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Senate Study Bill 1007 - IntroducedA Bill ForAn Act 1relating to the opening administration, and termination
2of adult guardianships and adult and minor conservatorships
3and terminology changes to the probate code.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2GUARDIANS AND CONSERVATORSHIPS
3 Section 1. Section 633.556, subsections 5 and 8, Code 2021,
4are amended to read as follows:
55. The petition shall list the name and address, to the
6extent known, of the following:
7a. The name and address of the proposed guardian or
8conservator and the reason the proposed guardian or conservator
9 should be selected.
10b. Any spouse of the respondent.
11c. Any adult children of the respondent.
12d. Any parents of the respondent.
13e. Any adult, who has had lived with or been the primary
14care of caregiver for the respondent or with whom the
15respondent has lived for at least six months prior to at any
16time during the six-month period immediately preceding the
17filing of the petition, or and any institution or facility
18where the respondent has resided for at least six months
19prior to at any time during the six-month period immediately
20preceding the filing of the petition.
21f. Any legal representative or representative payee of the
22respondent.
23g. Any person designated as an attorney in fact in a durable
24power of attorney for health care which is valid under chapter
25144B, or any person designated as an agent in a durable power
26of attorney which is valid under chapter 633B.
278. The A petition for conservator shall provide a brief
28description of the respondent’s alleged functional limitations
29that make the respondent unable to communicate or carry out
30important decisions concerning the respondent’s financial
31affairs. A petition for guardian shall provide a brief
32description of the respondent’s alleged functional limitations
33that make the respondent unable to provide for the respondent’s
34safety, or to provide for necessities.
35 Sec. 2. Section 633.560, subsection 3, Code 2021, is amended
-1-1to read as follows:
23. The court shall require the proposed guardian or
3conservator to attend the hearing on the petition but the court
4may excuse the proposed guardian’s or conservator’s attendance
5for good cause shown.
6 Sec. 3. Section 633.562, subsections 1 and 3, Code 2021, are
7amended to read as follows:
81. If the court determines that the appointment of a court
9visitor would be in the best interest of the respondent,
10the court shall appoint a court visitor at the expense
11of the respondent or the respondent’s estate, or, if the
12respondent is indigent, the cost of the court visitor shall
13be assessed against the county in which the proceedings are
14pending. The court may appoint any qualified person as a court
15visitor in a guardianship or conservatorship proceeding. A
16person is qualified to serve as court visitor if the person
17has demonstrated sufficient knowledge of guardianships or
18conservatorships to adequately perform the duties in subsection
193.
203. Unless otherwise enlarged or circumscribed by the court,
21the duties of a court visitor with respect to the respondent
22shall include all of the following:
23a. Conducting an initial in-person interview with the
24respondent.
25b. Explaining to the respondent the substance of the
26petition, and the purpose and effect of the guardianship or
27conservatorship proceeding, the rights of the respondent at
28the hearing, and the general powers and duties of a guardian
29or conservator.
30c. Determining, to the extent possible, the views of the
31respondent regarding the proposed guardian or conservator,
32the proposed guardian’s or conservator’s powers and duties,
33 and the scope and duration of the proposed guardianship or
34conservatorship.
35 Sec. 4. Section 633.562, Code 2021, is amended by adding the
-2-1following new subsection:
2 NEW SUBSECTION. 7. A court visitor shall be discharged
3from all further duties upon appointment of a guardian or
4conservator, unless otherwise ordered by the court. The court
5may order a court visitor to continue to serve if the court
6determines continued service would be in the best interest of
7the protected person. If the court continues the service of
8the court visitor, the court may limit the direct duties of
9the court visitor as the court deems necessary, in which case
10the court visitor shall thereafter continue to serve until
11discharged by the court.
12 Sec. 5. Section 633.563, subsection 1, Code 2021, is amended
13by adding the following new paragraph:
14 NEW PARAGRAPH. c. The petition is for opening a
15conservatorship for a minor.
16 Sec. 6. Section 633.564, subsections 1 and 2, Code 2021, are
17amended to read as follows:
181. The court shall request criminal record checks and
19checks of the child abuse, dependent adult abuse, and sexual
20offender registries in this state for all proposed guardians
21and conservators, other than financial institutions with Iowa
22trust powers, unless a proposed guardian or conservator has
23undergone the background checks required by this section within
24six months prior to the filing of a petition and the background
25checks have been provided to the court.
262. The court shall review the results of background checks
27in determining the suitability of a proposed guardian or
28conservator for appointment, and may, for good cause, share
29with the respondent, the respondent’s attorney, the protected
30person’s attorney, and the proposed guardian or conservator,
31the results of background checks, unless otherwise prohibited
32by law.
33 Sec. 7. Section 633.569, subsection 1, Code 2021, is amended
34to read as follows:
351. A person authorized to file a petition under section
-3-1633.552, 633.553, or 633.554 633.556 or 633.557 may file an
2application for the emergency appointment of a temporary
3guardian or conservator.
4 Sec. 8. Section 633.569, subsection 3, paragraph a, Code
52021, is amended to read as follows:
6a. There is not sufficient time to file a petition, serve
7notice, and hold a hearing pursuant to section 633.552,
8633.553, or 633.554 sections 633.556, 633.557, 633.558,
9633.559, and 633.560.
10 Sec. 9. Section 633.635, subsection 1, Code 2021, is amended
11to read as follows:
121. The order by the court appointing a guardian shall state
13the basis for the guardianship pursuant to section 633.552
14and the date on which the first reporting period for the
15guardianship will end.
16 Sec. 10. Section 633.669, Code 2021, is amended to read as
17follows:
18633.669 Reporting requirements — assistance by clerk Reports
19by guardians.
201. A guardian appointed by the court under this chapter
21shall file with the court the following written verified
22reports which shall not be waived by the court:
23a. An initial care plan filed within sixty days of
24appointment. The information in the initial care plan shall
25include but not be limited to the following information:
26(1) The current residence of the protected person and the
27guardian’s plan for the protected person’s living arrangements.
28(2) The guardian’s plan for payment of the protected
29person’s living expenses and other expenses.
30(3) The protected person’s health status and health care
31needs, and the guardian’s plan for meeting the protected
32person’s needs for medical, dental, and other health care
33needs.
34(4) If applicable, the guardian’s plan for the provision of
35 other professional services needed by the protected person.
-4- 1(5) If applicable, the guardian’s plan for meeting the
2educational, training, and vocational needs of the protected
3person. For protected persons with conservatorships, any step
4the guardian plans to take to develop or restore the ability of
5the protected person to manage the conservatorship estate.
6(6) If applicable, the guardian’s plan for facilitating the
7participation of the protected person in social activities.
8(7) The guardian’s plan for facilitating contacts between
9the protected person and the protected person’s family members
10and other persons significant persons in the life of the
11protected person.
12(8) The guardian’s plan for contact with, and activities on
13behalf of, the protected person.
14(9) An estimate of the total amount of fees the guardian
15anticipates charging per year and a statement or list of the
16amount the guardian proposes to charge for each service the
17guardian anticipates providing to the protected person.
180b. The guardian shall file an amended plan when there has
19been a substantial change in circumstances or the guardian
20seeks to deviate significantly from the plan. The guardian
21must obtain approval of the amended plan before implementing
22any of the amended plan’s provisions.
23b. An annual report, filed within sixty days of the close
24of the reporting period, unless the court otherwise orders on
25good cause shown. The information in the annual report shall
26include but not be limited to the following information:
27(1) The current living arrangements of the protected
28person.
29(2) The sources of payment for the protected person’s living
30expenses and other expenses.
31(3) A description, if applicable, of the following:
32(a) The protected person’s physical and mental health
33status and the medical, dental, and other professional services
34provided to the protected person.
35(b) If applicable, the protected person’s employment status
-5-1and the educational, training, and vocational services provided
2to the protected person.
3(c) The contact of the protected person with family members
4and other significant persons.
5(d) The nature and extent of the guardian’s visits with, and
6activities on behalf of, the protected person.
7(4) The guardian’s recommendation as to the need for
8continuation of the guardianship.
