accordance with Code chapter 679C and standards
26set forth by the bill.
27The bill provides that the appointment of a guardian or
28conservator does not create a presumption that the protected
29person lacks testamentary capacity. The bill describes the
30reporting requirements of guardians and conservators.
31The bill provides that the court may conduct a hearing to
32determine whether the removal of a guardian or conservator is
33appropriate in certain circumstances set forth in the bill.
34The bill sets forth additional guidelines regarding the removal
35of a guardian or conservator.
-82- 1The bill sets forth criteria to govern the termination or
2modification of guardianships and conservatorships. The bill
3provides that in proceedings to establish, modify, or terminate
4a guardianship or conservatorship, or to remove a guardian
5or conservator, the case shall be tried as a law action and
6governed by the rules of civil procedure subject to several
7requirements set forth in the bill. The bill provides that the
8compensation of guardians, conservators, guardian’s attorneys,
9and conservator’s attorneys shall be fixed according to Code
10section 633.200. The bill describes the liability of guardians
11and conservators for their own acts or omissions taken or made
12in the official discharge of their duties and for the acts of
13the protected person.
14The bill provides that a protected person shall be charged
15with the court costs of the protected person’s guardianship
16and conservatorship proceedings, including guardian’s and
17conservator’s fees, and the fees of attorneys representing
18guardians and conservators. The bill provides that in the
19case of indigency, the court may, upon application, waive
20payment of court costs. However, the bill provides that if
21the protected person becomes financially capable of paying
22any waived costs, the costs shall no longer be waived and are
23immediately payable. The bill provides that the provisions of
24Code chapter 633 are applicable to all fiduciaries and govern
25the appointment, qualification, oath, and bond of guardians and
26conservators with two exceptions.
27The bill repeals numerous sections in the probate code and
28makes conforming changes throughout the Code.
29The bill takes effect January 1, 2020. The bill applies to
30guardianship and conservatorship proceedings on or after that
31date.
-83-asf/jh
2for adults and minors and providing for jurisdiction,
3definitions, proceedings, administration, and closing, and
4including effective date and applicability provisions.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2guardianships and conservatorships
3 Section 1. NEW SECTION. 633F.1 Jurisdiction.
41. The juvenile court shall have exclusive, original
5jurisdiction of all proceedings governing minor guardianships
6for petitions filed on or after January 1, 2020. Prior to
7January 1, 2020, the district court shall have exclusive,
8original jurisdiction of all proceedings governing minor
9guardianships. Existing minor guardianships as of January 1,
102020, shall be transferred to the juvenile court if requested
11by the protected person’s attorney, parent, or guardian, or if
12directed by the court.
132. Proceedings governing the appointment of conservators
14and the appointment of guardians for adults; the granting of
15letters of conservatorship and the granting of letters of
16guardianship for adults; and the administration, settlement,
17and closing of conservatorships and the administration,
18settlement, and closing of guardianships for adults shall be in
19district court, unless moved elsewhere by a court order.
20 Sec. 2. NEW SECTION. 633F.2 Definitions and use of terms.
21When used in this chapter, unless otherwise required by the
22context, the following words and phrases shall be construed as
23follows:
241. “Adult” means an individual eighteen years of age or
25older.
262. “Clerk” means clerk of the court in the county in which
27the matter is pending.
283. “Conservator” means a person appointed by the court to
29have the custody and control of the property of a protected
30person.
314. “Court” means the Iowa district court sitting in probate
32and includes any Iowa district court judge and any Iowa
33district associate court judge or associate probate judge,
34and the Iowa juvenile court, and includes any Iowa juvenile
35judge and Iowa associate juvenile judge, presiding over minor
-1-1guardianships.
25. “Court advisor” means a person appointed by the court to
3investigate and report information relevant to a guardianship
4or conservatorship proceeding.
56. “Demonstrated lack of consistent parental participation”
6means the refusal or inability of a parent to comply with
7the duties and responsibilities imposed upon a parent by
8the parent-child relationship, including but not limited to
9providing the minor with necessary food, clothing, shelter,
10health care, education, and other care and supervision
11necessary for the minor’s physical, mental, and emotional
12health and development.
137. “Fiduciary” includes guardian and conservator.
148. “Full age” means the state of legal majority attained by
15having arrived at the age of eighteen years; having married,
16even if such marriage has been terminated by divorce; or
17having been declared to be emancipated by a court of competent
18jurisdiction.
199. “Functional limitations” means the behavior or condition
20of a person which impairs the person’s ability to care for
21the person’s personal safety, to attend to or provide for
22necessities for the person, or to make, communicate, or carry
23out important decisions concerning the person’s financial
24affairs.
2510. “Guardian” means the person appointed by the court to
26have the custody of the protected person under the provisions
27of this chapter.
2811. “Legal custody” means an award to a parent or guardian
29under which a parent or guardian has custodial rights and
30responsibilities toward a minor child, which includes
31decision making affecting the child’s legal status, medical
32care, education, extracurricular activities, and religious
33instruction.
3412. “Legal representative” includes an attorney; guardian;
35conservator; a person appointed under power of attorney;
-2-1court-appointed custodian; representative payee for social
2security purposes, veterans affairs benefits, or any other
3representative receiving federal or state benefits on behalf of
4a protected person; trustee; or federal fiduciary.
513. “Limited conservatorship” means a conservatorship
6that grants the conservator less than all powers available
7under this chapter or otherwise restricts the powers of the
8conservator.
914. “Limited guardianship” means a guardianship that grants
10the guardian less than all powers available under this chapter
11or otherwise restricts the powers of the guardian.
1215. “Loyalty” means actions solely in the best interests of
13a protected person and with due regard to a protected person’s
14wishes.
1516. “Minor” means an unmarried individual under the age
16of eighteen years who has not become emancipated pursuant to
17chapter 232C.
1817. “Parent” means a biological or adoptive mother or
19father of a child; or an individual whose parental status has
20been established by operation of law due to the individual’s
21marriage to the mother at the time of conception or birth of
22the child, by order of a court of competent jurisdiction, or by
23an administrative order when authorized by state law. “Parent”
24does not include a mother or father whose parental rights have
25been terminated.
2618. “Person” includes natural persons and corporations.
2719. “Property” includes both real and personal property.
2820. “Protected person” means the person for whom a guardian
29or conservator has been appointed, or who is a respondent in a
30proceeding under this chapter.
3121. “Prudence” means being careful in the way a conservator
32makes decisions or spends money so that the conservator
33avoids unnecessary risk by considering the purposes, terms,
34distribution requirements, and other circumstances of the
35conservatorship.
-3- 122. “Respondent” means the proposed protected person,
2including a person who is the subject of other proceedings
3under this chapter.
4 Sec. 3. NEW SECTION. 633F.3 Applicability of chapter 633.
5All relevant provisions of the probate code, chapter 633,
6shall apply to proceedings to the extent not inconsistent with
7the provisions of this chapter.
8 Sec. 4. NEW SECTION. 633F.4 Venue.
91. Venue for proceedings under this subchapter shall be in
10the judicial district where the minor customarily resides at
11the time the proceeding is initiated. The court may transfer
12any minor guardianship proceeding brought under this subchapter
13to the juvenile court of another county if the court determines
14one of the following:
15a. Such a transfer is in the best interest of the minor
16and will assist the court in monitoring and reviewing the
17guardianship.
18b. The respondent minor and the guardian consent to the
19transfer and the court finds good cause for the transfer.
202. The court shall transfer the case by ordering the
21transfer and a continuance by forwarding to the clerk of the
22receiving court a certified copy of all papers filed together
23with an order of transfer. The judge of the receiving court
24shall either accept the filings of the transferring court, or
25direct the filing of a new petition upon a finding that it
26would be in the minor respondent’s best interest to do so.
27 Sec. 5. NEW SECTION. 633F.5 Petition for appointment of
28guardian for a minor.
291. Any adult, or minor at least fourteen years of age for
30whom the petition is sought, may file with the clerk a verified
31petition for the appointment of a guardian of a minor. The
32petition shall include all of the following:
33a. The petitioner’s name, residential and electronic mail
34addresses, and the relationship of the petitioner to the
35respondent.
-4- 1b. The respondent’s name, date of birth, county of
2residence, and, to the extent known, the following: place of
3residence, address, and the address of any other residence and
4the name and address of any facility at which the respondent
5has resided within the six-month period before the filing of
6the petition.
7c. To the extent known, the names, residential and
8electronic mail addresses, and phone numbers of all of the
9following persons:
10(1) The respondent’s parents, if any.
11(2) The respondent’s adult siblings.
12(3) If none of the previous, then at least one adult nearest
13in kinship to the respondent.
14(4) Any adult who has had the primary care or custody of the
15respondent or with whom the respondent has resided within six
16months immediately prior to the filing of the petition, if any.
17(5) Any attorney or other legal representative of the
18respondent.
19(6) Any attorney or other legal representative of the
20respondent’s parents.
21d. The name and address of any qualified and suitable
22proposed guardian and the reason the court should accept the
23proposed guardian.
24e. The reasons why a guardianship is sought and would be in
25the best interests of the respondent.
26f. The powers to be granted to the guardian and whether a
27limited guardianship is appropriate.
28g. Whether the petitioner seeks a change of the respondent’s
29residence or school district.
30h. To the extent known, a statement of any other proceedings
31concerning the care or custody of the respondent pending in any
32court in this state or any other jurisdiction.
332. Except as required by section 633F.6, any persons
34identified pursuant to subsection 1, paragraph “c”, are not
35entitled to notice of the filing of the petition.
-5- 13. If a minor guardianship proceeding under this chapter
2pertains to an Indian child as defined in section 232B.3 and
3the proceeding is subject to the Iowa Indian child welfare Act
4under chapter 232B, the proceeding and other actions taken in
5connection with the proceeding shall comply with chapter 232B.
64. The information required by section 598B.209 shall be
7contained as part of the petition or in an attached affidavit
8to the petition.
9 Sec. 6. NEW SECTION. 633F.6 Notice to minor respondent.
101. If the respondent is at least fourteen years of age
11and subsection 3 does not apply, notice of the filing of the
12petition and the order appointing counsel for the respondent
13and setting hearing on the petition shall be served upon the
14respondent in the manner of an original notice and the content
15of the notice is governed by the rules of civil procedure
16governing original notice. If the respondent has retained an
17attorney or an attorney has been appointed by the court for the
18respondent, the petitioner shall provide the respondent and the
19respondent’s attorney with a copy of the original notice.
202. If the respondent has not attained the age of fourteen
21years of age or if subsection 3 applies, the petitioner shall
22serve such notice upon the respondent by mailing the attorney
23representing the respondent or the court advisor appointed in
24the proceeding, a copy of the original notice.
253. If the respondent is at least fourteen years of age and
26the court, for good cause shown, determines that the respondent
27should not be served an original notice as otherwise required
28under subsection 1, the respondent shall be served as provided
29in subsection 2.
304. Notice shall also be served upon the respondent’s known
31parents listed in the petition in the manner of an original
32notice and the parents’ attorney if appointed in accordance
33with section 633F.7.
345. As stated in the petition, notice shall also be mailed to
35all of the following persons:
-6- 1a. Any adult with whom the respondent has resided in the
2six-month period preceding the filing of the petition.
3b. If the respondent has no parents, to the respondent’s
4adult siblings, or if none, to at least one adult nearest in
5kinship to the respondent.
66. Any notice required to be mailed under this section
7shall conform to the requirements set forth in section 633.40,
8subsection 5.
9 Sec. 7. NEW SECTION. 633F.7 Attendance and participation at
10hearing for appointment of guardian for minor.
111. Unless excused by the court for good cause shown, the
12attorney for the respondent, the petitioner, and the proposed
13guardian shall attend the hearing on the petition.
142. The respondent shall be entitled to attend the hearing
15on the petition if the respondent is of an age appropriate
16to attend the hearing. A presumption shall exist that
17a respondent fourteen years of age or older is of an age
18appropriate to attend the hearing.
193. Any parent of a respondent has the right to attend such
20hearing.
214. A person may request permission to participate in such
22hearing. The court may grant the request, with or without
23hearing, on determining that it is in the best interests of the
24respondent. The court may impose appropriate conditions on the
25person’s participation.
26 Sec. 8. NEW SECTION. 633F.8 Preference for selection of
27guardian for a minor.
281. The court shall appoint as guardian a qualified and
29suitable person who is willing to serve subject to the
30preferences as to the appointment of a guardian set forth in
31subsections 2 and 3.
322. In appointing a guardian for a minor whose parents are
33deceased, the court shall give preference to a person, if
34qualified and suitable, nominated as guardian for the minor by
35a will that was executed by the parent or parents having legal
-7-1custody of the minor at the time of the parent’s or parents’
2death, and that was admitted to probate under chapter 633 or
3635 or delivered to the clerk under section 633.356.
43. In appointing a guardian for a minor, the court shall
5give preference, if qualified and suitable, to a person
6requested by a minor fourteen years of age or older.
7 Sec. 9. NEW SECTION. 633F.9 Standby petition for
8appointment of guardian for a minor.
91. An adult person having physical and legal custody of
10a minor may execute a verified petition for the appointment
11of a guardian of the minor upon the express condition that
12the petition shall be acted upon by the court only upon
13the occurrence of an event specified or the existence of a
14described condition of the mental or physical health of the
15petitioner, the occurrence of which event, or the existence of
16which condition, shall be established in the manner directed
17in the petition. The petition, in addition to containing
18the information required in section 633F.5, shall include a
19statement that the petitioner understands the result of a
20guardian being appointed for the minor. An appointment of a
21guardian for a minor shall only be effective until the minor
22attains full age.
232. A standby petition may nominate a person for appointment
24to serve as guardian as well as alternate guardians if the
25nominated person is unable or unwilling or is removed as
26guardian. The court in appointing the guardian shall appoint
27the person or persons nominated by the petitioner unless the
28person or persons are not qualified or for other good cause and
29shall give due regard to other requests and recommendations
30contained in the petition.
313. A standby petition may be deposited with the clerk of the
32county in which the minor resides or with any person nominated
33by the petitioner to serve as guardian.
344. A standby petition may be revoked by the petitioner
35at any time before appointment of a guardian by the court,
-8-1provided that the petitioner is of sound mind at the time
2of revocation. Revocation shall be accomplished by the
3destruction of the petition by the petitioner, or by the
4execution of an acknowledged instrument of revocation. If the
5petition has been deposited with the clerk, the revocation may
6likewise be deposited there.
75. If the standby petition has been deposited with the
8clerk under the provisions of subsection 3 and has not been
9revoked under the provisions of subsection 4, the petition
10may be filed with the court upon the filing of a verified
11statement to the effect that the occurrence of the event or
12the condition provided for in the petition has occurred. If
13the petition has not been deposited with the clerk under the
14provisions of subsection 3 and has not been revoked under
15the provisions of subsection 4, then the petition shall be
16filed with the court at the time a verified statement that the
17occurrence of the event or the condition provided for in the
18petition has occurred is filed with the court in the county
19where the minor then resides. Upon filing of the petition and
20verified statement, the minor shall then become the respondent
21and the person filing the verified statement shall become the
22petitioner and the proceedings shall be thereafter conducted as
23provided for in this chapter.
24 Sec. 10. NEW SECTION. 633F.10 Appointment of guardian for a
25minor.
261. Upon the filing of the petition for appointment of a
27guardian for a minor, the court shall request records of child
28abuse, dependent adult abuse, sex offender registries, and
29criminal convictions, in the state of the proposed guardian’s
30residence unless the proposed guardian has undergone these
31required background checks within the prior twelve months.
32The court shall consider these records and other information
33regarding the proposed guardian that it deems appropriate prior
34to determining whether the proposed guardian is qualified
35and suitable to serve as guardian for the respondent. The
-9-1petitioner shall be responsible for paying the costs of
2obtaining background information described in this section
3unless the court waives such costs for good cause shown.
42. Prior to granting a petition for guardianship, the
5court shall consider whether the filing of a child in need of
6assistance petition is appropriate under section 232.87. If
7the court determines a child in need of assistance petition
8may be appropriate, the court shall notify the department of
9human services or the county attorney. The court may appoint a
10guardian for a respondent in a child in need of assistance case
11under section 232.101A, 232.103A, or 232.104.
12 Sec. 11. NEW SECTION. 633F.11 Appointment of guardian for
13a minor with parental consent.
