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House File 836 - IntroducedA Bill ForAn Act 1relating to the opening, administration, and termination
2of adult guardianships and adult and minor conservatorships.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2ADULT GUARDIANSHIPS AND MINOR AND ADULT CONSERVATORSHIPS
3 Section 1. Section 235B.6, subsection 2, paragraph d, Code
42021, is amended by adding the following new subparagraph:
5 NEW SUBPARAGRAPH. (7) To a district court conducting
6checks of the dependent adult abuse registry for all proposed
7guardians and conservators pursuant to section 633.564.
8 Sec. 2. Section 633.556, subsections 4, 5, and 8, Code 2021,
9are amended to read as follows:
104. The petition shall list the name and address of all
11of the petitioner and the petitioner’s relationship to the
12respondent following:
13a. The respondent.
14b. The petitioner and the petitioner’s relationship to the
15respondent.
16c. The proposed guardian or conservator and the reason the
17proposed guardian or conservator should be selected.
185. The petition shall list the name and address, to the
19extent known, of the following:
20a. The name and address of the proposed guardian and the
21reason the proposed guardian should be selected.
22b. Any spouse of the respondent.
23c. Any adult children of the respondent.
24d. Any parents of the respondent.
25e. Any adult, who has had the primary care of the respondent
26or with whom the respondent has lived for at least any time
27during the six months prior to immediately preceding the filing
28of the petition, or any institution or facility where the
29respondent has resided for at least six months prior to any
30time during the six months immediately preceding the filing of
31the petition.
32f. Any legal representative or representative payee of the
33respondent.
34g. Any person designated as an attorney in fact in a durable
35power of attorney for health care which is valid under chapter
-1-1144B, or any person designated as an agent in a durable power
2of attorney which is valid under chapter 633B.
38. The petition for conservator shall provide a brief
4description of the respondent’s alleged functional limitations
5that make the respondent unable to communicate or carry out
6important decisions concerning the respondent’s financial
7affairs. A petition for guardian shall provide a brief
8description of the respondent’s alleged functional limitations
9that make the respondent unable to provide for the respondent’s
10safety, or to provide for necessities.
11 Sec. 3. Section 633.560, subsection 3, Code 2021, is amended
12to read as follows:
133. The court shall require the proposed guardian or
14conservator to attend the hearing on the petition but the court
15may excuse the proposed guardian’s or conservator’s attendance
16for good cause shown.
17 Sec. 4. Section 633.561, subsection 6, Code 2021, is amended
18to read as follows:
196. If the court determines that it would be in the
20respondent’s best interest to have legal representation
21with respect to any further proceedings in a guardianship
22or conservatorship, the court may appoint an attorney to
23represent the respondent at the expense of the respondent or
24the respondent’s estate, or if the respondent is indigent the
25cost of the court appointed attorney shall be assessed against
26the county in which the proceedings are pending.
27 Sec. 5. Section 633.562, subsections 1 and 3, Code 2021, are
28amended to read as follows:
291. If the court determines that the appointment of a court
30visitor would be in the best interest of the respondent, the
31court shall appoint a court visitor at the expense of the
32respondent or the respondent’s estate, or, if the respondent
33is indigent, the cost of the court visitor shall be assessed
34against the county in which the proceedings are pending. The
35court may appoint any qualified person as a court visitor
-2-1in a guardianship or conservatorship proceeding. A person
2is qualified to serve as a court visitor if the court
3determines the person has demonstrated sufficient knowledge of
4guardianships or conservatorships to adequately perform the
5duties in subsection 3.
63. Unless otherwise enlarged or circumscribed by the court,
7the duties of a court visitor with respect to the respondent
8shall include all of the following:
9a. Conducting an initial in-person interview with the
10respondent.
11b. Explaining to the respondent the substance of the
12petition, and the purpose and effect of the guardianship or
13conservatorship proceeding, the rights of the respondent at
14the hearing, and the general powers and duties of a guardian
15or conservator.
16c. Determining, to the extent possible, the views of the
17respondent regarding the proposed guardian or conservator,
18the proposed guardian’s or conservator’s powers and duties,
19 and the scope and duration of the proposed guardianship or
20conservatorship.
21 Sec. 6. Section 633.562, Code 2021, is amended by adding the
22following new subsection:
23 NEW SUBSECTION. 7. A court visitor shall be discharged
24from all further duties upon appointment of a guardian or
25conservator, unless otherwise ordered by the court. The court
26may order a court visitor to continue to serve if the court
27determines continued service would be in the best interest of
28the protected person. If the court continues the service of
29the court visitor, the court may limit the direct duties of the
30court visitor as the court deems necessary. The court visitor
31shall thereafter continue to serve until discharged by the
32court.
33 Sec. 7. Section 633.563, subsection 1, Code 2021, is amended
34by adding the following new paragraph:
35 NEW PARAGRAPH. c. The petition is for opening a
-3-1conservatorship for a minor.
2 Sec. 8. Section 633.564, subsections 1 and 2, Code 2021, are
3amended to read as follows:
41. The court shall request criminal record checks and
5checks of the child abuse, dependent adult abuse, and sexual
6offender registries in this state for all proposed guardians
7and conservators, other than financial institutions with Iowa
8trust powers, unless a proposed guardian or conservator has
9undergone the required background checks required by this
10section within the six months prior to the filing of a petition
11and the background check has been provided to the court.
122. The court shall review the results of background checks
13in determining the suitability of a proposed guardian or
14conservator for appointment, and may, for good cause shown,
15share the results of background checks with the respondent, the
16respondent’s attorney, the protected person’s attorney, and the
17proposed guardian or conservator.
18 Sec. 9. Section 633.569, Code 2021, is amended to read as
19follows:
20633.569 Emergency appointment of temporary guardian or
21conservator.
221. A person authorized to file a petition under section
23633.552, 633.553, or 633.554 633.556 or 633.557 may file an
24application for the emergency appointment of a temporary
25guardian or conservator.
262. Such application shall state all of the following:
27a. The name and address of the respondent.
280b. The name and address of the petitioner and the
29petitioner’s relationship to the respondent.
30b. The name and address of the proposed guardian or
31conservator and the reason the proposed guardian or conservator
32should be selected.
330c. The names and addresses, to the extent known, of any
34other persons who must be named in the petition for appointment
35of a guardian or conservator under section 633.556 or 633.557.
-4- 1c. The reason the emergency appointment of a temporary
2guardian or conservator is sought.
33. The court may enter an ex parte order appointing a
4temporary guardian or conservator on an emergency basis under
5this section if the court finds that all of the following
6conditions are met:
7a. There is not sufficient time to file a petition and hold
8a hearing pursuant to section 633.552, 633.553, or 633.554
9633.556, 633.557, 633.558, 633.559, or 633.560.
10b. The appointment of a temporary guardian or conservator
11is necessary to avoid immediate or irreparable harm to the
12respondent before a hearing with notice to the respondent can
13be held.
14c. There is reason to believe that the basis for appointment
15of guardian or conservator exists under section 633.552,
16633.553, or 633.554 633.556 or 633.557.
174. Notice of a petition for the appointment of a temporary
18guardian or conservator and the issuance of an ex parte
19order appointing a temporary guardian or conservator shall be
20provided to the respondent, the respondent’s attorney, and any
21other person the court determines should receive notice.
225. Upon the issuance of an ex parte order, if the respondent
23is an adult, the respondent may file a request for a hearing.
24If the respondent is a minor, the respondent, a parent having
25legal custody of the respondent, or any other person having
26legal custody of the respondent may file a written request for
27a hearing. Such hearing shall be held no later than seven days
28after the filing of a written request.
296. The powers of the temporary guardian or conservator
30set forth in the order of the court shall be limited to those
31necessary to address the emergency situation requiring the
32appointment of a temporary guardian or conservator.
337. The temporary guardianship or conservatorship shall
34terminate within thirty days after the order is issued unless
35extended by the court.
-5- 18. The temporary guardian or conservator shall submit any
2other report the court requires.
3 Sec. 10. Section 633.570, subsections 1 and 2, Code 2021,
4are amended to read as follows:
51. In a proceeding for the appointment of a guardian, the
6respondent shall be given written notice which advises the
7respondent of the powers that the court may grant a guardian
8may exercise without court approval pursuant to the powers set
9out in section 633.635, subsection 2, and the powers that the
10guardian may exercise only with court approval pursuant to set
11out in section 633.635, subsection 3.
122. In a proceeding for the appointment of a conservator,
13the respondent shall be given written notice which advises the
14respondent of the powers that the court may grant a conservator
15may exercise without court approval pursuant to section 633.646
16and the powers that the guardian may exercise only with court
17approval pursuant to section 633.647 the powers set out in
18sections 633.641 and 633.642.
19 Sec. 11. Section 633.635, subsection 1, Code 2021, is
20amended to read as follows:
211. The order by the court appointing a guardian shall state
22the factual basis for the guardianship pursuant to section
23633.552 and the date on which the first reporting period for
24the guardianship shall end.
25 Sec. 12. Section 633.635, subsection 2, unnumbered
26paragraph 1, Code 2021, is amended to read as follows:
27Based upon the evidence produced at the hearing, the court
28may grant a guardian the following powers and duties with
29respect to a protected person which may be exercised without
30prior court approval:
31 Sec. 13. NEW SECTION. 633.640A Powers of conservator upon
32appointment.
331. The order by the court appointing a conservator shall
34state the basis for the conservatorship pursuant to section
35633.553 or pursuant to section 633.554.
-6- 12. Upon appointment, the conservator may exercise the
2powers relating to all fiduciaries as set out in sections
3633.63 through 633.162, unless expressly modified by the court,
4without prior court approval.
53. Until such time as the conservator files an initial
6financial management plan and such plan is approved by the
7court as required by section 633.670, subsection 1, the
8conservator may exercise the following powers with respect to
9a protected person without court approval except as otherwise
10ordered by the court:
11a. Collect, receive, and receipt for any principal or income
12of the protected person.
13b. Receive property of the protected person from any source.
14c. Continue to hold any investment or other property of the
15protected person.
16d. Pay insurance premiums on existing policies, utilities,
17taxes, care costs, medical and dental expenses, and serve as
18representative payee for social security purposes.
19e. Sell and transfer personal property of a perishable
20nature and personal property for which there is a regularly
21established market.
224. Powers conferred upon appointment of a conservator will
23continue only until the court has approved the conservator’s
24initial financial plan. The continuation of any powers
25conferred upon appointment must be requested by a conservator
26in the initial financial plan and may be continued only if the
27initial financial plan is approved by the court.
