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Senate Study Bill 1035 - IntroducedA Bill ForAn Act 1relating to the creation, administration, and
2termination of minor and adult guardianships and
3conservatorships.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2MINOR GUARDIANSHIPS
3 Section 1. Section 232D.301, subsection 2, paragraph d,
4subparagraph (3), Code 2021, is amended to read as follows:
5(3) Any adult who has had the primary care of the minor or
6with whom the minor has lived for at least any time during the
7 six months prior to immediately preceding the filing of the
8petition.
9 Sec. 2. Section 232D.301, subsection 4, Code 2021, is
10amended to read as follows:
114. The petition shall state whether a limited guardianship
12is appropriate, and whether a conservatorship for the minor
13already exists.
14 Sec. 3. Section 232D.302, subsection 2, Code 2021, is
15amended to read as follows:
162. Notice shall be served upon the minor’s known parents
17listed in the petition in accordance with the rules of civil
18procedure. If the parent has not filed a consent to the
19appointment of a guardian, the notice shall inform any parent
20named in the petition that the parent may be entitled to an
21attorney under the conditions described in section 232D.304.
22 Sec. 4. Section 232D.305, subsection 1, Code 2021, is
23amended to read as follows:
241. The court may appoint a court visitor for the minor. A
25person is qualified to serve as a court visitor if the person
26has demonstrated sufficient knowledge of guardianships to
27adequately perform the duties in subsection 3.
28 Sec. 5. Section 232D.305, subsection 3, paragraph b, Code
292021, is amended to read as follows:
30b. Explaining Providing to the minor, if the minor’s age
31is appropriate, the substance of the petition, the purpose and
32effect of the guardianship proceeding, information regarding
33 the rights of the minor at the hearing, and the general powers
34and duties of a guardian.
35 Sec. 6. Section 232D.305, Code 2021, is amended by adding
-1-1the following new subsection:
2 NEW SUBSECTION. 6. The court may order a court visitor to
3continue to serve if the court determines continued service
4would be in the best interest of the minor. If the court
5continues the service of the court visitor, the court may limit
6the direct duties of the court visitor as the court deems
7necessary, in which case the court visitor shall thereafter
8continue to serve until discharged by the court. In the
9event the court does not order the court visitor to continue,
10the order appointing the guardian shall discharge the court
11visitor.
12 Sec. 7. Section 232D.307, subsections 1 and 2, Code 2021,
13are amended to read as follows:
141. The court shall request criminal record checks and checks
15of the child abuse, dependent adult abuse, and sex offender
16registries in this state for all proposed guardians other than
17financial institutions with Iowa trust powers unless a proposed
18guardian has undergone the required background checks in this
19section within the twelve six months prior to the filing of a
20petition and the background checks have been provided to the
21court.
222. The court shall review the results of background checks
23in determining the suitability of a proposed guardian for
24appointment, and may, for good cause, share the results of the
25background check with the proposed guardian.
26 Sec. 8. Section 232D.401, subsections 1 and 3, Code 2021,
27are amended to read as follows:
281. The order by the court appointing a guardian for a minor
29shall state the basis for the order and the date on which the
30first reporting period for the guardianship will end.
313. An order by the court appointing a guardian for a minor
32shall state the powers granted to the guardian. Except as
33otherwise limited by court order, the court may grant the
34guardian the following powers, which may be exercised without
35prior further court approval:
-2- 1a. Taking custody of the minor and establishing the minor’s
2permanent residence if otherwise consistent with the terms of
3any order of competent jurisdiction relating to the custody,
4placement, detention, or commitment of the minor within the
5state.
6b. Consenting to medical, dental, and other health care
7treatment and services for the minor.
8c. Providing or arranging for the provision of education
9for the minor including but not limited to preschool education,
10primary education and secondary education, special education
11and related services, and vocational services.
12d. Consenting to professional services for the minor to
13ensure the safety and welfare of the minor.
14e. Applying for and receiving funds and benefits payable
15for the support of the minor if the minor does not have a
16conservator. If the minor has a conservator, the guardian
17shall notify the conservator at least ten days before applying
18for funds or benefits for the support of the minor.
19f. Any other powers the court may specify.
20 Sec. 9. Section 232D.501, subsection 1, paragraph a, Code
212021, is amended by adding the following new subparagraph:
22 NEW SUBPARAGRAPH. (2A) The guardian’s plan, if any, for
23applying for and receiving funds and benefits payable for the
24support of the minor.
25 Sec. 10. Section 232D.501, subsection 1, paragraph b, Code
262021, is amended by adding the following new subparagraph:
27 NEW SUBPARAGRAPH. (11) The results of the guardian’s
28efforts to apply for funds or benefits for the minor, and
29an accounting for the use of such funds or benefits by the
30guardian.
31 Sec. 11. Section 232D.503, Code 2021, is amended by adding
32the following new subsection:
33 NEW SUBSECTION. 6. If the court orders termination of a
34guardianship established under this chapter and the guardian
35has custody of the minor’s assets, the court shall order
-3-1delivery of the minor’s assets to the minor or a fiduciary
2acting under one or more of the following accounts:
3a. A uniform transfer to minors Act account established for
4the minor pursuant to chapter 565B or other state law.
5b. An educational savings plan trust account established for
6the minor pursuant to section 529 of the Internal Revenue Code
7or chapter 12D.
8c. An ABLE savings plan trust account established for the
9minor pursuant to section 529A of the Internal Revenue Code or
10chapter 12I.
11DIVISION II
12ADULT GUARDIANSHIPS AND CONSERVATORSHIPS
13 Sec. 12. Section 633.556, subsection 5, paragraph a, Code
142021, is amended to read as follows:
15a. The name and address of the proposed guardian or
16conservator and the reason the proposed guardian or conservator
17 should be selected.
18 Sec. 13. Section 633.556, subsection 8, Code 2021, is
19amended to read as follows:
208. The A petition for conservator shall provide a brief
21description of the respondent’s alleged functional limitations
22that make the respondent unable to communicate or carry out
23important decisions concerning the respondent’s financial
24affairs. A petition for guardian shall provide a brief
25description of the respondent’s alleged functional limitations
26that make the respondent unable to provide for the respondent’s
27safety, or to provide for necessities.
28 Sec. 14. Section 633.562, subsections 1 and 3, Code 2021,
29are amended to read as follows:
301. If the court determines that the appointment of a court
31visitor would be in the best interest of the respondent,
32the court shall appoint a court visitor at the expense
33of the respondent or the respondent’s estate, or, if the
34respondent is indigent, the cost of the court visitor shall
35be assessed against the county in which the proceedings are
-4-1pending. The court may appoint any qualified person as a court
2visitor in a guardianship or conservatorship proceeding. A
3person is qualified to serve in this capacity if the person
4has demonstrated sufficient knowledge of guardianships or
5conservatorships to adequately perform the duties in subsection
63.
73. Unless otherwise enlarged or circumscribed by the court,
8the duties of a court visitor with respect to the respondent
9shall include all of the following:
10a. Conducting an initial in-person interview with the
11respondent.
12b. Explaining to the respondent the substance of the
13petition, and the purpose and effect of the guardianship or
14conservatorship proceeding, the rights of the respondent at
15the hearing, and the general powers and duties of a guardian
16or conservator.
17c. Determining, to the extent possible, the views of the
18respondent regarding the proposed guardian or conservator,
19the proposed guardian’s or conservator’s powers and duties,
20 and the scope and duration of the proposed guardianship or
21conservatorship.
22 Sec. 15. Section 633.562, Code 2021, is amended by adding
23the following new subsection:
24 NEW SUBSECTION. 7. A court visitor shall be discharged
25from all further duties upon appointment of a guardian or
26conservator, unless otherwise ordered by the court. The court
27may order a court visitor to continue to serve if the court
28determines continued service would be in the best interest of
29the protected person. If the court continues the service of
30the court visitor, the court may limit the direct duties of
31the court visitor as the court deems necessary, in which case
32the court visitor shall thereafter continue to serve until
33discharged by the court.