141. The court shall appoint a guardian for a minor if the
15court finds all of the following:
16a. The parent or parents having legal custody of the minor
17understand the nature of the guardianship and knowingly and
18voluntarily consent to the guardianship.
19b. The minor is in need of a guardianship because of any of
20the following:
21(1) The parent having legal custody of the minor has a
22physical or mental illness that prevents the parent from
23providing care and supervision of the child.
24(2) The parent having legal custody of the minor is
25incarcerated.
26(3) The parent having legal custody of the minor is on
27active military duty.
28(4) The minor is in need of a guardianship for some other
29reason constituting good cause shown.
30c. Appointment of a guardian for the minor is in the best
31interest of the minor.
322. If the guardianship petition requests a guardianship
33with parental consent, the petition shall include an affidavit
34signed by the parent or parents verifying that the parent or
35parents knowingly and voluntarily consent to the guardianship.
-10-1The consent required by this subsection shall be on a form
2prescribed by the judicial branch.
33. On or before the date of the hearing on the petition,
4the parent or parents and the proposed guardian shall file
5an agreement with the court. This agreement shall state the
6following:
7a. The responsibilities of the guardian.
8b. The responsibilities of the parent or parents.
9c. The expected duration of the guardianship, if known.
104. If the court grants the petition, the court shall approve
11the guardianship agreement between the custodial parent and the
12proposed guardian and incorporate its terms by reference unless
13the court finds the agreement was not reached knowingly and
14voluntarily or is not in the best interests of the minor.
15 Sec. 12. NEW SECTION. 633F.12 Appointment of guardian for a
16minor without parental consent.
171. The court shall appoint a guardian for a minor without
18the consent of the parent or parents having legal custody of
19the minor if the court finds by clear and convincing evidence
20one of the following:
21a. Appointment of a guardian is in the best interest of
22the minor and no parent of the respondent is willing or able
23to adequately exercise the powers the court would grant to the
24guardian.
25b. The respondent has a person serving as de facto
26guardian, and the court finds a demonstrated lack of consistent
27participation in the respondent’s life by the parent or parents
28with legal custody after considering all of the following:
29(1) The intent and circumstances of the parent or parents
30when placing the respondent in the de facto guardian’s care and
31supervision.
32(2) The amount of communication and visitation by the parent
33or parents with the respondent while in the de facto guardian’s
34care and supervision.
35(3) Whether the parent or parents have refused to comply
-11-1with any conditions for retaining custody of the respondent in
2prior court orders.
32. In appointing a guardian, the court’s order shall address
4all of the following:
5a. Whether a limited guardianship is appropriate.
6b. Whether any terms of any agreement between the custodial
7parents or parents and the proposed guardian should be
8modified, or that the agreement was not reached knowingly and
9voluntarily.
10c. The reasons why the appointment of a guardian is in the
11respondent’s best interests.
12d. That all respondents have been provided with notice of
13the right to representation by an attorney, the right to be
14personally present in hearings on a petition, and evidence of
15whether notification was provided pursuant to the order on
16whether to appoint a guardian.
17e. The reporting period to be covered by the guardian’s
18first annual report.
193. A proceeding under this section shall not create a new
20eligibility category for the department of human services
21protective services.
22 Sec. 13. NEW SECTION. 633F.13 Representation for minor
23respondent.
241. Upon the filing of a petition for appointment of a
25guardian pursuant to section 633F.5, the court shall appoint
26an attorney for the minor, if the court determines that the
27interests of the minor are or may be inadequately represented.
282. An attorney representing the minor shall advocate for the
29wishes and views of the minor to the extent that those wishes
30and views are reasonably ascertainable and advocate for best
31interest of the minor if the wishes and views of the minor are
32not reasonably ascertainable.
33 Sec. 14. NEW SECTION. 633F.14 Representation for indigent
34parent or parents of minor respondent.
35Upon the filing of a petition for appointment of a guardian
-12-1pursuant to section 633F.5, the court shall appoint an attorney
2for the parent identified in the petition if all of the
3following are true:
41. The parent objects to the appointment of a guardian for
5the minor.
62. The parent requests appointment of an attorney and
7the court determines that the parent is unable to pay for an
8attorney in the same manner as in section 232.141.
9 Sec. 15. NEW SECTION. 633F.15 Emergency appointment of
10guardian for a minor.
111. The court may appoint a guardian for a minor ex parte
12only when the petitioner proves by clear and convincing
13evidence that an emergency exists justifying the need for an
14immediate appointment. This subsection does not apply to a
15protected person with an actively serving guardian. The order
16appointing a guardian under this section shall include a list
17of powers of the guardian, which powers shall be only such
18powers as the court deems necessary to address the emergency
19justifying the appointment.
202. The petition for emergency appointment must include the
21contents of section 633F.5, subsection 1, paragraphs “a”, “b”,
22“c”, and “d”.
233. Upon appointment as a guardian under this section,
24the guardian shall provide notice of such appointment to all
25persons required to be given notice under section 633F.6.
264. A protected person shall be entitled to a hearing within
27five days after the filing of a motion by the protected person
28asking that the emergency guardianship be terminated. A motion
29may also be filed by a legal representative of the protected
30person or a parent of the protected person.
315. A guardianship under this section shall terminate
32twenty-eight days after the order of appointment is entered.
33 Sec. 16. NEW SECTION. 633F.16 Duties of guardian for a
34minor.
351. A guardian for a minor is a fiduciary. Except as
-13-1otherwise limited by the court, a guardian for a minor has the
2duties and responsibilities of a parent regarding the minor’s
3safety, care, education, health, and welfare. A guardian shall
4act in the minor’s best interest and exercise reasonable care,
5diligence, and prudence.
62. A guardian of a minor shall do all of the following:
7a. Meet with and maintain sufficient contact with the
8minor to know of the minor’s abilities, limitations, needs,
9opportunities, and physical and mental health.
10b. Take reasonable care of the minor’s personal effects
11and may bring a proceeding for a conservatorship or protective
12arrangement instead of conservatorship, if necessary to protect
13other property of the minor.
14c. Inform the court of any change in the minor’s dwelling,
15address, or school district.
16d. In determining what is in the minor’s best interest, take
17into account the minor’s preferences to the extent actually
18known or reasonably ascertainable by the guardian.
19 Sec. 17. NEW SECTION. 633F.17 Powers of guardian for a
20minor.
211. Except as otherwise limited by the court, a guardian of
22a minor has the powers a parent would otherwise have regarding
23the minor’s safety, care, education, health, and welfare.
242. A guardian of a minor may do any of the following:
25a. If consistent with the terms of any order by a court
26of competent jurisdiction relating to custody of the minor,
27take custody of the minor and establish the minor’s place of
28dwelling, but shall not establish or move the minor’s dwelling
29outside the state without prior authorization of the court.
30b. Consent to and arrange for emergency and routine medical,
31dental or other care, treatment, or service for the minor.
32c. To the extent reasonable, delegate to the minor
33responsibilities for decisions affecting the minor’s
34well-being.
35d. Any other powers the court may specify.
-14- 13. The court may authorize a guardian of a minor to consent
2to adopt the minor who does not have a living parent.
34. A guardian of a minor may consent to the marriage of the
4minor upon receipt of prior court authorization.
5 Sec. 18. NEW SECTION. 633F.18 Petitions to transition from
6minor to adult guardianships.
7Within six months of a protected person’s eighteenth
8birthday, the guardian may petition the court to continue the
9guardianship beyond the protected person’s eighteenth birthday
10for the reasons stated in the guardian’s petition. The court
11shall set a hearing date on a petition under this section to
12be between twenty days after the order setting the hearing
13is entered, and sixty days before the protected person’s
14eighteenth birthday. The respondent shall be present at the
15hearing unless the court finds good cause for the absence of
16the respondent. If the respondent is not present, the court
17shall make a record of the lack of presence. The court shall
18make reasonable accommodations to enable the respondent to be
19present at the hearing. Notice of the hearing shall be mailed
20to all persons who would be entitled to notice of a hearing on
21a petition for guardianship by the same petitioner for the same
22respondent, if the respondent was of full age.
23 Sec. 19. NEW SECTION. 633F.19 Petition for appointment of
24guardian.
25Any adult person may file with the clerk a verified petition
26for the appointment of guardian. The petition shall state all
27of the following:
281. The petitioner’s name, address, and electronic mail
29address, the relationship of the petitioner to the respondent,
30and, to the extent known, all of the following:
31a. The respondent’s name, age, county of residence, place
32of residence, address, the address of any other residence, and
33the name and address of any facility at which the respondent
34has resided within the six-month period before the filing of
35the petition.
-15- 1b. The names and addresses of:
2(1) Respondent’s spouse and all adult children of the
3respondent.
4(2) If there are no persons in subparagraph (1), then
5respondent’s living parents and adult siblings.
6(3) If there are no persons in subparagraphs (1) and (2),
7then at least one adult nearest in kinship to the respondent.
8(4) If there are no persons in subparagraphs (1) through
9(3), then any adults with whom the respondent has resided
10within the six months before the filing of the petition.
11(5) Any legal representative of the respondent.
12(6) Any person nominated as guardian by the respondent and
13the document in which the person was nominated.
142. The name and address of any proposed guardian and the
15reason the court should accept the proposed guardian.
163. The reasons why the guardianship is necessary, including
17a brief description of the respondent’s alleged functional
18limitations which make the respondent unable to care for the
19respondent’s personal safety or to attend to or provide for
20necessities such as food, shelter, clothing, or medical care,
21without which physical injury or illness may occur.
224. Whether the petitioner seeks a change of the respondent’s
23residence.
245. The powers to be granted to the guardian and the reasons
25a limited guardianship is inappropriate.
266. That a guardianship is the least restrictive means to
27protect the best interests of the respondent.
287. Whether the respondent is capable of requesting an
29attorney and whether appointment of a court advisor is
30appropriate.
318. Except as required by section 633F.20, any persons
32identified pursuant to subsection 1, paragraph “b”, are not
33entitled to notice of hearings on the petition.
34 Sec. 20. NEW SECTION. 633F.20 Notice to respondent.
351. Except where the respondent is the petitioner, notice of
-16-1the filing of a petition to appoint a guardian shall be served
2upon the respondent in the manner of an original notice and
3the content of the notice is governed by the rules of civil
4procedure governing original notice.
52. Notice shall also be mailed to the following persons, to
6the extent known to the petitioner:
7a. The respondent’s legal representative.
8b. The spouse and adult children of the respondent.
9c. If there are no persons in paragraphs “a” and “b”, then
10to the respondent’s adult grandchildren.
11d. If there are no persons in paragraphs “a” through “c”,
12then to the respondent’s parents and adult siblings.
13e. If there are no persons in paragraphs “a” through “d”,
14then to any adult with whom respondent has resided in the
15six-month period preceding the filing of the petition, and any
16adult who has assisted the respondent with decision making for
17such period.
18f. If there are no persons in paragraphs “a” through “e”,
19then at least one adult in the priority shown in section
20633.219.
213. Any notice required to be mailed under this section shall
22conform to section 633.40, subsection 5.
23 Sec. 21. NEW SECTION. 633F.21 Notification of guardianship
24powers.
25 In a proceeding for the appointment of a guardian, the
26respondent shall be given written notice, as provided in
27section 633F.20, which advises the respondent that, if
28a guardian is appointed, the guardian may, without court
29approval, provide for the care of the respondent, manage
30the respondent’s personal property and effects, assist
31the respondent in developing self-reliance and receiving
32professional care, counseling, treatment, or services as
33needed, and ensure that the respondent receives necessary
34emergency medical services. The notice shall also advise
35the respondent that, upon the court’s approval, the guardian
-17-1may change the respondent’s permanent residence to a more
2restrictive residence. The notice shall also advise the
3respondent that, without court approval, the guardian may
4arrange for certain routine medical procedures for the
5respondent. The notice shall clearly advise the respondent in
6boldface type of a minimum size of ten points, of the right
7to counsel and the potential deprivation of the respondent’s
8civil rights. The notice shall also state that the respondent
9may use the respondent’s own attorney instead of an attorney
10appointed by the court.
11 Sec. 22. NEW SECTION. 633F.22 Appointment of guardian.
121. If the court finds by clear and convincing evidence
13that the respondent’s decision-making capacity is so impaired
14that the respondent is unable to care for the respondent’s
15personal safety or to attend to or provide for the respondent’s
16necessities such as food, shelter, clothing, or medical
17care, without which physical injury or illness may occur, and
18the court finds there are no less restrictive alternatives
19that will protect the respondent, the court shall appoint a
20guardian.
212. In appointing a guardian, the court shall consider the
22functional abilities and limitations of the respondent and
23whether a limited guardianship is appropriate.
243. If the court appoints a guardian for a respondent who has
25been diagnosed as having an intellectual disability, the court
26shall make a separate determination as to the respondent’s
27competency to vote. The court shall find a respondent
28incompetent to vote only upon determining that the person lacks
29sufficient mental capacity to comprehend and exercise the right
30to vote.
314. Upon the filing of the petition for appointment of a
32guardian, the court shall request records of child abuse,
33dependent adult abuse, sex offender registries, and criminal
34convictions, in the state of the proposed guardian’s residence
35unless the proposed guardian has undergone these required
-18-1background checks within the prior twelve months. The court
2shall consider these records and other information regarding
3the proposed guardian that it deems appropriate prior to
4determining whether the proposed guardian is qualified
5and suitable to serve as guardian for the respondent. The
6petitioner shall be responsible for paying the costs of
7obtaining background information described in this subsection
8unless the court waives such costs for good cause shown.
95. In appointing a guardian, the court’s order shall address
10all of the following:
11a. Whether a limited guardianship is appropriate.
12b. The reasons why the appointment of a guardian is in the
13respondent’s best interests.
14c. That the respondent has been provided with notice of
15the right to representation by an attorney, the right to be
16personally present in hearings on a petition, and evidence of
17whether notification was provided pursuant to the order on
18whether to appoint a guardian.
19d. The reporting period to be covered by the guardian’s
20first annual report.
21 Sec. 23. NEW SECTION. 633F.23 Emergency appointment of
22guardian.
231. The court may appoint a guardian ex parte only when
24the petitioner proves by clear and convincing evidence that
25an emergency exists justifying the need for an immediate
26appointment. This subsection does not apply to a protected
27person with an actively serving guardian. The order appointing
28a guardian under this section shall include a list of powers
29of the guardian, which powers shall be only such powers as the
30court deems necessary to address the emergency justifying the
31appointment.
322. Upon appointment as a guardian under this section,
33the guardian shall provide notice of such appointment to all
34persons required to be given notice under section 633F.20.
353. A protected person shall be entitled to a hearing within
-19-1five days after the filing of a motion by the protected person
2asking that the emergency guardianship be terminated.
34. A guardianship under this section shall terminate
4twenty-eight days after the order of appointment is entered.
5 Sec. 24. NEW SECTION. 633F.24 Preference as to appointment
6of guardian.
7The court shall appoint as guardian a qualified and
8suitable person who is willing to serve in that capacity. The
9same person may be appointed to serve as both guardian and
10conservator.
11 Sec. 25. NEW SECTION. 633F.25 Appointment of guardian on a
12standby basis.
131. A petition for the appointment of a guardian on a standby
14basis may be filed by any adult person under the same procedure
15and requirements as provided in sections 633.596, 633.597,
16and 633F.41 for appointment of standby conservator, insofar
17as applicable. In all proceedings to appoint a guardian,
18the court shall consider whether a limited guardianship is
19appropriate.
202. If prior to the time of hearing on a petition for the
21appointment of a guardian or a conservator, a petition is
22filed under the provisions of this section or section 633F.19,
23633F.28, or 633F.41, subsection 1, the court shall combine the
24hearing on such petitions and determine who shall be appointed
25guardian or conservator, and such petition shall be triable to
26the court.
27 Sec. 26. NEW SECTION. 633F.26 Responsibilities of guardian.
281. A guardian is a fiduciary. A guardian shall have the
29following responsibilities:
30a. Treat protected persons with dignity and respect.
31b. Promote self-determination of the protected persons, to
32the extent reasonably possible, by involving them in decisions
33that affect them and by considering their wishes, values, and
34preferences in making decisions on their behalf.
35c. In making decisions for a protected person, make the
-20-1decisions known or reasonably believed the protected person
2would make if able unless such a decision would unreasonably
3harm or endanger the protected person’s welfare or interest.