28 Sec. 14. Section 633.641, Code 2021, is amended to read as
29follows:
30633.641 Duties of conservator.
311. A conservator is a fiduciary and has duties of prudence
32and loyalty to the protected person.
332. In investing and selecting specific property for
34distribution, a conservator shall consider any estate plan or
35other donative, nominative, or appointive instrument of the
-7-1protected person, known to the conservator.
23. If a protected person has executed a valid power of
3attorney under chapter 633B, the conservator shall act in
4accordance with the applicable provisions of chapter 633B
5If the court appoints a conservator for a protected person
6who has previously executed a valid power of attorney under
7chapter 633B, the power of attorney is suspended unless the
8power of attorney provides otherwise or the court appointing
9the conservator orders that the power of attorney should
10continue. If the power of attorney continues, the agent is
11accountable to the conservator as well as the principal. The
12power of attorney shall be reinstated upon termination of
13the conservatorship as a result of the principal regaining
14capacity.
154. The conservator shall report to the department of human
16services the protected person’s assets and income, if the
17protected person is receiving medical assistance under chapter
18249A. Such reports shall be made upon establishment of a
19conservatorship for an individual applying for or receiving
20medical assistance, upon application for benefits on behalf
21of the protected person, upon annual or semiannual review of
22continued medical assistance eligibility, when any significant
23change in the protected person’s assets or income occurs, or
24as otherwise requested by the department of human services.
25Written reports shall be provided to the department of human
26services office for the county in which the protected person
27resides or the office in which the protected person’s medical
28assistance is administered.
295. When investing and selecting specific property for
30distribution, a conservator shall consider any estate plan or
31other donative, nominative, or appointive instrument of the
32protected person which is known to the conservator.
33 Sec. 15. Section 633.642, Code 2021, is amended to read as
34follows:
35633.642 Responsibilities of conservator.
-8- 11. Except as otherwise ordered by the court, a conservator
2must give notice to persons entitled to notice and receive
3specific prior authorization by the court before the
4conservator may take any other action on behalf of the
5protected person. These other powers Powers requiring court
6approval include but are not limited to the authority of the
7conservator to:
81. a. Invest the protected person’s assets consistent with
9section 633.123.
102. b. Make gifts on the protected person’s behalf from
11conservatorship assets to persons or religious, educational,
12scientific, charitable, or other nonprofit organizations to
13whom or to which such gifts were regularly made prior to the
14conservator’s appointment; or on a showing that such gifts
15would benefit the protected person from the perspective of
16gift, estate, inheritance, or other taxes. No gift shall be
17allowed which would foreseeably prevent adequate provision for
18the protected person’s best interest.
193. c. Make payments consistent with the conservator’s plan
20described above directly to the protected person or to others
21for the protected person’s education and training needs.
224. d. Use the protected person’s income or assets to
23provide for any person that the protected person is legally
24obligated to support.
255. e. Compromise, adjust, arbitrate, or settle any claim by
26or against the protected person or the conservator.
276. f. Make elections for a protected person who is the
28surviving spouse as provided in sections 633.236 and 633.240.
297. g. Exercise the right to disclaim on behalf of the
30protected person as provided in section 633E.5.
318. h. Sell, mortgage, exchange, pledge, or lease the
32protected person’s real and personal property consistent with
33subchapter VII, part 6 of this chapter regarding sale of
34property from a decedent’s estate.
352. Before exercising any of the powers granted pursuant to
-9-1this section, the powers must be added to the conservator’s
2initial or amended financial plan and approved by the court.
3 Sec. 16. Section 633.669, Code 2021, is amended to read as
4follows:
5633.669 Reporting requirements — assistance Reports by clerk
6 guardians.
71. A guardian appointed by the court under this chapter
8shall file with the court the following written verified
9reports which shall not be waived by the court:
10a. An initial care plan filed within sixty days of
11appointment. The information in the initial care plan shall
12include but not be limited to the following information:
13(1) The current residence of the protected person and the
14guardian’s plan for the protected person’s living arrangements.
15(2) The guardian’s plan for payment of the protected
16person’s living expenses and other expenses.
17(3) The protected person’s health status and health care
18needs, and the guardian’s plan for meeting the protected
19person’s needs for medical, dental, and other health care
20needs.
21(4) If applicable, the guardian’s plan for the provision of
22 other professional services needed by the protected person.
23(5) If applicable, the guardian’s plan for meeting
24the educational, training, and vocational needs of the
25protected person. If applicable, for protected persons with
26conservatorships, any action the guardian plans to take to
27develop or restore the ability of the protected person to
28manage the conservatorship estate.
29(6) If applicable, the guardian’s plan for facilitating the
30participation of the protected person in social activities.
31(7) The guardian’s plan for facilitating contacts between
32the protected person and the protected person’s family members
33and other significant persons significant in the life of the
34protected person.
35(8) The guardian’s plan for contact with, and activities on
-10-1behalf of, the protected person.
2(9) An estimate of the total amount and type of fees the
3guardian anticipates charging per year and a statement of
4justification for charging that fee.
50b. The guardian shall file an amended care plan when there
6has been a significant change in the circumstances or the
7guardian seeks to deviate significantly from the plan. The
8guardian must obtain court approval of the amended plan before
9implementing any of its provisions.
10b. An annual report, filed within sixty days of the close
11of the reporting period, unless the court otherwise orders on
12good cause shown. The information in the annual report shall
13include but not be limited to the following information:
14(1) The current living arrangements of the protected
15person.
16(2) The sources of payment for the protected person’s living
17expenses and other expenses.
18(3) A description, if applicable, of the following:
19(a) The protected person’s physical and mental health
20status and the medical, dental, and other professional health
21 services provided to the protected person.
22(b) If applicable, the protected person’s employment status
23and the educational, training, and vocational services provided
24to the protected person.
25(c) The contact of the protected person with family members
26and other significant persons.
27(d) The nature and extent of the guardian’s visits with, and
28activities on behalf of, the protected person.
29(4) The guardian’s recommendation as to the need for
30continuation of the guardianship.
31(5) The ability of the guardian to continue as guardian.
32(6) The need of the guardian for assistance in providing or
33arranging for the provision of the care and protection of the
34protected person.
35(7) Any other information the guardian deems necessary for
-11-1the court to consider.
2c. A final report within thirty days of the termination
3of the guardianship under section 633.675 unless that time is
4extended by the court.
52. The court shall develop a simplified uniform reporting
6form for use which may be used in filing the required reports.
73. The clerk of the court shall notify the guardian in
8writing of the reporting requirements and shall provide
9information and assistance to the guardian in filing the
10reports.
114. Reports of guardians shall be reviewed and approved by a
12district court judge or referee.
135. The court, for good cause, may extend the deadline for
14filing required reports. Required reports of a guardian which
15are not timely filed and which are delinquent, and for which no
16extension for filing has been granted by the court, shall be
17administered as provided in section 633.65.
18 Sec. 17. Section 633.670, Code 2021, is amended to read as
19follows:
20633.670 Reports by conservators.
211. A conservator shall file an a verified initial financial
22 plan for protecting, managing, investing, expending, and
23distributing the assets of the conservatorship estate within
24ninety days after appointment. The plan must be based on the
25needs of the protected person and take into account the best
26interest of the protected person as well as the protected
27person’s preference, values, and prior directions to the extent
28known to, or reasonably ascertainable by, the conservator.
29a. The initial financial management plan shall state the
30protected person’s age, residence, living arrangements, and
31sources of payment for living expenses, and shall include all
32of the following:
33(1) A budget containing projected expenses and resources,
34including an estimate of the total amount of fees the
35conservator anticipates charging per year and a statement or
-12-1list of the amount the conservator proposes to charge for each
2service the conservator anticipates providing to the protected
3person.
4(2) A statement as to how the conservator will involve
5the protected person in decisions about management of the
6conservatorship estate.
7(3) If ordered by the court, any step the conservator plans
8to take to develop or restore the ability of the protected
9person to manage the conservatorship estate.
10(4) An estimate of the duration of the conservatorship.
11b. Within two days after filing the initial plan, the The
12 conservator shall give provide notice of the filing of the
13initial financial plan with and a copy of the initial financial
14management plan to the protected person, the protected person’s
15attorney, if any, and court visitor, if any, and others as
16directed by the court. The notice must state that any person
17entitled to a copy of the initial financial management plan
18must file any objections to the initial financial management
19 plan not later than fifteen days after it is filed twenty days
20from the date of mailing notice of filing the initial financial
21management plan.
22c. At least If no objections have been filed within twenty
23days after the plan has been filed, the court shall review
24and determine whether the plan should be approved or revised,
25after considering objections filed and whether the plan is
26consistent with the conservator’s powers and duties mailing
27notice of the filing of the initial financial management plan,
28the conservator shall submit a proposed order to the court
29approving the initial financial management plan. The court
30shall review and determine whether the initial financial
31management plan should be approved or revised. Upon the
32court’s approval of the initial financial management plan under
33this subsection, the conservator shall provide a copy of the
34approved plan and order approving the plan to the protected
35person, the protected person’s attorney and court visitor, if
-13-1any, and others as directed by the court.
2d. After approval by the court, the conservator shall
3provide a copy of the approved plan and order approving the
4plan to the protected person, the protected person’s attorney
5and court visitor, if any, and others as directed by the
6court. If any objection to the proposed plan is filed within
7twenty days after the conservator has mailed notice of filing
8the initial financial management plan, the conservator shall
9request that the matter be set for hearing and provide notice
10of the hearing date, time, and place to the same parties who
11were sent copies of the initial financial management plan.
12Following the hearing on the conservator’s proposed initial
13financial management plan, the conservator shall provide a
14copy of the approved plan and order approving the plan to the
15protected person, the protected person’s attorney and court
16visitor, if any, and others as directed by the court.
17e. The conservator shall file an amended plan when there has
18been a significant change in circumstances or the conservator
19seeks to deviate significantly from the plan. Before the
20amended plan is implemented, the provisions for court approval
21of the plan shall be followed as provided in paragraphs “b”,
22“c”, and “d”.
232. A conservator shall file an inventory of the protected
24person’s assets within ninety days after appointment which
25includes an oath or affirmation that the inventory is believed
26to be complete and accurate as far as information permits.
27Copies of the inventory shall be provided to the protected
28person, the protected person’s attorney and court visitor, if
29any, and others as directed by the court. When the conservator
30receives additional property of the protected person, or
31becomes aware of its existence, a description of the property
32shall be included in the conservator’s next annual report.
333. A conservator shall file a written and verified report
34for the period since the end of the preceding report period.
35The court shall not waive these reports.