34 Sec. 16. Section 633.641, subsection 3, Code 2021, is
35amended to read as follows:
-5- 13. If a protected person has executed a valid power of
2attorney under chapter 633B, the conservator shall act in
3accordance with the applicable power of attorney provisions
4of chapter 633B and the valid power of attorney controls the
5conservator’s powers and duties.
6 Sec. 17. Section 633.669, subsection 1, Code 2021, is
7amended by adding the following new paragraph:
8 NEW PARAGRAPH. 0b. The guardian shall file an amended plan
9when there has been a substantial change in circumstances or
10the guardian seeks to deviate significantly from the plan.
11The guardian must obtain approval of the amended plan before
12implementing any of its provisions.
13 Sec. 18. Section 633.670, subsection 1, paragraph b, Code
142021, is amended to read as follows:
15b. Within two days after filing the initial plan, the The
16 conservator shall give notice of the filing of the initial plan
17with a copy of the plan to the protected person, the protected
18person’s attorney and court visitor, if any, and others as
19directed by the court. The notice must state that any person
20entitled to a copy of the plan must file any objections to the
21plan not later than fifteen twenty days after it is filed.
22 Sec. 19. Section 633.675, subsections 2 and 3, Code 2021,
23are amended to read as follows:
242. The court shall terminate a guardianship if it finds by
25clear and convincing evidence that the basis for appointing a
26guardian pursuant to section 633.552 has not been established.
273. The court shall terminate a conservatorship if the court
28finds by clear and convincing evidence that the basis for
29appointing a conservator pursuant to section 633.553 or 633.554
30is not satisfied.
31 Sec. 20. REPEAL. Section 633.71, Code 2021, is repealed.
32DIVISION III
33CONFORMING CHANGES
34 Sec. 21. Section 633.3, subsections 9, 17, 22, and 23, Code
352021, are amended to read as follows:
-6- 19. Conservator — means a person appointed by the court
2to have the custody and control of the property of a ward
3 protected person under the provisions of this probate code.
417. Estate — the real and personal property of either a
5decedent or a ward protected person, and may also refer to the
6real and personal property of a trust described in section
7633.10.
822. Guardian — means the person appointed by the court to
9have the custody of the person of the ward protected person
10 under the provisions of this probate code.
1123. Guardian of the property — at the election of the
12person appointed by the court to have the custody and care of
13the property of a ward protected person, the term “guardian of
14the property” may be used, which term shall be synonymous with
15the term “conservator”.
16 Sec. 22. Section 633.78, subsection 1, unnumbered paragraph
171, Code 2021, is amended to read as follows:
18A fiduciary under this chapter may present a written request
19to any person for the purpose of obtaining property owned by
20a decedent or by a ward protected person of a conservatorship
21for which the fiduciary has been appointed, or property to
22which a decedent or ward protected person is entitled, or
23for information about such property needed to perform the
24fiduciary’s duties. The request must contain statements
25confirming all of the following:
26 Sec. 23. Section 633.78, subsection 1, paragraph b, Code
272021, is amended to read as follows:
28b. The request has been signed by all fiduciaries acting on
29behalf of the decedent or ward protected person.
30 Sec. 24. Section 633.78, subsection 4, paragraph a, Code
312021, is amended to read as follows:
32a. Damages sustained by the decedent’s or ward’s protected
33person’s estate.
34 Sec. 25. Section 633.80, Code 2021, is amended to read as
35follows:
-7- 1633.80 Fiduciary of a fiduciary.
2A fiduciary has no authority to act in a matter wherein the
3fiduciary’s decedent or ward protected person was merely a
4fiduciary, except that the fiduciary shall file a report and
5accounting on behalf of the decedent or ward protected person
6 in said matter.
7 Sec. 26. Section 633.93, Code 2021, is amended to read as
8follows:
9633.93 Limitation on actions affecting deeds.
10No action for recovery of any real estate sold by any
11fiduciary can be maintained by any person claiming under the
12deceased, the ward protected person, or a beneficiary, unless
13brought within five years after the date of the recording of
14the conveyance.
15 Sec. 27. Section 633.112, Code 2021, is amended to read as
16follows:
17633.112 Discovery of property.
18The court may require any person suspected of having
19possession of any property, including records and documents,
20of the decedent, ward protected person, or the estate, or of
21having had such property under the person’s control, to appear
22and submit to an examination under oath touching such matters,
23and if on such examination it appears that the person has the
24wrongful possession of any such property, the court may order
25the delivery thereof to the fiduciary. Such a person shall be
26liable to the estate for all damages caused by the person’s
27acts.
28 Sec. 28. Section 633.123, subsection 1, paragraph b,
29subparagraph (3), Code 2021, is amended to read as follows:
30(3) The needs and rights of the beneficiaries or the ward
31 protected person.
32 Sec. 29. Section 633.580, subsections 1 and 4, Code 2021,
33are amended to read as follows:
341. The name, age, and last known post office address of the
35proposed ward protected person.
-8- 14. A general description of the property of the proposed
2ward protected person within this state and of the proposed
3ward’s protected person’s right to receive property; also, the
4estimated present value of the real estate, the estimated value
5of the personal property, and the estimated gross annual income
6of the estate. If any money is payable, or to become payable,
7to the proposed ward protected person by the United States
8through the United States department of veterans affairs, the
9petition shall so state.
10 Sec. 30. Section 633.591A, Code 2021, is amended to read as
11follows:
12633.591A Voluntary petition for appointment of conservator
13for a minor — standby basis.
14A person having physical and legal custody of a minor
15may execute a verified petition for the appointment of a
16standby conservator of the proposed ward’s protected person’s
17 property, upon the express condition that the petition shall
18be acted upon by the court only upon the occurrence of an event
19specified or the existence of a described condition of the
20mental or physical health of the petitioner, the occurrence
21of which event, or the existence of which condition, shall be
22established in the manner directed in the petition.
23 Sec. 31. Section 633.603, Code 2021, is amended to read as
24follows:
25633.603 Appointment of foreign conservators.
26When there is no conservatorship, nor any application
27therefor pending, in this state, the duly qualified foreign
28conservator or guardian of a nonresident ward protected
29person may, upon application, be appointed conservator of the
30property of such person in this state; provided that a resident
31conservator is appointed to serve with the foreign conservator;
32and provided further, that for good cause shown, the court
33may appoint the foreign conservator to act alone without the
34appointment of a resident conservator.
35 Sec. 32. Section 633.604, Code 2021, is amended to read as
-9-1follows:
2633.604 Application.
3The application for appointment of a foreign conservator
4or guardian as conservator in this state shall include the
5name and address of the nonresident ward protected person, and
6of the nonresident conservator or guardian, and the name and
7address of the resident conservator to be appointed. It shall
8be accompanied by a certified copy of the original letters
9or other authority conferring the power upon the foreign
10conservator or guardian to act as such. The application
11shall also state the cause for the appointment of the foreign
12conservator to act as sole conservator, if such be the case.
13 Sec. 33. Section 633.605, Code 2021, is amended to read as
14follows:
15633.605 Personal property.
16A foreign conservator or guardian of a nonresident may
17be authorized by the court of the county wherein such ward
18 protected person has personal property to receive the same upon
19compliance with the provisions of sections 633.606, 633.607 and
20633.608.
21 Sec. 34. Section 633.607, Code 2021, is amended to read as
22follows:
23633.607 Order for delivery.
24Upon the filing of the bond as above provided, and the court
25being satisfied with the amount thereof, it shall order the
26personal property of the ward protected person delivered to
27such conservator or guardian.
28 Sec. 35. Section 633.633, Code 2021, is amended to read as
29follows:
30633.633 Provisions applicable to all fiduciaries shall
31govern.