4If the guardian does not know or cannot reasonably ascertain
5the decisions that the protected person would make if able, or
6if making such a decision would unreasonably harm or endanger
7the protected person’s welfare, the guardian shall act in the
8protected person’s best interest.
9d. Maintain regular contact with the protected person to the
10extent reasonably possible.
11e. Make a good-faith effort to cooperate with other legal
12representatives of the protected person.
132. Based upon evidence produced at the hearing, the court
14may grant a guardian the following powers and duties which may
15be exercised without additional court approval:
16a. Providing for the care, comfort, and maintenance of the
17protected person, including appropriate training and education
18to maximize the protected person’s potential.
19b. Taking reasonable care of the protected person’s
20clothing, furniture, vehicle, and other personal effects.
21c. Ensuring the protected person receives necessary
22emergency medical services.
23d. Ensuring the protected person receives appropriate
24professional care, counseling, and medical treatment and
25services limited to preventive and diagnostic services and
26treatment related to a specific illness, symptom, complaint,
27or injury.
28e. Changing the protected person’s permanent residence to an
29arrangement that is less restrictive of the protected person’s
30ability to leave or have visitors than the arrangement at the
31time of the guardian’s appointment.
32f. Placing reasonable time, place, or manner restrictions on
33communication, visitation, or interaction between the protected
34person and another person.
35g. Any other powers or duties the court may specify.
-21- 13. The court in issuing any order shall take into account
2all the available information concerning the capabilities of
3the protected person including any additional evaluation deemed
4necessary and the availability of third-party assistance to
5meet the needs of the protected person.
64. The court may direct that the guardian have only limited
7responsibility for the protected person. If the responsibility
8is limited, the court shall state those areas of responsibility
9which shall be the guardian’s, and all others shall be retained
10by the protected person.
115. Following hearing and notice to the protected person and
12court advisor, the court, by specific reference to the power
13being granted, may authorize a guardian to exercise any of the
14following powers:
15a. Changing, at the guardian’s request, the protected
16person’s permanent residence to a nursing home, or other secure
17facility or secure portion of a facility, or a facility that
18restricts the protected person’s ability to leave or have
19visitors.
20b. Arranging for health, including mental health, or other
21care, treatment, or services for the protected person that were
22not granted in subsection 2.
23c. Consenting to the withholding or withdrawal of
24life-sustaining procedures in accordance with chapter 144A for
25the protected person.
26d. Upon a showing to the court of good cause, denying all
27communication, visitation, or interaction by the protected
28person with a person with whom the protected person has
29expressed a desire to communicate, visit, or interact, or with
30a person who seeks to communicate, visit, or interact with the
31protected person.
326. If the court makes a separate determination that the
33protected person lacks sufficient mental capacity to comprehend
34and exercise the right to vote then the court shall order that
35the protected person may not vote without further order of the
-22-1court.
27. If the court makes a separate determination that the
3protected person lacks sufficient mental capacity to contract a
4valid marriage then the court shall order that the protected
5person may not marry without further order of the court.
6 Sec. 27. NEW SECTION. 633F.27 Rights of protected person
7under guardianship.
8An adult protected person under a guardianship has the right
9of communication, visitation, or interaction with other persons
10upon the consent of the adult protected person, subject to
11section 633F.26, subsection 2, paragraph “f”. If an adult
12protected person is unable to give express consent to such
13communication, visitation, or interaction with a person due to
14a physical or mental condition, consent of an adult protected
15person may be presumed by a guardian or a court based on an
16adult protected person’s prior relationship with such person.
17 Sec. 28. NEW SECTION. 633F.28 Petition for appointment of
18conservator.
191. Any adult person may file with the clerk a verified
20petition for the appointment of a conservator. The petition
21shall state all of the following information:
22a. The petitioner’s name, address, and electronic mail
23address, and relationship to the respondent.
24b. To the extent known, the respondent’s name, age, county
25of residence, mailing address, and current location.
26c. To the extent known, the name, address, electronic mail
27address, and phone number of the following persons:
28(1) The respondent’s spouse, if any, and respondent’s adult
29children.
30(2) If there are no persons in subparagraph (1), the
31respondent’s living parents and adult siblings.
32(3) If there are no persons in subparagraphs (1) and (2),
33then, one or all of the below:
34(a) Any adult with whom the respondent has resided in a
35noninstitutional setting for more than six months immediately
-23-1prior to the filing of the petition, if any.
2(b) Any person or institution primarily responsible for the
3care or having custody of the respondent, if any.
4(4) Any nominated or presently acting legal representative
5of the respondent.
62. Any person nominated as conservator by the respondent,
7and the document in which the person was nominated.
83. The name and address of any proposed conservator, and
9the reasons the court should accept the proposed conservator.
10If the respondent has nominated a conservator other than the
11proposed conservator, the reasons the proposed conservator
12should be appointed in lieu of the respondent’s nominee.
134. The reasons why the conservatorship is necessary,
14including a brief description of the respondent’s alleged
15functional limitations which make the respondent unable to
16make, communicate, or carry out important decisions concerning
17the respondent’s financial affairs.
185. A list of what alternatives to the appointment of a
19conservator have been considered or attempted and why these
20alternatives do not address the limitations in the respondent’s
21ability to make, communicate, or carry out the respondent’s
22financial decisions.
236. The powers to be granted to the limited conservator, or,
24the reasons a limited conservatorship is inappropriate.
257. The estimated present value of the real estate, the
26estimated value of the personal property, and the estimated
27gross annual income of the estate. If any money is payable,
28or to become payable, to the respondent by the United States
29through the United States department of veterans affairs, the
30petition shall so state.
318. Whether the respondent is capable of requesting an
32attorney and whether appointment of a court advisor is
33appropriate.
349. Except as required by section 633F.20, any persons
35identified pursuant to section 1, paragraph “c”, are not
-24-1entitled to notice of hearings on the petition.
2 Sec. 29. NEW SECTION. 633F.29 Notice to respondent.
31. Except where the respondent is the petitioner, notice of
4the filing of the petition shall be served upon the respondent
5in the manner of an original notice and the content of the
6notice is governed by the rules of civil procedure governing
7original notice.
82. Notice shall be mailed to the following persons, to the
9extent known to the petitioner:
10a. The respondent’s legal representative.
11b. The spouse and adult children of the respondent.
12c. If there are no persons in paragraphs “a” and “b”, then
13to the respondent’s adult grandchildren.
14d. If there are no persons in paragraphs “a” through “c”,
15then to the respondent’s parents and adult siblings.
16e. If there are no persons in paragraphs “a” through “d”,
17then to any adult with whom the respondent has resided in the
18six-month period preceding the filing of the petition, and any
19adult who has assisted the respondent with decision making for
20such period.
21f. If there are no persons in paragraphs “a” through “e”,
22then at least one adult in the priority shown in section
23633.219.
243. Notice shall also be mailed to the United States
25department of veterans affairs in the event the respondent is
26receiving a veterans benefit.
274. Any notice required to be mailed hereunder shall conform
28to section 633.40, subsection 5.
29 Sec. 30. NEW SECTION. 633F.30 Notification of
30conservatorship powers.
31In a proceeding for the appointment of a conservator, the
32respondent shall be given written notice which advises the
33respondent that if a conservator is appointed, the conservator
34may, without court approval, manage the respondent’s principal,
35income, and investments, sue and defend any claim by or against
-25-1the respondent, sell and transfer personal property, and vote
2at corporate meetings. The notice shall also advise the
3respondent that, upon the court’s approval, the conservator
4may, after approval of the conservator’s plan and without
5further approval, invest the respondent’s funds, execute
6leases, make payments to or for the benefit of the respondent,
7support the respondent’s legal dependents, compromise or settle
8any claim, and do any other thing that the court determines
9is in the respondent’s best interests. The notice shall
10clearly advise the respondent, in boldface type of a minimum
11size of ten points, of the right to counsel and the potential
12deprivation of the respondent’s civil rights. The notice shall
13also state that the respondent may use the respondent’s own
14attorney instead of an attorney appointed by the court. In an
15involuntary conservatorship proceeding, the notice shall be
16served upon the respondent with the notice of the filing of the
17petition as provided in section 633F.29.
18 Sec. 31. NEW SECTION. 633F.31 Appointment of conservator.
191. If the court finds by clear and convincing evidence that
20the respondent’s functional limitations prevent the respondent
21from making, communicating, or carrying out important decisions
22concerning the respondent’s financial affairs, and the court
23finds there are no less-restrictive alternatives that will
24protect the respondent, the court shall appoint a conservator.
252. In appointing a conservator, the court shall consider
26the functional abilities and limitations of the respondent and
27whether a limited conservatorship is appropriate.
283. Upon the filing of the petition for appointment of a
29conservator, the court shall request records of child abuse,
30dependent adult abuse, sex offender registries, and criminal
31convictions, in the state of the proposed conservator’s
32residence unless the proposed conservator has undergone these
33required background checks within the prior twelve months,
34or unless the proposed conservator is an Iowa financial
35institution with trust powers. The court shall consider
-26-1these records and other information regarding the proposed
2conservator that it deems appropriate prior to determining
3whether the proposed conservator is qualified and suitable to
4serve as conservator for the respondent. The petitioner shall
5be responsible for paying the costs of obtaining background
6information described in this section unless the court waives
7such costs for good cause shown.
84. In appointing a conservator, the court’s order shall
9address all of the following:
10a. Whether a limited conservatorship is appropriate.
11b. The reasons why the appointment of a conservator is in
12the respondent’s best interests.
13c. That all respondents have been provided with notice of
14the right to representation by an attorney, the right to be
15personally present in hearings on a petition, and evidence of
16whether notification was provided pursuant to the order on
17whether to appoint a conservator.
18d. The reporting period to be covered by the conservator’s
19first annual report.
20 Sec. 32. NEW SECTION. 633F.32 Emergency appointment of
21conservator.
221. The court may appoint a conservator ex parte only when
23the petitioner proves by clear and convincing evidence that
24an emergency exists justifying the need for an immediate
25appointment. This subsection does not apply to a protected
26person with an actively serving conservator. The order
27appointing a conservator under this section shall include
28a list of powers of the conservator, which powers shall be
29only such powers as the court deems necessary to address the
30emergency justifying the appointment.
312. Upon appointment as a conservator under this section,
32the conservator shall provide notice of such appointment to all
33persons required to be given notice under section 633F.29.
343. A protected person shall be entitled to a hearing within
35five days after the filing of a motion by the protected person
-27-1asking that the emergency conservatorship be terminated.
24. A conservatorship under this section shall terminate
3twenty-eight days after the order of appointment is entered.
4 Sec. 33. NEW SECTION. 633F.33 Selection of conservator.
5The court shall appoint as conservator a qualified and
6suitable person who is willing to serve in that capacity. The
7same person may be appointed to serve as both guardian and
8conservator.
9 Sec. 34. NEW SECTION. 633F.34 Combining petitions for
10appointment of guardian and conservator.
111. The petition for the appointment of a guardian for an
12adult and a petition for a conservator for an adult may be
13combined and the cause tried in the same manner as a petition
14for the appointment of a conservator.
152. The petition for the appointment of a guardian for a
16minor and the petition for the appointment of a conservator of
17a minor shall not be combined.
18 Sec. 35. NEW SECTION. 633F.35 Powers of protected person
19in conservatorship.
201. A protected person for whom a conservator has been
21appointed shall not have the power to convey, encumber, or
22dispose of property in any manner, other than by will if the
23protected person possesses the requisite testamentary capacity,
24unless the court determines that the protected person has a
25limited ability to handle the protected person’s own funds. If
26the court makes such a finding, it shall specify to what extent
27the protected person may possess and use the protected person’s
28own funds.
292. Any modification of the powers of the protected person
30that would be more restrictive of the protected person’s
31control over the protected person’s financial affairs shall
32be based upon clear and convincing evidence and the burden of
33persuasion is on the conservator. Any modification that would
34be less restrictive of the protected person’s control over the
35protected person’s financial affairs shall be based upon proof
-28-1in accordance with the requirements of section 633F.55.
2 Sec. 36. NEW SECTION. 633F.36 Title and possession of
3protected person’s property.
41. The title to all property of the protected person is
5in the protected person and not the conservator, subject,
6however, to possession by the conservator and to the control of
7the court for the purposes of administration, sale, or other
8disposition. Any real property of the protected person titled
9at any time in the name of a conservatorship shall be deemed
10to be titled in the protected person’s name subject to the
11conservator’s right of possession.
122. Every conservator shall have a right to, and shall take,
13possession of all of the real and personal property of the
14protected person. The conservator shall pay the taxes and
15collect the income from the property until the conservatorship
16is terminated. The conservator may maintain an action for the
17possession of the property, and to determine the title to the
18property.
19 Sec. 37. NEW SECTION. 633F.37 Duties of conservator.
201. A conservator is a fiduciary and has duties of prudence
21and loyalty to the protected person.
222. A conservator shall promote the self-determination of
23the protected person and, to the extent feasible, encourage
24the protected person to participate in decisions, act on the
25protected person’s own behalf, and develop or regain the
26capacity to manage the protected person’s financial affairs.
273. In making decisions for a protected person, the
28conservator shall make the decision the conservator reasonably
29believes the protected person would make if able, unless doing
30so would fail to preserve the resources needed to maintain
31the protected person’s well-being and lifestyle or otherwise
32unreasonably harm or endanger the welfare or personal or
33financial interests of the protected person. To determine
34the decision the protected person would make if able, the
35conservator shall consider the protected person’s prior or
-29-1current directions, preferences, opinions, values, and actions,
2to the extent actually known or reasonably ascertainable by the
3conservator.
44. If a conservator cannot make a decision under subsection
53 because the conservator does not know and cannot reasonably
6determine the decision the protected person would make if
7able, or the conservator reasonably believes the decision the
8protected person would make would fail to preserve resources
9needed to maintain the protected person’s well-being and
10lifestyle or otherwise unreasonably harm or endanger the
11welfare or personal or financial interests of the protected
12person, the conservator shall act in accordance with the best
13interests of the protected person. In determining the best
14interests of the protected person, the conservator shall
15consider all of the following:
16a. Information received from professionals and persons that
17demonstrate sufficient interest in the welfare of the protected
18person.
19b. Other information the conservator believes the protected
20person would have considered if the protected person were able
21to act.
22c. Other factors a reasonable person in the circumstances
23of the protected person would consider, including consequences
24to others.
255. Except when inconsistent with the conservator’s duties
26under subsections 1 through 4, a conservator shall invest and
27manage the protected person’s assets as a prudent investor
28would, by considering the circumstances and property of the
29protected person.
306. The propriety of a conservator’s investment and
31management of the conservatorship estate is determined in light
32of the facts and circumstances existing when the conservator
33decides or acts and not by hindsight.
347. A conservator that has special skills or expertise,
35or is named conservator in reliance on the conservator’s
-30-1representation of special skills or expertise, has a duty
2to use the special skills or expertise in carrying out the
3conservator’s duties.
48. In investing and selecting specific property for
5distribution, a conservator shall consider any estate plan or
6other donative, nominative, or appointive instrument of the
7protected person, known to the conservator.
89. A conservator shall maintain insurance on the insurable
9real and personal property of the protected person, unless
10the conservatorship estate lacks sufficient funds to pay for
11insurance or the court finds any of the following:
12a. The property lacks sufficient equity to justify the
13insurance premium.
14b. Insuring the property would unreasonably dissipate the
15conservatorship estate.
16c. Insuring the property would not be in the best interest
17of the protected person.
1810. If a protected person has executed a valid power of
19attorney under chapter 633B, the conservator shall act in
20accordance with the applicable provisions of chapter 633B.
2111. The conservator shall report to the department of
22human services the protected person’s assets and income, if
23the protected person is receiving medical assistance under
24chapter 249A. Such reports shall be made upon establishment of
25a conservatorship for an individual applying for or receiving
26medical assistance, upon application for benefits on behalf
27of the protected person, upon annual or semiannual review of
28continued medical assistance eligibility, when any significant
29change in the protected person’s assets or income occurs, or
30as otherwise requested by the department of human services.
31Written reports shall be provided to the department of human
32services office for the county in which the protected person
33resides or the office in which the protected person’s medical
34assistance is administered.