-14- 1a. The annual report shall state the age, the residence, and
2the living arrangements of the protected person, and sources
3of payment for the protected person’s living expenses during
4the reporting period.These reports shall also include all of
5the following:
6(1) Balance of funds on hand at the beginning and end of the
7period.
8(2) Disbursements made.
9(3) Changes in the conservator’s plan.
10(4) List of assets as of the end of the period.
11(5) Bond amount and surety’s name.
12(6) Residence and physical location of the protected
13person.
14(7) General physical and mental condition of the protected
15person.
16(8) Other information reflecting the condition of the
17conservatorship estate All amounts received from any source
18during the period.
19(9) Any changes in investments.
20(10) Recommendations of the conservator for retention or
21disposition of conservatorship property.
22(11) Other information reflecting the condition of the
23conservatorship estate.
24b. These reports shall be filed:
25(1) On an annual basis within Within sixty days of the end
26of the reporting period unless the court orders an extension
27for good cause shown in accordance with the rules of probate
28procedure.
29(2) Within thirty days following removal of the
30conservator.
31(3) Upon the conservator’s filing of a resignation and
32before the resignation is accepted by the court.
33(4) Within sixty days following the termination of the
34conservatorship.
35(5) At other times as ordered by the court.
-15- 1c. Reports required by this section shall be served on
2the protected person, the protected person’s attorney and
3court visitor, if any, and the veterans administration if the
4protected person is receiving veterans veterans’ benefits.
54. The conservator shall file a verified final report with
6the court as follows:
75. The conservator shall report to the department of human
8services the protected person’s assets and income if the
9protected person is receiving medical assistance under chapter
10249A. Such reports shall be made upon establishment of a
11conservatorship for an individual applying for or receiving
12medical assistance, upon application for benefits on behalf
13of the protected person, upon annual or semiannual review of
14continued medical assistance eligibility, when any significant
15change in the protected person’s assets or income occurs, or
16as otherwise requested by the department of human services.
17Written reports shall be provided to the department of human
18services office for the county in which the protected person
19resides or the office in which the protected person’s medical
20assistance is administered.
21 Sec. 18. Section 633.675, subsections 2 and 3, Code 2021,
22are amended to read as follows:
232. The court shall terminate a guardianship if it finds by
24clear and convincing evidence that the basis for appointing a
25guardian pursuant to section 633.552 has not been established.
263. The court shall terminate a conservatorship if the court
27finds by clear and convincing evidence that the basis for
28appointing a conservator pursuant to section 633.553 or 633.554
29is not satisfied.
30DIVISION II
31CONFORMING CHANGES
32 Sec. 19. Section 633.3, subsections 9, 17, 22, and 23, Code
332021, are amended to read as follows:
349. Conservator — means a person appointed by the court
35to have the custody and control of the property of a ward
-16-1 protected person under the provisions of this probate code.
217. Estate — the real and personal property of either a
3decedent or a ward protected person, and may also refer to the
4real and personal property of a trust described in section
5633.10.
622. Guardian — means the person appointed by the court to
7have the custody of the person of the ward protected person
8 under the provisions of this probate code.
923. Guardian of the property — at the election of the
10person appointed by the court to have the custody and care of
11the property of a ward protected person, the term “guardian of
12the property” may be used, which term shall be synonymous with
13the term “conservator”.
14 Sec. 20. Section 633.78, subsection 1, unnumbered paragraph
151, Code 2021, is amended to read as follows:
16A fiduciary under this chapter may present a written request
17to any person for the purpose of obtaining property owned by
18a decedent or by a ward protected person of a conservatorship
19for which the fiduciary has been appointed, or property to
20which a decedent or ward protected person is entitled, or
21for information about such property needed to perform the
22fiduciary’s duties. The request must contain statements
23confirming all of the following:
24 Sec. 21. Section 633.78, subsection 1, paragraph b, Code
252021, is amended to read as follows:
26b. The request has been signed by all fiduciaries acting on
27behalf of the decedent or ward protected person.
28 Sec. 22. Section 633.78, subsection 4, paragraph a, Code
292021, is amended to read as follows:
30a. Damages sustained by the decedent’s or ward’s protected
31person’s estate.
32 Sec. 23. Section 633.80, Code 2021, is amended to read as
33follows:
34633.80 Fiduciary of a fiduciary.
35A fiduciary has no authority to act in a matter wherein the
-17-1fiduciary’s decedent or ward protected person was merely a
2fiduciary, except that the fiduciary shall file a report and
3accounting on behalf of the decedent or ward protected person
4 in said matter.
5 Sec. 24. Section 633.93, Code 2021, is amended to read as
6follows:
7633.93 Limitation on actions affecting deeds.
8No action for recovery of any real estate sold by any
9fiduciary can be maintained by any person claiming under the
10deceased, the ward protected person, or a beneficiary, unless
11brought within five years after the date of the recording of
12the conveyance.
13 Sec. 25. Section 633.112, Code 2021, is amended to read as
14follows:
15633.112 Discovery of property.
16The court may require any person suspected of having
17possession of any property, including records and documents,
18of the decedent, ward protected person, or the estate, or of
19having had such property under the person’s control, to appear
20and submit to an examination under oath touching such matters,
21and if on such examination it appears that the person has the
22wrongful possession of any such property, the court may order
23the delivery thereof to the fiduciary. Such a person shall be
24liable to the estate for all damages caused by the person’s
25acts.
26 Sec. 26. Section 633.123, subsection 1, paragraph b,
27subparagraph (3), Code 2021, is amended to read as follows:
28(3) The needs and rights of the beneficiaries or the ward
29 protected person.
30 Sec. 27. Section 633.580, subsections 1 and 4, Code 2021,
31are amended to read as follows:
321. The name, age, and last known post office address of the
33proposed ward protected person.
344. A general description of the property of the proposed
35ward protected person within this state and of the proposed
-18-1ward’s protected person’s right to receive property; also, the
2estimated present value of the real estate, the estimated value
3of the personal property, and the estimated gross annual income
4of the estate. If any money is payable, or to become payable,
5to the proposed ward protected person by the United States
6through the United States department of veterans affairs, the
7petition shall so state.
8 Sec. 28. Section 633.591A, Code 2021, is amended to read as
9follows:
10633.591A Voluntary petition for appointment of conservator
11for a minor — standby basis.
12A person having physical and legal custody of a minor
13may execute a verified petition for the appointment of a
14standby conservator of the proposed ward’s protected person’s
15 property, upon the express condition that the petition shall
16be acted upon by the court only upon the occurrence of an event
17specified or the existence of a described condition of the
18mental or physical health of the petitioner, the occurrence
19of which event, or the existence of which condition, shall be
20established in the manner directed in the petition.
21 Sec. 29. Section 633.603, Code 2021, is amended to read as
22follows:
23633.603 Appointment of foreign conservators.
24When there is no conservatorship, nor any application
25therefor pending, in this state, the duly qualified foreign
26conservator or guardian of a nonresident ward protected
27person may, upon application, be appointed conservator of the
28property of such person in this state; provided that a resident
29conservator is appointed to serve with the foreign conservator;
30and provided further, that for good cause shown, the court
31may appoint the foreign conservator to act alone without the
32appointment of a resident conservator.
33 Sec. 30. Section 633.604, Code 2021, is amended to read as
34follows:
35633.604 Application.
-19- 1The application for appointment of a foreign conservator
2or guardian as conservator in this state shall include the
3name and address of the nonresident ward protected person, and
4of the nonresident conservator or guardian, and the name and
5address of the resident conservator to be appointed. It shall
6be accompanied by a certified copy of the original letters
7or other authority conferring the power upon the foreign
8conservator or guardian to act as such. The application
9shall also state the cause for the appointment of the foreign
10conservator to act as sole conservator, if such be the case.
11 Sec. 31. Section 633.605, Code 2021, is amended to read as
12follows:
13633.605 Personal property.
14A foreign conservator or guardian of a nonresident may
15be authorized by the court of the county wherein such ward
16 protected person has personal property to receive the same upon
17compliance with the provisions of sections 633.606, 633.607 and
18633.608.
19 Sec. 32. Section 633.607, Code 2021, is amended to read as
20follows:
21633.607 Order for delivery.
22Upon the filing of the bond as above provided, and the court
23being satisfied with the amount thereof, it shall order the
24personal property of the ward protected person delivered to
25such conservator or guardian.
26 Sec. 33. Section 633.633, Code 2021, is amended to read as
27follows:
28633.633 Provisions applicable to all fiduciaries shall
29govern.
30The provisions of this probate code applicable to all
31fiduciaries shall govern the appointment, qualification, oath
32and bond of guardians and conservators, except that a guardian
33shall not be required to give bond unless the court, for good
34cause, finds that the best interests of the ward protected
35person require a bond. The court shall then fix the terms and
-20-1conditions of such bond.
2 Sec. 34. Section 633.633B, Code 2021, is amended to read as
3follows:
4633.633B Tort liability of guardians and conservators.
5The fact that a person is a guardian or conservator shall not
6in itself make the person personally liable for damages for the
7acts of the ward protected person.
8 Sec. 35. Section 633.636, Code 2021, is amended to read as
9follows:
10633.636 Effect of appointment of guardian or conservator.
11The appointment of a guardian or conservator shall not
12constitute an adjudication that the ward protected person is of
13unsound mind.
14 Sec. 36. Section 633.637, Code 2021, is amended to read as
15follows:
16633.637 Powers of ward protected person.
171. A ward protected person for whom a conservator has been
18appointed shall not have the power to convey, encumber, or
19dispose of property in any manner, other than by will if the
20ward protected person possesses the requisite testamentary
21capacity, unless the court determines that the ward protected
22person has a limited ability to handle the ward’s protected
23person’s own funds. If the court makes such a finding, the
24court shall specify to what extent the ward protected person
25 may possess and use the ward’s protected person’s own funds.
262. Any modification of the powers of the ward protected
27person that would be more restrictive of the ward’s protected
28person’s control over the ward’s protected person’s financial
29affairs shall be based upon clear and convincing evidence
30and the burden of persuasion is on the conservator. Any
31modification that would be less restrictive of the ward’s
32 protected person’s control over the ward’s protected person’s
33 financial affairs shall be based upon proof in accordance with
34the requirements of section 633.675.
35 Sec. 37. Section 633.637A, Code 2021, is amended to read as
-21-1follows:
2633.637A Rights of ward protected person under guardianship.
3An adult ward protected person under a guardianship has the
4right of communication, visitation, or interaction with other
5persons upon the consent of the adult ward protected person,
6subject to section 633.635, subsection 2, paragraph “i”, and
7section 633.635, subsection 3, paragraph “c”. If an adult ward
8 protected person is unable to give express consent to such
9communication, visitation, or interaction with a person due
10to a physical or mental condition, consent of an adult ward
11 protected person may be presumed by a guardian or a court based
12on an adult ward’s protected person’s prior relationship with
13such person.