32The provisions of this probate code applicable to all
33fiduciaries shall govern the appointment, qualification, oath
34and bond of guardians and conservators, except that a guardian
35shall not be required to give bond unless the court, for good
-10-1cause, finds that the best interests of the ward protected
2person require a bond. The court shall then fix the terms and
3conditions of such bond.
4 Sec. 36. Section 633.633B, Code 2021, is amended to read as
5follows:
6633.633B Tort liability of guardians and conservators.
7The fact that a person is a guardian or conservator shall not
8in itself make the person personally liable for damages for the
9acts of the ward protected person.
10 Sec. 37. Section 633.636, Code 2021, is amended to read as
11follows:
12633.636 Effect of appointment of guardian or conservator.
13The appointment of a guardian or conservator shall not
14constitute an adjudication that the ward protected person is of
15unsound mind.
16 Sec. 38. Section 633.637, Code 2021, is amended to read as
17follows:
18633.637 Powers of ward protected person.
191. A ward protected person for whom a conservator has been
20appointed shall not have the power to convey, encumber, or
21dispose of property in any manner, other than by will if the
22ward protected person possesses the requisite testamentary
23capacity, unless the court determines that the ward protected
24person has a limited ability to handle the ward’s protected
25person’s own funds. If the court makes such a finding, the
26court shall specify to what extent the ward protected person
27 may possess and use the ward’s protected person’s own funds.
282. Any modification of the powers of the ward protected
29person that would be more restrictive of the ward’s protected
30person’s control over the ward’s protected person’s financial
31affairs shall be based upon clear and convincing evidence
32and the burden of persuasion is on the conservator. Any
33modification that would be less restrictive of the ward’s
34 protected person’s control over the ward’s protected person
35 financial affairs shall be based upon proof in accordance with
-11-1the requirements of section 633.675.
2 Sec. 39. Section 633.637A, Code 2021, is amended to read as
3follows:
4633.637A Rights of ward protected person under guardianship.
5An adult ward protected person under a guardianship has the
6right of communication, visitation, or interaction with other
7persons upon the consent of the adult ward protected person,
8subject to section 633.635, subsection 2, paragraph “i”, and
9section 633.635, subsection 3, paragraph “c”. If an adult ward
10 protected person is unable to give express consent to such
11communication, visitation, or interaction with a person due
12to a physical or mental condition, consent of an adult ward
13 protected person may be presumed by a guardian or a court based
14on an adult ward’s protected person’s prior relationship with
15such person.
16 Sec. 40. Section 633.638, Code 2021, is amended to read as
17follows:
18633.638 Presumption of fraud.
19If a conservator be appointed, all contracts, transfers and
20gifts made by the ward protected person after the filing of the
21petition shall be presumed to be a fraud against the rights
22and interest of the ward protected person except as otherwise
23directed by the court pursuant to section 633.637.
24 Sec. 41. Section 633.639, Code 2021, is amended to read as
25follows:
26633.639 Title to ward’s protected person’s property.
27The title to all property of the ward protected person is
28in the ward protected person and not the conservator subject,
29however, to the possession of the conservator and to the
30control of the court for the purposes of administration,
31sale or other disposition, under the provisions of the
32law. Any real property titled at any time in the name of a
33conservatorship shall be deemed to be titled in the ward’s
34 protected person’s name subject to the conservator’s right of
35possession.
-12-1 Sec. 42. Section 633.640, Code 2021, is amended to read as
2follows:
3633.640 Conservator’s right to possession.
4Every conservator shall have a right to, and shall take,
5possession of all of the real and personal property of the
6ward protected person. The conservator shall pay the taxes
7and collect the income therefrom until the conservatorship is
8terminated. The conservator may maintain an action for the
9possession of the property, and to determine the title to the
10same.
11 Sec. 43. Section 633.643, Code 2021, is amended to read as
12follows:
13633.643 Disposal of will by conservator.
14When an instrument purporting to be the will of the ward
15 protected person comes into the hands of a conservator, the
16conservator shall immediately deliver it to the court.
17 Sec. 44. Section 633.644, Code 2021, is amended to read as
18follows:
19633.644 Court order to preserve testamentary intent of ward
20 protected person.
21Upon receiving an instrument purporting to be the will of a
22living ward protected person under the provisions of section
23633.643, the court may open said will and read it. The court
24with or without notice, as it may determine, may enter such
25orders in the conservatorship as it deems advisable for the
26proper administration of the conservatorship in light of the
27expressed testamentary intent of the ward protected person.
28 Sec. 45. Section 633.645, Code 2021, is amended to read as
29follows:
30633.645 Court to deliver will to clerk.
31An instrument purporting to be the will of a ward protected
32person coming into the hands of the court under the provisions
33of section 633.643, shall thereafter be resealed by the court
34and be deposited with the clerk to be held by said clerk as
35provided in sections 633.286 through 633.289.
-13-1 Sec. 46. Section 633.653A, Code 2021, is amended to read as
2follows:
3633.653A Claims for cost of medical care or services.
4The provision of medical care or services to a ward protected
5person who is a recipient of medical assistance under chapter
6249A creates a claim against the conservatorship for the amount
7owed to the provider under the medical assistance program for
8the care or services. The amount of the claim, after being
9allowed or established as provided in this part, shall be paid
10by the conservator from the assets of the conservatorship.
11 Sec. 47. Section 633.654, Code 2021, is amended to read as
12follows:
13633.654 Form and verification of claims — general
14requirements.
15No claim shall be allowed against the estate of a ward
16 protected person upon application of the claimant unless
17it shall be in writing, filed in duplicate with the clerk,
18stating the claimant’s name and address, and describing the
19nature and the amount thereof, if ascertainable. It shall be
20accompanied by the affidavit of the claimant, or of someone for
21the claimant, that the amount is justly due, or if not due,
22when it will or may become due, that no payments have been
23made thereon which are not credited, and that there are no
24offsets to the same, to the knowledge of the affiant, except as
25therein stated. The duplicate of said claim shall be mailed
26by the clerk to the conservator or the conservator’s attorney
27of record; however, valid contract claims arising in the
28ordinary course of the conduct of the business or affairs of
29the ward protected person by the conservator may be paid by the
30conservator without requiring affidavit or filing.
31 Sec. 48. Section 633.656, Code 2021, is amended to read as
32follows:
33633.656 How claim entitled.
34All claims filed against the estate of the ward protected
35person shall be entitled in the name of the claimant against
-14-1the conservator as such, naming the conservator, and in all
2further proceedings thereon, this title shall be preserved.
3 Sec. 49. Section 633.660, Code 2021, is amended to read as
4follows:
5633.660 Execution and levy prohibited.
6No execution shall issue upon, nor shall any levy be made
7against, any property of the estate of a ward protected person
8 under any judgment against the ward protected person or a
9conservator, but the provisions of this section shall not be so
10construed as to prevent the enforcement of a mortgage, pledge,
11or other lien upon property in an appropriate proceeding.
12 Sec. 50. Section 633.661, Code 2021, is amended to read as
13follows:
14633.661 Claims of conservators.
15If the conservator is a creditor of the ward protected
16person, the conservator shall file the claim as other
17creditors, and the court shall appoint some competent person as
18temporary conservator to represent the ward protected person
19 at the hearing on the conservator’s claim. The same procedure
20shall be followed in the case of coconservators where all
21such conservators are creditors of the ward protected person;
22but if one of the coconservators is not a creditor of the
23ward protected person, such disinterested conservator shall
24represent the ward protected person at the hearing on any claim
25against the ward protected person by a coconservator.
26 Sec. 51. Section 633.662, Code 2021, is amended to read as
27follows:
28633.662 Claims not filed.
29The conservator may pay any valid claim against the estate of
30the ward protected person even though such claim has not been
31filed, but all such payments made by the conservator shall be
32at the conservator’s own peril.