35 Sec. 38. NEW SECTION. 633F.38 Powers of conservator.
-31- 11. The conservator, acting reasonably and consistent
2with the fiduciary duties of the conservator to accomplish
3the purpose of the conservatorship, and acting in a manner
4consistent with the conservator’s plan, and consistent with
5the order establishing the conservatorship, including any
6limitations in the order, shall, without the necessity of prior
7court approval, have all the following powers on behalf of the
8protected person:
9a. Collect, receive, receipt for any principal or income,
10and to enforce, defend against, or prosecute any claim by or
11against the protected person or the conservator; and to sue on
12and defend claims in favor of or against the protected person
13or the conservator.
14b. Sell and transfer personal property of a perishable
15nature and tangible personal property for which there is a
16regularly established market.
17c. Vote at corporate meetings in person or by proxy.
18d. Receive additional property from any source.
19e. Notwithstanding the provisions of section 633.123,
20continue to hold any investment or other property originally
21received by the conservator, and also any increase thereof,
22pending the timely filing of the first annual report.
23f. Pay court costs, bond premiums, and court-approved
24expenses.
25g. Open a depository account.
26h. Receive bank statements and investment reports and
27correspond with financial institutions.
28i. Buy, sell, invest, or reinvest assets, except real
29estate, pursuant to section 633.123.
30j. Make payments on any existing mortgage, including for
31real estate taxes and for property and liability insurance.
32k. Pay for the protected person’s housing under an existing
33agreement.
34l. Pay health care insurance premiums and prescription
35medications, medical expenses, hospital expenses, and ambulance
-32-1bills.
2m. Authorize preparation and filing of, and pay any amount
3due for, state and federal income taxes.
4n. Pay utilities on the real property owned or leased by the
5protected person.
6o. Purchase clothing.
7p. Purchase food, cleaning supplies, toiletries, and
8personal grooming for the protected person.
9q. Reimburse the guardian or guardians for reasonable
10out-of-pocket expenses advanced on behalf of the protected
11person for health care and other items upon presentation of a
12receipt or statement to the conservator.
13r. Pay reasonable wages and any required employment taxes
14to individuals or organizations that can assist the protected
15person as needed with cooking, cleaning, shopping, and other
16activities of daily living.
172. Except as otherwise ordered by the court, a conservator
18must give notice to persons entitled to notice and receive
19specific prior authorization by the court before the
20conservator may take any other action on behalf of the
21protected person. These other powers requiring court approval
22include the authority of the conservator to:
23a. Invest the protected person’s assets consistent with
24section 633.123.
25b. Make gifts on the protected person’s behalf from
26conservatorship assets to persons or religious, educational,
27scientific, charitable, or other nonprofit organizations to
28whom or to which such gifts were regularly made prior to the
29conservator’s appointment; or on a showing that such gifts
30would benefit the protected person from the perspective of
31gift, estate, inheritance, or other taxes. No gift shall be
32allowed which would foreseeably prevent adequate provision for
33the protected person’s best interest.
34c. Make payments consistent with the conservator’s plan
35described above directly to the protected person or to others
-33-1for the protected person’s education and training needs.
2d. Use the protected person’s income or assets to provide
3for any person that the protected person is legally obligated
4to support.
5e. Compromise, adjust, arbitrate, or settle any claim by or
6against the protected person or the conservator.
7f. Make elections for a protected person who is the
8surviving spouse as provided in sections 633.236 and 633.240.
9g. Exercise the right to disclaim on behalf of the protected
10person as provided in section 633E.5.
11h. Sell, mortgage, exchange, pledge, or lease the protected
12person’s real and personal property consistent with subchapter
13VII, part 6 of chapter 633 regarding sale of property from a
14decedent’s estate.
15 Sec. 39. NEW SECTION. 633F.39 Presumption of fraud in
16conservatorship.
17If a conservator is appointed, all contracts, transfers,
18and gifts made by the protected person after the filing of the
19petition shall be presumed to be a fraud against the rights and
20interest of the protected person except as otherwise directed
21by the court pursuant to section 633.637.
22 Sec. 40. NEW SECTION. 633F.40 Procedure in lieu of
23conservatorship.
24If a conservator has not been appointed, money due a minor or
25other property to which a minor is entitled, not exceeding in
26the aggregate fifty thousand dollars in value, shall be paid
27or delivered to a custodian under any uniform transfers to
28minors Act. The written receipt of the custodian constitutes
29an acquittance of the person making the payment of money or
30delivery of property.
31 Sec. 41. NEW SECTION. 633F.41 Standby petition for
32appointment of conservator for adult.
331. Any adult person of sound mind may execute a verified
34petition for the appointment of a conservator of the person’s
35property upon the express condition that such petition shall
-34-1be acted upon by the court only upon the occurrence of an event
2specified or the existence of a described condition of the
3mental or physical health of the petitioner, the occurrence
4of which event, or the existence of which condition, shall
5be established in the manner directed in the petition. The
6petition, in addition to containing the information required in
7section 633F.28, shall include a statement in substantially the
8language of section 633F.30 that the petitioner understands the
9result of a conservator being appointed for the petitioner.
102. Such petition may nominate a person for appointment to
11serve as such conservator as well as alternate conservators
12if the nominated person is unable or unwilling or is removed
13as conservator, and may request that the appointment be made
14without bond, or with bond of a certain stated sum. The
15court in appointing the conservator shall appoint the person
16or persons nominated by the petitioner unless the person or
17persons are not qualified or for other good cause and shall
18give due regard to other requests and recommendations contained
19in the petition.
203. Such petition may be deposited with the clerk of the
21county in which the party resides, or with any person, firm,
22bank, or trust company nominated by the petitioner.
234. Such petition may be revoked by the petitioner at any
24time before appointment of a conservator by the court, provided
25that the petitioner is of sound mind at the time of revocation.
26Revocation shall be accomplished by the destruction of
27the petition by the petitioner, or by the execution of an
28acknowledged instrument of revocation. If the petition has
29been deposited with the clerk, the revocation may likewise be
30deposited there.
315. If the petition has been deposited with the clerk under
32the provisions of subsection 3 and has not been revoked, the
33petition may be filed with the court upon the filing of a
34verified statement to the effect that the occurrence of the
35event or the condition provided for in the petition has come
-35-1to pass. If the petition has not been deposited with the clerk
2under the provisions of subsection 3 and has not been revoked,
3then the petition shall be filed with the court at the time
4a verified statement that the occurrence of the event or the
5condition provided for in the petition has come to pass is
6filed with the court in the county where the petitioner then
7resides. Upon filing of the petition and verified statement,
8the person who filed the petition under subsection 1 shall
9then become the respondent and the person filing the verified
10statement under this subsection shall become the petitioner
11and the proceedings shall be thereafter conducted as provided
12for in sections 633F.29 through 633F.40, except as otherwise
13provided for in this section.
146. If prior to the time of hearing on a petition for the
15appointment of a guardian or a conservator, a petition is filed
16under the provisions of section 633F.19, 633F.25, 633F.28,
17or subsection 1 of this section, the court shall combine the
18hearing on such petitions and determine who shall be appointed
19guardian or conservator, and such petition shall be triable to
20the court.
21 Sec. 42. NEW SECTION. 633F.42 Standby petition for
22appointment of conservator for a minor.
231. An adult person having physical and legal custody of
24a minor may execute a verified petition for the appointment
25of a conservator of the minor upon the express condition
26that the petition shall be acted upon by the court only upon
27the occurrence of an event specified or the existence of a
28described condition of the mental or physical health of the
29petitioner, the occurrence of which event, or the existence of
30which condition, shall be established in the manner directed
31in the petition. The petition, in addition to containing
32the information required in section 633F.28, shall include
33a statement that the petitioner understands the result of a
34conservator being appointed for the minor. An appointment of a
35conservator for a minor shall only be effective until the minor
-36-1attains full age.
22. A standby petition may nominate a person for appointment
3to serve as such conservator as well as alternate conservator
4if the nominated person is unable or unwilling or is removed
5as conservator. The court in appointing the conservator shall
6appoint the person or persons nominated by the petitioner
7unless the person or persons are not qualified or for other
8good cause and shall give due regard to other requests and
9recommendations contained in the petition.
103. A standby petition may be deposited with the clerk of the
11county in which the minor resides or with any person nominated
12by the petitioner to serve as guardian.
134. A standby petition may be revoked by the petitioner at
14any time before appointment of a conservator by the court,
15provided that the petitioner is of sound mind at the time
16of revocation. Revocation shall be accomplished by the
17destruction of the petition by the petitioner, or by the
18execution of an acknowledged instrument of revocation. If the
19petition has been deposited with the clerk, the revocation may
20likewise be deposited there.
215. If the standby petition has been deposited with the
22clerk under the provisions of subsection 3 and has not been
23revoked under the provisions of subsection 4, the petition may
24be filed with the court upon the filing of a verified statement
25to the effect that the occurrence of the event or the condition
26provided for in the petition has come to pass. If the petition
27has not been deposited with the clerk under the provisions of
28subsection 3 and has not been revoked under the provisions of
29subsection 4, then the petition shall be filed with the court
30at the time a verified statement that the occurrence of the
31event or the condition provided for in the petition has come to
32pass is filed with the court in the county where the minor then
33resides. Upon filing of the petition and verified statement,
34the minor shall then become the respondent and the person
35filing the verified statement shall become the petitioner and
-37-1the proceedings shall be thereafter conducted as provided for
2in this chapter.
3 Sec. 43. NEW SECTION. 633F.43 Appointing conservator for
4absentee.
51. When a person owns property located in this state,
6the person’s whereabouts are unknown, and no provision for
7the care, control, and supervision of such property has been
8made, with the result that such property may be lost, damaged,
9or diminished in value, or that the dependents of such owner
10are likely to be deprived of means of support because of such
11absence, any adult person may file with the clerk a petition
12for the appointment of a conservator of such property of the
13absentee. The petition shall state the petitioner’s name,
14address, and electronic mail address, relationship to the
15absentee, and all of the following:
16a. The absentee’s name, county of residence, and last known
17address.
18b. To the extent known, the name, address, electronic mail
19address, and telephone number of the absentee’s:
20(1) Spouse, if any.
21(2) Adult children, or if the absentee has none, the
22absentee’s living parents and adult siblings.
23(3) If there are no persons in subparagraphs (1) and (2),
24then:
25(a) Any adult with whom the absentee has resided in a
26noninstitutional setting for more than six months immediately
27prior to the filing of the petition, if any.
28(b) Any person or institution primarily responsible for the
29care or having had custody of the absentee within six months
30immediately prior to the filing of the petition, if any.
31(4) Any nominated or presently acting legal representative
32of the absentee.
33(5) Any person nominated as conservator by the absentee and
34the document in which the person was nominated.
35c. The name and address of the proposed conservator, and the
-38-1reasons that the court should accept the proposed conservator.
2If the absentee has nominated a conservator other than the
3proposed conservator, the reasons that the proposed conservator
4should be appointed in lieu of the absentee’s nominee.
5d. The facts concerning the disappearance of the absentee,
6including the reasons why the conservatorship is necessary.
7e. A general description of the property of the absentee
8within this state and of the absentee’s right to receive
9property, the estimated value of the absentee’s real estate,
10the estimated value of the absentee’s personal property, and
11the estimated gross annual income of the property. If any
12money is payable, or to become payable, to the absentee by the
13United States through the United States department of veterans
14affairs, the petition shall so state.
15f. Except as required by section 633F.29, any persons
16identified pursuant to paragraph “b” of this section are not
17entitled to notice.
182. Notice of the filing of a petition under this section:
19a. Shall be served together with notice of the hearing on
20the petition on the absentee by publication in the manner of
21an original notice and the rules of civil procedure governing
22original notices by publication shall also govern such a notice
23as to content.
24b. Shall be mailed to the following persons, to the extent
25known to the petitioner:
26(1) The legal representative of the absentee.
27(2) The spouse and adult children of the absentee.
28(3) If there are no persons in subparagraphs (1) and (2),
29then to the absentee’s adult grandchildren.
30(4) If there are no persons in subparagraphs (1) through
31(3), then to the absentee’s parents and adult siblings.
32(5) If there are no persons in subparagraphs (1) through
33(4), then to any adults with whom the absentee has resided in
34the six-month period preceding the filing of the petition, and
35any adult who has assisted the absentee with decision making
-39-1in such period.
2(6) If there are no persons in subparagraphs (1) through
3(5), then at least one adult in the priority shown in section
4633.219.
5c. Notice of any other subsequent hearings related to the
6petition hereunder shall be mailed in conformity with section
7633.40, subsection 5.
83. In the event that the absentee does not appear at the
9hearing on the petition, the court shall hear the petition and
10the proof offered. All evidence shall be made part of the
11record of the proceeding. If the allegations of the petition
12are proved by clear and convincing evidence, the court shall
13appoint a conservator.
14 Sec. 44. NEW SECTION. 633F.44 Appointing foreign
15conservator.
161. When there is no conservatorship or pending application
17for a conservatorship in this state, the duly qualified foreign
18conservator or guardian of a nonresident protected person may,
19upon application, be appointed conservator of the property of
20the protected person in this state if a resident conservator is
21appointed to serve with the foreign conservator. However, for
22good cause shown, the court may appoint the foreign conservator
23to act alone without the appointment of a resident conservator.
242. The application for appointment of a foreign conservator
25or guardian as conservator in this state shall include the name
26and address of the nonresident protected person, and of the
27nonresident conservator or guardian, and the name and address
28of the resident conservator to be appointed, if applicable.
29The application shall be accompanied by a certified copy of
30the original letters or other authority conferring the power
31upon the foreign conservator or guardian to act as conservator
32or guardian. The application shall state the cause for
33the appointment of the foreign conservator to act as sole
34conservator, if applicable.
353. A foreign conservator or guardian of a nonresident may
-40-1be authorized by the court of the county where the protected
2person has personal property to receive the personal property
3upon compliance with the provisions of subsections 4, 5, and 6.
44. A foreign conservator or guardian shall file in the
5office of the clerk in the county where the property is
6situated a certified copy of the conservator’s or guardian’s
7official bond, if any, duly authenticated by the court granting
8the letters. The foreign conservator or guardian shall also
9execute a receipt for the property received by the conservator
10or guardian.
115. Upon the filing of the bond as provided in subsection
124, if the court determines that the amount of the bond is
13sufficient security, the court shall order the personal
14property of the protected person delivered to the foreign
15conservator or guardian.
166. The clerk shall record the bonds and the receipt,
17and notify by mail the court which granted the letters of
18conservatorship or guardianship of the amount of property
19delivered to the fiduciary and the date of delivery.
20 Sec. 45. NEW SECTION. 633F.45 Disposition of protected
21person’s will.
221. When a conservator receives an instrument purporting
23to be the will of the protected person, the conservator shall
24immediately deliver the instrument to the court.
252. Upon receiving an instrument purporting to be the
26will of a living protected person under this section, the
27court may open and read the instrument. The court, with or
28without notice, may enter orders in the conservatorship as the
29court deems advisable for the proper administration of the
30conservatorship in light of the expressed testamentary intent
31of the protected person.
323. An instrument purporting to be the will of a protected
33person that the court receives under this section shall then be
34resealed by the court and deposited with the clerk to be held
35by the clerk as provided in sections 633.286 through 633.289.
-41-1 Sec. 46. NEW SECTION. 633F.46 Claims against protected
2person or conservator.
31. Claims accruing before or after the appointment of
4the conservator, and whether arising in contract or tort or
5otherwise, after being allowed or established as provided in
6subsections 3 through 5, shall be paid by the conservator from
7the assets of the conservatorship.
82. The provision of medical care or services to a protected
9person who is a recipient of medical assistance under chapter
10249A creates a claim for the amount owed to the provider under
11the medical assistance program for the care or services. The
12amount of the claim, after being allowed or established as
13provided in this subchapter, shall be paid by the conservator
14from the assets of the conservatorship.
153. A claim shall not be allowed against a protected person’s
16conservatorship unless the claim is in writing, filed with the
17clerk, states the claimant’s name and address, and describes
18the nature and the amount of the claim, if ascertainable. The
19claim shall be accompanied by the affidavit of the claimant,
20or of someone for the claimant, that the amount is justly due,
21or if not due, when the amount will or may become due, that no
22payments have been made on the amount which are not credited,
23and that there are no offsets against the amount, to the
24knowledge of the affiant, except as stated in the claim. Valid
25contract claims arising in the ordinary course of the conduct
26of the business or affairs of the protected person by the
27conservator may be paid by the conservator without requiring
28affidavit or filing.