14 Sec. 38. Section 633.638, Code 2021, is amended to read as
15follows:
16633.638 Presumption of fraud.
17If a conservator be appointed, all contracts, transfers and
18gifts made by the ward protected person after the filing of the
19petition shall be presumed to be a fraud against the rights
20and interest of the ward protected person except as otherwise
21directed by the court pursuant to section 633.637.
22 Sec. 39. Section 633.639, Code 2021, is amended to read as
23follows:
24633.639 Title to ward’s protected person’s property.
25The title to all property of the ward protected person is
26in the ward protected person and not the conservator subject,
27however, to the possession of the conservator and to the
28control of the court for the purposes of administration,
29sale or other disposition, under the provisions of the
30law. Any real property titled at any time in the name of a
31conservatorship shall be deemed to be titled in the ward’s
32 protected person’s name subject to the conservator’s right of
33possession.
34 Sec. 40. Section 633.640, Code 2021, is amended to read as
35follows:
-22- 1633.640 Conservator’s right to possession.
2Every conservator shall have a right to, and shall take,
3possession of all of the real and personal property of the
4ward protected person. The conservator shall pay the taxes
5and collect the income therefrom until the conservatorship is
6terminated. The conservator may maintain an action for the
7possession of the property, and to determine the title to the
8same.
9 Sec. 41. Section 633.643, Code 2021, is amended to read as
10follows:
11633.643 Disposal of will by conservator.
12When an instrument purporting to be the will of the ward
13 protected person comes into the hands of a conservator, the
14conservator shall immediately deliver it to the court.
15 Sec. 42. Section 633.644, Code 2021, is amended to read as
16follows:
17633.644 Court order to preserve testamentary intent of ward
18 protected person.
19Upon receiving an instrument purporting to be the will of a
20living ward protected person under the provisions of section
21633.643, the court may open said will and read it. The court
22with or without notice, as it may determine, may enter such
23orders in the conservatorship as it deems advisable for the
24proper administration of the conservatorship in light of the
25expressed testamentary intent of the ward protected person.
26 Sec. 43. Section 633.645, Code 2021, is amended to read as
27follows:
28633.645 Court to deliver will to clerk.
29An instrument purporting to be the will of a ward protected
30person coming into the hands of the court under the provisions
31of section 633.643, shall thereafter be resealed by the court
32and be deposited with the clerk to be held by said clerk as
33provided in sections 633.286 through 633.289.
34 Sec. 44. Section 633.653A, Code 2021, is amended to read as
35follows:
-23- 1633.653A Claims for cost of medical care or services.
2The provision of medical care or services to a ward protected
3person who is a recipient of medical assistance under chapter
4249A creates a claim against the conservatorship for the amount
5owed to the provider under the medical assistance program for
6the care or services. The amount of the claim, after being
7allowed or established as provided in this part, shall be paid
8by the conservator from the assets of the conservatorship.
9 Sec. 45. Section 633.654, Code 2021, is amended to read as
10follows:
11633.654 Form and verification of claims — general
12requirements.
13No claim shall be allowed against the estate of a ward
14 protected person upon application of the claimant unless
15it shall be in writing, filed in duplicate with the clerk,
16stating the claimant’s name and address, and describing the
17nature and the amount thereof, if ascertainable. It shall be
18accompanied by the affidavit of the claimant, or of someone for
19the claimant, that the amount is justly due, or if not due,
20when it will or may become due, that no payments have been
21made thereon which are not credited, and that there are no
22offsets to the same, to the knowledge of the affiant, except as
23therein stated. The duplicate of said claim shall be mailed
24by the clerk to the conservator or the conservator’s attorney
25of record; however, valid contract claims arising in the
26ordinary course of the conduct of the business or affairs of
27the ward protected person by the conservator may be paid by the
28conservator without requiring affidavit or filing.
29 Sec. 46. Section 633.656, Code 2021, is amended to read as
30follows:
31633.656 How claim entitled.
32All claims filed against the estate of the ward protected
33person shall be entitled in the name of the claimant against
34the conservator as such, naming the conservator, and in all
35further proceedings thereon, this title shall be preserved.
-24-1 Sec. 47. Section 633.660, Code 2021, is amended to read as
2follows:
3633.660 Execution and levy prohibited.
4No execution shall issue upon, nor shall any levy be made
5against, any property of the estate of a ward protected person
6 under any judgment against the ward protected person or a
7conservator, but the provisions of this section shall not be so
8construed as to prevent the enforcement of a mortgage, pledge,
9or other lien upon property in an appropriate proceeding.
10 Sec. 48. Section 633.661, Code 2021, is amended to read as
11follows:
12633.661 Claims of conservators.
13If the conservator is a creditor of the ward, the conservator
14shall file the claim as other creditors, and the court shall
15appoint some competent person as temporary conservator to
16represent the ward protected person at the hearing on the
17conservator’s claim. The same procedure shall be followed in
18the case of coconservators where all such conservators are
19creditors of the ward protected person; but if one of the
20coconservators is not a creditor of the ward protected person,
21such disinterested conservator shall represent the ward at the
22hearing on any claim against the ward protected person by a
23coconservator.
24 Sec. 49. Section 633.662, Code 2021, is amended to read as
25follows:
26633.662 Claims not filed.
27The conservator may pay any valid claim against the estate of
28the ward protected person even though such claim has not been
29filed, but all such payments made by the conservator shall be
30at the conservator’s own peril.
31 Sec. 50. Section 633.664, Code 2021, is amended to read as
32follows:
33633.664 Liens not affected by failure to file claim.
34Nothing in sections 633.654 and 633.658 shall affect or
35prevent an action or proceeding to enforce any mortgage,
-25-1pledge, or other lien upon the property of the ward protected
2person.
3 Sec. 51. Section 633.665, Code 2021, is amended to read as
4follows:
5633.665 Separate actions and claims.
61. Any action pending against the ward protected person at
7the time the conservator is appointed shall also be considered
8a claim filed in the conservatorship if notice of substitution
9is served on the conservator as defendant and a duplicate of
10the proof of service of notice of such proceeding is filed in
11the conservatorship proceeding.
122. A separate action based on a debt or other liability
13of the ward protected person may be commenced against the
14conservator in lieu of filing a claim in the conservatorship.
15Such an action shall be commenced by serving an original notice
16on the conservator and filing a duplicate of the proof of
17service of notice of such proceeding in the conservatorship
18proceeding. Such an action shall also be considered a claim
19filed in the conservatorship. Such an action may be commenced
20only in a county where the venue would have been proper if
21there were no conservatorship and the action had been commenced
22against the ward protected person.
23 Sec. 52. Section 633.667, Code 2021, is amended to read as
24follows:
25633.667 Payment of claims in insolvent conservatorships.
26When it appears that the assets in a conservatorship are
27insufficient to pay in full all the claims against such
28conservatorship, the conservator shall report such matter to
29the court, and the court shall, upon hearing, with notice to
30all persons who have filed claims in the conservatorship, make
31an order for the pro rata payment of claims giving claimants
32the same priority, if any, as they would have if the ward
33 protected person were not under conservatorship.
34 Sec. 53. Section 633.668, Code 2021, is amended to read as
35follows:
-26- 1633.668 Conservator may make gifts.
2For good cause shown and under order of court, a conservator
3may make gifts on behalf of the ward protected person out of
4the assets under a conservatorship to persons or religious,
5educational, scientific, charitable, or other nonprofit
6organizations to whom or to which such gifts were regularly
7made prior to the commencement of the conservatorship, or on
8a showing to the court that such gifts would benefit the ward
9 protected person or the ward’s protected person’s estate from
10the standpoint of income, gift, estate or inheritance taxes.
11The making of gifts out of the assets must not foreseeably
12impair the ability to provide adequately for the best interests
13of the ward protected person.
14 Sec. 54. Section 633.673, Code 2021, is amended to read as
15follows:
16633.673 Court costs in guardianships.
17The ward protected person or the ward’s protected person’s
18 estate shall be charged with the court costs of a ward’s
19guardianship, including the guardian’s fees and the fees of the
20attorney for the guardian. The court may, upon application,
21enter an order waiving payment of the court costs in indigent
22cases. However, if the ward protected person or ward’s
23 protected person’s estate becomes financially capable of paying
24any waived costs, the costs shall be paid immediately.
25 Sec. 55. Section 633.676, Code 2021, is amended to read as
26follows:
27633.676 Assets exhausted.
28At any time that the assets of the ward’s protected person’s
29 estate do not exceed the amount of the charges and claims
30against it, the court may direct the conservator to proceed to
31terminate the conservatorship.
32 Sec. 56. Section 633.677, Code 2021, is amended to read as
33follows:
34633.677 Accounting to ward protected person — notice.
35Upon the termination of a conservatorship, the conservator
-27-1shall pay the costs of administration and shall render a full
2and complete accounting to the ward protected person or the
3ward’s protected person’s personal representative and to the
4court. Notice of the final report of a conservator shall be
5served on the ward protected person or the ward’s protected
6person’s personal representative, in accordance with section
7633.40, unless notice is waived. An order prescribing notice
8may be made before or after the filing of the final report.
9 Sec. 57. Section 633.681, Code 2021, is amended to read as
10follows:
11633.681 Assets of minor ward protected person exhausted.
12When the assets of a minor ward’s protected person’s
13 conservatorship are exhausted or consist of personal property
14only of an aggregate value not in excess of twenty-five
15thousand dollars, the court, upon application or upon its
16own motion, may terminate the conservatorship. The order
17for termination shall direct the conservator to deliver any
18property remaining after the payment of allowed claims and
19expenses of administration to a custodian under any uniform
20transfers to minors Act. Such delivery shall have the same
21force and effect as if delivery had been made to the ward
22 protected person after attaining majority.
23 Sec. 58. Section 633.682, Code 2021, is amended to read as
24follows:
25633.682 Discharge of conservator and release of bond.
26Upon settlement of the final accounting of a conservator,
27and upon determining that the property of the ward protected
28person has been delivered to the person or persons lawfully
29entitled thereto, the court shall discharge the conservator and
30exonerate the surety on the conservator’s bond.
31EXPLANATION
32The inclusion of this explanation does not constitute agreement with
33the explanation’s substance by the members of the general assembly.
34This bill relates to the administration of adult
35guardianships and adult and minor conservatorships.
-28- 1The bill strikes a reference to “without prior court
2approval” in a Code section listing powers a court may grant
3to a guardian.