33 Sec. 52. Section 633.664, Code 2021, is amended to read as
34follows:
35633.664 Liens not affected by failure to file claim.
-15- 1Nothing in sections 633.654 and 633.658 shall affect or
2prevent an action or proceeding to enforce any mortgage,
3pledge, or other lien upon the property of the ward protected
4person.
5 Sec. 53. Section 633.665, Code 2021, is amended to read as
6follows:
7633.665 Separate actions and claims.
81. Any action pending against the ward protected person at
9the time the conservator is appointed shall also be considered
10a claim filed in the conservatorship if notice of substitution
11is served on the conservator as defendant and a duplicate of
12the proof of service of notice of such proceeding is filed in
13the conservatorship proceeding.
142. A separate action based on a debt or other liability
15of the ward protected person may be commenced against the
16conservator in lieu of filing a claim in the conservatorship.
17Such an action shall be commenced by serving an original notice
18on the conservator and filing a duplicate of the proof of
19service of notice of such proceeding in the conservatorship
20proceeding. Such an action shall also be considered a claim
21filed in the conservatorship. Such an action may be commenced
22only in a county where the venue would have been proper if
23there were no conservatorship and the action had been commenced
24against the ward protected person.
25 Sec. 54. Section 633.667, Code 2021, is amended to read as
26follows:
27633.667 Payment of claims in insolvent conservatorships.
28When it appears that the assets in a conservatorship are
29insufficient to pay in full all the claims against such
30conservatorship, the conservator shall report such matter to
31the court, and the court shall, upon hearing, with notice to
32all persons who have filed claims in the conservatorship, make
33an order for the pro rata payment of claims giving claimants
34the same priority, if any, as they would have if the ward
35 protected person were not under conservatorship.
-16-1 Sec. 55. Section 633.668, Code 2021, is amended to read as
2follows:
3633.668 Conservator may make gifts.
4For good cause shown and under order of court, a conservator
5may make gifts on behalf of the ward protected person out of
6the assets under a conservatorship to persons or religious,
7educational, scientific, charitable, or other nonprofit
8organizations to whom or to which such gifts were regularly
9made prior to the commencement of the conservatorship, or on
10a showing to the court that such gifts would benefit the ward
11 protected person or the ward’s protected person estate from the
12standpoint of income, gift, estate or inheritance taxes. The
13making of gifts out of the assets must not foreseeably impair
14the ability to provide adequately for the best interests of the
15ward protected person.
16 Sec. 56. Section 633.673, Code 2021, is amended to read as
17follows:
18633.673 Court costs in guardianships.
19The ward protected person or the ward’s protected person’s
20 estate shall be charged with the court costs of a ward’s
21 protected person’s guardianship, including the guardian’s fees
22and the fees of the attorney for the guardian. The court
23may, upon application, enter an order waiving payment of the
24court costs in indigent cases. However, if the ward protected
25person or ward’s protected person’s estate becomes financially
26capable of paying any waived costs, the costs shall be paid
27immediately.
28 Sec. 57. Section 633.676, Code 2021, is amended to read as
29follows:
30633.676 Assets exhausted.
31At any time that the assets of the ward’s protected person’s
32 estate do not exceed the amount of the charges and claims
33against it, the court may direct the conservator to proceed to
34terminate the conservatorship.
35 Sec. 58. Section 633.677, Code 2021, is amended to read as
-17-1follows:
2633.677 Accounting to ward protected person — notice.
3Upon the termination of a conservatorship, the conservator
4shall pay the costs of administration and shall render a full
5and complete accounting to the ward protected person or the
6ward’s protected person’s personal representative and to the
7court. Notice of the final report of a conservator shall be
8served on the ward protected person or the ward’s protected
9person’s personal representative, in accordance with section
10633.40, unless notice is waived. An order prescribing notice
11may be made before or after the filing of the final report.
12 Sec. 59. Section 633.681, Code 2021, is amended to read as
13follows:
14633.681 Assets of minor ward protected person exhausted.
15When the assets of a minor ward’s protected person’s
16 conservatorship are exhausted or consist of personal property
17only of an aggregate value not in excess of twenty-five
18thousand dollars, the court, upon application or upon its
19own motion, may terminate the conservatorship. The order
20for termination shall direct the conservator to deliver any
21property remaining after the payment of allowed claims and
22expenses of administration to a custodian under any uniform
23transfers to minors Act. Such delivery shall have the same
24force and effect as if delivery had been made to the ward
25 protected person after attaining majority.
26 Sec. 60. Section 633.682, Code 2021, is amended to read as
27follows:
28633.682 Discharge of conservator and release of bond.
29Upon settlement of the final accounting of a conservator,
30and upon determining that the property of the ward protected
31person has been delivered to the person or persons lawfully
32entitled thereto, the court shall discharge the conservator and
33exonerate the surety on the conservator’s bond.
34EXPLANATION
35The inclusion of this explanation does not constitute agreement with
-18-1the explanation’s substance by the members of the general assembly.
2Guardians are persons and entities appointed by the
3court to make decisions for persons regarding the person’s
4care, maintenance, health, education, welfare, and safety.
5Conservators are appointed by the court to make decisions for
6persons regarding management of their financial affairs.
7This bill amends Code provisions governing guardianships and
8conservatorships.
9DIVISION I — MINOR GUARDIANSHIPS. Under current law, a
10petition for guardianship only requires the address and name
11of any adult who was the primary caregiver or lived with the
12minor for the six months prior. The bill provides that a
13petition for guardianship must include the name and address of
14the primary caregiver or adult with whom the minor has lived
15anytime during the six months immediately before the filing.
16Under the bill, the petition must also include whether there is
17already a conservatorship in place for the minor.
18The bill provides that notice of a filed petition for
19guardianship shall inform parents, who have not filed a
20consent to the appointment of a guardian with the court that
21the parents may be entitled to an attorney under current Code
22section 232D.304.
23The bill provides the qualifications and term of service of
24a court visitor for the minor.
25The bill provides that results of background checks of
26the proposed guardian in the 6 months prior to filing of the
27petition may be used; current law permits the use of background
28checks within the prior 12 months. Results of the background
29checks may be shared with good cause to the proposed guardian.
30The bill provides that the order appointing a guardian for a
31minor shall state the date that the first reporting period for
32the guardianship will end.
33The bill provides that the initial care plan shall include
34the guardian’s plan for funds and benefits payable for the
35support of the minor and the verified annual report shall
-19-1include the results of the guardian’s efforts to receive
2funds or benefits and the account for the use of the funds or
3benefits.
4The bill provides that upon termination of guardianship
5in which the guardian has custody of the minor’s assets, the
6assets must be returned to the minor or a fiduciary for the
7minor for any of the following accounts: a uniform transfer to
8minors Act account, an educational savings plan trust account,
9or an ABLE savings plan trust account.
10DIVISION II — ADULT GUARDIANSHIPS. The bill changes the
11petition for appointment of guardian or conservator for an
12adult to have the same requirement for both guardianship and
13conservatorships. Currently, conservatorships are not required
14to provide the name and address of the proposed conservator and
15the reason why the conservator was chosen.
16The bill provides qualifications of who is qualified to
17serve as a court visitor and when they are discharged. current
18law does not provide specific qualifications of a court
19visitor.
20The bill specifies that when a valid power of attorney has
21been executed prior to an appointment of a conservator, the
22power of attorney controls and the conservator must adhere to
23the relevant provisions of Code chapter 633B.
24The bill provides that a protected person has 20 days to
25contest the initial financial plan for conservatorships. Under
26current law, the protected individual only has 15 days.
27The bill removes the standard of clear and convincing
28evidence to prove cause for termination of a guardianship or
29conservatorship.
30DIVISION III — CONFORMING CHANGES. The current Code uses
31the term “ward” to refer to a person for whom the court has
32appointed a guardian or conservator. The bill substitutes the
33term “protected person” for the term “ward”.