9(5) The ability of the guardian to continue as guardian.
10(6) The need of the guardian for assistance in providing or
11arranging for the provision of the care and protection of the
12protected person.
13c. A final report within thirty days of the termination
14of the guardianship under section 633.675 unless that time is
15extended by the court.
162. The court shall develop a simplified uniform reporting
17form for use in filing the required reports.
183. The clerk of the court shall notify the guardian in
19writing of the reporting requirements and shall provide
20information and assistance to the guardian in filing the
21reports.
224. Reports of guardians shall be reviewed and approved by a
23district court judge or referee.
24 Sec. 11. Section 633.670, subsection 1, paragraph a,
25subparagraphs (3) and (4), Code 2021, are amended by striking
26the subparagraphs.
27 Sec. 12. Section 633.670, subsection 1, paragraphs b, c, and
28d, Code 2021, are amended to read as follows:
29b. Within two days after filing the initial plan, the
30 The conservator shall give provide notice of the filing of
31the initial plan with and a copy of the initial plan to the
32protected person, the protected person’s attorney and court
33visitor, if any, and others as directed by the court. The
34notice must state that any person entitled to a copy of the
35plan must file any objections to the plan not later than
-6-1fifteen days after it is filed twenty days from the date of
2mailing notice of filing the initial plan.
3c. At least If no objections have been filed within twenty
4days after the plan has been filed, the court shall review and
5determine whether the plan should be approved or revised, after
6considering objections filed and whether the plan is consistent
7with the conservator’s powers and duties mailing notice of
8the filing of the initial plan, the conservator shall submit
9a proposed order to the court approving the initial plan.
10Upon the court’s approval of the plan under this subsection,
11the conservator shall provide a copy of the approved plan and
12order approving the plan to the protected person, the protected
13person’s attorney and court visitor, if any, and others as
14directed by the court.
15d. After approval by the court, the conservator shall
16provide a copy of the approved plan and order approving the
17plan to the protected person, the protected person’s attorney
18and court visitor, if any, and others as directed by the court.
19 If any objections to the proposed plan are filed within twenty
20days after the conservator has mailed notice of the filing of
21the plan, the conservator shall request that the matter be set
22for hearing and provide notice of the hearing date, time, and
23place to the same parties who were sent copies of the initial
24plan. Following the hearing on the conservator’s proposed
25plan, the conservator shall provide a copy of the approved
26plan and order approving the plan to the protected person, the
27protected person’s attorney and court visitor, if any, and
28others as directed by the court.
29 Sec. 13. Section 633.670, subsection 3, paragraph a, Code
302021, is amended by adding the following new subparagraphs:
31 NEW SUBPARAGRAPH. (7A) All amounts received from any source
32during the period.
33 NEW SUBPARAGRAPH. (7B) Any changes in investments.
34 NEW SUBPARAGRAPH. (7C) Recommendations of the conservator
35for retention or disposition of property.
-7-1 Sec. 14. Section 633.670, subsection 3, paragraph b,
2subparagraph (1), Code 2021, is amended to read as follows:
3(1) On an annual basis within Within sixty days of the end
4of the reporting period unless the court orders an extension
5for good cause shown in accordance with the rules of probate
6procedure.
7 Sec. 15. Section 633.675, subsections 2 and 3, Code 2021,
8are amended to read as follows:
92. The court shall terminate a guardianship if it finds by
10clear and convincing evidence that the basis for appointing a
11guardian pursuant to section 633.552 has not been established.
123. The court shall terminate a conservatorship if the court
13finds by clear and convincing evidence that the basis for
14appointing a conservator pursuant to section 633.553 or 633.554
15is not satisfied.
16DIVISION II
17TERMINOLOGY CHANGES
18 Sec. 16. Section 633.3, subsections 9, 17, 22, and 23, Code
192021, are amended to read as follows:
209. Conservator — means a person appointed by the court
21to have the custody and control of the property of a ward
22 protected person under the provisions of this probate code.
2317. Estate — the real and personal property of either a
24decedent or a ward protected person, and may also refer to the
25real and personal property of a trust described in section
26633.10.
2722. Guardian — means the person appointed by the court to
28have the custody of the person of the ward protected person
29 under the provisions of this probate code.
3023. Guardian of the property — at the election of the
31person appointed by the court to have the custody and care of
32the property of a ward protected person, the term “guardian of
33the property” may be used, which term shall be synonymous with
34the term “conservator”.
35 Sec. 17. Section 633.78, subsection 1, unnumbered paragraph
-8-11, Code 2021, is amended to read as follows:
2A fiduciary under this chapter may present a written request
3to any person for the purpose of obtaining property owned by
4a decedent or by a ward protected person of a conservatorship
5for which the fiduciary has been appointed, or property to
6which a decedent or ward protected person is entitled, or
7for information about such property needed to perform the
8fiduciary’s duties. The request must contain statements
9confirming all of the following:
10 Sec. 18. Section 633.78, subsection 1, paragraph b, Code
112021, is amended to read as follows:
12b. The request has been signed by all fiduciaries acting on
13behalf of the decedent or ward protected person.
14 Sec. 19. Section 633.78, subsection 4, paragraph a, Code
152021, is amended to read as follows:
16a. Damages sustained by the decedent’s or ward’s protected
17person’s estate.
18 Sec. 20. Section 633.80, Code 2021, is amended to read as
19follows:
20633.80 Fiduciary of a fiduciary.
21A fiduciary has no authority to act in a matter wherein the
22fiduciary’s decedent or ward protected person was merely a
23fiduciary, except that the fiduciary shall file a report and
24accounting on behalf of the decedent or ward protected person
25 in said matter.
26 Sec. 21. Section 633.93, Code 2021, is amended to read as
27follows:
28633.93 Limitation on actions affecting deeds.
29No action for recovery of any real estate sold by any
30fiduciary can be maintained by any person claiming under the
31deceased, the ward protected person, or a beneficiary, unless
32brought within five years after the date of the recording of
33the conveyance.
34 Sec. 22. Section 633.112, Code 2021, is amended to read as
35follows:
-9- 1633.112 Discovery of property.
2The court may require any person suspected of having
3possession of any property, including records and documents,
4of the decedent, ward protected person, or the estate, or of
5having had such property under the person’s control, to appear
6and submit to an examination under oath touching such matters,
7and if on such examination it appears that the person has the
8wrongful possession of any such property, the court may order
9the delivery thereof to the fiduciary. Such a person shall be
10liable to the estate for all damages caused by the person’s
11acts.
12 Sec. 23. Section 633.123, subsection 1, paragraph b,
13subparagraph (3), Code 2021, is amended to read as follows:
14(3) The needs and rights of the beneficiaries or the ward
15 protected person.
16 Sec. 24. Section 633.580, subsections 1 and 4, Code 2021,
17are amended to read as follows:
181. The name, age, and last known post office address of the
19proposed ward protected person.
204. A general description of the property of the proposed
21ward protected person within this state and of the proposed
22ward’s protected person’s right to receive property; also, the
23estimated present value of the real estate, the estimated value
24of the personal property, and the estimated gross annual income
25of the estate. If any money is payable, or to become payable,
26to the proposed ward protected person by the United States
27through the United States department of veterans affairs, the
28petition shall so state.
29 Sec. 25. Section 633.591A, Code 2021, is amended to read as
30follows:
31633.591A Voluntary petition for appointment of conservator
32for a minor — standby basis.
33A person having physical and legal custody of a minor
34may execute a verified petition for the appointment of a
35standby conservator of the proposed ward’s protected person’s
-10-1 property, upon the express condition that the petition shall
2be acted upon by the court only upon the occurrence of an event
3specified or the existence of a described condition of the
4mental or physical health of the petitioner, the occurrence
5of which event, or the existence of which condition, shall be
6established in the manner directed in the petition.