4The bill also directs that the initial verified care plan
5must include the guardian’s plan for applying and receiving
6funds and benefits for the support of the minor.
7The bill allows a district court conducting checks of the
8dependent adult abuse registry for all proposed guardians and
9conservators pursuant to Code section 633.564 to have access
10to dependent adult abuse information other than unfounded
11dependent adult abuse information.
12The bill provides that the petition for guardianship shall
13list the name and address of the following: the respondent,
14the petitioner and the petitioner’s relationship to the
15respondent, the proposed guardian or conservator and the
16reason why the person should be selected, and any adult who
17has had primary care of the respondent or any institution or
18facility where the respondent resided any time during the six
19months immediately preceding the filing of the petition. The
20petition for guardianship shall provide a brief description of
21the respondent’s alleged functional limitations that make a
22guardianship necessary.
23The bill provides that a court visitor will be discharged
24upon the appointment of a guardian or conservator unless
25ordered by the court to continue.
26The bill provides that the court shall not order a
27professional evaluation of the respondent if the petition is
28for opening a conservatorship for a minor.
29The bill changes the requirements of the background checks
30for a proposed guardian. Previously, the proposed guardian
31could use background checks from the past 12 months prior to
32filing the petition. The bill changes that time frame to six
33months and adds that the background check needs to have been
34provided to the court.
35The court may share the results of the background checks
-29-1with the respondent, the respondent’s attorney, the protected
2person’s attorney, and the proposed guardian or conservator.
3The bill provides that a person authorized under Code
4section 633.556 (petition for appointment of guardian or
5conservator for an adult) or Code section 633.557 (petition for
6appointment of a conservator for a minor) file an emergency
7appointment of temporary guardian or conservatorship petition.
8The application shall include the name and address of the
9respondent, the petitioner and the petitioner’s relationship
10to the respondent, the name and address of the proposed
11guardian or conservator and the reason the proposed guardian
12or conservator should be selected, and the names and addresses
13of any other person who must be named in the petition for
14appointment pursuant to Code section 633.556 or Code section
15633.557. The bill provides that an ex parte order may be
16entered if the court finds that it is necessary to avoid
17immediate or irreparable harm to the respondent before a
18hearing with notice to the respondent can be held.
19The bill enacts new Code section 633.640A, which provides
20the powers of a conservator upon appointment. The bill
21provides that an order appointing a conservator shall state
22the basis for the conservatorship, and upon appointment
23the conservator may exercise the powers relating to all
24fiduciaries, unless expressly modified by the court, without
25prior court approval. These powers include but are not
26limited to the following: making written requests for the
27purpose of obtaining the property of the protected person or
28obtaining information about the property of the protected
29person; designating and employing an attorney to assist in
30the administration of the estate of the protected person;
31holding investments in the name of a bank or trustee company;
32and requiring a bank to show ownership of investments held in
33nominee name and keep them separate from the assets of the
34bank. The bill further provides that until the conservator
35files and the court approves an initial financial management
-30-1plan, the conservator may exercise the following powers without
2court approval except as otherwise ordered by the court:
3collect, receive, and receipt for any principal or income of
4the protected person; receive property of the protected person
5from any source; and continue to hold any investment or other
6property of the protected person. The bill also provides that
7the clerk of the court shall issue letters of appointment upon
8the filing of an appropriate oath by the conservator and a
9copy of the initial order of the court and any future order,
10granting or limiting the authority of the conservator to act
11on behalf of the protected person, shall be attached to the
12letters of appointment.
13The bill amends the information required to be contained in
14a guardian’s written verified reports including the initial
15care plan and annual reports, and information required to be
16included in reports by conservators including the initial
17financial management plan, including an inventory of the
18protected person’s assets and debts, the annual report, and the
19final report.
20The bill amends reporting requirements for guardians, and
21requires that guardians must obtain court approval prior to any
22significant deviation from the initial care plan filed with the
23court.
24The bill amends reporting requirements for conservators.
25The conservator must give notice of filing a plan, and if no
26objection is made within 20 days, the conservator must submit
27a proposed order to the court approving the initial plan. If
28there are objections to the plan, the court must set the matter
29for hearing.
30The bill makes conforming changes to the probate code by
31changing the term “ward” to “protected person”.
-31-cm/jh
2of adult guardianships and adult and minor conservatorships.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2ADULT GUARDIANSHIPS AND MINOR AND ADULT CONSERVATORSHIPS
3 Section 1. Section 235B.6, subsection 2, paragraph d, Code
42021, is amended by adding the following new subparagraph:
5 NEW SUBPARAGRAPH. (7) To a district court conducting
6checks of the dependent adult abuse registry for all proposed
7guardians and conservators pursuant to section 633.564.
8 Sec. 2. Section 633.556, subsections 4, 5, and 8, Code 2021,
9are amended to read as follows:
104. The petition shall list the name and address of all
11of the petitioner and the petitioner’s relationship to the
12respondent following:
13a. The respondent.
14b. The petitioner and the petitioner’s relationship to the
15respondent.
16c. The proposed guardian or conservator and the reason the
17proposed guardian or conservator should be selected.
185. The petition shall list the name and address, to the
19extent known, of the following:
20a. The name and address of the proposed guardian and the
21reason the proposed guardian should be selected.
22b. Any spouse of the respondent.
23c. Any adult children of the respondent.
24d. Any parents of the respondent.
25e. Any adult, who has had the primary care of the respondent
26or with whom the respondent has lived for at least any time
27during the six months prior to immediately preceding the filing
28of the petition, or any institution or facility where the
29respondent has resided for at least six months prior to any
30time during the six months immediately preceding the filing of
31the petition.
32f. Any legal representative or representative payee of the
33respondent.
34g. Any person designated as an attorney in fact in a durable
35power of attorney for health care which is valid under chapter
-1-1144B, or any person designated as an agent in a durable power
2of attorney which is valid under chapter 633B.
38. The petition for conservator shall provide a brief
4description of the respondent’s alleged functional limitations
5that make the respondent unable to communicate or carry out
6important decisions concerning the respondent’s financial
7affairs. A petition for guardian shall provide a brief
8description of the respondent’s alleged functional limitations
9that make the respondent unable to provide for the respondent’s
10safety, or to provide for necessities.
11 Sec. 3. Section 633.560, subsection 3, Code 2021, is amended
12to read as follows:
133. The court shall require the proposed guardian or
14conservator to attend the hearing on the petition but the court
15may excuse the proposed guardian’s or conservator’s attendance
16for good cause shown.
17 Sec. 4. Section 633.561, subsection 6, Code 2021, is amended
18to read as follows:
196. If the court determines that it would be in the
20respondent’s best interest to have legal representation
21with respect to any further proceedings in a guardianship
22or conservatorship, the court may appoint an attorney to
23represent the respondent at the expense of the respondent or
24the respondent’s estate, or if the respondent is indigent the
25cost of the court appointed attorney shall be assessed against
26the county in which the proceedings are pending.
27 Sec. 5. Section 633.562, subsections 1 and 3, Code 2021, are
28amended to read as follows:
291. If the court determines that the appointment of a court
30visitor would be in the best interest of the respondent, the
31court shall appoint a court visitor at the expense of the
32respondent or the respondent’s estate, or, if the respondent
33is indigent, the cost of the court visitor shall be assessed
34against the county in which the proceedings are pending. The
35court may appoint any qualified person as a court visitor
-2-1in a guardianship or conservatorship proceeding. A person
2is qualified to serve as a court visitor if the court
3determines the person has demonstrated sufficient knowledge of
4guardianships or conservatorships to adequately perform the
5duties in subsection 3.
63. Unless otherwise enlarged or circumscribed by the court,
7the duties of a court visitor with respect to the respondent
8shall include all of the following:
9a. Conducting an initial in-person interview with the
10respondent.
11b. Explaining to the respondent the substance of the
12petition, and the purpose and effect of the guardianship or
13conservatorship proceeding, the rights of the respondent at
14the hearing, and the general powers and duties of a guardian
15or conservator.
16c. Determining, to the extent possible, the views of the
17respondent regarding the proposed guardian or conservator,
18the proposed guardian’s or conservator’s powers and duties,
19 and the scope and duration of the proposed guardianship or
20conservatorship.
21 Sec. 6. Section 633.562, Code 2021, is amended by adding the
22following new subsection:
23 NEW SUBSECTION. 7. A court visitor shall be discharged
24from all further duties upon appointment of a guardian or
25conservator, unless otherwise ordered by the court. The court
26may order a court visitor to continue to serve if the court
27determines continued service would be in the best interest of
28the protected person. If the court continues the service of
29the court visitor, the court may limit the direct duties of the
30court visitor as the court deems necessary. The court visitor
31shall thereafter continue to serve until discharged by the
32court.
33 Sec. 7. Section 633.563, subsection 1, Code 2021, is amended
34by adding the following new paragraph:
35 NEW PARAGRAPH. c. The petition is for opening a
-3-1conservatorship for a minor.
2 Sec. 8. Section 633.564, subsections 1 and 2, Code 2021, are
3amended to read as follows:
41. The court shall request criminal record checks and
5checks of the child abuse, dependent adult abuse, and sexual
6offender registries in this state for all proposed guardians
7and conservators, other than financial institutions with Iowa
8trust powers, unless a proposed guardian or conservator has
9undergone the required background checks required by this
10section within the six months prior to the filing of a petition
11and the background check has been provided to the court.
122. The court shall review the results of background checks
13in determining the suitability of a proposed guardian or
14conservator for appointment, and may, for good cause shown,
15share the results of background checks with the respondent, the
16respondent’s attorney, the protected person’s attorney, and the
17proposed guardian or conservator.
18 Sec. 9. Section 633.569, Code 2021, is amended to read as
19follows:
20633.569 Emergency appointment of temporary guardian or
21conservator.
221. A person authorized to file a petition under section
23633.552, 633.553, or 633.554 633.556 or 633.557 may file an
24application for the emergency appointment of a temporary
25guardian or conservator.
262. Such application shall state all of the following:
27a. The name and address of the respondent.
280b. The name and address of the petitioner and the
29petitioner’s relationship to the respondent.
30b. The name and address of the proposed guardian or
31conservator and the reason the proposed guardian or conservator
32should be selected.
330c. The names and addresses, to the extent known, of any
34other persons who must be named in the petition for appointment
35of a guardian or conservator under section 633.556 or 633.557.
-4- 1c. The reason the emergency appointment of a temporary
2guardian or conservator is sought.
33. The court may enter an ex parte order appointing a
4temporary guardian or conservator on an emergency basis under
5this section if the court finds that all of the following
6conditions are met:
7a. There is not sufficient time to file a petition and hold
8a hearing pursuant to section 633.552, 633.553, or 633.554
9633.556, 633.557, 633.558, 633.559, or 633.560.