-20-cm/jh
2termination of minor and adult guardianships and
3conservatorships.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2MINOR GUARDIANSHIPS
3 Section 1. Section 232D.301, subsection 2, paragraph d,
4subparagraph (3), Code 2021, is amended to read as follows:
5(3) Any adult who has had the primary care of the minor or
6with whom the minor has lived for at least any time during the
7 six months prior to immediately preceding the filing of the
8petition.
9 Sec. 2. Section 232D.301, subsection 4, Code 2021, is
10amended to read as follows:
114. The petition shall state whether a limited guardianship
12is appropriate, and whether a conservatorship for the minor
13already exists.
14 Sec. 3. Section 232D.302, subsection 2, Code 2021, is
15amended to read as follows:
162. Notice shall be served upon the minor’s known parents
17listed in the petition in accordance with the rules of civil
18procedure. If the parent has not filed a consent to the
19appointment of a guardian, the notice shall inform any parent
20named in the petition that the parent may be entitled to an
21attorney under the conditions described in section 232D.304.
22 Sec. 4. Section 232D.305, subsection 1, Code 2021, is
23amended to read as follows:
241. The court may appoint a court visitor for the minor. A
25person is qualified to serve as a court visitor if the person
26has demonstrated sufficient knowledge of guardianships to
27adequately perform the duties in subsection 3.
28 Sec. 5. Section 232D.305, subsection 3, paragraph b, Code
292021, is amended to read as follows:
30b. Explaining Providing to the minor, if the minor’s age
31is appropriate, the substance of the petition, the purpose and
32effect of the guardianship proceeding, information regarding
33 the rights of the minor at the hearing, and the general powers
34and duties of a guardian.
35 Sec. 6. Section 232D.305, Code 2021, is amended by adding
-1-1the following new subsection:
2 NEW SUBSECTION. 6. The court may order a court visitor to
3continue to serve if the court determines continued service
4would be in the best interest of the minor. If the court
5continues the service of the court visitor, the court may limit
6the direct duties of the court visitor as the court deems
7necessary, in which case the court visitor shall thereafter
8continue to serve until discharged by the court. In the
9event the court does not order the court visitor to continue,
10the order appointing the guardian shall discharge the court
11visitor.
12 Sec. 7. Section 232D.307, subsections 1 and 2, Code 2021,
13are amended to read as follows:
141. The court shall request criminal record checks and checks
15of the child abuse, dependent adult abuse, and sex offender
16registries in this state for all proposed guardians other than
17financial institutions with Iowa trust powers unless a proposed
18guardian has undergone the required background checks in this
19section within the twelve six months prior to the filing of a
20petition and the background checks have been provided to the
21court.
222. The court shall review the results of background checks
23in determining the suitability of a proposed guardian for
24appointment, and may, for good cause, share the results of the
25background check with the proposed guardian.
26 Sec. 8. Section 232D.401, subsections 1 and 3, Code 2021,
27are amended to read as follows:
281. The order by the court appointing a guardian for a minor
29shall state the basis for the order and the date on which the
30first reporting period for the guardianship will end.
313. An order by the court appointing a guardian for a minor
32shall state the powers granted to the guardian. Except as
33otherwise limited by court order, the court may grant the
34guardian the following powers, which may be exercised without
35prior further court approval:
-2- 1a. Taking custody of the minor and establishing the minor’s
2permanent residence if otherwise consistent with the terms of
3any order of competent jurisdiction relating to the custody,
4placement, detention, or commitment of the minor within the
5state.
6b. Consenting to medical, dental, and other health care
7treatment and services for the minor.
8c. Providing or arranging for the provision of education
9for the minor including but not limited to preschool education,
10primary education and secondary education, special education
11and related services, and vocational services.
12d. Consenting to professional services for the minor to
13ensure the safety and welfare of the minor.
14e. Applying for and receiving funds and benefits payable
15for the support of the minor if the minor does not have a
16conservator. If the minor has a conservator, the guardian
17shall notify the conservator at least ten days before applying
18for funds or benefits for the support of the minor.
19f. Any other powers the court may specify.
20 Sec. 9. Section 232D.501, subsection 1, paragraph a, Code
212021, is amended by adding the following new subparagraph:
22 NEW SUBPARAGRAPH. (2A) The guardian’s plan, if any, for
23applying for and receiving funds and benefits payable for the
24support of the minor.
25 Sec. 10. Section 232D.501, subsection 1, paragraph b, Code
262021, is amended by adding the following new subparagraph:
27 NEW SUBPARAGRAPH. (11) The results of the guardian’s
28efforts to apply for funds or benefits for the minor, and
29an accounting for the use of such funds or benefits by the
30guardian.
31 Sec. 11. Section 232D.503, Code 2021, is amended by adding
32the following new subsection:
33 NEW SUBSECTION. 6. If the court orders termination of a
34guardianship established under this chapter and the guardian
35has custody of the minor’s assets, the court shall order
-3-1delivery of the minor’s assets to the minor or a fiduciary
2acting under one or more of the following accounts:
3a. A uniform transfer to minors Act account established for
4the minor pursuant to chapter 565B or other state law.
5b. An educational savings plan trust account established for
6the minor pursuant to section 529 of the Internal Revenue Code
7or chapter 12D.
8c. An ABLE savings plan trust account established for the
9minor pursuant to section 529A of the Internal Revenue Code or
10chapter 12I.
11DIVISION II
12ADULT GUARDIANSHIPS AND CONSERVATORSHIPS
13 Sec. 12. Section 633.556, subsection 5, paragraph a, Code
142021, is amended to read as follows:
15a. The name and address of the proposed guardian or
16conservator and the reason the proposed guardian or conservator
17 should be selected.
18 Sec. 13. Section 633.556, subsection 8, Code 2021, is
19amended to read as follows:
208. The A petition for conservator shall provide a brief
21description of the respondent’s alleged functional limitations
22that make the respondent unable to communicate or carry out
23important decisions concerning the respondent’s financial
24affairs. A petition for guardian shall provide a brief
25description of the respondent’s alleged functional limitations
26that make the respondent unable to provide for the respondent’s
27safety, or to provide for necessities.
28 Sec. 14. Section 633.562, subsections 1 and 3, Code 2021,
29are amended to read as follows:
301. If the court determines that the appointment of a court
31visitor would be in the best interest of the respondent,
32the court shall appoint a court visitor at the expense
33of the respondent or the respondent’s estate, or, if the
34respondent is indigent, the cost of the court visitor shall
35be assessed against the county in which the proceedings are
-4-1pending. The court may appoint any qualified person as a court
2visitor in a guardianship or conservatorship proceeding. A
3person is qualified to serve in this capacity if the person
4has demonstrated sufficient knowledge of guardianships or
5conservatorships to adequately perform the duties in subsection
63.
73. Unless otherwise enlarged or circumscribed by the court,
8the duties of a court visitor with respect to the respondent
9shall include all of the following:
10a. Conducting an initial in-person interview with the
11respondent.
12b. Explaining to the respondent the substance of the
13petition, and the purpose and effect of the guardianship or
14conservatorship proceeding, the rights of the respondent at
15the hearing, and the general powers and duties of a guardian
16or conservator.
17c. Determining, to the extent possible, the views of the
18respondent regarding the proposed guardian or conservator,
19the proposed guardian’s or conservator’s powers and duties,
20 and the scope and duration of the proposed guardianship or
21conservatorship.
22 Sec. 15. Section 633.562, Code 2021, is amended by adding
23the following new subsection:
24 NEW SUBSECTION. 7. A court visitor shall be discharged
25from all further duties upon appointment of a guardian or
26conservator, unless otherwise ordered by the court. The court
27may order a court visitor to continue to serve if the court
28determines continued service would be in the best interest of
29the protected person. If the court continues the service of
30the court visitor, the court may limit the direct duties of
31the court visitor as the court deems necessary, in which case
32the court visitor shall thereafter continue to serve until
33discharged by the court.