7 Sec. 26. Section 633.603, Code 2021, is amended to read as
8follows:
9633.603 Appointment of foreign conservators.
10When there is no conservatorship, nor any application
11therefor pending, in this state, the duly qualified foreign
12conservator or guardian of a nonresident ward protected
13person may, upon application, be appointed conservator of the
14property of such person in this state; provided that a resident
15conservator is appointed to serve with the foreign conservator;
16and provided further, that for good cause shown, the court
17may appoint the foreign conservator to act alone without the
18appointment of a resident conservator.
19 Sec. 27. Section 633.604, Code 2021, is amended to read as
20follows:
21633.604 Application.
22The application for appointment of a foreign conservator
23or guardian as conservator in this state shall include the
24name and address of the nonresident ward protected person, and
25of the nonresident conservator or guardian, and the name and
26address of the resident conservator to be appointed. It shall
27be accompanied by a certified copy of the original letters
28or other authority conferring the power upon the foreign
29conservator or guardian to act as such. The application
30shall also state the cause for the appointment of the foreign
31conservator to act as sole conservator, if such be the case.
32 Sec. 28. Section 633.605, Code 2021, is amended to read as
33follows:
34633.605 Personal property.
35A foreign conservator or guardian of a nonresident may
-11-1be authorized by the court of the county wherein such ward
2 protected person has personal property to receive the same upon
3compliance with the provisions of sections 633.606, 633.607 and
4633.608.
5 Sec. 29. Section 633.607, Code 2021, is amended to read as
6follows:
7633.607 Order for delivery.
8Upon the filing of the bond as above provided, and the court
9being satisfied with the amount thereof, it shall order the
10personal property of the ward protected person delivered to
11such conservator or guardian.
12 Sec. 30. Section 633.633, Code 2021, is amended to read as
13follows:
14633.633 Provisions applicable to all fiduciaries shall
15govern.
16The provisions of this probate code applicable to all
17fiduciaries shall govern the appointment, qualification, oath
18and bond of guardians and conservators, except that a guardian
19shall not be required to give bond unless the court, for good
20cause, finds that the best interests of the ward protected
21person require a bond. The court shall then fix the terms and
22conditions of such bond.
23 Sec. 31. Section 633.633B, Code 2021, is amended to read as
24follows:
25633.633B Tort liability of guardians and conservators.
26The fact that a person is a guardian or conservator shall not
27in itself make the person personally liable for damages for the
28acts of the ward protected person.
29 Sec. 32. Section 633.636, Code 2021, is amended to read as
30follows:
31633.636 Effect of appointment of guardian or conservator.
32The appointment of a guardian or conservator shall not
33constitute an adjudication that the ward protected person is of
34unsound mind.
35 Sec. 33. Section 633.637, Code 2021, is amended to read as
-12-1follows:
2633.637 Powers of ward protected person.
31. A ward protected person for whom a conservator has been
4appointed shall not have the power to convey, encumber, or
5dispose of property in any manner, other than by will if the
6ward protected person possesses the requisite testamentary
7capacity, unless the court determines that the ward protected
8person has a limited ability to handle the ward’s protected
9person’s own funds. If the court makes such a finding, the
10court shall specify to what extent the ward protected person
11 may possess and use the ward’s protected person’s own funds.
122. Any modification of the powers of the ward protected
13person that would be more restrictive of the ward’s protected
14person’s control over the ward’s protected person’s financial
15affairs shall be based upon clear and convincing evidence
16and the burden of persuasion is on the conservator. Any
17modification that would be less restrictive of the ward’s
18 protected person’s control over the ward’s protected person
19 financial affairs shall be based upon proof in accordance with
20the requirements of section 633.675.
21 Sec. 34. Section 633.637A, Code 2021, is amended to read as
22follows:
23633.637A Rights of ward protected person under guardianship.
24An adult ward protected person under a guardianship has the
25right of communication, visitation, or interaction with other
26persons upon the consent of the adult ward protected person,
27subject to section 633.635, subsection 2, paragraph “i”, and
28section 633.635, subsection 3, paragraph “c”. If an adult ward
29 protected person is unable to give express consent to such
30communication, visitation, or interaction with a person due
31to a physical or mental condition, consent of an adult ward
32 protected person may be presumed by a guardian or a court based
33on an adult ward’s protected person’s prior relationship with
34such person.
35 Sec. 35. Section 633.638, Code 2021, is amended to read as
-13-1follows:
2633.638 Presumption of fraud.
3If a conservator be appointed, all contracts, transfers and
4gifts made by the ward protected person after the filing of the
5petition shall be presumed to be a fraud against the rights
6and interest of the ward protected person except as otherwise
7directed by the court pursuant to section 633.637.
8 Sec. 36. Section 633.639, Code 2021, is amended to read as
9follows:
10633.639 Title to ward’s protected person’s property.
11The title to all property of the ward protected person is
12in the ward protected person and not the conservator subject,
13however, to the possession of the conservator and to the
14control of the court for the purposes of administration,
15sale or other disposition, under the provisions of the
16law. Any real property titled at any time in the name of a
17conservatorship shall be deemed to be titled in the ward’s
18 protected person’s name subject to the conservator’s right of
19possession.
20 Sec. 37. Section 633.640, Code 2021, is amended to read as
21follows:
22633.640 Conservator’s right to possession.
23Every conservator shall have a right to, and shall take,
24possession of all of the real and personal property of the
25ward protected person. The conservator shall pay the taxes
26and collect the income therefrom until the conservatorship is
27terminated. The conservator may maintain an action for the
28possession of the property, and to determine the title to the
29same.
30 Sec. 38. Section 633.643, Code 2021, is amended to read as
31follows:
32633.643 Disposal of will by conservator.
33When an instrument purporting to be the will of the ward
34 protected person comes into the hands of a conservator, the
35conservator shall immediately deliver it to the court.
-14-1 Sec. 39. Section 633.644, Code 2021, is amended to read as
2follows:
3633.644 Court order to preserve testamentary intent of ward
4 protected person.
5Upon receiving an instrument purporting to be the will of a
6living ward protected person under the provisions of section
7633.643, the court may open said will and read it. The court
8with or without notice, as it may determine, may enter such
9orders in the conservatorship as it deems advisable for the
10proper administration of the conservatorship in light of the
11expressed testamentary intent of the ward protected person.
12 Sec. 40. Section 633.645, Code 2021, is amended to read as
13follows:
14633.645 Court to deliver will to clerk.
15An instrument purporting to be the will of a ward protected
16person coming into the hands of the court under the provisions
17of section 633.643, shall thereafter be resealed by the court
18and be deposited with the clerk to be held by said clerk as
19provided in sections 633.286 through 633.289.
20 Sec. 41. Section 633.653A, Code 2021, is amended to read as
21follows:
22633.653A Claims for cost of medical care or services.
23The provision of medical care or services to a ward protected
24person who is a recipient of medical assistance under chapter
25249A creates a claim against the conservatorship for the amount
26owed to the provider under the medical assistance program for
27the care or services. The amount of the claim, after being
28allowed or established as provided in this part, shall be paid
29by the conservator from the assets of the conservatorship.
30 Sec. 42. Section 633.654, Code 2021, is amended to read as
31follows:
32633.654 Form and verification of claims — general
33requirements.
34No claim shall be allowed against the estate of a ward
35 protected person upon application of the claimant unless
-15-1it shall be in writing, filed in duplicate with the clerk,
2stating the claimant’s name and address, and describing the
3nature and the amount thereof, if ascertainable. It shall be
4accompanied by the affidavit of the claimant, or of someone for
5the claimant, that the amount is justly due, or if not due,
6when it will or may become due, that no payments have been
7made thereon which are not credited, and that there are no
8offsets to the same, to the knowledge of the affiant, except as
9therein stated. The duplicate of said claim shall be mailed
10by the clerk to the conservator or the conservator’s attorney
11of record; however, valid contract claims arising in the
12ordinary course of the conduct of the business or affairs of
13the ward protected person by the conservator may be paid by the
14conservator without requiring affidavit or filing.
15 Sec. 43. Section 633.656, Code 2021, is amended to read as
16follows:
17633.656 How claim entitled.
18All claims filed against the estate of the ward protected
19person shall be entitled in the name of the claimant against
20the conservator as such, naming the conservator, and in all
21further proceedings thereon, this title shall be preserved.