10b. The appointment of a temporary guardian or conservator
11is necessary to avoid immediate or irreparable harm to the
12respondent before a hearing with notice to the respondent can
13be held.
14c. There is reason to believe that the basis for appointment
15of guardian or conservator exists under section 633.552,
16633.553, or 633.554 633.556 or 633.557.
174. Notice of a petition for the appointment of a temporary
18guardian or conservator and the issuance of an ex parte
19order appointing a temporary guardian or conservator shall be
20provided to the respondent, the respondent’s attorney, and any
21other person the court determines should receive notice.
225. Upon the issuance of an ex parte order, if the respondent
23is an adult, the respondent may file a request for a hearing.
24If the respondent is a minor, the respondent, a parent having
25legal custody of the respondent, or any other person having
26legal custody of the respondent may file a written request for
27a hearing. Such hearing shall be held no later than seven days
28after the filing of a written request.
296. The powers of the temporary guardian or conservator
30set forth in the order of the court shall be limited to those
31necessary to address the emergency situation requiring the
32appointment of a temporary guardian or conservator.
337. The temporary guardianship or conservatorship shall
34terminate within thirty days after the order is issued unless
35extended by the court.
-5- 18. The temporary guardian or conservator shall submit any
2other report the court requires.
3 Sec. 10. Section 633.570, subsections 1 and 2, Code 2021,
4are amended to read as follows:
51. In a proceeding for the appointment of a guardian, the
6respondent shall be given written notice which advises the
7respondent of the powers that the court may grant a guardian
8may exercise without court approval pursuant to the powers set
9out in section 633.635, subsection 2, and the powers that the
10guardian may exercise only with court approval pursuant to set
11out in section 633.635, subsection 3.
122. In a proceeding for the appointment of a conservator,
13the respondent shall be given written notice which advises the
14respondent of the powers that the court may grant a conservator
15may exercise without court approval pursuant to section 633.646
16and the powers that the guardian may exercise only with court
17approval pursuant to section 633.647 the powers set out in
18sections 633.641 and 633.642.
19 Sec. 11. Section 633.635, subsection 1, Code 2021, is
20amended to read as follows:
211. The order by the court appointing a guardian shall state
22the factual basis for the guardianship pursuant to section
23633.552 and the date on which the first reporting period for
24the guardianship shall end.
25 Sec. 12. Section 633.635, subsection 2, unnumbered
26paragraph 1, Code 2021, is amended to read as follows:
27Based upon the evidence produced at the hearing, the court
28may grant a guardian the following powers and duties with
29respect to a protected person which may be exercised without
30prior court approval:
31 Sec. 13. NEW SECTION. 633.640A Powers of conservator upon
32appointment.
331. The order by the court appointing a conservator shall
34state the basis for the conservatorship pursuant to section
35633.553 or pursuant to section 633.554.
-6- 12. Upon appointment, the conservator may exercise the
2powers relating to all fiduciaries as set out in sections
3633.63 through 633.162, unless expressly modified by the court,
4without prior court approval.
53. Until such time as the conservator files an initial
6financial management plan and such plan is approved by the
7court as required by section 633.670, subsection 1, the
8conservator may exercise the following powers with respect to
9a protected person without court approval except as otherwise
10ordered by the court:
11a. Collect, receive, and receipt for any principal or income
12of the protected person.
13b. Receive property of the protected person from any source.
14c. Continue to hold any investment or other property of the
15protected person.
16d. Pay insurance premiums on existing policies, utilities,
17taxes, care costs, medical and dental expenses, and serve as
18representative payee for social security purposes.
19e. Sell and transfer personal property of a perishable
20nature and personal property for which there is a regularly
21established market.
224. Powers conferred upon appointment of a conservator will
23continue only until the court has approved the conservator’s
24initial financial plan. The continuation of any powers
25conferred upon appointment must be requested by a conservator
26in the initial financial plan and may be continued only if the
27initial financial plan is approved by the court.
28 Sec. 14. Section 633.641, Code 2021, is amended to read as
29follows:
30633.641 Duties of conservator.
311. A conservator is a fiduciary and has duties of prudence
32and loyalty to the protected person.
332. In investing and selecting specific property for
34distribution, a conservator shall consider any estate plan or
35other donative, nominative, or appointive instrument of the
-7-1protected person, known to the conservator.
23. If a protected person has executed a valid power of
3attorney under chapter 633B, the conservator shall act in
4accordance with the applicable provisions of chapter 633B
5If the court appoints a conservator for a protected person
6who has previously executed a valid power of attorney under
7chapter 633B, the power of attorney is suspended unless the
8power of attorney provides otherwise or the court appointing
9the conservator orders that the power of attorney should
10continue. If the power of attorney continues, the agent is
11accountable to the conservator as well as the principal. The
12power of attorney shall be reinstated upon termination of
13the conservatorship as a result of the principal regaining
14capacity.
154. The conservator shall report to the department of human
16services the protected person’s assets and income, if the
17protected person is receiving medical assistance under chapter
18249A. Such reports shall be made upon establishment of a
19conservatorship for an individual applying for or receiving
20medical assistance, upon application for benefits on behalf
21of the protected person, upon annual or semiannual review of
22continued medical assistance eligibility, when any significant
23change in the protected person’s assets or income occurs, or
24as otherwise requested by the department of human services.
25Written reports shall be provided to the department of human
26services office for the county in which the protected person
27resides or the office in which the protected person’s medical
28assistance is administered.
295. When investing and selecting specific property for
30distribution, a conservator shall consider any estate plan or
31other donative, nominative, or appointive instrument of the
32protected person which is known to the conservator.
33 Sec. 15. Section 633.642, Code 2021, is amended to read as
34follows:
35633.642 Responsibilities of conservator.
-8- 11. Except as otherwise ordered by the court, a conservator
2must give notice to persons entitled to notice and receive
3specific prior authorization by the court before the
4conservator may take any other action on behalf of the
5protected person. These other powers Powers requiring court
6approval include but are not limited to the authority of the
7conservator to:
81. a. Invest the protected person’s assets consistent with
9section 633.123.
102. b. Make gifts on the protected person’s behalf from
11conservatorship assets to persons or religious, educational,
12scientific, charitable, or other nonprofit organizations to
13whom or to which such gifts were regularly made prior to the
14conservator’s appointment; or on a showing that such gifts
15would benefit the protected person from the perspective of
16gift, estate, inheritance, or other taxes. No gift shall be
17allowed which would foreseeably prevent adequate provision for
18the protected person’s best interest.
193. c. Make payments consistent with the conservator’s plan
20described above directly to the protected person or to others
21for the protected person’s education and training needs.
224. d. Use the protected person’s income or assets to
23provide for any person that the protected person is legally
24obligated to support.
255. e. Compromise, adjust, arbitrate, or settle any claim by
26or against the protected person or the conservator.
276. f. Make elections for a protected person who is the
28surviving spouse as provided in sections 633.236 and 633.240.
297. g. Exercise the right to disclaim on behalf of the
30protected person as provided in section 633E.5.
318. h. Sell, mortgage, exchange, pledge, or lease the
32protected person’s real and personal property consistent with
33subchapter VII, part 6 of this chapter regarding sale of
34property from a decedent’s estate.
352. Before exercising any of the powers granted pursuant to
-9-1this section, the powers must be added to the conservator’s
2initial or amended financial plan and approved by the court.
3 Sec. 16. Section 633.669, Code 2021, is amended to read as
4follows:
5633.669 Reporting requirements — assistance Reports by clerk
6 guardians.
71. A guardian appointed by the court under this chapter
8shall file with the court the following written verified
9reports which shall not be waived by the court:
10a. An initial care plan filed within sixty days of
11appointment. The information in the initial care plan shall
12include but not be limited to the following information:
13(1) The current residence of the protected person and the
14guardian’s plan for the protected person’s living arrangements.
15(2) The guardian’s plan for payment of the protected
16person’s living expenses and other expenses.
17(3) The protected person’s health status and health care
18needs, and the guardian’s plan for meeting the protected
19person’s needs for medical, dental, and other health care
20needs.
21(4) If applicable, the guardian’s plan for the provision of
22 other professional services needed by the protected person.
23(5) If applicable, the guardian’s plan for meeting
24the educational, training, and vocational needs of the
25protected person. If applicable, for protected persons with
26conservatorships, any action the guardian plans to take to
27develop or restore the ability of the protected person to
28manage the conservatorship estate.
29(6) If applicable, the guardian’s plan for facilitating the
30participation of the protected person in social activities.
31(7) The guardian’s plan for facilitating contacts between
32the protected person and the protected person’s family members
33and other significant persons significant in the life of the
34protected person.
35(8) The guardian’s plan for contact with, and activities on
-10-1behalf of, the protected person.
2(9) An estimate of the total amount and type of fees the
3guardian anticipates charging per year and a statement of
4justification for charging that fee.
50b. The guardian shall file an amended care plan when there
6has been a significant change in the circumstances or the
7guardian seeks to deviate significantly from the plan. The
8guardian must obtain court approval of the amended plan before
9implementing any of its provisions.
10b. An annual report, filed within sixty days of the close
11of the reporting period, unless the court otherwise orders on
12good cause shown. The information in the annual report shall
13include but not be limited to the following information:
14(1) The current living arrangements of the protected
15person.
16(2) The sources of payment for the protected person’s living
17expenses and other expenses.
18(3) A description, if applicable, of the following:
19(a) The protected person’s physical and mental health
20status and the medical, dental, and other professional health
21 services provided to the protected person.
22(b) If applicable, the protected person’s employment status
23and the educational, training, and vocational services provided
24to the protected person.
25(c) The contact of the protected person with family members
26and other significant persons.
27(d) The nature and extent of the guardian’s visits with, and
28activities on behalf of, the protected person.
29(4) The guardian’s recommendation as to the need for
30continuation of the guardianship.
31(5) The ability of the guardian to continue as guardian.
32(6) The need of the guardian for assistance in providing or
33arranging for the provision of the care and protection of the
34protected person.
35(7) Any other information the guardian deems necessary for
-11-1the court to consider.
2c. A final report within thirty days of the termination
3of the guardianship under section 633.675 unless that time is
4extended by the court.
52. The court shall develop a simplified uniform reporting
6form for use which may be used in filing the required reports.
73. The clerk of the court shall notify the guardian in
8writing of the reporting requirements and shall provide
9information and assistance to the guardian in filing the
10reports.
114. Reports of guardians shall be reviewed and approved by a
12district court judge or referee.