34 Sec. 16. Section 633.641, subsection 3, Code 2021, is
35amended to read as follows:
-5- 13. If a protected person has executed a valid power of
2attorney under chapter 633B, the conservator shall act in
3accordance with the applicable power of attorney provisions
4of chapter 633B and the valid power of attorney controls the
5conservator’s powers and duties.
6 Sec. 17. Section 633.669, subsection 1, Code 2021, is
7amended by adding the following new paragraph:
8 NEW PARAGRAPH. 0b. The guardian shall file an amended plan
9when there has been a substantial change in circumstances or
10the guardian seeks to deviate significantly from the plan.
11The guardian must obtain approval of the amended plan before
12implementing any of its provisions.
13 Sec. 18. Section 633.670, subsection 1, paragraph b, Code
142021, is amended to read as follows:
15b. Within two days after filing the initial plan, the The
16 conservator shall give notice of the filing of the initial plan
17with a copy of the plan to the protected person, the protected
18person’s attorney and court visitor, if any, and others as
19directed by the court. The notice must state that any person
20entitled to a copy of the plan must file any objections to the
21plan not later than fifteen twenty days after it is filed.
22 Sec. 19. Section 633.675, subsections 2 and 3, Code 2021,
23are amended to read as follows:
242. The court shall terminate a guardianship if it finds by
25clear and convincing evidence that the basis for appointing a
26guardian pursuant to section 633.552 has not been established.
273. The court shall terminate a conservatorship if the court
28finds by clear and convincing evidence that the basis for
29appointing a conservator pursuant to section 633.553 or 633.554
30is not satisfied.
31 Sec. 20. REPEAL. Section 633.71, Code 2021, is repealed.
32DIVISION III
33CONFORMING CHANGES
34 Sec. 21. Section 633.3, subsections 9, 17, 22, and 23, Code
352021, are amended to read as follows:
-6- 19. Conservator — means a person appointed by the court
2to have the custody and control of the property of a ward
3 protected person under the provisions of this probate code.
417. Estate — the real and personal property of either a
5decedent or a ward protected person, and may also refer to the
6real and personal property of a trust described in section
7633.10.
822. Guardian — means the person appointed by the court to
9have the custody of the person of the ward protected person
10 under the provisions of this probate code.
1123. Guardian of the property — at the election of the
12person appointed by the court to have the custody and care of
13the property of a ward protected person, the term “guardian of
14the property” may be used, which term shall be synonymous with
15the term “conservator”.
16 Sec. 22. Section 633.78, subsection 1, unnumbered paragraph
171, Code 2021, is amended to read as follows:
18A fiduciary under this chapter may present a written request
19to any person for the purpose of obtaining property owned by
20a decedent or by a ward protected person of a conservatorship
21for which the fiduciary has been appointed, or property to
22which a decedent or ward protected person is entitled, or
23for information about such property needed to perform the
24fiduciary’s duties. The request must contain statements
25confirming all of the following:
26 Sec. 23. Section 633.78, subsection 1, paragraph b, Code
272021, is amended to read as follows:
28b. The request has been signed by all fiduciaries acting on
29behalf of the decedent or ward protected person.
30 Sec. 24. Section 633.78, subsection 4, paragraph a, Code
312021, is amended to read as follows:
32a. Damages sustained by the decedent’s or ward’s protected
33person’s estate.
34 Sec. 25. Section 633.80, Code 2021, is amended to read as
35follows:
-7- 1633.80 Fiduciary of a fiduciary.
2A fiduciary has no authority to act in a matter wherein the
3fiduciary’s decedent or ward protected person was merely a
4fiduciary, except that the fiduciary shall file a report and
5accounting on behalf of the decedent or ward protected person
6 in said matter.
7 Sec. 26. Section 633.93, Code 2021, is amended to read as
8follows:
9633.93 Limitation on actions affecting deeds.
10No action for recovery of any real estate sold by any
11fiduciary can be maintained by any person claiming under the
12deceased, the ward protected person, or a beneficiary, unless
13brought within five years after the date of the recording of
14the conveyance.
15 Sec. 27. Section 633.112, Code 2021, is amended to read as
16follows:
17633.112 Discovery of property.
18The court may require any person suspected of having
19possession of any property, including records and documents,
20of the decedent, ward protected person, or the estate, or of
21having had such property under the person’s control, to appear
22and submit to an examination under oath touching such matters,
23and if on such examination it appears that the person has the
24wrongful possession of any such property, the court may order
25the delivery thereof to the fiduciary. Such a person shall be
26liable to the estate for all damages caused by the person’s
27acts.
28 Sec. 28. Section 633.123, subsection 1, paragraph b,
29subparagraph (3), Code 2021, is amended to read as follows:
30(3) The needs and rights of the beneficiaries or the ward
31 protected person.
32 Sec. 29. Section 633.580, subsections 1 and 4, Code 2021,
33are amended to read as follows:
341. The name, age, and last known post office address of the
35proposed ward protected person.
-8- 14. A general description of the property of the proposed
2ward protected person within this state and of the proposed
3ward’s protected person’s right to receive property; also, the
4estimated present value of the real estate, the estimated value
5of the personal property, and the estimated gross annual income
6of the estate. If any money is payable, or to become payable,
7to the proposed ward protected person by the United States
8through the United States department of veterans affairs, the
9petition shall so state.
10 Sec. 30. Section 633.591A, Code 2021, is amended to read as
11follows:
12633.591A Voluntary petition for appointment of conservator
13for a minor — standby basis.
14A person having physical and legal custody of a minor
15may execute a verified petition for the appointment of a
16standby conservator of the proposed ward’s protected person’s
17 property, upon the express condition that the petition shall
18be acted upon by the court only upon the occurrence of an event
19specified or the existence of a described condition of the
20mental or physical health of the petitioner, the occurrence
21of which event, or the existence of which condition, shall be
22established in the manner directed in the petition.
23 Sec. 31. Section 633.603, Code 2021, is amended to read as
24follows:
25633.603 Appointment of foreign conservators.
26When there is no conservatorship, nor any application
27therefor pending, in this state, the duly qualified foreign
28conservator or guardian of a nonresident ward protected
29person may, upon application, be appointed conservator of the
30property of such person in this state; provided that a resident
31conservator is appointed to serve with the foreign conservator;
32and provided further, that for good cause shown, the court
33may appoint the foreign conservator to act alone without the
34appointment of a resident conservator.
35 Sec. 32. Section 633.604, Code 2021, is amended to read as
-9-1follows:
2633.604 Application.
3The application for appointment of a foreign conservator
4or guardian as conservator in this state shall include the
5name and address of the nonresident ward protected person, and
6of the nonresident conservator or guardian, and the name and
7address of the resident conservator to be appointed. It shall
8be accompanied by a certified copy of the original letters
9or other authority conferring the power upon the foreign
10conservator or guardian to act as such. The application
11shall also state the cause for the appointment of the foreign
12conservator to act as sole conservator, if such be the case.
13 Sec. 33. Section 633.605, Code 2021, is amended to read as
14follows:
15633.605 Personal property.
16A foreign conservator or guardian of a nonresident may
17be authorized by the court of the county wherein such ward
18 protected person has personal property to receive the same upon
19compliance with the provisions of sections 633.606, 633.607 and
20633.608.
21 Sec. 34. Section 633.607, Code 2021, is amended to read as
22follows:
23633.607 Order for delivery.
24Upon the filing of the bond as above provided, and the court
25being satisfied with the amount thereof, it shall order the
26personal property of the ward protected person delivered to
27such conservator or guardian.
28 Sec. 35. Section 633.633, Code 2021, is amended to read as
29follows:
30633.633 Provisions applicable to all fiduciaries shall
31govern.