22 Sec. 44. Section 633.660, Code 2021, is amended to read as
23follows:
24633.660 Execution and levy prohibited.
25No execution shall issue upon, nor shall any levy be made
26against, any property of the estate of a ward protected person
27 under any judgment against the ward protected person or a
28conservator, but the provisions of this section shall not be so
29construed as to prevent the enforcement of a mortgage, pledge,
30or other lien upon property in an appropriate proceeding.
31 Sec. 45. Section 633.661, Code 2021, is amended to read as
32follows:
33633.661 Claims of conservators.
34If the conservator is a creditor of the ward protected
35person, the conservator shall file the claim as other
-16-1creditors, and the court shall appoint some competent person as
2temporary conservator to represent the ward protected person
3 at the hearing on the conservator’s claim. The same procedure
4shall be followed in the case of coconservators where all
5such conservators are creditors of the ward protected person;
6but if one of the coconservators is not a creditor of the
7ward protected person, such disinterested conservator shall
8represent the ward protected person at the hearing on any claim
9against the ward protected person by a coconservator.
10 Sec. 46. Section 633.662, Code 2021, is amended to read as
11follows:
12633.662 Claims not filed.
13The conservator may pay any valid claim against the estate of
14the ward protected person even though such claim has not been
15filed, but all such payments made by the conservator shall be
16at the conservator’s own peril.
17 Sec. 47. Section 633.664, Code 2021, is amended to read as
18follows:
19633.664 Liens not affected by failure to file claim.
20Nothing in sections 633.654 and 633.658 shall affect or
21prevent an action or proceeding to enforce any mortgage,
22pledge, or other lien upon the property of the ward protected
23person.
24 Sec. 48. Section 633.665, Code 2021, is amended to read as
25follows:
26633.665 Separate actions and claims.
271. Any action pending against the ward protected person at
28the time the conservator is appointed shall also be considered
29a claim filed in the conservatorship if notice of substitution
30is served on the conservator as defendant and a duplicate of
31the proof of service of notice of such proceeding is filed in
32the conservatorship proceeding.
332. A separate action based on a debt or other liability
34of the ward protected person may be commenced against the
35conservator in lieu of filing a claim in the conservatorship.
-17-1Such an action shall be commenced by serving an original notice
2on the conservator and filing a duplicate of the proof of
3service of notice of such proceeding in the conservatorship
4proceeding. Such an action shall also be considered a claim
5filed in the conservatorship. Such an action may be commenced
6only in a county where the venue would have been proper if
7there were no conservatorship and the action had been commenced
8against the ward protected person.
9 Sec. 49. Section 633.667, Code 2021, is amended to read as
10follows:
11633.667 Payment of claims in insolvent conservatorships.
12When it appears that the assets in a conservatorship are
13insufficient to pay in full all the claims against such
14conservatorship, the conservator shall report such matter to
15the court, and the court shall, upon hearing, with notice to
16all persons who have filed claims in the conservatorship, make
17an order for the pro rata payment of claims giving claimants
18the same priority, if any, as they would have if the ward
19 protected person were not under conservatorship.
20 Sec. 50. Section 633.668, Code 2021, is amended to read as
21follows:
22633.668 Conservator may make gifts.
23For good cause shown and under order of court, a conservator
24may make gifts on behalf of the ward protected person out of
25the assets under a conservatorship to persons or religious,
26educational, scientific, charitable, or other nonprofit
27organizations to whom or to which such gifts were regularly
28made prior to the commencement of the conservatorship, or on
29a showing to the court that such gifts would benefit the ward
30 protected person or the ward’s protected person estate from the
31standpoint of income, gift, estate or inheritance taxes. The
32making of gifts out of the assets must not foreseeably impair
33the ability to provide adequately for the best interests of the
34ward protected person.
35 Sec. 51. Section 633.673, Code 2021, is amended to read as
-18-1follows:
2633.673 Court costs in guardianships.
3The ward protected person or the ward’s protected person’s
4 estate shall be charged with the court costs of a ward’s
5 protected person’s guardianship, including the guardian’s fees
6and the fees of the attorney for the guardian. The court
7may, upon application, enter an order waiving payment of the
8court costs in indigent cases. However, if the ward protected
9person or ward’s protected person’s estate becomes financially
10capable of paying any waived costs, the costs shall be paid
11immediately.
12 Sec. 52. Section 633.676, Code 2021, is amended to read as
13follows:
14633.676 Assets exhausted.
15At any time that the assets of the ward’s protected person’s
16 estate do not exceed the amount of the charges and claims
17against it, the court may direct the conservator to proceed to
18terminate the conservatorship.
19 Sec. 53. Section 633.677, Code 2021, is amended to read as
20follows:
21633.677 Accounting to ward protected person — notice.
22Upon the termination of a conservatorship, the conservator
23shall pay the costs of administration and shall render a full
24and complete accounting to the ward protected person or the
25ward’s protected person’s personal representative and to the
26court. Notice of the final report of a conservator shall be
27served on the ward protected person or the ward’s protected
28person’s personal representative, in accordance with section
29633.40, unless notice is waived. An order prescribing notice
30may be made before or after the filing of the final report.
31 Sec. 54. Section 633.681, Code 2021, is amended to read as
32follows:
33633.681 Assets of minor ward protected person exhausted.
34When the assets of a minor ward’s protected person’s
35 conservatorship are exhausted or consist of personal property
-19-1only of an aggregate value not in excess of twenty-five
2thousand dollars, the court, upon application or upon its
3own motion, may terminate the conservatorship. The order
4for termination shall direct the conservator to deliver any
5property remaining after the payment of allowed claims and
6expenses of administration to a custodian under any uniform
7transfers to minors Act. Such delivery shall have the same
8force and effect as if delivery had been made to the ward
9 protected person after attaining majority.
10 Sec. 55. Section 633.682, Code 2021, is amended to read as
11follows:
12633.682 Discharge of conservator and release of bond.
13Upon settlement of the final accounting of a conservator,
14and upon determining that the property of the ward protected
15person has been delivered to the person or persons lawfully
16entitled thereto, the court shall discharge the conservator and
17exonerate the surety on the conservator’s bond.
18EXPLANATION
19The inclusion of this explanation does not constitute agreement with
20the explanation’s substance by the members of the general assembly.
21This bill relates to the opening, administration, and
22termination of adult guardianships and adult and minor
23conservatorships, and makes terminology changes to the probate
24code.
25The bill provides that notice of a guardianship proceeding
26must be given to any adult with whom the minor has lived with
27for the six months immediately preceding the filing of the
28petition.
29The bill provides qualifications for a person to serve as a
30court visitor.
31The bill provides that a court visitor will be discharged
32upon the appointment of a guardian or conservator unless
33ordered by the court to continue.
34The bill specifies that a court-ordered professional
35evaluation conducted at or before a hearing on a petition for
-20-1the appointment of a guardian or conservator for a minor must
2be filed with the court.
3The bill provides that if the proposed guardian has
4undergone the required background checks within six months
5prior to the filing of the petition and the background checks
6have been provided to the court, the proposed guardian does
7not need to undergo a new background check. The bill further
8provides that the results of the background checks may be
9shared with the respondent, respondent’s attorney, the
10protected person’s attorney, and the proposed guardian or
11conservator.
12The bill changes Code references regarding the emergency
13appointment of a temporary guardian or conservator.
14The bill also directs that the initial verified care plan
15includes any steps the guardian plans to take to develop
16or restore the protected person’s ability to manage the
17conservatorship estate, estimate of the total amount of fees
18the guardian anticipates charging, and instructs the guardian
19to file an amended plan should there be a substantial change
20in circumstances.
21The bill provides instructions to the conservator to provide
22notice of the filing of the initial plan and the timeline for
23objections.
24The bill further provides for new disclosures that written
25and verified reports must include.
26The bill changes the standard of proof needed to be found
27by the court concerning termination of guardianships and
28conservatorships from clear and convincing evidence to a
29preponderance of the evidence.
30The bill replaces the term “ward” with “protected person”
31throughout the probate code.