294. If a claim is founded upon a written instrument, the
30original or a copy of the instrument, with all endorsements,
31must be attached to the claim. The original instrument must be
32shown to the conservator or to the court, upon demand, unless
33the original instrument has been lost or destroyed, in which
34case, the original instrument’s loss or destruction must be
35stated in the claim.
-42- 15. All claims filed against a protected person’s
2conservatorship shall be titled in the name of the claimant
3against the conservator as conservator, naming the conservator,
4and in all further proceedings on the claim, this title shall
5be preserved.
66. The filing of a claim in the conservatorship tolls the
7statute of limitations applicable to the claim.
87. No claimant shall have the right to compel payment until
9the claimant’s claim has been duly filed and allowed.
108. When a claim has been filed and has been admitted in
11writing by the conservator, the claim shall be deemed allowed,
12in the absence of fraud or collusion.
139. Execution shall not issue upon, and levy shall not
14be made against, any property of the protected person’s
15conservatorship under any judgment against the protected
16person or the protected person’s conservator, but this
17section shall not be construed to prevent the enforcement of a
18mortgage, pledge, or other lien upon property in an appropriate
19proceeding.
2010. If the conservator is a creditor of the protected
21person, the conservator shall file the claim as other
22creditors, and the court shall appoint a temporary conservator
23to protect the conservatorship estate at the hearing on the
24conservator’s claim. The same procedure shall be followed in
25the case of co-conservators where all such conservators are
26creditors of the protected person. However, if one of the
27co-conservators is not a creditor of the protected person, the
28disinterested conservator shall protect the conservatorship
29estate at the hearing on the co-conservator’s claim.
3011. The court may determine whether or not the applicable
31statute of limitation shall be invoked to bar a claim which the
32conservator recommends be allowed.
3312. This section shall not affect or prevent an action or
34proceeding to enforce any mortgage, pledge, or other lien upon
35the property of the protected person.
-43- 113. a. Any action pending against the protected person at
2the time the conservator is appointed shall also be considered
3a claim filed in the conservatorship if notice of substitution
4is served on the conservator as defendant, and proof of service
5of notice of such proceeding is filed in the conservatorship
6proceeding.
7b. A separate action based on a debt or other liability
8of the protected person may be commenced against the
9conservator as conservator in lieu of filing a claim in the
10conservatorship. Such an action shall be commenced by serving
11an original notice on the conservator and filing proof of
12service of notice of such proceeding in the conservatorship
13proceeding. Such an action shall also be considered a claim
14filed in the conservatorship. Such an action may be commenced
15only in a county where the venue would have been proper if
16there were no conservatorship and the action had been commenced
17against the protected person.
1814. The provisions of sections 633.438 to 633.448 shall
19be applicable to the denial and contest of claims against
20conservatorships, but shall not be applicable to actions
21continued or commenced under this section.
2215. When it appears that the assets in a conservatorship
23are insufficient to pay in full all the claims against the
24conservatorship, the conservator shall report such matter to
25the court, and the court shall, upon hearing, with notice to
26all persons who have filed claims in the conservatorship, make
27an order for the pro rata payment of claims giving claimants
28the same priority as in section 633.425.
29 Sec. 47. NEW SECTION. 633F.47 Professional evaluation.
301. For purposes of this section:
31a. “Professional evaluation” means an evaluation by
32a licensed or certified person qualified to evaluate
33a respondent’s cognitive and functional abilities and
34limitations.
35b. “Respondent” includes, when appropriate, a protected
-44-1person.
22. A petitioner or respondent may submit a professional
3evaluation in a matter concerning the granting, modifying,
4or terminating a guardianship or conservatorship for the
5respondent.
63. a. At or before a hearing on a petition for the
7appointment of a guardian or conservator or the modification
8or termination of a guardianship or conservatorship, the court
9shall order a professional evaluation of the respondent unless
10one of the following criteria are met:
11(1) The court finds it has sufficient information
12to determine whether the criteria for a guardianship or
13conservatorship are met.
14(2) The petitioner or respondent has filed a professional
15evaluation.
16b. If the respondent has filed a professional evaluation and
17the court determines an additional professional evaluation will
18assist the court in understanding the decision-making capacity
19and functional abilities and limitations of the respondent, the
20court may order a professional evaluation of the respondent.
214. If the court orders an evaluation, the respondent must be
22examined by a licensed or certified person, appointed by the
23court, who is qualified to evaluate the respondent’s cognitive
24and functional abilities and limitations.
255. The court shall not appoint an individual to conduct the
26examination if the individual has a conflict of interest.
276. The individual conducting the evaluation shall promptly
28file a written report with the court and, if so ordered, shall
29attend a court hearing and be available for cross-examination.
307. Unless otherwise directed by the court, the report must
31contain all of the following:
32a. A description of the nature, type, and extent of
33the respondent’s cognitive and functional abilities and
34limitations.
35b. An evaluation of the respondent’s mental and physical
-45-1condition and, if appropriate, educational potential, adaptive
2behavior, and social skills.
3c. A prognosis for improvement and recommendation for the
4appropriate treatment, support, or habilitation plan.
5d. The evaluator’s qualifications to evaluate the
6respondent’s cognitive and functional abilities limitations and
7lack of conflict of interest.
8e. The date of the examination on which the report is based.
98. The cost of the professional evaluation shall be paid
10by the respondent unless the respondent is indigent under the
11provisions of section 633.561, in which case the costs shall
12be paid by the county in which the proceedings are pending, or
13unless the court otherwise orders.
149. The court may order the production of any existing
15professional evaluation that is relevant to the determination
16of whether a guardian or a conservator should be appointed, as
17well as whether a guardianship or conservatorship should be
18modified or terminated.
1910. In a proceeding to establish a guardianship or
20conservatorship, any professional evaluation provided in the
21proceeding, whether voluntarily or pursuant to a court order,
22shall be confidential and shall be sealed and available to only
23the court, the respondent, the petitioner, the respondent’s
24attorney, the petitioner’s attorney for purposes of the
25proceeding, a court advisor, and other persons the court orders
26for good cause and limited for the purposes set out in the
27court’s order.
2811. In a proceeding to modify or terminate a guardianship
29or conservatorship, the court upon good cause shown and for
30such purposes as the court orders may grant access to any
31professional evaluation that was sealed in a proceeding to
32establish the guardianship or conservatorship.
33 Sec. 48. NEW SECTION. 633F.48 Appointment and role of court
34advisor.
351. The court may appoint any qualified person as a court
-46-1advisor in a guardianship or conservatorship proceeding. The
2role of the court advisor is to gather and report factual
3information that will assist the court in making custody,
4visitation, or other decisions related to the welfare of the
5respondent. Unless the appointing judge specifies otherwise,
6the court advisor role is limited to gathering and reporting
7information to the court. The court advisor may include
8recommendations in the report in subsection 6 only if the
9court’s appointment order authorizes inclusion of such
10recommendations.
112. The court shall not appoint a guardian ad litem in a
12guardianship or conservatorship proceeding.
133. The same person shall not serve both as the attorney
14representing the respondent and as court advisor.
154. Unless otherwise enlarged or circumscribed by the court,
16the court advisor shall do all of the following:
17a. Conduct an initial in-person interview with the
18respondent.
19b. Discuss with the respondent the substance of the
20petition, the purpose and effect of the proceeding, the rights
21of the respondent at the hearing, and the general powers and
22duties of a guardian or conservator.
23c. Determine the views of the respondent regarding the
24proposed guardian or conservator, the proposed guardian’s or
25conservator’s powers and duties, and the scope and duration of
26the proposed guardianship or conservatorship.
275. In addition, if directed by the court, the court advisor
28shall do the following:
29a. Interview the petitioner and an appointed or proposed
30guardian or conservator.
31b. Visit, to the extent feasible, the residence where it
32is reasonably believed that the respondent will live if the
33appointment of a guardian or conservator is made.
34c. Make any other investigation the court directs including
35but not limited to interviewing any persons providing medical,
-47-1mental health, educational, social, and other services to the
2respondent.
3d. Determining the financial resources available to the
4respondent.
56. The court advisor shall submit a written report to the
6court that shall contain all of the following:
7a. A recommendation regarding the appropriateness of a
8limited guardianship or conservatorship for the respondent,
9including whether less restrictive alternatives are available.
10b. A statement of the qualifications of the proposed
11guardian or conservator together with a statement of whether
12the respondent has expressed agreement with the appointment of
13the proposed guardian or conservator.
14c. Any other matters the court advisor deems relevant to
15the petition for guardianship or conservatorship and the best
16interests of the respondent.
17d. Any other matters the court directs.
187. The report of the court advisor shall be made part of the
19court record unless otherwise ordered by the court.
20 Sec. 49. NEW SECTION. 633F.49 Attorneys for minor and adult
21respondents and protected persons in conservatorships and for
22adult respondents and protected persons in guardianships.
231. Upon the filing of a petition to appoint or remove a
24guardian for an adult or conservator for a minor or adult, the
25court shall appoint an attorney to represent the respondent,
26provided that the respondent is not the petitioner. The court
27shall set a hearing on the petition and provide for notice of
28the appointment of counsel and the date of hearing.
29a. The court may reconsider the determination regarding
30representation by an attorney upon application by any
31interested person.
32b. The court may discharge an attorney appointed by the
33court if the respondent has privately retained an attorney who
34has filed an appearance on behalf of the respondent.
352. An attorney representing a respondent or protected
-48-1person shall, to the extent feasible:
2a. Ensure that the respondent or protected person has been
3properly advised of the nature and purpose of the proceeding.
4b. Ensure that the respondent or protected person has been
5advised of the respondent’s or protected person’s rights in the
6proceeding.
7c. Personally interview the respondent.
8d. Advocate for the respondent’s or protected person’s
9position to the extent that the position is reasonably
10ascertainable. If the respondent’s or protected person’s
11position is not reasonably ascertainable, the attorney shall
12advocate for the result that is the least restrictive option in
13type, duration, and scope, consistent with the respondent’s or
14protected person’s interests.
15e. Represent the respondent or protected person.
16f. Ensure that guardianship and conservatorship procedures
17conform to the statutory and due process requirements under
18law.
19g. File a written report stating whether there is evidence
20on file showing that proper service on the respondent has been
21made and also stating that specific compliance with paragraphs
22“a”, “b”, and “c” has been made or stating the inability to
23comply by reason of the respondent’s condition.
243. If the court determines, on application, that it is
25appropriate or necessary, the court may order that the attorney
26representing the respondent or protected person be given copies
27of and access to the respondent’s or protected person’s health
28information. Such an order must describe, with reasonable
29specificity, the health information to be disclosed or accessed
30for purposes of fulfilling the attorney’s responsibilities
31pursuant to this section.
324. If an order appointing a guardian or conservator
33is entered, the respondent’s attorney shall do all of the
34following:
35a. Inform the respondent of the effects of the order.
-49- 1b. Advise the respondent of the respondent’s rights to
2petition for modification or termination of the guardianship
3or conservatorship.
4c. Advise the respondent of the rights retained by the
5respondent.
65. Following the appointment of a guardian or conservator,
7if the court determines that it would be in the protected
8person’s best interest to be represented by an attorney
9with respect to any further proceedings in a guardianship or
10conservatorship, the court may appoint an attorney to represent
11the protected person at the protected person’s expense or at
12the county’s expense for indigents as provided in subsection 6.
136. The cost of court-appointed attorneys for indigents
14shall be assessed against the county in which the proceedings
15are pending. For purposes of this section, the court shall
16find a person indigent if the person’s income and resources do
17not exceed one hundred fifty percent of the federal poverty
18level or the person would be unable to pay such costs without
19prejudicing the person’s financial ability to provide economic
20necessities for the respondent or the respondent’s dependents.
21 Sec. 50. NEW SECTION. 633F.50 Mediation.
221. The district court may, on its own motion or on the
23motion of any party, order the parties to participate in
24mediation in any guardianship or conservatorship action.
25Mediation performed under this section shall comply with the
26provisions of chapter 679C. The court shall, upon application
27of a party, grant a waiver from any court-ordered mediation
28under this section if the party demonstrates that a history
29of domestic abuse exists similarly as considered in section
30598.41, subsection 3, paragraph “j”. The court may, upon
31application of a party, grant a waiver from any court-ordered
32mediation if the action involves elder abuse pursuant to
33chapter 235F.
342. Mediation shall comply with all of the following
35standards:
-50- 1a. The parties will participate in good faith.
2Participation in mediation shall include attendance at
3a mediation session with the mediator and the parties to
4the action, listening to the mediator’s explanation of the
5mediation process, presentation of one party’s view of the
6case, and listening to the response of the other party.
7Participation in mediation does not require that the parties
8reach an agreement.
9b. Unless the parties agree upon a mediator, the court shall
10appoint a mediator. Any mediator appointed by the court shall
11meet the qualifications established in this section.
12c. Parties to the mediation shall have the right to
13representation by an attorney at all times.
14d. The parties to the mediation shall present any agreement
15reached through the mediation to their attorneys, if any.
16A mediation agreement reached by the parties shall not be
17enforceable until approved by the court.
18e. The costs of mediation shall be borne by the parties, as
19agreed to by the parties, or as ordered by the court, and may
20be taxed as court costs.
213. A mediator appointed by the court acting pursuant to this
22section shall have the following qualifications:
23a. Completed a one-hour internet seminar or live session
24regarding the external resources available to a respondent with
25particular focus on resources for older persons.
26b. A minimum of twenty-five hours of general mediation
27training.
28c. Either of the following:
29(1) Fifteen hours of probate-specific or elder-specific
30mediation training.
31(2) Ten continuous years of practice in Iowa as a licensed
32attorney with the greater of four hundred hours or forty
33percent of the total hours of law practice per year being
34devoted to matters concerning wills, trusts, and estate work
35for each of the ten continuous years. For mediations involving
-51-1guardianship of juveniles, the mediator shall also be currently
2qualified as a family law mediator and have completed a
3one-hour live session concerning guardianship procedures.
4 Sec. 51. NEW SECTION. 633F.51 Presumption regarding
5testamentary capacity.
6The appointment of a guardian or conservator does not create
7a presumption that the protected person lacks testamentary
8capacity.
9 Sec. 52. NEW SECTION. 633F.52 Reports by guardians.
101. A guardian appointed under this chapter shall file with
11the court the following written verified reports, which the
12court shall not waive:
13a. An initial care plan within sixty days of the guardian’s
14appointment. The initial care plan must include all of the
15following:
16(1) The protected person’s current residence and the
17guardian’s plan for the protected person’s living arrangements.
18(2) The guardian’s plan for payment of the protected
19person’s living expenses and other expenses.
20(3) The protected person’s health status and the guardian’s
21plan for meeting the protected person’s health needs.
22(4) The protected person’s educational, training, and
23vocational needs and the guardian’s plan for meeting the
24protected person’s educational needs.
25(5) The guardian’s plan for facilitating contacts of the
26protected person with the family members of the protected
27person.
28(6) The guardian’s plan for contact with and activities on
29behalf of the protected person.
30b. An annual report, within sixty days of the close of
31the reporting period, unless the court otherwise orders an
32extension for good cause shown in accordance with rules of
33probate procedure.
34c. A final report within thirty days of the termination of
35the guardianship unless that time is extended by the court.
-52- 12. Annual reports and the final report shall include all of
2the following:
3a. The current mental and physical condition of the
4protected person.
5b. The present living arrangement of the protected person,
6including a description of each residence where the protected
7person has resided during the reporting period.
8c. A summary of the medical, educational, vocational, and
9technical, and other professional services provided for the
10protected person.
11d. A description of the guardian’s visits with and
12activities on behalf of the protected person.
13e. Any changes in the care plan.
14f. A recommendation as to the need for continued
15guardianship.
16g. When the guardianship is for a minor protected person:
17(1) The nature and extent of parental visits and
18communication with the minor.
19(2) The ability of the guardian to continue as guardian and
20arranging for the provision of care for the minor protected
21person.
22h. Other information requested by the court or useful in the
23opinion of the guardian.
243. In accordance with the requirements of subsections 1 and
252, the court shall provide simplified uniform reporting forms
26for use in filing the required reports.