32The provisions of this probate code applicable to all
33fiduciaries shall govern the appointment, qualification, oath
34and bond of guardians and conservators, except that a guardian
35shall not be required to give bond unless the court, for good
-10-1cause, finds that the best interests of the ward protected
2person require a bond. The court shall then fix the terms and
3conditions of such bond.
4 Sec. 36. Section 633.633B, Code 2021, is amended to read as
5follows:
6633.633B Tort liability of guardians and conservators.
7The fact that a person is a guardian or conservator shall not
8in itself make the person personally liable for damages for the
9acts of the ward protected person.
10 Sec. 37. Section 633.636, Code 2021, is amended to read as
11follows:
12633.636 Effect of appointment of guardian or conservator.
13The appointment of a guardian or conservator shall not
14constitute an adjudication that the ward protected person is of
15unsound mind.
16 Sec. 38. Section 633.637, Code 2021, is amended to read as
17follows:
18633.637 Powers of ward protected person.
191. A ward protected person for whom a conservator has been
20appointed shall not have the power to convey, encumber, or
21dispose of property in any manner, other than by will if the
22ward protected person possesses the requisite testamentary
23capacity, unless the court determines that the ward protected
24person has a limited ability to handle the ward’s protected
25person’s own funds. If the court makes such a finding, the
26court shall specify to what extent the ward protected person
27 may possess and use the ward’s protected person’s own funds.
282. Any modification of the powers of the ward protected
29person that would be more restrictive of the ward’s protected
30person’s control over the ward’s protected person’s financial
31affairs shall be based upon clear and convincing evidence
32and the burden of persuasion is on the conservator. Any
33modification that would be less restrictive of the ward’s
34 protected person’s control over the ward’s protected person
35 financial affairs shall be based upon proof in accordance with
-11-1the requirements of section 633.675.
2 Sec. 39. Section 633.637A, Code 2021, is amended to read as
3follows:
4633.637A Rights of ward protected person under guardianship.
5An adult ward protected person under a guardianship has the
6right of communication, visitation, or interaction with other
7persons upon the consent of the adult ward protected person,
8subject to section 633.635, subsection 2, paragraph “i”, and
9section 633.635, subsection 3, paragraph “c”. If an adult ward
10 protected person is unable to give express consent to such
11communication, visitation, or interaction with a person due
12to a physical or mental condition, consent of an adult ward
13 protected person may be presumed by a guardian or a court based
14on an adult ward’s protected person’s prior relationship with
15such person.
16 Sec. 40. Section 633.638, Code 2021, is amended to read as
17follows:
18633.638 Presumption of fraud.
19If a conservator be appointed, all contracts, transfers and
20gifts made by the ward protected person after the filing of the
21petition shall be presumed to be a fraud against the rights
22and interest of the ward protected person except as otherwise
23directed by the court pursuant to section 633.637.
24 Sec. 41. Section 633.639, Code 2021, is amended to read as
25follows:
26633.639 Title to ward’s protected person’s property.
27The title to all property of the ward protected person is
28in the ward protected person and not the conservator subject,
29however, to the possession of the conservator and to the
30control of the court for the purposes of administration,
31sale or other disposition, under the provisions of the
32law. Any real property titled at any time in the name of a
33conservatorship shall be deemed to be titled in the ward’s
34 protected person’s name subject to the conservator’s right of
35possession.
-12-1 Sec. 42. Section 633.640, Code 2021, is amended to read as
2follows:
3633.640 Conservator’s right to possession.
4Every conservator shall have a right to, and shall take,
5possession of all of the real and personal property of the
6ward protected person. The conservator shall pay the taxes
7and collect the income therefrom until the conservatorship is
8terminated. The conservator may maintain an action for the
9possession of the property, and to determine the title to the
10same.
11 Sec. 43. Section 633.643, Code 2021, is amended to read as
12follows:
13633.643 Disposal of will by conservator.
14When an instrument purporting to be the will of the ward
15 protected person comes into the hands of a conservator, the
16conservator shall immediately deliver it to the court.
17 Sec. 44. Section 633.644, Code 2021, is amended to read as
18follows:
19633.644 Court order to preserve testamentary intent of ward
20 protected person.
21Upon receiving an instrument purporting to be the will of a
22living ward protected person under the provisions of section
23633.643, the court may open said will and read it. The court
24with or without notice, as it may determine, may enter such
25orders in the conservatorship as it deems advisable for the
26proper administration of the conservatorship in light of the
27expressed testamentary intent of the ward protected person.
28 Sec. 45. Section 633.645, Code 2021, is amended to read as
29follows:
30633.645 Court to deliver will to clerk.
31An instrument purporting to be the will of a ward protected
32person coming into the hands of the court under the provisions
33of section 633.643, shall thereafter be resealed by the court
34and be deposited with the clerk to be held by said clerk as
35provided in sections 633.286 through 633.289.
-13-1 Sec. 46. Section 633.653A, Code 2021, is amended to read as
2follows:
3633.653A Claims for cost of medical care or services.
4The provision of medical care or services to a ward protected
5person who is a recipient of medical assistance under chapter
6249A creates a claim against the conservatorship for the amount
7owed to the provider under the medical assistance program for
8the care or services. The amount of the claim, after being
9allowed or established as provided in this part, shall be paid
10by the conservator from the assets of the conservatorship.
11 Sec. 47. Section 633.654, Code 2021, is amended to read as
12follows:
13633.654 Form and verification of claims — general
14requirements.
15No claim shall be allowed against the estate of a ward
16 protected person upon application of the claimant unless
17it shall be in writing, filed in duplicate with the clerk,
18stating the claimant’s name and address, and describing the
19nature and the amount thereof, if ascertainable. It shall be
20accompanied by the affidavit of the claimant, or of someone for
21the claimant, that the amount is justly due, or if not due,
22when it will or may become due, that no payments have been
23made thereon which are not credited, and that there are no
24offsets to the same, to the knowledge of the affiant, except as
25therein stated. The duplicate of said claim shall be mailed
26by the clerk to the conservator or the conservator’s attorney
27of record; however, valid contract claims arising in the
28ordinary course of the conduct of the business or affairs of
29the ward protected person by the conservator may be paid by the
30conservator without requiring affidavit or filing.
31 Sec. 48. Section 633.656, Code 2021, is amended to read as
32follows:
33633.656 How claim entitled.
34All claims filed against the estate of the ward protected
35person shall be entitled in the name of the claimant against
-14-1the conservator as such, naming the conservator, and in all
2further proceedings thereon, this title shall be preserved.
3 Sec. 49. Section 633.660, Code 2021, is amended to read as
4follows:
5633.660 Execution and levy prohibited.
6No execution shall issue upon, nor shall any levy be made
7against, any property of the estate of a ward protected person
8 under any judgment against the ward protected person or a
9conservator, but the provisions of this section shall not be so
10construed as to prevent the enforcement of a mortgage, pledge,
11or other lien upon property in an appropriate proceeding.
12 Sec. 50. Section 633.661, Code 2021, is amended to read as
13follows:
14633.661 Claims of conservators.
15If the conservator is a creditor of the ward protected
16person, the conservator shall file the claim as other
17creditors, and the court shall appoint some competent person as
18temporary conservator to represent the ward protected person
19 at the hearing on the conservator’s claim. The same procedure
20shall be followed in the case of coconservators where all
21such conservators are creditors of the ward protected person;
22but if one of the coconservators is not a creditor of the
23ward protected person, such disinterested conservator shall
24represent the ward protected person at the hearing on any claim
25against the ward protected person by a coconservator.
26 Sec. 51. Section 633.662, Code 2021, is amended to read as
27follows:
28633.662 Claims not filed.
29The conservator may pay any valid claim against the estate of
30the ward protected person even though such claim has not been
31filed, but all such payments made by the conservator shall be
32at the conservator’s own peril.