-21-cm/jh
2of adult guardianships and adult and minor conservatorships
3and terminology changes to the probate code.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2GUARDIANS AND CONSERVATORSHIPS
3 Section 1. Section 633.556, subsections 5 and 8, Code 2021,
4are amended to read as follows:
55. The petition shall list the name and address, to the
6extent known, of the following:
7a. The name and address of the proposed guardian or
8conservator and the reason the proposed guardian or conservator
9 should be selected.
10b. Any spouse of the respondent.
11c. Any adult children of the respondent.
12d. Any parents of the respondent.
13e. Any adult, who has had lived with or been the primary
14care of caregiver for the respondent or with whom the
15respondent has lived for at least six months prior to at any
16time during the six-month period immediately preceding the
17filing of the petition, or and any institution or facility
18where the respondent has resided for at least six months
19prior to at any time during the six-month period immediately
20preceding the filing of the petition.
21f. Any legal representative or representative payee of the
22respondent.
23g. Any person designated as an attorney in fact in a durable
24power of attorney for health care which is valid under chapter
25144B, or any person designated as an agent in a durable power
26of attorney which is valid under chapter 633B.
278. The A petition for conservator shall provide a brief
28description of the respondent’s alleged functional limitations
29that make the respondent unable to communicate or carry out
30important decisions concerning the respondent’s financial
31affairs. A petition for guardian shall provide a brief
32description of the respondent’s alleged functional limitations
33that make the respondent unable to provide for the respondent’s
34safety, or to provide for necessities.
35 Sec. 2. Section 633.560, subsection 3, Code 2021, is amended
-1-1to read as follows:
23. The court shall require the proposed guardian or
3conservator to attend the hearing on the petition but the court
4may excuse the proposed guardian’s or conservator’s attendance
5for good cause shown.
6 Sec. 3. Section 633.562, subsections 1 and 3, Code 2021, are
7amended to read as follows:
81. If the court determines that the appointment of a court
9visitor would be in the best interest of the respondent,
10the court shall appoint a court visitor at the expense
11of the respondent or the respondent’s estate, or, if the
12respondent is indigent, the cost of the court visitor shall
13be assessed against the county in which the proceedings are
14pending. The court may appoint any qualified person as a court
15visitor in a guardianship or conservatorship proceeding. A
16person is qualified to serve as court visitor if the person
17has demonstrated sufficient knowledge of guardianships or
18conservatorships to adequately perform the duties in subsection
193.
203. Unless otherwise enlarged or circumscribed by the court,
21the duties of a court visitor with respect to the respondent
22shall include all of the following:
23a. Conducting an initial in-person interview with the
24respondent.
25b. Explaining to the respondent the substance of the
26petition, and the purpose and effect of the guardianship or
27conservatorship proceeding, the rights of the respondent at
28the hearing, and the general powers and duties of a guardian
29or conservator.
30c. Determining, to the extent possible, the views of the
31respondent regarding the proposed guardian or conservator,
32the proposed guardian’s or conservator’s powers and duties,
33 and the scope and duration of the proposed guardianship or
34conservatorship.
35 Sec. 4. Section 633.562, Code 2021, is amended by adding the
-2-1following new subsection:
2 NEW SUBSECTION. 7. A court visitor shall be discharged
3from all further duties upon appointment of a guardian or
4conservator, unless otherwise ordered by the court. The court
5may order a court visitor to continue to serve if the court
6determines continued service would be in the best interest of
7the protected person. If the court continues the service of
8the court visitor, the court may limit the direct duties of
9the court visitor as the court deems necessary, in which case
10the court visitor shall thereafter continue to serve until
11discharged by the court.
12 Sec. 5. Section 633.563, subsection 1, Code 2021, is amended
13by adding the following new paragraph:
14 NEW PARAGRAPH. c. The petition is for opening a
15conservatorship for a minor.
16 Sec. 6. Section 633.564, subsections 1 and 2, Code 2021, are
17amended to read as follows:
181. The court shall request criminal record checks and
19checks of the child abuse, dependent adult abuse, and sexual
20offender registries in this state for all proposed guardians
21and conservators, other than financial institutions with Iowa
22trust powers, unless a proposed guardian or conservator has
23undergone the background checks required by this section within
24six months prior to the filing of a petition and the background
25checks have been provided to the court.
262. The court shall review the results of background checks
27in determining the suitability of a proposed guardian or
28conservator for appointment, and may, for good cause, share
29with the respondent, the respondent’s attorney, the protected
30person’s attorney, and the proposed guardian or conservator,
31the results of background checks, unless otherwise prohibited
32by law.
33 Sec. 7. Section 633.569, subsection 1, Code 2021, is amended
34to read as follows:
351. A person authorized to file a petition under section
-3-1633.552, 633.553, or 633.554 633.556 or 633.557 may file an
2application for the emergency appointment of a temporary
3guardian or conservator.
4 Sec. 8. Section 633.569, subsection 3, paragraph a, Code
52021, is amended to read as follows:
6a. There is not sufficient time to file a petition, serve
7notice, and hold a hearing pursuant to section 633.552,
8633.553, or 633.554 sections 633.556, 633.557, 633.558,
9633.559, and 633.560.
10 Sec. 9. Section 633.635, subsection 1, Code 2021, is amended
11to read as follows:
121. The order by the court appointing a guardian shall state
13the basis for the guardianship pursuant to section 633.552
14and the date on which the first reporting period for the
15guardianship will end.
16 Sec. 10. Section 633.669, Code 2021, is amended to read as
17follows:
18633.669 Reporting requirements — assistance by clerk Reports
19by guardians.
201. A guardian appointed by the court under this chapter
21shall file with the court the following written verified
22reports which shall not be waived by the court:
23a. An initial care plan filed within sixty days of
24appointment. The information in the initial care plan shall
25include but not be limited to the following information:
26(1) The current residence of the protected person and the
27guardian’s plan for the protected person’s living arrangements.
28(2) The guardian’s plan for payment of the protected
29person’s living expenses and other expenses.
30(3) The protected person’s health status and health care
31needs, and the guardian’s plan for meeting the protected
32person’s needs for medical, dental, and other health care
33needs.
34(4) If applicable, the guardian’s plan for the provision of
35 other professional services needed by the protected person.
-4- 1(5) If applicable, the guardian’s plan for meeting the
2educational, training, and vocational needs of the protected
3person. For protected persons with conservatorships, any step
4the guardian plans to take to develop or restore the ability of
5the protected person to manage the conservatorship estate.
6(6) If applicable, the guardian’s plan for facilitating the
7participation of the protected person in social activities.
8(7) The guardian’s plan for facilitating contacts between
9the protected person and the protected person’s family members
10and other persons significant persons in the life of the
11protected person.
12(8) The guardian’s plan for contact with, and activities on
13behalf of, the protected person.
14(9) An estimate of the total amount of fees the guardian
15anticipates charging per year and a statement or list of the
16amount the guardian proposes to charge for each service the
17guardian anticipates providing to the protected person.
180b. The guardian shall file an amended plan when there has
19been a substantial change in circumstances or the guardian
20seeks to deviate significantly from the plan. The guardian
21must obtain approval of the amended plan before implementing
22any of the amended plan’s provisions.
23b. An annual report, filed within sixty days of the close
24of the reporting period, unless the court otherwise orders on
25good cause shown. The information in the annual report shall
26include but not be limited to the following information:
27(1) The current living arrangements of the protected
28person.
29(2) The sources of payment for the protected person’s living
30expenses and other expenses.
31(3) A description, if applicable, of the following:
32(a) The protected person’s physical and mental health
33status and the medical, dental, and other professional services
34provided to the protected person.
35(b) If applicable, the protected person’s employment status
-5-1and the educational, training, and vocational services provided
2to the protected person.
3(c) The contact of the protected person with family members
4and other significant persons.
5(d) The nature and extent of the guardian’s visits with, and
6activities on behalf of, the protected person.
7(4) The guardian’s recommendation as to the need for
8continuation of the guardianship.
9(5) The ability of the guardian to continue as guardian.