135. The court, for good cause, may extend the deadline for
14filing required reports. Required reports of a guardian which
15are not timely filed and which are delinquent, and for which no
16extension for filing has been granted by the court, shall be
17administered as provided in section 633.65.
18 Sec. 17. Section 633.670, Code 2021, is amended to read as
19follows:
20633.670 Reports by conservators.
211. A conservator shall file an a verified initial financial
22 plan for protecting, managing, investing, expending, and
23distributing the assets of the conservatorship estate within
24ninety days after appointment. The plan must be based on the
25needs of the protected person and take into account the best
26interest of the protected person as well as the protected
27person’s preference, values, and prior directions to the extent
28known to, or reasonably ascertainable by, the conservator.
29a. The initial financial management plan shall state the
30protected person’s age, residence, living arrangements, and
31sources of payment for living expenses, and shall include all
32of the following:
33(1) A budget containing projected expenses and resources,
34including an estimate of the total amount of fees the
35conservator anticipates charging per year and a statement or
-12-1list of the amount the conservator proposes to charge for each
2service the conservator anticipates providing to the protected
3person.
4(2) A statement as to how the conservator will involve
5the protected person in decisions about management of the
6conservatorship estate.
7(3) If ordered by the court, any step the conservator plans
8to take to develop or restore the ability of the protected
9person to manage the conservatorship estate.
10(4) An estimate of the duration of the conservatorship.
11b. Within two days after filing the initial plan, the The
12 conservator shall give provide notice of the filing of the
13initial financial plan with and a copy of the initial financial
14management plan to the protected person, the protected person’s
15attorney, if any, and court visitor, if any, and others as
16directed by the court. The notice must state that any person
17entitled to a copy of the initial financial management plan
18must file any objections to the initial financial management
19 plan not later than fifteen days after it is filed twenty days
20from the date of mailing notice of filing the initial financial
21management plan.
22c. At least If no objections have been filed within twenty
23days after the plan has been filed, the court shall review
24and determine whether the plan should be approved or revised,
25after considering objections filed and whether the plan is
26consistent with the conservator’s powers and duties mailing
27notice of the filing of the initial financial management plan,
28the conservator shall submit a proposed order to the court
29approving the initial financial management plan. The court
30shall review and determine whether the initial financial
31management plan should be approved or revised. Upon the
32court’s approval of the initial financial management plan under
33this subsection, the conservator shall provide a copy of the
34approved plan and order approving the plan to the protected
35person, the protected person’s attorney and court visitor, if
-13-1any, and others as directed by the court.
2d. After approval by the court, the conservator shall
3provide a copy of the approved plan and order approving the
4plan to the protected person, the protected person’s attorney
5and court visitor, if any, and others as directed by the
6court. If any objection to the proposed plan is filed within
7twenty days after the conservator has mailed notice of filing
8the initial financial management plan, the conservator shall
9request that the matter be set for hearing and provide notice
10of the hearing date, time, and place to the same parties who
11were sent copies of the initial financial management plan.
12Following the hearing on the conservator’s proposed initial
13financial management plan, the conservator shall provide a
14copy of the approved plan and order approving the plan to the
15protected person, the protected person’s attorney and court
16visitor, if any, and others as directed by the court.
17e. The conservator shall file an amended plan when there has
18been a significant change in circumstances or the conservator
19seeks to deviate significantly from the plan. Before the
20amended plan is implemented, the provisions for court approval
21of the plan shall be followed as provided in paragraphs “b”,
22“c”, and “d”.
232. A conservator shall file an inventory of the protected
24person’s assets within ninety days after appointment which
25includes an oath or affirmation that the inventory is believed
26to be complete and accurate as far as information permits.
27Copies of the inventory shall be provided to the protected
28person, the protected person’s attorney and court visitor, if
29any, and others as directed by the court. When the conservator
30receives additional property of the protected person, or
31becomes aware of its existence, a description of the property
32shall be included in the conservator’s next annual report.
333. A conservator shall file a written and verified report
34for the period since the end of the preceding report period.
35The court shall not waive these reports.
-14- 1a. The annual report shall state the age, the residence, and
2the living arrangements of the protected person, and sources
3of payment for the protected person’s living expenses during
4the reporting period.These reports shall also include all of
5the following:
6(1) Balance of funds on hand at the beginning and end of the
7period.
8(2) Disbursements made.
9(3) Changes in the conservator’s plan.
10(4) List of assets as of the end of the period.
11(5) Bond amount and surety’s name.
12(6) Residence and physical location of the protected
13person.
14(7) General physical and mental condition of the protected
15person.
16(8) Other information reflecting the condition of the
17conservatorship estate All amounts received from any source
18during the period.
19(9) Any changes in investments.
20(10) Recommendations of the conservator for retention or
21disposition of conservatorship property.
22(11) Other information reflecting the condition of the
23conservatorship estate.
24b. These reports shall be filed:
25(1) On an annual basis within Within sixty days of the end
26of the reporting period unless the court orders an extension
27for good cause shown in accordance with the rules of probate
28procedure.
29(2) Within thirty days following removal of the
30conservator.
31(3) Upon the conservator’s filing of a resignation and
32before the resignation is accepted by the court.
33(4) Within sixty days following the termination of the
34conservatorship.
35(5) At other times as ordered by the court.
-15- 1c. Reports required by this section shall be served on
2the protected person, the protected person’s attorney and
3court visitor, if any, and the veterans administration if the
4protected person is receiving veterans veterans’ benefits.
54. The conservator shall file a verified final report with
6the court as follows:
75. The conservator shall report to the department of human
8services the protected person’s assets and income if the
9protected person is receiving medical assistance under chapter
10249A. Such reports shall be made upon establishment of a
11conservatorship for an individual applying for or receiving
12medical assistance, upon application for benefits on behalf
13of the protected person, upon annual or semiannual review of
14continued medical assistance eligibility, when any significant
15change in the protected person’s assets or income occurs, or
16as otherwise requested by the department of human services.
17Written reports shall be provided to the department of human
18services office for the county in which the protected person
19resides or the office in which the protected person’s medical
20assistance is administered.
21 Sec. 18. Section 633.675, subsections 2 and 3, Code 2021,
22are amended to read as follows:
232. The court shall terminate a guardianship if it finds by
24clear and convincing evidence that the basis for appointing a
25guardian pursuant to section 633.552 has not been established.
263. The court shall terminate a conservatorship if the court
27finds by clear and convincing evidence that the basis for
28appointing a conservator pursuant to section 633.553 or 633.554
29is not satisfied.
30DIVISION II
31CONFORMING CHANGES
32 Sec. 19. Section 633.3, subsections 9, 17, 22, and 23, Code
332021, are amended to read as follows:
349. Conservator — means a person appointed by the court
35to have the custody and control of the property of a ward
-16-1 protected person under the provisions of this probate code.
217. Estate — the real and personal property of either a
3decedent or a ward protected person, and may also refer to the
4real and personal property of a trust described in section
5633.10.
622. Guardian — means the person appointed by the court to
7have the custody of the person of the ward protected person
8 under the provisions of this probate code.
923. Guardian of the property — at the election of the
10person appointed by the court to have the custody and care of
11the property of a ward protected person, the term “guardian of
12the property” may be used, which term shall be synonymous with
13the term “conservator”.
14 Sec. 20. Section 633.78, subsection 1, unnumbered paragraph
151, Code 2021, is amended to read as follows:
16A fiduciary under this chapter may present a written request
17to any person for the purpose of obtaining property owned by
18a decedent or by a ward protected person of a conservatorship
19for which the fiduciary has been appointed, or property to
20which a decedent or ward protected person is entitled, or
21for information about such property needed to perform the
22fiduciary’s duties. The request must contain statements
23confirming all of the following:
24 Sec. 21. Section 633.78, subsection 1, paragraph b, Code
252021, is amended to read as follows:
26b. The request has been signed by all fiduciaries acting on
27behalf of the decedent or ward protected person.
28 Sec. 22. Section 633.78, subsection 4, paragraph a, Code
292021, is amended to read as follows:
30a. Damages sustained by the decedent’s or ward’s protected
31person’s estate.
32 Sec. 23. Section 633.80, Code 2021, is amended to read as
33follows:
34633.80 Fiduciary of a fiduciary.
35A fiduciary has no authority to act in a matter wherein the
-17-1fiduciary’s decedent or ward protected person was merely a
2fiduciary, except that the fiduciary shall file a report and
3accounting on behalf of the decedent or ward protected person
4 in said matter.
5 Sec. 24. Section 633.93, Code 2021, is amended to read as
6follows:
7633.93 Limitation on actions affecting deeds.
8No action for recovery of any real estate sold by any
9fiduciary can be maintained by any person claiming under the
10deceased, the ward protected person, or a beneficiary, unless
11brought within five years after the date of the recording of
12the conveyance.
13 Sec. 25. Section 633.112, Code 2021, is amended to read as
14follows:
15633.112 Discovery of property.
16The court may require any person suspected of having
17possession of any property, including records and documents,
18of the decedent, ward protected person, or the estate, or of
19having had such property under the person’s control, to appear
20and submit to an examination under oath touching such matters,
21and if on such examination it appears that the person has the
22wrongful possession of any such property, the court may order
23the delivery thereof to the fiduciary. Such a person shall be
24liable to the estate for all damages caused by the person’s
25acts.
26 Sec. 26. Section 633.123, subsection 1, paragraph b,
27subparagraph (3), Code 2021, is amended to read as follows:
28(3) The needs and rights of the beneficiaries or the ward
29 protected person.
30 Sec. 27. Section 633.580, subsections 1 and 4, Code 2021,
31are amended to read as follows:
321. The name, age, and last known post office address of the
33proposed ward protected person.
344. A general description of the property of the proposed
35ward protected person within this state and of the proposed
-18-1ward’s protected person’s right to receive property; also, the
2estimated present value of the real estate, the estimated value
3of the personal property, and the estimated gross annual income
4of the estate. If any money is payable, or to become payable,
5to the proposed ward protected person by the United States
6through the United States department of veterans affairs, the
7petition shall so state.
8 Sec. 28. Section 633.591A, Code 2021, is amended to read as
9follows:
10633.591A Voluntary petition for appointment of conservator
11for a minor — standby basis.
12A person having physical and legal custody of a minor
13may execute a verified petition for the appointment of a
14standby conservator of the proposed ward’s protected person’s
15 property, upon the express condition that the petition shall
16be acted upon by the court only upon the occurrence of an event
17specified or the existence of a described condition of the
18mental or physical health of the petitioner, the occurrence
19of which event, or the existence of which condition, shall be
20established in the manner directed in the petition.