33 Sec. 52. Section 633.664, Code 2021, is amended to read as
34follows:
35633.664 Liens not affected by failure to file claim.
-15- 1Nothing in sections 633.654 and 633.658 shall affect or
2prevent an action or proceeding to enforce any mortgage,
3pledge, or other lien upon the property of the ward protected
4person.
5 Sec. 53. Section 633.665, Code 2021, is amended to read as
6follows:
7633.665 Separate actions and claims.
81. Any action pending against the ward protected person at
9the time the conservator is appointed shall also be considered
10a claim filed in the conservatorship if notice of substitution
11is served on the conservator as defendant and a duplicate of
12the proof of service of notice of such proceeding is filed in
13the conservatorship proceeding.
142. A separate action based on a debt or other liability
15of the ward protected person may be commenced against the
16conservator in lieu of filing a claim in the conservatorship.
17Such an action shall be commenced by serving an original notice
18on the conservator and filing a duplicate of the proof of
19service of notice of such proceeding in the conservatorship
20proceeding. Such an action shall also be considered a claim
21filed in the conservatorship. Such an action may be commenced
22only in a county where the venue would have been proper if
23there were no conservatorship and the action had been commenced
24against the ward protected person.
25 Sec. 54. Section 633.667, Code 2021, is amended to read as
26follows:
27633.667 Payment of claims in insolvent conservatorships.
28When it appears that the assets in a conservatorship are
29insufficient to pay in full all the claims against such
30conservatorship, the conservator shall report such matter to
31the court, and the court shall, upon hearing, with notice to
32all persons who have filed claims in the conservatorship, make
33an order for the pro rata payment of claims giving claimants
34the same priority, if any, as they would have if the ward
35 protected person were not under conservatorship.
-16-1 Sec. 55. Section 633.668, Code 2021, is amended to read as
2follows:
3633.668 Conservator may make gifts.
4For good cause shown and under order of court, a conservator
5may make gifts on behalf of the ward protected person out of
6the assets under a conservatorship to persons or religious,
7educational, scientific, charitable, or other nonprofit
8organizations to whom or to which such gifts were regularly
9made prior to the commencement of the conservatorship, or on
10a showing to the court that such gifts would benefit the ward
11 protected person or the ward’s protected person estate from the
12standpoint of income, gift, estate or inheritance taxes. The
13making of gifts out of the assets must not foreseeably impair
14the ability to provide adequately for the best interests of the
15ward protected person.
16 Sec. 56. Section 633.673, Code 2021, is amended to read as
17follows:
18633.673 Court costs in guardianships.
19The ward protected person or the ward’s protected person’s
20 estate shall be charged with the court costs of a ward’s
21 protected person’s guardianship, including the guardian’s fees
22and the fees of the attorney for the guardian. The court
23may, upon application, enter an order waiving payment of the
24court costs in indigent cases. However, if the ward protected
25person or ward’s protected person’s estate becomes financially
26capable of paying any waived costs, the costs shall be paid
27immediately.
28 Sec. 57. Section 633.676, Code 2021, is amended to read as
29follows:
30633.676 Assets exhausted.
31At any time that the assets of the ward’s protected person’s
32 estate do not exceed the amount of the charges and claims
33against it, the court may direct the conservator to proceed to
34terminate the conservatorship.
35 Sec. 58. Section 633.677, Code 2021, is amended to read as
-17-1follows:
2633.677 Accounting to ward protected person — notice.
3Upon the termination of a conservatorship, the conservator
4shall pay the costs of administration and shall render a full
5and complete accounting to the ward protected person or the
6ward’s protected person’s personal representative and to the
7court. Notice of the final report of a conservator shall be
8served on the ward protected person or the ward’s protected
9person’s personal representative, in accordance with section
10633.40, unless notice is waived. An order prescribing notice
11may be made before or after the filing of the final report.
12 Sec. 59. Section 633.681, Code 2021, is amended to read as
13follows:
14633.681 Assets of minor ward protected person exhausted.
15When the assets of a minor ward’s protected person’s
16 conservatorship are exhausted or consist of personal property
17only of an aggregate value not in excess of twenty-five
18thousand dollars, the court, upon application or upon its
19own motion, may terminate the conservatorship. The order
20for termination shall direct the conservator to deliver any
21property remaining after the payment of allowed claims and
22expenses of administration to a custodian under any uniform
23transfers to minors Act. Such delivery shall have the same
24force and effect as if delivery had been made to the ward
25 protected person after attaining majority.
26 Sec. 60. Section 633.682, Code 2021, is amended to read as
27follows:
28633.682 Discharge of conservator and release of bond.
29Upon settlement of the final accounting of a conservator,
30and upon determining that the property of the ward protected
31person has been delivered to the person or persons lawfully
32entitled thereto, the court shall discharge the conservator and
33exonerate the surety on the conservator’s bond.
34EXPLANATION
35The inclusion of this explanation does not constitute agreement with
-18-1the explanation’s substance by the members of the general assembly.
2Guardians are persons and entities appointed by the
3court to make decisions for persons regarding the person’s
4care, maintenance, health, education, welfare, and safety.
5Conservators are appointed by the court to make decisions for
6persons regarding management of their financial affairs.
7This bill amends Code provisions governing guardianships and
8conservatorships.
9DIVISION I — MINOR GUARDIANSHIPS. Under current law, a
10petition for guardianship only requires the address and name
11of any adult who was the primary caregiver or lived with the
12minor for the six months prior. The bill provides that a
13petition for guardianship must include the name and address of
14the primary caregiver or adult with whom the minor has lived
15anytime during the six months immediately before the filing.
16Under the bill, the petition must also include whether there is
17already a conservatorship in place for the minor.
18The bill provides that notice of a filed petition for
19guardianship shall inform parents, who have not filed a
20consent to the appointment of a guardian with the court that
21the parents may be entitled to an attorney under current Code
22section 232D.304.
23The bill provides the qualifications and term of service of
24a court visitor for the minor.
25The bill provides that results of background checks of
26the proposed guardian in the 6 months prior to filing of the
27petition may be used; current law permits the use of background
28checks within the prior 12 months. Results of the background
29checks may be shared with good cause to the proposed guardian.
30The bill provides that the order appointing a guardian for a
31minor shall state the date that the first reporting period for
32the guardianship will end.
33The bill provides that the initial care plan shall include
34the guardian’s plan for funds and benefits payable for the
35support of the minor and the verified annual report shall
-19-1include the results of the guardian’s efforts to receive
2funds or benefits and the account for the use of the funds or
3benefits.
4The bill provides that upon termination of guardianship
5in which the guardian has custody of the minor’s assets, the
6assets must be returned to the minor or a fiduciary for the
7minor for any of the following accounts: a uniform transfer to
8minors Act account, an educational savings plan trust account,
9or an ABLE savings plan trust account.
10DIVISION II — ADULT GUARDIANSHIPS. The bill changes the
11petition for appointment of guardian or conservator for an
12adult to have the same requirement for both guardianship and
13conservatorships. Currently, conservatorships are not required
14to provide the name and address of the proposed conservator and
15the reason why the conservator was chosen.
16The bill provides qualifications of who is qualified to
17serve as a court visitor and when they are discharged. current
18law does not provide specific qualifications of a court
19visitor.
20The bill specifies that when a valid power of attorney has
21been executed prior to an appointment of a conservator, the
22power of attorney controls and the conservator must adhere to
23the relevant provisions of Code chapter 633B.
24The bill provides that a protected person has 20 days to
25contest the initial financial plan for conservatorships. Under
26current law, the protected individual only has 15 days.
27The bill removes the standard of clear and convincing
28evidence to prove cause for termination of a guardianship or
29conservatorship.
30DIVISION III — CONFORMING CHANGES. The current Code uses
31the term “ward” to refer to a person for whom the court has
32appointed a guardian or conservator. The bill substitutes the
33term “protected person” for the term “ward”.
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