10(6) The need of the guardian for assistance in providing or
11arranging for the provision of the care and protection of the
12protected person.
13c. A final report within thirty days of the termination
14of the guardianship under section 633.675 unless that time is
15extended by the court.
162. The court shall develop a simplified uniform reporting
17form for use in filing the required reports.
183. The clerk of the court shall notify the guardian in
19writing of the reporting requirements and shall provide
20information and assistance to the guardian in filing the
21reports.
224. Reports of guardians shall be reviewed and approved by a
23district court judge or referee.
24 Sec. 11. Section 633.670, subsection 1, paragraph a,
25subparagraphs (3) and (4), Code 2021, are amended by striking
26the subparagraphs.
27 Sec. 12. Section 633.670, subsection 1, paragraphs b, c, and
28d, Code 2021, are amended to read as follows:
29b. Within two days after filing the initial plan, the
30 The conservator shall give provide notice of the filing of
31the initial plan with and a copy of the initial plan to the
32protected person, the protected person’s attorney and court
33visitor, if any, and others as directed by the court. The
34notice must state that any person entitled to a copy of the
35plan must file any objections to the plan not later than
-6-1fifteen days after it is filed twenty days from the date of
2mailing notice of filing the initial plan.
3c. At least If no objections have been filed within twenty
4days after the plan has been filed, the court shall review and
5determine whether the plan should be approved or revised, after
6considering objections filed and whether the plan is consistent
7with the conservator’s powers and duties mailing notice of
8the filing of the initial plan, the conservator shall submit
9a proposed order to the court approving the initial plan.
10Upon the court’s approval of the plan under this subsection,
11the conservator shall provide a copy of the approved plan and
12order approving the plan to the protected person, the protected
13person’s attorney and court visitor, if any, and others as
14directed by the court.
15d. After approval by the court, the conservator shall
16provide a copy of the approved plan and order approving the
17plan to the protected person, the protected person’s attorney
18and court visitor, if any, and others as directed by the court.
19 If any objections to the proposed plan are filed within twenty
20days after the conservator has mailed notice of the filing of
21the plan, the conservator shall request that the matter be set
22for hearing and provide notice of the hearing date, time, and
23place to the same parties who were sent copies of the initial
24plan. Following the hearing on the conservator’s proposed
25plan, the conservator shall provide a copy of the approved
26plan and order approving the plan to the protected person, the
27protected person’s attorney and court visitor, if any, and
28others as directed by the court.
29 Sec. 13. Section 633.670, subsection 3, paragraph a, Code
302021, is amended by adding the following new subparagraphs:
31 NEW SUBPARAGRAPH. (7A) All amounts received from any source
32during the period.
33 NEW SUBPARAGRAPH. (7B) Any changes in investments.
34 NEW SUBPARAGRAPH. (7C) Recommendations of the conservator
35for retention or disposition of property.
-7-1 Sec. 14. Section 633.670, subsection 3, paragraph b,
2subparagraph (1), Code 2021, is amended to read as follows:
3(1) On an annual basis within Within sixty days of the end
4of the reporting period unless the court orders an extension
5for good cause shown in accordance with the rules of probate
6procedure.
7 Sec. 15. Section 633.675, subsections 2 and 3, Code 2021,
8are amended to read as follows:
92. The court shall terminate a guardianship if it finds by
10clear and convincing evidence that the basis for appointing a
11guardian pursuant to section 633.552 has not been established.
123. The court shall terminate a conservatorship if the court
13finds by clear and convincing evidence that the basis for
14appointing a conservator pursuant to section 633.553 or 633.554
15is not satisfied.
16DIVISION II
17TERMINOLOGY CHANGES
18 Sec. 16. Section 633.3, subsections 9, 17, 22, and 23, Code
192021, are amended to read as follows:
209. Conservator — means a person appointed by the court
21to have the custody and control of the property of a ward
22 protected person under the provisions of this probate code.
2317. Estate — the real and personal property of either a
24decedent or a ward protected person, and may also refer to the
25real and personal property of a trust described in section
26633.10.
2722. Guardian — means the person appointed by the court to
28have the custody of the person of the ward protected person
29 under the provisions of this probate code.
3023. Guardian of the property — at the election of the
31person appointed by the court to have the custody and care of
32the property of a ward protected person, the term “guardian of
33the property” may be used, which term shall be synonymous with
34the term “conservator”.
35 Sec. 17. Section 633.78, subsection 1, unnumbered paragraph
-8-11, Code 2021, is amended to read as follows:
2A fiduciary under this chapter may present a written request
3to any person for the purpose of obtaining property owned by
4a decedent or by a ward protected person of a conservatorship
5for which the fiduciary has been appointed, or property to
6which a decedent or ward protected person is entitled, or
7for information about such property needed to perform the
8fiduciary’s duties. The request must contain statements
9confirming all of the following:
10 Sec. 18. Section 633.78, subsection 1, paragraph b, Code
112021, is amended to read as follows:
12b. The request has been signed by all fiduciaries acting on
13behalf of the decedent or ward protected person.
14 Sec. 19. Section 633.78, subsection 4, paragraph a, Code
152021, is amended to read as follows:
16a. Damages sustained by the decedent’s or ward’s protected
17person’s estate.
18 Sec. 20. Section 633.80, Code 2021, is amended to read as
19follows:
20633.80 Fiduciary of a fiduciary.
21A fiduciary has no authority to act in a matter wherein the
22fiduciary’s decedent or ward protected person was merely a
23fiduciary, except that the fiduciary shall file a report and
24accounting on behalf of the decedent or ward protected person
25 in said matter.
26 Sec. 21. Section 633.93, Code 2021, is amended to read as
27follows:
28633.93 Limitation on actions affecting deeds.
29No action for recovery of any real estate sold by any
30fiduciary can be maintained by any person claiming under the
31deceased, the ward protected person, or a beneficiary, unless
32brought within five years after the date of the recording of
33the conveyance.
34 Sec. 22. Section 633.112, Code 2021, is amended to read as
35follows:
-9- 1633.112 Discovery of property.
2The court may require any person suspected of having
3possession of any property, including records and documents,
4of the decedent, ward protected person, or the estate, or of
5having had such property under the person’s control, to appear
6and submit to an examination under oath touching such matters,
7and if on such examination it appears that the person has the
8wrongful possession of any such property, the court may order
9the delivery thereof to the fiduciary. Such a person shall be
10liable to the estate for all damages caused by the person’s
11acts.
12 Sec. 23. Section 633.123, subsection 1, paragraph b,
13subparagraph (3), Code 2021, is amended to read as follows:
14(3) The needs and rights of the beneficiaries or the ward
15 protected person.
16 Sec. 24. Section 633.580, subsections 1 and 4, Code 2021,
17are amended to read as follows:
181. The name, age, and last known post office address of the
19proposed ward protected person.
204. A general description of the property of the proposed
21ward protected person within this state and of the proposed
22ward’s protected person’s right to receive property; also, the
23estimated present value of the real estate, the estimated value
24of the personal property, and the estimated gross annual income
25of the estate. If any money is payable, or to become payable,
26to the proposed ward protected person by the United States
27through the United States department of veterans affairs, the
28petition shall so state.
29 Sec. 25. Section 633.591A, Code 2021, is amended to read as
30follows:
31633.591A Voluntary petition for appointment of conservator
32for a minor — standby basis.
33A person having physical and legal custody of a minor
34may execute a verified petition for the appointment of a
35standby conservator of the proposed ward’s protected person’s
-10-1 property, upon the express condition that the petition shall
2be acted upon by the court only upon the occurrence of an event
3specified or the existence of a described condition of the
4mental or physical health of the petitioner, the occurrence
5of which event, or the existence of which condition, shall be
6established in the manner directed in the petition.
7 Sec. 26. Section 633.603, Code 2021, is amended to read as
8follows:
9633.603 Appointment of foreign conservators.
10When there is no conservatorship, nor any application
11therefor pending, in this state, the duly qualified foreign
12conservator or guardian of a nonresident ward protected
13person may, upon application, be appointed conservator of the
14property of such person in this state; provided that a resident
15conservator is appointed to serve with the foreign conservator;
16and provided further, that for good cause shown, the court
17may appoint the foreign conservator to act alone without the
18appointment of a resident conservator.