274. The clerk of the court shall notify the guardian in
28writing of the reporting requirements and shall provide
29information and assistance to the guardian in filing the
30reports.
315. Reports of guardians shall be submitted to the court for
32approval.
336. Reports required by this section shall be served on the
34attorney representing the respondent or the protected person
35and, if requested, all other parties who have filed appearances
-53-1in the proceeding.
2 Sec. 53. NEW SECTION. 633F.53 Reports by conservators.
31. A conservator shall file an initial plan for protecting,
4managing, investing, expending, and distributing the assets
5of the conservatorship estate within ninety days after
6appointment. The plan must be based on the needs of the
7protected person and take into account the best interest of the
8protected person as well as the protected person’s preference,
9values, and prior directions to the extent known to, or
10reasonably ascertainable by, the conservator.
11a. The initial plan shall include all of the following:
12(1) A budget containing projected expenses and resources,
13including an estimate of the total amount of fees the
14conservator anticipates charging per year and a statement or
15list of the amount the conservator proposes to charge for each
16service the conservator anticipates providing to the protected
17person.
18(2) A statement as to how the conservator will involve
19the protected person in decisions about management of the
20conservatorship estate.
21(3) If ordered by the court, any step the conservator plans
22to take to develop or restore the ability of the protected
23person to manage the conservatorship estate.
24(4) An estimate of the duration of the conservatorship.
25b. Within two days after filing the initial plan, the
26conservator shall give notice of the filing of the initial plan
27with a copy of the plan to the protected person, the protected
28person’s attorney and court advisor, if any, and others as
29directed by the court. The notice must state that any person
30entitled to a copy of the plan must file any objections to the
31plan not later than fifteen days after it is filed.
32c. At least twenty days after the plan has been filed, the
33court shall review and determine whether the plan should be
34approved or revised, after considering objections filed and
35whether the plan is consistent with the conservator’s powers
-54-1and duties.
2d. After approval by the court, the conservator shall
3provide a copy of the approved plan and order approving the
4plan to the protected person, the protected person’s attorney
5and court advisor, if any, and others as directed by the court.
6e. The conservator shall file an amended plan when there has
7been a significant change in circumstances or the conservator
8seeks to deviate significantly from the plan. Before the
9amended plan is implemented, the provisions for court approval
10of the plan shall be followed as provided in paragraphs “b”,
11“c”, and “d”.
122. A conservator shall file an inventory of the protected
13person’s assets within ninety days after appointment which
14includes an oath or affirmation that the inventory is believed
15to be complete and accurate as far as information permits.
16Copies of the inventory shall be provided to the protected
17person, the protected person’s attorney and court advisor
18(if any), and others as directed by the court. When the
19conservator receives additional property of the protected
20person, or becomes aware of its existence, a description of the
21property shall be included in the conservator’s next annual
22report.
233. A conservator shall file a written and verified report
24for the period since the end of the preceding report period.
25The court shall not waive these reports.
26a. These reports shall include all of the following:
27(1) Balance of funds on hand at the beginning and end of the
28period.
29(2) Disbursements made.
30(3) Changes in the conservator’s plan.
31(4) List of assets as of the end of the period.
32(5) Bond amount and surety’s name.
33(6) Residence and physical location of the protected
34person.
35(7) General physical and mental condition of the protected
-55-1person.
2(8) Other information reflecting the condition of the
3conservatorship estate.
4b. These reports shall be filed:
5(1) On an annual basis within sixty days of the end of the
6reporting period unless the court orders an extension for good
7cause shown in accordance with the rules of probate procedure.
8(2) Within thirty days following removal of the
9conservator.
10(3) Upon the conservator’s filing of a resignation and
11before the resignation is accepted by the court.
12(4) Within sixty days following the termination of the
13conservatorship.
14(5) At other times as ordered by the court.
15c. Reports required by this section shall be served on the
16protected person’s attorney and court advisor, if any, and the
17veterans administration if the protected person is receiving
18veterans benefits.
19 Sec. 54. NEW SECTION. 633F.54 Removal of guardian and
20conservator.
211. The court may conduct a hearing to determine whether the
22removal of a guardian or conservator is appropriate upon any
23of the following:
24a. The filing of a petition by a protected person, a
25guardian, a conservator, or other person with an interest in
26the welfare of such a person.
27b. The receipt of a written communication from a protected
28person, a guardian, a conservator, or other person with an
29interest in the welfare of such a person, indicating that
30removal may be appropriate.
31c. The court’s determination that such a hearing would be in
32the best interest of a protected person.
332. A person who is not the guardian, conservator, or
34protected person may request permission to participate in such
35hearing. The court may grant the request, with or without
-56-1hearing, on determining that the person’s participation is
2in the best interest of the protected person. The court may
3impose appropriate limitations on the person’s participation.
43. Following a hearing, the court may remove a guardian
5and conservator for failure to perform the guardian or
6conservator’s duties or for other good cause, and appoint a
7successor guardian or conservator to assume the duties of the
8guardian or conservator, if needed under the circumstances.
94. The court may decline to hold a hearing under subsection
101 if the same or substantially similar facts were alleged in a
11petition or written communication filed in the preceding six
12months.
13 Sec. 55. NEW SECTION. 633F.55 Termination and modification
14of guardianships and conservatorships.
151. Guardianships and conservatorships shall terminate upon
16the occurrence of any of the following circumstances:
17a. Death of the protected person.
18b. A finding by the court that the basis for appointment no
19longer exists.
20c. A determination by the court that the guardianship or
21conservatorship is no longer necessary for any other reason.
222. A protected person, a guardian, a conservator, or a
23person interested in the welfare of the protected person may
24petition for or request one of the following:
25a. Termination of the guardianship or conservatorship
26because the basis for appointment no longer exists.
27b. Modification of the guardianship or conservatorship
28because the extent of protection or assistance granted is no
29longer appropriate.
303. The court shall conduct a hearing to determine
31whether termination or modification of a guardianship or
32conservatorship is appropriate upon the filing of a petition
33under subsection 2 that contains allegations that, if
34true, would support a reasonable belief that termination or
35modification of the guardianship or conservatorship may be
-57-1appropriate. The court may also conduct a hearing upon any of
2the following:
3a. The receipt of written communication from a protected
4person, a guardian, a conservator, or other person interested
5in the welfare of the protected person indicating that
6termination or modification may be appropriate.
7b. The court’s determination that such a hearing would be in
8the best interest of a protected person.
9c. A report from a guardian or conservator.
104. A person seeking termination or modification has the
11burden of making a prima facie showing that the guardianship
12or conservatorship should be terminated or modified. If such
13a showing is made, the guardian, the conservator, or other
14person resisting termination or modification has the burden to
15prove by clear and convincing evidence that the guardianship or
16conservatorship should not be terminated or modified.
175. The court shall modify the powers granted to the
18guardian or conservator if the court finds that the powers are
19either more than needed or less than needed in view of the
20decision-making capacity, functional abilities and limitations
21of the protected person, the availability of third‐party
22assistance and decision‐making supports for the protected
23person, or other circumstances.
246. Except as otherwise ordered by the court for good
25cause, before terminating or modifying a guardianship or
26conservatorship, the court shall follow the same procedures
27to safeguard the rights of the protected person as apply to a
28petition for a guardianship or conservatorship, including the
29right to representation by an attorney.
30 Sec. 56. NEW SECTION. 633F.56 Pleadings and hearings.
31In proceedings to establish, modify, or terminate a
32guardianship or conservatorship, or remove a guardian or
33conservator, the case shall be tried as a law action and
34be governed by the rules of civil procedure subject to the
35following requirements:
-58- 11. The respondent shall be entitled to a hearing on
2appointment, modification, removal, or termination.
32. The respondent shall be present at the hearing and at
4all other stages of the proceedings unless the court finds good
5cause for the absence of the respondent. If the respondent
6is not present, the court shall make a record of the lack of
7presence. The court shall make reasonable accommodations to
8enable the respondent to be present at the hearing and at all
9other stages of the proceedings.
103. The respondent may subpoena witnesses and documents,
11examine witnesses and documents, present evidence, and
12otherwise participate in the hearing.
134. The court shall require the proposed or existing guardian
14or conservator to attend the hearing except upon a showing of
15good cause.
165. The court shall require any court advisor it has
17appointed to attend the hearing.
186. Any person may file a written application to participate
19in a hearing or other proceeding. The court may grant the
20request without hearing unless a resistance to such application
21is filed within five days. If a resistance is filed within
22five days, the court shall hold a hearing on the application.
237. All hearings and proceedings shall be reported.
248. For purposes of this section, the term respondent
25includes, when appropriate, a protected person.
26 Sec. 57. NEW SECTION. 633F.57 Compensation of guardians,
27conservators, and attorneys.
28The compensation of guardians, conservators, guardian’s
29attorneys, and conservator’s attorneys shall be fixed according
30to section 633.200.
31 Sec. 58. NEW SECTION. 633F.58 Liability of guardians and
32conservators.
33Guardians and conservators shall not be held personally
34liable for actions or omissions taken or made in the official
35discharge of the guardian’s or conservator’s duties, except for
-59-1any of the following:
21. A breach of fiduciary duty imposed by the provisions of
3chapter 633 or this chapter.
42. Willful or wanton misconduct in the official discharge of
5the guardian’s or conservator’s duties.
6 Sec. 59. NEW SECTION. 633F.59 Tort liability of guardians
7and conservators.
8The fact that a person is a guardian or conservator shall
9not make the person personally liable for damages for the acts
10of the protected person.
11 Sec. 60. NEW SECTION. 633F.60 Court costs in guardianships
12and conservatorships.
13A protected person shall be charged with the court costs
14of the protected person’s guardianship and conservatorship
15proceedings, including guardian’s and conservator’s fees, and
16the fees of attorneys representing guardians and conservators.
17The court may, upon application, enter an order waiving
18payment of the court costs in indigent cases. However, if the
19protected person becomes financially capable of paying any
20waived costs, the costs shall no longer be waived and shall be
21immediately payable.
22 Sec. 61. NEW SECTION. 633F.61 Provisions applicable to all
23fiduciaries shall govern.
24The provisions of chapter 633 applicable to all fiduciaries
25shall govern the appointment, qualification, oath, and bond of
26guardians and conservators with the following exceptions:
271. Guardians shall not be required to give bond unless the
28court, for good cause, finds that the best interests of the
29protected person require a bond.
302. Notwithstanding section 633.175, conservators other
31than Iowa financial institutions with trust powers must give
32surety bonds unless the court finds there is an alternative
33to such a bond that will provide sufficient protection of the
34conservatorship assets. The conservator shall submit a plan
35for any proposed alternative to a bond for review and approval
-60-1by the court.
2 Sec. 62. CODE EDITOR DIRECTIVES.
31. The Code editor shall designate sections 633F.1
4through 633F.3, as enacted by this division of this Act,
5as a subchapter entitled “JURISDICTION, DEFINITIONS, AND
6APPLICABILITY”.
72. The Code editor shall designate sections 633F.4 through
8633F.18, as enacted by this division of this Act, as a
9subchapter entitled “GUARDIANSHIPS FOR MINORS”.
103. The Code editor shall designate sections 633F.19
11through 633F.27, as enacted by this division of this Act, as a
12subchapter entitled “GUARDIANSHIPS FOR ADULTS”.
134. The Code editor shall designate sections 633F.28
14through 633F.46, as enacted by this division of this Act, as a
15subchapter entitled “CONSERVATORSHIPS”.
165. The Code editor shall designate sections 633F.47
17through 633F.61, as enacted by this division of this Act, as a
18subchapter entitled “PROCEEDINGS, ADMINISTRATION, AND CLOSING”.
19DIVISION II
20conforming changes
21 Sec. 63. Section 10.1, subsection 7, Code 2019, is amended
22to read as follows:
237. “Farm estate” means the real and personal property of a
24decedent, a ward protected person, or a trust as provided in
25chapters 633, and 633A, and 633F, if at least sixty percent of
26the gross receipts from the estate comes from farming.
27 Sec. 64. Section 48A.2, subsection 4, Code 2019, is amended
28to read as follows:
294. “Person who is incompetent to vote” means a person with an
30intellectual disability who has been found to lack the mental
31capacity to vote in a proceeding held pursuant to section
32633.556 633F.22.
33 Sec. 65. Section 135C.24, subsection 5, Code 2019, is
34amended to read as follows:
355. The provisions of this section notwithstanding, upon
-61-1the verified petition of the county board of supervisors the
2district court may appoint the administrator of a county care
3facility as conservator or guardian, or both, of a resident of
4such county care facility, in accordance with the provisions
5of chapter chapters 633 and 633F. Such administrator shall
6serve as conservator or guardian, or both, without fee. The
7county attorney shall serve as attorney for the administrator
8in such conservatorship or guardianship, or both, without fee.
9The administrator may establish either separate or common bank
10accounts for cash funds of such resident wards.
11 Sec. 66. Section 141A.1, subsection 15, Code 2019, is
12amended to read as follows:
1315. “Legal guardian” means a person appointed by a court
14pursuant to chapter 633 or 633F or an attorney in fact as
15defined in section 144B.1. In the case of a minor, “legal
16guardian” also means a parent or other person responsible for
17the care of the minor.
18 Sec. 67. Section 144A.7, subsection 1, paragraph b, Code
192019, is amended to read as follows:
20b. The guardian of the person of the patient if one has been
21appointed, provided court approval is obtained in accordance
22with section 633.635, subsection 2, paragraph “c” 633F.26,
23subsection 5, paragraph “c”. This paragraph does not require
24the appointment of a guardian in order for a treatment decision
25to be made under this section.
26 Sec. 68. Section 144B.6, subsection 1, Code 2019, is amended
27to read as follows:
281. Unless the district court sitting in equity specifically
29finds that the attorney in fact is acting in a manner contrary
30to the wishes of the principal or the durable power of attorney
31for health care provides otherwise, an attorney in fact who is
32known to the health care provider to be available and willing
33to make health care decisions has priority over any other
34person, including a guardian appointed pursuant to chapter 633
35or 633F, to act for the principal in all matters of health
-62-1care decisions. The attorney in fact has authority to make
2a particular health care decision only if the principal is
3unable, in the judgment of the attending physician, to make the
4health care decision. If the principal objects to a decision
5to withhold or withdraw health care, the principal shall be
6presumed to be able to make a decision.
7 Sec. 69. Section 217.13, subsection 3, Code 2019, is amended
8to read as follows:
93. All volunteers registered with the department and
10in compliance with departmental rules are considered state
11employees for purposes of chapter 669. However, this section
12does not except a conservator or guardian from an action
13brought under section 658.1A or 658.3. This section does not
14relieve a guardian or conservator from duties under chapter 633
15or 633F.
16 Sec. 70. Section 222.34, Code 2019, is amended to read as
17follows:
18222.34 Guardianship proceedings.
19If a guardianship is proposed for a person with an
20intellectual disability, guardianship proceedings shall be
21initiated and conducted as provided in chapter 633 633F.
22 Sec. 71. Section 229.27, subsection 3, unnumbered paragraph
231, Code 2019, is amended to read as follows:
24A hearing limited to the question of the person’s competence
25and conducted in substantially the manner prescribed in
26sections 633.552 to 633.556 633F.19, 633F.20, 633F.22, and
27633F.56 shall be held when:
28 Sec. 72. Section 231E.5, subsection 2, paragraph g,
29subparagraph (6), Code 2019, is amended to read as follows:
30(6) If determined necessary, file a petition for the
31appointment of a guardian or conservator pursuant to chapter
32633 633F.
33 Sec. 73. Section 231E.5, subsections 4 and 5, Code 2019, are
34amended to read as follows:
354. An individual acting as the state public guardian or a
-63-1local public guardian shall comply with applicable requirements
2for guardians and conservators pursuant to chapter 633 633F, or
3representative payees pursuant to federal law and regulations.
45. Notwithstanding any provision to the contrary, an
5individual acting as the state public guardian or a local
6public guardian shall not be subject to the posting of a bond
7pursuant to chapter 633 633F. An individual acting as the
8state public guardian or a local public guardian shall complete
9at least eight hours of training annually as certified by the
10department.
11 Sec. 74. Section 231E.6, subsection 2, Code 2019, is amended
12to read as follows:
132. For all appointments made pursuant to this section,
14notice shall be provided to the state office or local office
15prior to appointment. For appointments made pursuant to this
16section, the state office or local office shall only accept
17appointments made pursuant to the filing of an involuntary
18petition for appointment of a conservator or guardianship
19pursuant to chapter 633 633F.