19 Sec. 27. Section 633.604, Code 2021, is amended to read as
20follows:
21633.604 Application.
22The application for appointment of a foreign conservator
23or guardian as conservator in this state shall include the
24name and address of the nonresident ward protected person, and
25of the nonresident conservator or guardian, and the name and
26address of the resident conservator to be appointed. It shall
27be accompanied by a certified copy of the original letters
28or other authority conferring the power upon the foreign
29conservator or guardian to act as such. The application
30shall also state the cause for the appointment of the foreign
31conservator to act as sole conservator, if such be the case.
32 Sec. 28. Section 633.605, Code 2021, is amended to read as
33follows:
34633.605 Personal property.
35A foreign conservator or guardian of a nonresident may
-11-1be authorized by the court of the county wherein such ward
2 protected person has personal property to receive the same upon
3compliance with the provisions of sections 633.606, 633.607 and
4633.608.
5 Sec. 29. Section 633.607, Code 2021, is amended to read as
6follows:
7633.607 Order for delivery.
8Upon the filing of the bond as above provided, and the court
9being satisfied with the amount thereof, it shall order the
10personal property of the ward protected person delivered to
11such conservator or guardian.
12 Sec. 30. Section 633.633, Code 2021, is amended to read as
13follows:
14633.633 Provisions applicable to all fiduciaries shall
15govern.
16The provisions of this probate code applicable to all
17fiduciaries shall govern the appointment, qualification, oath
18and bond of guardians and conservators, except that a guardian
19shall not be required to give bond unless the court, for good
20cause, finds that the best interests of the ward protected
21person require a bond. The court shall then fix the terms and
22conditions of such bond.
23 Sec. 31. Section 633.633B, Code 2021, is amended to read as
24follows:
25633.633B Tort liability of guardians and conservators.
26The fact that a person is a guardian or conservator shall not
27in itself make the person personally liable for damages for the
28acts of the ward protected person.
29 Sec. 32. Section 633.636, Code 2021, is amended to read as
30follows:
31633.636 Effect of appointment of guardian or conservator.
32The appointment of a guardian or conservator shall not
33constitute an adjudication that the ward protected person is of
34unsound mind.
35 Sec. 33. Section 633.637, Code 2021, is amended to read as
-12-1follows:
2633.637 Powers of ward protected person.
31. A ward protected person for whom a conservator has been
4appointed shall not have the power to convey, encumber, or
5dispose of property in any manner, other than by will if the
6ward protected person possesses the requisite testamentary
7capacity, unless the court determines that the ward protected
8person has a limited ability to handle the ward’s protected
9person’s own funds. If the court makes such a finding, the
10court shall specify to what extent the ward protected person
11 may possess and use the ward’s protected person’s own funds.
122. Any modification of the powers of the ward protected
13person that would be more restrictive of the ward’s protected
14person’s control over the ward’s protected person’s financial
15affairs shall be based upon clear and convincing evidence
16and the burden of persuasion is on the conservator. Any
17modification that would be less restrictive of the ward’s
18 protected person’s control over the ward’s protected person
19 financial affairs shall be based upon proof in accordance with
20the requirements of section 633.675.
21 Sec. 34. Section 633.637A, Code 2021, is amended to read as
22follows:
23633.637A Rights of ward protected person under guardianship.
24An adult ward protected person under a guardianship has the
25right of communication, visitation, or interaction with other
26persons upon the consent of the adult ward protected person,
27subject to section 633.635, subsection 2, paragraph “i”, and
28section 633.635, subsection 3, paragraph “c”. If an adult ward
29 protected person is unable to give express consent to such
30communication, visitation, or interaction with a person due
31to a physical or mental condition, consent of an adult ward
32 protected person may be presumed by a guardian or a court based
33on an adult ward’s protected person’s prior relationship with
34such person.
35 Sec. 35. Section 633.638, Code 2021, is amended to read as
-13-1follows:
2633.638 Presumption of fraud.
3If a conservator be appointed, all contracts, transfers and
4gifts made by the ward protected person after the filing of the
5petition shall be presumed to be a fraud against the rights
6and interest of the ward protected person except as otherwise
7directed by the court pursuant to section 633.637.
8 Sec. 36. Section 633.639, Code 2021, is amended to read as
9follows:
10633.639 Title to ward’s protected person’s property.
11The title to all property of the ward protected person is
12in the ward protected person and not the conservator subject,
13however, to the possession of the conservator and to the
14control of the court for the purposes of administration,
15sale or other disposition, under the provisions of the
16law. Any real property titled at any time in the name of a
17conservatorship shall be deemed to be titled in the ward’s
18 protected person’s name subject to the conservator’s right of
19possession.
20 Sec. 37. Section 633.640, Code 2021, is amended to read as
21follows:
22633.640 Conservator’s right to possession.
23Every conservator shall have a right to, and shall take,
24possession of all of the real and personal property of the
25ward protected person. The conservator shall pay the taxes
26and collect the income therefrom until the conservatorship is
27terminated. The conservator may maintain an action for the
28possession of the property, and to determine the title to the
29same.
30 Sec. 38. Section 633.643, Code 2021, is amended to read as
31follows:
32633.643 Disposal of will by conservator.
33When an instrument purporting to be the will of the ward
34 protected person comes into the hands of a conservator, the
35conservator shall immediately deliver it to the court.
-14-1 Sec. 39. Section 633.644, Code 2021, is amended to read as
2follows:
3633.644 Court order to preserve testamentary intent of ward
4 protected person.
5Upon receiving an instrument purporting to be the will of a
6living ward protected person under the provisions of section
7633.643, the court may open said will and read it. The court
8with or without notice, as it may determine, may enter such
9orders in the conservatorship as it deems advisable for the
10proper administration of the conservatorship in light of the
11expressed testamentary intent of the ward protected person.
12 Sec. 40. Section 633.645, Code 2021, is amended to read as
13follows:
14633.645 Court to deliver will to clerk.
15An instrument purporting to be the will of a ward protected
16person coming into the hands of the court under the provisions
17of section 633.643, shall thereafter be resealed by the court
18and be deposited with the clerk to be held by said clerk as
19provided in sections 633.286 through 633.289.
20 Sec. 41. Section 633.653A, Code 2021, is amended to read as
21follows:
22633.653A Claims for cost of medical care or services.
23The provision of medical care or services to a ward protected
24person who is a recipient of medical assistance under chapter
25249A creates a claim against the conservatorship for the amount
26owed to the provider under the medical assistance program for
27the care or services. The amount of the claim, after being
28allowed or established as provided in this part, shall be paid
29by the conservator from the assets of the conservatorship.
30 Sec. 42. Section 633.654, Code 2021, is amended to read as
31follows:
32633.654 Form and verification of claims — general
33requirements.
34No claim shall be allowed against the estate of a ward
35 protected person upon application of the claimant unless
-15-1it shall be in writing, filed in duplicate with the clerk,
2stating the claimant’s name and address, and describing the
3nature and the amount thereof, if ascertainable. It shall be
4accompanied by the affidavit of the claimant, or of someone for
5the claimant, that the amount is justly due, or if not due,
6when it will or may become due, that no payments have been
7made thereon which are not credited, and that there are no
8offsets to the same, to the knowledge of the affiant, except as
9therein stated. The duplicate of said claim shall be mailed
10by the clerk to the conservator or the conservator’s attorney
11of record; however, valid contract claims arising in the
12ordinary course of the conduct of the business or affairs of
13the ward protected person by the conservator may be paid by the
14conservator without requiring affidavit or filing.
15 Sec. 43. Section 633.656, Code 2021, is amended to read as
16follows:
17633.656 How claim entitled.
18All claims filed against the estate of the ward protected
19person shall be entitled in the name of the claimant against
20the conservator as such, naming the conservator, and in all
21further proceedings thereon, this title shall be preserved.
22 Sec. 44. Section 633.660, Code 2021, is amended to read as
23follows:
24633.660 Execution and levy prohibited.
25No execution shall issue upon, nor shall any levy be made
26against, any property of the estate of a ward protected person
27 under any judgment against the ward protected person or a
28conservator, but the provisions of this section shall not be so
29construed as to prevent the enforcement of a mortgage, pledge,
30or other lien upon property in an appropriate proceeding.
31 Sec. 45. Section 633.661, Code 2021, is amended to read as
32follows:
33633.661 Claims of conservators.
34If the conservator is a creditor of the ward protected
35person, the conservator shall file the claim as other
-16-1creditors, and the court shall appoint some competent person as
2temporary conservator to represent the ward protected person
3 at the hearing on the conservator’s claim. The same procedure
4shall be followed in the case of coconservators where all
5such conservators are creditors of the ward protected person;
6but if one of the coconservators is not a creditor of the
7ward protected person, such disinterested conservator shall
8represent the ward protected person at the hearing on any claim
9against the ward protected person by a coconservator.
10 Sec. 46. Section 633.662, Code 2021, is amended to read as
11follows:
12633.662 Claims not filed.
13The conservator may pay any valid claim against the estate of
14the ward protected person even though such claim has not been
15filed, but all such payments made by the conservator shall be
16at the conservator’s own peril.
17 Sec. 47. Section 633.664, Code 2021, is amended to read as
18follows:
19633.664 Liens not affected by failure to file claim.
20Nothing in sections 633.654 and 633.658 shall affect or
21prevent an action or proceeding to enforce any mortgage,
22pledge, or other lien upon the property of the ward protected
23person.
24 Sec. 48. Section 633.665, Code 2021, is amended to read as
25follows:
26633.665 Separate actions and claims.
271. Any action pending against the ward protected person at
28the time the conservator is appointed shall also be considered
29a claim filed in the conservatorship if notice of substitution
30is served on the conservator as defendant and a duplicate of
31the proof of service of notice of such proceeding is filed in
32the conservatorship proceeding.
332. A separate action based on a debt or other liability
34of the ward protected person may be commenced against the
35conservator in lieu of filing a claim in the conservatorship.
-17-1Such an action shall be commenced by serving an original notice
2on the conservator and filing a duplicate of the proof of
3service of notice of such proceeding in the conservatorship
4proceeding. Such an action shall also be considered a claim
5filed in the conservatorship. Such an action may be commenced
6only in a county where the venue would have been proper if
7there were no conservatorship and the action had been commenced
8against the ward protected person.
9 Sec. 49. Section 633.667, Code 2021, is amended to read as
10follows:
11633.667 Payment of claims in insolvent conservatorships.
12When it appears that the assets in a conservatorship are
13insufficient to pay in full all the claims against such
14conservatorship, the conservator shall report such matter to
15the court, and the court shall, upon hearing, with notice to
16all persons who have filed claims in the conservatorship, make
17an order for the pro rata payment of claims giving claimants
18the same priority, if any, as they would have if the ward
19 protected person were not under conservatorship.
20 Sec. 50. Section 633.668, Code 2021, is amended to read as
21follows:
22633.668 Conservator may make gifts.
23For good cause shown and under order of court, a conservator
24may make gifts on behalf of the ward protected person out of
25the assets under a conservatorship to persons or religious,
26educational, scientific, charitable, or other nonprofit
27organizations to whom or to which such gifts were regularly
28made prior to the commencement of the conservatorship, or on
29a showing to the court that such gifts would benefit the ward
30 protected person or the ward’s protected person estate from the
31standpoint of income, gift, estate or inheritance taxes. The
32making of gifts out of the assets must not foreseeably impair
33the ability to provide adequately for the best interests of the
34ward protected person.
35 Sec. 51. Section 633.673, Code 2021, is amended to read as
-18-1follows:
2633.673 Court costs in guardianships.
3The ward protected person or the ward’s protected person’s
4 estate shall be charged with the court costs of a ward’s
5 protected person’s guardianship, including the guardian’s fees
6and the fees of the attorney for the guardian. The court
7may, upon application, enter an order waiving payment of the
8court costs in indigent cases. However, if the ward protected
9person or ward’s protected person’s estate becomes financially
10capable of paying any waived costs, the costs shall be paid
11immediately.
12 Sec. 52. Section 633.676, Code 2021, is amended to read as
13follows:
14633.676 Assets exhausted.
15At any time that the assets of the ward’s protected person’s
16 estate do not exceed the amount of the charges and claims
17against it, the court may direct the conservator to proceed to
18terminate the conservatorship.
19 Sec. 53. Section 633.677, Code 2021, is amended to read as
20follows:
21633.677 Accounting to ward protected person — notice.
22Upon the termination of a conservatorship, the conservator
23shall pay the costs of administration and shall render a full
24and complete accounting to the ward protected person or the
25ward’s protected person’s personal representative and to the
26court. Notice of the final report of a conservator shall be
27served on the ward protected person or the ward’s protected
28person’s personal representative, in accordance with section
29633.40, unless notice is waived. An order prescribing notice
30may be made before or after the filing of the final report.
31 Sec. 54. Section 633.681, Code 2021, is amended to read as
32follows:
33633.681 Assets of minor ward protected person exhausted.
34When the assets of a minor ward’s protected person’s
35 conservatorship are exhausted or consist of personal property
-19-1only of an aggregate value not in excess of twenty-five
2thousand dollars, the court, upon application or upon its
3own motion, may terminate the conservatorship. The order
4for termination shall direct the conservator to deliver any
5property remaining after the payment of allowed claims and
6expenses of administration to a custodian under any uniform
7transfers to minors Act. Such delivery shall have the same
8force and effect as if delivery had been made to the ward
9 protected person after attaining majority.
10 Sec. 55. Section 633.682, Code 2021, is amended to read as
11follows:
12633.682 Discharge of conservator and release of bond.
13Upon settlement of the final accounting of a conservator,
14and upon determining that the property of the ward protected
15person has been delivered to the person or persons lawfully
16entitled thereto, the court shall discharge the conservator and
17exonerate the surety on the conservator’s bond.
18EXPLANATION
19The inclusion of this explanation does not constitute agreement with
20the explanation’s substance by the members of the general assembly.
21This bill relates to the opening, administration, and
22termination of adult guardianships and adult and minor
23conservatorships, and makes terminology changes to the probate
24code.
25The bill provides that notice of a guardianship proceeding
26must be given to any adult with whom the minor has lived with
27for the six months immediately preceding the filing of the
28petition.
29The bill provides qualifications for a person to serve as a
30court visitor.
31The bill provides that a court visitor will be discharged
32upon the appointment of a guardian or conservator unless
33ordered by the court to continue.
34The bill specifies that a court-ordered professional
35evaluation conducted at or before a hearing on a petition for
-20-1the appointment of a guardian or conservator for a minor must
2be filed with the court.
3The bill provides that if the proposed guardian has
4undergone the required background checks within six months
5prior to the filing of the petition and the background checks
6have been provided to the court, the proposed guardian does
7not need to undergo a new background check. The bill further
8provides that the results of the background checks may be
9shared with the respondent, respondent’s attorney, the
10protected person’s attorney, and the proposed guardian or
11conservator.
12The bill changes Code references regarding the emergency
13appointment of a temporary guardian or conservator.
14The bill also directs that the initial verified care plan
15includes any steps the guardian plans to take to develop
16or restore the protected person’s ability to manage the
17conservatorship estate, estimate of the total amount of fees
18the guardian anticipates charging, and instructs the guardian
19to file an amended plan should there be a substantial change
20in circumstances.
21The bill provides instructions to the conservator to provide
22notice of the filing of the initial plan and the timeline for
23objections.
24The bill further provides for new disclosures that written
25and verified reports must include.
26The bill changes the standard of proof needed to be found
27by the court concerning termination of guardianships and
28conservatorships from clear and convincing evidence to a
29preponderance of the evidence.
30The bill replaces the term “ward” with “protected person”
31throughout the probate code.
-21-cm/jh