20 Sec. 75. Section 231E.8, subsection 5, Code 2019, is amended
21to read as follows:
225. The state public guardian or a local public guardian
23shall be subject to discharge or removal, by the court, on
24the grounds and in the manner in which other guardians or
25conservators are discharged or removed pursuant to chapter 633
26 633F.
27 Sec. 76. Section 231E.12, Code 2019, is amended to read as
28follows:
29231E.12 Liability.
30All employees and volunteers of the state office and local
31offices operating under this chapter and other applicable
32chapters and pursuant to rules adopted under this and other
33applicable chapters are considered employees of the state
34and state volunteers for the purposes of chapter 669 and
35shall be afforded protection under section 669.21 or 669.24,
-64-1as applicable. This section does not relieve a guardian or
2conservator from performing duties prescribed under chapter 633
3or 633F.
4 Sec. 77. Section 232.3, subsection 1, Code 2019, is amended
5to read as follows:
61. During the pendency of an action under this chapter, a
7party to the action is estopped from litigating concurrently
8the custody, guardianship, or placement of a child who
9is the subject of the action, in a court other than the
10juvenile court. A district judge, district associate judge,
11magistrate, or judicial hospitalization referee, upon notice
12of the pendency of an action under this chapter, shall not
13issue an order, finding, or decision relating to the custody,
14guardianship, or placement of the child who is the subject of
15the action, under any law, including but not limited to chapter
16598, 598B, or 633, or 633F.
17 Sec. 78. Section 232.101A, subsection 2, Code 2019, is
18amended to read as follows:
192. If the court transfers guardianship pursuant to
20subsection 1, the court may close the child in need of
21assistance case by transferring jurisdiction over the child’s
22guardianship to the probate court. The court shall inform the
23proposed guardian of the guardian’s reporting duties under
24section 633.669 633F.52 and other duties under chapter 633
25 633F. Upon transferring jurisdiction, the court shall direct
26the probate clerk, once the proposed guardian has filed an
27oath of office and identification in accordance with section
28602.6111, to issue letters of appointment for guardianship and
29docket the case in probate. Records contained in the probate
30case file that were copied or transferred from the juvenile
31court file concerning the case shall be subject to section
32232.147 and other confidentiality provisions of this chapter
33for cases not involving juvenile delinquency.
34 Sec. 79. Section 232.104, subsection 8, paragraph b, Code
352019, is amended to read as follows:
-65- 1b. In lieu of the procedures specified in paragraph “a”,
2the court may close the child in need of assistance case
3by transferring jurisdiction over the child’s guardianship
4to the probate court. The court shall inform the proposed
5guardian of the guardian’s reporting duties under section
6633.669 633F.52 and other duties under the probate code. Upon
7transferring jurisdiction, the court shall direct the probate
8clerk, once the proposed guardian has filed an oath of office
9and identification in accordance with section 602.6111, to
10issue letters of appointment for guardianship and docket the
11case in probate. Records contained in the probate case file
12that were copied or transferred from the juvenile court file
13concerning the case shall be subject to section 232.147 and
14other confidentiality provisions of this chapter for cases not
15involving juvenile delinquency.
16 Sec. 80. Section 235B.2, subsection 5, paragraph b,
17subparagraph (3), Code 2019, is amended to read as follows:
18(3) The withholding or withdrawing of health care from
19a dependent adult who is terminally ill in the opinion of a
20licensed physician, when the withholding or withdrawing of
21health care is done at the request of the dependent adult or at
22the request of the dependent adult’s next of kin, attorney in
23fact, or guardian pursuant to the applicable procedures under
24chapter 125, 144A, 144B, 222, 229, or 633 633F.
25 Sec. 81. Section 235B.3, subsection 9, paragraph a, Code
262019, is amended to read as follows:
27a. If, upon completion of the evaluation or upon referral
28from the department of inspections and appeals, the department
29determines that the best interests of the dependent adult
30require court action, the department shall initiate action
31for the appointment of a guardian or conservator or for
32admission or commitment to an appropriate institution or
33facility pursuant to the applicable procedures under chapter
34125, 222, 229, or 633 633F, or shall pursue other remedies
35provided by law. The appropriate county attorney shall assist
-66-1the department in the preparation of the necessary papers
2to initiate the action and shall appear and represent the
3department at all district court proceedings.
4 Sec. 82. Section 235B.18, subsections 4 and 5, Code 2019,
5are amended to read as follows:
64. If, at the hearing, the judge finds by clear and
7convincing evidence that the dependent adult is in need of
8protective services and lacks the capacity to consent to the
9receipt of protective services, the judge may issue an order
10authorizing the provision of protective services. The order
11may include the designation of a person to be responsible for
12performing or obtaining protective services on behalf of the
13dependent adult or otherwise consenting to the receipt of
14protective services on behalf of the dependent adult. Within
15sixty days of the appointment of such a person the court
16shall conduct a review to determine if a petition shall be
17initiated in accordance with section 633.552 633F.19 for good
18cause shown. The court may extend the sixty-day period for
19an additional sixty days, at the end of which the court shall
20conduct a review to determine if a petition shall be initiated
21in accordance with section 633.552 633F.19. A dependent adult
22shall not be committed to a mental health facility under this
23section.
245. A determination by the court that a dependent adult lacks
25the capacity to consent to the receipt of protective services
26under this chapter shall not affect incompetency proceedings
27under sections 633.552 through 633.556 633F.19, 633F.20,
28633F.22, and 633F.56 or any other proceedings, and incompetency
29proceedings under sections 633.552 through 633.556 633F.19,
30633F.20, 633F.22, and 633F.56 shall not have a conclusive
31effect on the question of capacity to consent to the receipt of
32protective services under this chapter. A person previously
33adjudicated as incompetent under the relevant provisions of
34chapter 633 633F is entitled to the care, protection, and
35services under this chapter.
-67-1 Sec. 83. Section 235B.19, subsection 5, paragraph a,
2unnumbered paragraph 1, Code 2019, is amended to read as
3follows:
4Notwithstanding sections 633.552 633F.19 and 633.573
5 633F.32, upon a finding that there is probable cause to believe
6that the dependent adult abuse presents an immediate danger to
7the health or safety of the dependent adult or is producing
8irreparable harm to the physical or financial resources or
9property of the dependent adult, and that the dependent adult
10lacks capacity to consent to the receipt of services, the court
11may order the appointment of a temporary guardian or temporary
12conservator without notice to the dependent adult or the
13dependent adult’s attorney if all of the following conditions
14are met:
15 Sec. 84. Section 235E.1, subsection 5, paragraph b,
16subparagraph (3), Code 2019, is amended to read as follows:
17(3) The withholding or withdrawing of health care from
18a dependent adult who is terminally ill in the opinion of a
19licensed physician, when the withholding or withdrawing of
20health care is done at the request of the dependent adult or at
21the request of the dependent adult’s next of kin, attorney in
22fact, or guardian pursuant to the applicable procedures under
23chapter 125, 144A, 144B, 222, 229, or 633 633F.
24 Sec. 85. Section 235E.2, subsection 6, paragraph a, Code
252019, is amended to read as follows:
26a. If, upon completion of an investigation, the department
27determines that the best interests of the dependent adult
28require court action, the department shall notify the
29department of human services of the potential need for a
30guardian or conservator or for admission or commitment to an
31appropriate institution or facility pursuant to the applicable
32procedures under chapter 125, 222, 229, or 633 633F, or shall
33pursue other remedies provided by law. The appropriate county
34attorney shall assist the department of human services in the
35preparation of the necessary papers to initiate the action and
-68-1shall appear and represent the department of human services at
2all district court proceedings.
3 Sec. 86. Section 235F.1, subsection 5, paragraph b,
4subparagraph (3), Code 2019, is amended to read as follows:
5(3) The withholding or withdrawing of health care from
6a vulnerable elder who is terminally ill in the opinion of
7a licensed physician, when the withholding or withdrawing of
8health care is done at the request of the vulnerable elder or
9at the request of the vulnerable elder’s next of kin, attorney
10in fact, or guardian pursuant to the applicable procedures
11under chapter 125, 144A, 144B, 222, 229, or 633 633F.
12 Sec. 87. Section 235F.6, subsection 3, paragraph b, Code
132019, is amended to read as follows:
14b. Grants relief that is more appropriately obtained in a
15protective proceeding filed under chapter 633 633F including
16but not limited to giving control and management of the funds,
17benefits, property, resources, belongings, or assets of the
18vulnerable elder to a guardian, conservator, or attorney in
19fact for any purpose other than the relief granted under
20subsection 2.
21 Sec. 88. Section 239B.13, subsection 2, Code 2019, is
22amended to read as follows:
232. The department may order the cash assistance under
24this chapter to be paid to a protective payee if it has
25been demonstrated that the specified relative with whom
26the child is residing is unable to manage the assistance in
27the best interest of the child. Protective payment of cash
28assistance shall not be made beyond a period of two years. The
29department may petition the district court sitting in probate
30to establish, pursuant to chapter 633 633F, a conservatorship
31over a participant. If a conservatorship is established, the
32participant’s cash assistance shall be paid to the conservator.
33In addition to the cash assistance, an amount not to exceed ten
34dollars per case per month may be allowed for conservatorship
35or guardianship fees if authorized by court order. The
-69-1department may pay cash assistance or other cash benefits to
2a third party if the department determines that a third-party
3payment is essential to assure the proper use of the assistance
4or benefits.
5 Sec. 89. Section 252B.6A, subsection 4, Code 2019, is
6amended to read as follows:
74. For the purposes of this section, a “judicial proceeding”
8means an action to enforce support filed with a court of
9competent jurisdiction in which the court issues an order which
10identifies the amount of the support collection which is a
11direct result of the court proceeding. “Judicial proceedings”
12include but are not limited to those pursuant to chapters 598,
13626, 633, 633F, 642, 654, or 684 and also include contempt
14proceedings if the collection payment is identified in the
15court order as the result of such a proceeding. “Judicial
16proceedings” do not include enforcement actions which the unit
17is required to implement under federal law including, but not
18limited to, income withholding.
19 Sec. 90. Section 565B.24, Code 2019, is amended to read as
20follows:
21565B.24 Other laws not applicable.
22Chapter Chapters 633 and 633F and all other laws of this
23state to the extent contrary to this chapter do not apply to
24the custodial property of a minor held by the custodian under
25this chapter.
26 Sec. 91. Section 602.6306, subsection 2, Code 2019, is
27amended to read as follows:
282. District associate judges also have jurisdiction
29in civil actions for money judgment where the amount in
30controversy does not exceed ten thousand dollars; jurisdiction
31over involuntary commitment, treatment, or hospitalization
32proceedings under chapters 125 and 229; jurisdiction of
33indictable misdemeanors, class “D” felony violations, and other
34felony arraignments; jurisdiction to enter a temporary or
35emergency order of protection under chapter 235F or 236, and to
-70-1make court appointments and set hearings in criminal matters;
2jurisdiction to enter orders in probate which do not require
3notice and hearing and to set hearings in actions under chapter
4633, or 633A, or 633F; and the jurisdiction provided in section
5602.7101 when designated as a judge of the juvenile court.
6While presiding in these subject matters a district associate
7judge shall employ district judges’ practice and procedure.
8 Sec. 92. Section 602.8102, subsections 105 and 105A, Code
92019, are amended to read as follows:
10105. Carry out duties of the clerk of the probate court as
11provided in chapter chapters 633 and 633F.
12105A. Provide written notice to all duly appointed
13guardians and conservators of their liability as provided in
14sections 633.633A 633F.58 and 633.633B 633F.59.
15 Sec. 93. Section 633.27A, unnumbered paragraph 1, Code
162019, is amended to read as follows:
17When a petition is filed for a conservatorship or
18guardianship, or a combined petition as provided in section
19633.627 633F.34, the administration thereof shall be treated as
20one proceeding, with one docket number, from the date of the
21filing of the petition. The separate reporting requirements
22for conservatorships and guardianships shall continue to apply
23in a combined petition. The clerk shall clearly indicate on
24the docket whether the proceedings are voluntary or involuntary
25and whether a guardianship, a conservatorship, or combined.
26 Sec. 94. Section 633.551, subsections 3 and 5, Code 2019,
27are amended to read as follows:
283. In determining whether a guardianship or conservatorship
29is to be established, modified, or terminated, the
30district court shall consider if a limited guardianship or
31conservatorship pursuant to section 633.635 633F.26 or 633.637
32 633F.35 is appropriate. In making the determination, the court
33shall make findings of fact to support the powers conferred on
34the guardian or conservator.
355. Except as otherwise provided in sections 633.672 and
-71-1633.673 section 633F.57 or 633F.60, in proceedings to establish
2a guardianship or conservatorship, the costs, including
3attorney fees and expert witness fees, shall be assessed
4against the ward protected person or the ward’s protected
5person’s estate unless the proceeding is dismissed either
6voluntarily or involuntarily, in which case fees and costs may
7be assessed against the petitioner for good cause shown.
8 Sec. 95. Section 633.562, Code 2019, is amended to read as
9follows:
10633.562 Notification of guardianship powers.
11In a proceeding for the appointment of a guardian, the
12proposed ward respondent shall be given written notice which
13advises the proposed ward respondent that if a guardian is
14appointed, the guardian may, without court approval, provide
15for the care of the ward protected person, manage the ward’s
16 protected person’s personal property and effects, assist the
17ward protected person in developing self-reliance and receiving
18professional care, counseling, treatment or services as needed,
19and ensure that the ward protected person receives necessary
20emergency medical services. The notice shall also advise the
21proposed ward respondent that, upon the court’s approval, the
22guardian may change the ward’s protected person’s permanent
23residence to a more restrictive residence, and arrange for
24major elective surgery or any other nonemergency major medical
25procedure. The notice shall clearly advise the proposed ward
26 respondent in boldface type of a minimum size of ten points,
27of the right to counsel and the potential deprivation of the
28proposed ward’s respondent’s civil rights. The notice shall
29also state that the proposed ward respondent may use the ward’s
30 respondent’s own attorney instead of an attorney appointed by
31the court. In an involuntary guardianship proceeding, the
32notice shall be served upon the proposed ward respondent with
33the notice of the filing of the petition as provided in section
34633.554 633F.20.
35 Sec. 96. Section 633.634, Code 2019, is amended to read as
-72-1follows:
2633.634 Combination of voluntary and standby petitions with
3involuntary petition for hearing.
4If prior to the time of hearing on a petition for the
5appointment of a guardian or a conservator, a petition is filed
6under the provisions of section 633.557, 633.572 633F.19 or
7633.591 section 633F.41, subsection 1, the court shall combine
8the hearing on such petitions and determine who shall be
9appointed guardian or conservator, and such petition shall be
10triable to the court.
11 Sec. 97. Section 633.717, subsection 8, Code 2019, is
12amended to read as follows:
138. The denial by a court of this state of a petition to
14accept a guardianship or conservatorship transferred from
15another state does not affect the ability of the guardian or
16conservator to seek appointment as guardian or conservator in
17this state under section 633.551, 633.552 633F.19, or 633.566
18 633F.28, if the court has jurisdiction to make an appointment
19other than by reason of the provisional order of transfer.
20 Sec. 98. Section 633B.102, subsections 2 and 6, Code 2019,
21are amended to read as follows:
222. “Conservator” or “conservatorship” means a conservator
23appointed or conservatorship established pursuant to sections
24633.570 and 633.572 section 633F.31 or a similar provision of
25the laws of another state.
266. “Guardian” or “guardianship” means a guardian appointed
27or a guardianship established pursuant to sections 633.556
28 633F.22 and 633.560 633F.25 or a similar provision of the laws
29of another state.
30 Sec. 99. Section 633B.108, subsection 1, Code 2019, is
31amended to read as follows:
321. Under a power of attorney, a principal may nominate
33a conservator of the principal’s estate or guardian of
34the principal’s person for consideration by the court if
35proceedings for the principal’s estate or person are begun
-73-1after the principal executes the power of attorney. Except
2for good cause shown or disqualification, the court shall make
3its appointment in accordance with the principal’s most recent
4nomination. This section does not prohibit an individual
5from executing a petition for the voluntary appointment of a
6guardian or conservator on a standby basis pursuant to sections
7633.560 633F.25 and 633.591 633F.41.
8 Sec. 100. Section 815.11, Code 2019, is amended to read as
9follows:
10815.11 Appropriations for indigent defense — fund created.
11Costs incurred for legal representation by a court-appointed
12attorney under chapter 229A, 665, 822, or 908, or section
13232.141, subsection 3, paragraph “d”, or section 598.23A,
14600A.6B, 814.9, 814.10, 814.11, 815.4, 815.7, or 815.10 on
15behalf of an indigent shall be paid from moneys appropriated by
16the general assembly to the office of the state public defender
17in the department of inspections and appeals and deposited in
18an account to be known as the indigent defense fund. Costs
19incurred representing an indigent defendant in a contempt
20action, or representing an indigent juvenile in a juvenile
21court proceeding, are also payable from the fund. However,
22costs incurred in any administrative proceeding or in any other
23proceeding under this chapter or chapter 598, 600, 600A, 633,
24633A, 633F, 814, or 915 or other provisions of the Code or
25administrative rules are not payable from the fund.
26 Sec. 101. CODE EDITOR DIRECTIVE.
271. Section 633.3, subsections 7, 15, 20, and 21, section
28633.78, subsection 1, unnumbered paragraph 1 and paragraph
29“b”, and subsection 4, paragraph “a”, sections 633.80, 633.93,
30and 633.112, section 633.123, subsection 1, paragraph “a”, and
31subparagraph (3), section 633.551, subsections 1, 2, and 4,
32and sections 633.617, 633.662, 633.676, 633.677, 633.681, and
33633.682, Code 2019, are amended by striking the word “ward” and
34inserting in lieu thereof the words “protected person”.
352. Section 633.551, subsections 1 and 4, and section
-74-1633.557, subsection 1, Code 2019, are amended by striking the
2words “proposed ward” and inserting in lieu thereof the word
3“respondent”.
43. The Code editor is directed to make changes in any Code
5sections amended or enacted by any other Act to correspond with
6the changes made in this section of this Act if there appears
7to be no doubt as to the proper method of making the changes and
8the changes would not be contrary to or inconsistent with the
9purposes of this Act or any other Act.
10 Sec. 102. REPEAL. Sections 633.552, 633.554, 633.555,
11633.556, 633.557, 633.558, 633.559, 633.560, 633.561, 633.562,
12633.566, 633.568, 633.569, 633.570, 633.571, 633.572, 633.573,
13633.574, 633.575, 633.576, 633.580, 633.581, 633.582, 633.584,
14633.585, 633.591, 633.591A, 633.592, 633.593, 633.594,
15633.595, 633.596, 633.603, 633.604, 633.605, 633.606, 633.607,
16633.608, 633.627, 633.628, 633.633, 633.633A, 633.633B,
17633.635, 633.636, 633.637, 633.637A, 633.638, 633.639, 633.640,
18633.641, 633.643, 633.644, 633.645, 633.646, 633.647, 633.648,
19633.649, 633.650, 633.652, 633.653, 633.653A, 633.654, 633.655,
20633.656, 633.657, 633.658, 633.659, 633.660, 633.661, 633.663,
21633.664, 633.665, 633.666, 633.667, 633.668, 633.669, 633.670,
22633.671, 633.672, 633.673, 633.675, and 633.679, Code 2019, are
23repealed.
24DIVISION III
25effective date and applicability provisions
26 Sec. 103. EFFECTIVE DATE. This Act takes effect January 1,
272020.
28 Sec. 104. APPLICABILITY. This Act applies January 1, 2020,
29to guardianships and conservatorships proceedings occurring on
30or after that date.
31EXPLANATION
32The inclusion of this explanation does not constitute agreement with
33the explanation’s substance by the members of the general assembly.
34This bill relates to guardianships and conservatorships for
35adults and minors and provides for jurisdiction, definitions,
-75-1proceedings, administration, and closing. The bill creates
2new Code chapter 633F and repeals similar provisions from Code
3chapter 633. The new Code chapter is organized into five
4subchapters: jurisdictions, definitions, and applicability;
5guardianships for minors; guardianships for adults;
6conservatorships; and proceedings, administration, and closing.
7JURISDICTION, DEFINITIONS, AND APPLICABILITY. The bill
8provides the jurisdiction for minor and adult guardianships and
9conservatorships. The bill provides that district courts have
10jurisdiction over all conservatorships and adult guardianships.
11The bill provides that effective for petitions filed January
121, 2020, the juvenile court shall have exclusive, original
13jurisdiction for minor guardianships. The bill provides that
14existing guardianships as of that date shall be transferred
15to the juvenile court if requested by the protected person’s
16attorney, parent, or guardian, or if requested by the court.
17Prior to January 1, 2020, the district court shall have
18jurisdiction over minor guardianships.
19The bill provides definitions for the following terms:
20adult, clerk, conservator, court, court advisor, demonstrated
21lack of consistent parental participation, fiduciary, full
22age, functional limitation, guardian, legal custody, legal
23representative, limited conservatorship, limited guardianship,
24loyalty, minor, parent, person, property, protected person,
25prudence, and respondent.
26“Court advisor” is defined as a person appointed by the
27court to investigate and report information relevant to
28a guardianship or conservatorship proceeding. “Protected
29person” is used in lieu of the former term “ward” and is
30defined as the person for whom a guardian or conservator has
31been appointed, or who is a respondent in a proceeding under
32the new Code chapter. “Respondent” is used in lieu of the
33former term “proposed ward” and is defined as the proposed
34protected person, including a person who is the subject of
35other proceedings under the new Code chapter. The bill makes
-76-1corresponding term changes to the use of the terms “ward” and
2“proposed ward” in Code chapter 633.
3The bill provides that all relevant provisions of the
4probate code, Code chapter 633, shall apply to proceedings to
5the extent not inconsistent with the provisions of Code chapter
6633F.
7GUARDIANSHIPS FOR MINORS. The bill prescribes the venue
8for a minor guardianship and provides for the transferring of
9a case in the best interests of a minor. The bill sets forth
10the requirements of what must be submitted in a petition for
11appointment of a guardian for a minor. The bill prescribes
12who shall receive notice of the filing of the petition of
13appointment of a guardian for a minor, order appointing counsel
14for the respondent, and setting a hearing on the petition. The
15bill prescribes who shall be required and who has a right to
16participate in the hearing for appointment of a guardian for
17a minor. The bill sets forth preferences for selection of a
18guardian for a minor.
19The bill provides for a process for a standby petition for
20appointment of a guardian for a minor where an adult person
21having physical and legal custody of a minor may execute a
22verified petition for the appointment of a guardian of the
23minor upon the express condition that the petition shall be
24acted upon by the court only upon the occurrence of an event
25specified or the existence of a described condition of the
26mental or physical health of the petitioner, the occurrence of
27which event, or the existence of which conditions, shall be
28established in the manner directed in the petition.
29The bill provides a process for appointment of a guardian for
30a minor, which includes a background check and consideration
31of filing a child in need of assistance petition. The bill
32provides for two processes for the appointment of a guardian:
33one that provides for the appointment of a guardian for a minor
34without parental consent and one that provides for appointment
35of a guardian with parental consent. The bill provides for
-77-1representation of a minor respondent, providing for an attorney
2for the minor respondent if the court determines that the
3interests of the minor are or may be inadequately represented.
4The bill also provides for representation for indigent
5parents of a minor respondent, providing that the court shall
6appoint an attorney for the parent identified in the petition
7for appointment of a guardian if the parent objects to the
8appointment of a guardian, the parent requests appointment of
9an attorney, and the court determines that the parent is unable
10to pay for an attorney in accordance with Code section 232.141.
11The bill provides for emergency appointment of a guardian
12for a minor when the petitioner proves by a clear and
13convincing evidence that an emergency exists justifying
14the need for an immediate appointment. The bill provides
15rights for the protected person to terminate the emergency
16guardianship. The bill details the duties and powers of
17a guardian for a minor. The bill provides a process to
18transition a minor guardianship to an adult guardianship.
19GUARDIANSHIPS FOR ADULTS. The bill sets forth the
20requirements of what must be submitted in a petition for
21appointment of a guardian for an adult. The bill prescribes
22who shall receive notice of the filing of the petition to
23appoint a guardian. The bill provides that in a proceeding
24for the appointment of a guardian, the respondent shall be
25given written notice of a guardian’s powers, including the
26potential deprivation of the respondent’s civil rights. The
27bill provides the process for determining whether to appoint
28a guardian or whether a limited guardianship might be more
29appropriate. The bill requires that upon a filing of a
30petition for appointment of a guardian, a background check
31shall be conducted when determining who the proposed guardian
32shall be. The bill discusses all of the areas that the court’s
33order shall address in the appointment of a guardian.
34The bill provides for emergency appointment of a guardian
35for an adult when the petitioner proves by a clear and
-78-1convincing evidence that an emergency exists justifying
2the need for an immediate appointment. The bill provides
3rights for the protected person to terminate the emergency
4guardianship.
5The bill provides that the court shall appoint as guardian a
6qualified and suitable person who is willing to serve in that
7capacity and the same person may be appointed to serve as both
8guardian and conservator. The bill provides for a process
9for a petition for the appointment of a guardian on a standby
10basis. The bill prescribes the responsibilities of a guardian.
11The bill sets forth the rights of a protected person under a
12guardianship.
13CONSERVATORSHIPS. The bill sets forth the requirements
14of what must be submitted in a petition for appointment
15of a conservator. The bill prescribes who shall receive
16notice of the filing petition for a conservatorship. The
17bill provides that in a proceeding for the appointment of a
18conservator, the respondent shall be given written notice of a
19conservator’s powers, including the potential deprivation of
20a respondent’s civil rights. The bill provides the process
21for determining whether to appoint a conservator or whether a
22limited conservatorship might be more appropriate. The bill
23requires that upon a filing of a petition for appointment of
24a conservatorship, a background check shall be conducted when
25determining who the proposed guardian shall be. The bill
26discusses all of the areas that the court’s order shall address
27in the appointment of a conservator.
28The bill provides for emergency appointment of a conservator
29when the petitioner proves by a clear and convincing evidence
30that an emergency exists justifying the need for an immediate
31appointment. The bill provides rights for the protected person
32to terminate the emergency conservatorship.
33The bill provides that the court shall appoint as
34conservator a qualified and suitable person who is willing to
35serve in that capacity and the same person may be appointed
-79-1to serve as both guardian and conservator. The bill provides
2that the petition for appointment of a guardian for an adult
3and a petition for a conservator for an adult may be combined
4and the cause tried in the same manner as a petition for the
5appointment of a conservator. The bill provides the petition
6for appointment of a guardian for a minor and the petition
7for the appointment of a conservator of a minor shall not be
8combined. The bill sets forth the powers of a protected person
9in a conservatorship. The bill sets forth who has title and
10who has possession of a protected person’s property. The bill
11details the duties and powers of a conservator.
12The bill provides that there is a presumption of fraud in a
13conservatorship if a contract, transfer, or gift is made by a
14protected person after a conservator has been appointed. The
15bill provides for a procedure in lieu of a conservatorship for
16money or other property due to a minor when a conservatorship
17is not in place.
18The bill provides for a procedure for the appointment of a
19conservator for an adult on a standby basis in which an adult
20person of sound mind may execute a verified petition for the
21appointment of a conservator of the person’s property upon the
22express condition that such petition shall be acted upon by the
23court only upon the occurrence of an event specified or the
24existence of a described condition of the mental or physical
25health of the petitioner, the occurrence of which event, or
26the existence of which condition, shall be established in the
27manner directed in the petition.
28The bill provides for a procedure for a standby petition for
29appointment of a conservator for a minor. The bill provides
30that an adult person having physical and legal custody of a
31minor may execute a verified petition for the appointment
32of a conservator of the minor upon the express condition
33that the petition shall be acted upon by the court only upon
34the occurrence of an event specified or the existence of a
35described condition of the mental or physical health of the
-80-1petitioner, the occurrence of which event, or the existence of
2which condition, shall be established in the manner directed
3in the petition. The petition, in addition to containing the
4information required in new Code section 633F.28, shall include
5a statement that the petitioner understands the result of a
6conservator being appointed for the minor. An appointment of a
7conservator for a minor shall only be effective until the minor
8attains full age.
9The bill provides a process for when a person owns property
10located in the state of Iowa, the person’s whereabouts
11are unknown, and no provision for the care, control, and
12supervision of such property has been made, with the result
13that such property may be lost, damaged, or diminished in
14value, or that the dependents of such owners are likely to be
15deprived of means of support because of such absence. The
16bill allows any adult person to file with the clerk a petition
17for the appointment of a conservator of such property of the
18absentee. The bill provides a process for the appointment of
19a foreign conservator. The bill provides a process for the
20disposition of a protected person’s will. The bill provides
21for rules governing claims against protected persons or
22conservators.
23PROCEEDINGS, ADMINISTRATION, AND CLOSING. The bill provides
24that a petitioner or respondent may submit a professional
25evaluation in a matter concerning the granting, modifying,
26or terminating of a guardianship or conservatorship for
27the respondent. The bill requires that the court order
28a professional evaluation unless the court finds it has
29sufficient information to determine whether the criteria for a
30guardianship or conservatorship are met or the petition or the
31petitioner or respondent has filed a professional evaluation.
32The bill provides additional guidelines to govern professional
33evaluations and how a court shall consider professional
34evaluations.
35The bill provides direction for the position of a court
-81-1advisor including what the court advisor shall do when
2appointed by the court. The bill specifies that the role of
3the court advisor is to gather and report factual information
4that will assist the court in making custody, visitation, or
5other decisions related to the welfare of the respondent. The
6bill specifies that the same person shall not serve both as
7the attorney representing the respondent and as court advisor.
8Additionally, the bill specifies that in a guardianship
9or conservatorship proceeding, the court shall not appoint
10a guardian ad litem. The bill sets forth what the court
11advisor’s written report shall entail and that the report shall
12be made part of the court record unless otherwise ordered by
13the court.
14The bill provides for the appointment of an attorney for
15adult respondents and protected persons in conservatorships and
16adult respondents and protected persons in guardianships and
17sets forth the duties of the attorney representing a respondent
18or protected person. The bill provides for the cost of
19court-appointed attorneys for indigents to be assessed against
20the county in which the proceedings are pending.
21The bill provides that the district court may, on its own
22motion or on the motion of any party, order the parties to
23participate in mediation in any guardianship or conservatorship
24action. The bill provides that the mediation shall be
25conducted in accordance with Code chapter 679C and standards
26set forth by the bill.
27The bill provides that the appointment of a guardian or
28conservator does not create a presumption that the protected
29person lacks testamentary capacity. The bill describes the
30reporting requirements of guardians and conservators.
31The bill provides that the court may conduct a hearing to
32determine whether the removal of a guardian or conservator is
33appropriate in certain circumstances set forth in the bill.
34The bill sets forth additional guidelines regarding the removal
35of a guardian or conservator.
-82- 1The bill sets forth criteria to govern the termination or
2modification of guardianships and conservatorships. The bill
3provides that in proceedings to establish, modify, or terminate
4a guardianship or conservatorship, or to remove a guardian
5or conservator, the case shall be tried as a law action and
6governed by the rules of civil procedure subject to several
7requirements set forth in the bill. The bill provides that the
8compensation of guardians, conservators, guardian’s attorneys,
9and conservator’s attorneys shall be fixed according to Code
10section 633.200. The bill describes the liability of guardians
11and conservators for their own acts or omissions taken or made
12in the official discharge of their duties and for the acts of
13the protected person.
14The bill provides that a protected person shall be charged
15with the court costs of the protected person’s guardianship
16and conservatorship proceedings, including guardian’s and
17conservator’s fees, and the fees of attorneys representing
18guardians and conservators. The bill provides that in the
19case of indigency, the court may, upon application, waive
20payment of court costs. However, the bill provides that if
21the protected person becomes financially capable of paying
22any waived costs, the costs shall no longer be waived and are
23immediately payable. The bill provides that the provisions of
24Code chapter 633 are applicable to all fiduciaries and govern
25the appointment, qualification, oath, and bond of guardians and
26conservators with two exceptions.
27The bill repeals numerous sections in the probate code and
28makes conforming changes throughout the Code.
29The bill takes effect January 1, 2020. The bill applies to
30guardianship and conservatorship proceedings on or after that
31date.
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