21 Sec. 29. Section 633.603, Code 2021, is amended to read as
22follows:
23633.603 Appointment of foreign conservators.
24When there is no conservatorship, nor any application
25therefor pending, in this state, the duly qualified foreign
26conservator or guardian of a nonresident ward protected
27person may, upon application, be appointed conservator of the
28property of such person in this state; provided that a resident
29conservator is appointed to serve with the foreign conservator;
30and provided further, that for good cause shown, the court
31may appoint the foreign conservator to act alone without the
32appointment of a resident conservator.
33 Sec. 30. Section 633.604, Code 2021, is amended to read as
34follows:
35633.604 Application.
-19- 1The application for appointment of a foreign conservator
2or guardian as conservator in this state shall include the
3name and address of the nonresident ward protected person, and
4of the nonresident conservator or guardian, and the name and
5address of the resident conservator to be appointed. It shall
6be accompanied by a certified copy of the original letters
7or other authority conferring the power upon the foreign
8conservator or guardian to act as such. The application
9shall also state the cause for the appointment of the foreign
10conservator to act as sole conservator, if such be the case.
11 Sec. 31. Section 633.605, Code 2021, is amended to read as
12follows:
13633.605 Personal property.
14A foreign conservator or guardian of a nonresident may
15be authorized by the court of the county wherein such ward
16 protected person has personal property to receive the same upon
17compliance with the provisions of sections 633.606, 633.607 and
18633.608.
19 Sec. 32. Section 633.607, Code 2021, is amended to read as
20follows:
21633.607 Order for delivery.
22Upon the filing of the bond as above provided, and the court
23being satisfied with the amount thereof, it shall order the
24personal property of the ward protected person delivered to
25such conservator or guardian.
26 Sec. 33. Section 633.633, Code 2021, is amended to read as
27follows:
28633.633 Provisions applicable to all fiduciaries shall
29govern.
30The provisions of this probate code applicable to all
31fiduciaries shall govern the appointment, qualification, oath
32and bond of guardians and conservators, except that a guardian
33shall not be required to give bond unless the court, for good
34cause, finds that the best interests of the ward protected
35person require a bond. The court shall then fix the terms and
-20-1conditions of such bond.
2 Sec. 34. Section 633.633B, Code 2021, is amended to read as
3follows:
4633.633B Tort liability of guardians and conservators.
5The fact that a person is a guardian or conservator shall not
6in itself make the person personally liable for damages for the
7acts of the ward protected person.
8 Sec. 35. Section 633.636, Code 2021, is amended to read as
9follows:
10633.636 Effect of appointment of guardian or conservator.
11The appointment of a guardian or conservator shall not
12constitute an adjudication that the ward protected person is of
13unsound mind.
14 Sec. 36. Section 633.637, Code 2021, is amended to read as
15follows:
16633.637 Powers of ward protected person.
171. A ward protected person for whom a conservator has been
18appointed shall not have the power to convey, encumber, or
19dispose of property in any manner, other than by will if the
20ward protected person possesses the requisite testamentary
21capacity, unless the court determines that the ward protected
22person has a limited ability to handle the ward’s protected
23person’s own funds. If the court makes such a finding, the
24court shall specify to what extent the ward protected person
25 may possess and use the ward’s protected person’s own funds.
262. Any modification of the powers of the ward protected
27person that would be more restrictive of the ward’s protected
28person’s control over the ward’s protected person’s financial
29affairs shall be based upon clear and convincing evidence
30and the burden of persuasion is on the conservator. Any
31modification that would be less restrictive of the ward’s
32 protected person’s control over the ward’s protected person’s
33 financial affairs shall be based upon proof in accordance with
34the requirements of section 633.675.
35 Sec. 37. Section 633.637A, Code 2021, is amended to read as
-21-1follows:
2633.637A Rights of ward protected person under guardianship.
3An adult ward protected person under a guardianship has the
4right of communication, visitation, or interaction with other
5persons upon the consent of the adult ward protected person,
6subject to section 633.635, subsection 2, paragraph “i”, and
7section 633.635, subsection 3, paragraph “c”. If an adult ward
8 protected person is unable to give express consent to such
9communication, visitation, or interaction with a person due
10to a physical or mental condition, consent of an adult ward
11 protected person may be presumed by a guardian or a court based
12on an adult ward’s protected person’s prior relationship with
13such person.
14 Sec. 38. Section 633.638, Code 2021, is amended to read as
15follows:
16633.638 Presumption of fraud.
17If a conservator be appointed, all contracts, transfers and
18gifts made by the ward protected person after the filing of the
19petition shall be presumed to be a fraud against the rights
20and interest of the ward protected person except as otherwise
21directed by the court pursuant to section 633.637.
22 Sec. 39. Section 633.639, Code 2021, is amended to read as
23follows:
24633.639 Title to ward’s protected person’s property.
25The title to all property of the ward protected person is
26in the ward protected person and not the conservator subject,
27however, to the possession of the conservator and to the
28control of the court for the purposes of administration,
29sale or other disposition, under the provisions of the
30law. Any real property titled at any time in the name of a
31conservatorship shall be deemed to be titled in the ward’s
32 protected person’s name subject to the conservator’s right of
33possession.
34 Sec. 40. Section 633.640, Code 2021, is amended to read as
35follows:
-22- 1633.640 Conservator’s right to possession.
2Every conservator shall have a right to, and shall take,
3possession of all of the real and personal property of the
4ward protected person. The conservator shall pay the taxes
5and collect the income therefrom until the conservatorship is
6terminated. The conservator may maintain an action for the
7possession of the property, and to determine the title to the
8same.
9 Sec. 41. Section 633.643, Code 2021, is amended to read as
10follows:
11633.643 Disposal of will by conservator.
12When an instrument purporting to be the will of the ward
13 protected person comes into the hands of a conservator, the
14conservator shall immediately deliver it to the court.
15 Sec. 42. Section 633.644, Code 2021, is amended to read as
16follows:
17633.644 Court order to preserve testamentary intent of ward
18 protected person.
19Upon receiving an instrument purporting to be the will of a
20living ward protected person under the provisions of section
21633.643, the court may open said will and read it. The court
22with or without notice, as it may determine, may enter such
23orders in the conservatorship as it deems advisable for the
24proper administration of the conservatorship in light of the
25expressed testamentary intent of the ward protected person.
26 Sec. 43. Section 633.645, Code 2021, is amended to read as
27follows:
28633.645 Court to deliver will to clerk.
29An instrument purporting to be the will of a ward protected
30person coming into the hands of the court under the provisions
31of section 633.643, shall thereafter be resealed by the court
32and be deposited with the clerk to be held by said clerk as
33provided in sections 633.286 through 633.289.
34 Sec. 44. Section 633.653A, Code 2021, is amended to read as
35follows:
-23- 1633.653A Claims for cost of medical care or services.
2The provision of medical care or services to a ward protected
3person who is a recipient of medical assistance under chapter
4249A creates a claim against the conservatorship for the amount
5owed to the provider under the medical assistance program for
6the care or services. The amount of the claim, after being
7allowed or established as provided in this part, shall be paid
8by the conservator from the assets of the conservatorship.
9 Sec. 45. Section 633.654, Code 2021, is amended to read as
10follows:
11633.654 Form and verification of claims — general
12requirements.
13No claim shall be allowed against the estate of a ward
14 protected person upon application of the claimant unless
15it shall be in writing, filed in duplicate with the clerk,
16stating the claimant’s name and address, and describing the
17nature and the amount thereof, if ascertainable. It shall be
18accompanied by the affidavit of the claimant, or of someone for
19the claimant, that the amount is justly due, or if not due,
20when it will or may become due, that no payments have been
21made thereon which are not credited, and that there are no
22offsets to the same, to the knowledge of the affiant, except as
23therein stated. The duplicate of said claim shall be mailed
24by the clerk to the conservator or the conservator’s attorney
25of record; however, valid contract claims arising in the
26ordinary course of the conduct of the business or affairs of
27the ward protected person by the conservator may be paid by the
28conservator without requiring affidavit or filing.
29 Sec. 46. Section 633.656, Code 2021, is amended to read as
30follows:
31633.656 How claim entitled.
32All claims filed against the estate of the ward protected
33person shall be entitled in the name of the claimant against
34the conservator as such, naming the conservator, and in all
35further proceedings thereon, this title shall be preserved.
-24-1 Sec. 47. Section 633.660, Code 2021, is amended to read as
2follows:
3633.660 Execution and levy prohibited.
4No execution shall issue upon, nor shall any levy be made
5against, any property of the estate of a ward protected person
6 under any judgment against the ward protected person or a
7conservator, but the provisions of this section shall not be so
8construed as to prevent the enforcement of a mortgage, pledge,
9or other lien upon property in an appropriate proceeding.
10 Sec. 48. Section 633.661, Code 2021, is amended to read as
11follows:
12633.661 Claims of conservators.
13If the conservator is a creditor of the ward, the conservator
14shall file the claim as other creditors, and the court shall
15appoint some competent person as temporary conservator to
16represent the ward protected person at the hearing on the
17conservator’s claim. The same procedure shall be followed in
18the case of coconservators where all such conservators are
19creditors of the ward protected person; but if one of the
20coconservators is not a creditor of the ward protected person,
21such disinterested conservator shall represent the ward at the
22hearing on any claim against the ward protected person by a
23coconservator.
24 Sec. 49. Section 633.662, Code 2021, is amended to read as
25follows:
26633.662 Claims not filed.
27The conservator may pay any valid claim against the estate of
28the ward protected person even though such claim has not been
29filed, but all such payments made by the conservator shall be
30at the conservator’s own peril.
31 Sec. 50. Section 633.664, Code 2021, is amended to read as
32follows:
33633.664 Liens not affected by failure to file claim.
34Nothing in sections 633.654 and 633.658 shall affect or
35prevent an action or proceeding to enforce any mortgage,
-25-1pledge, or other lien upon the property of the ward protected
2person.
3 Sec. 51. Section 633.665, Code 2021, is amended to read as
4follows:
5633.665 Separate actions and claims.
61. Any action pending against the ward protected person at
7the time the conservator is appointed shall also be considered
8a claim filed in the conservatorship if notice of substitution
9is served on the conservator as defendant and a duplicate of
10the proof of service of notice of such proceeding is filed in
11the conservatorship proceeding.
122. A separate action based on a debt or other liability
13of the ward protected person may be commenced against the
14conservator in lieu of filing a claim in the conservatorship.
15Such an action shall be commenced by serving an original notice
16on the conservator and filing a duplicate of the proof of
17service of notice of such proceeding in the conservatorship
18proceeding. Such an action shall also be considered a claim
19filed in the conservatorship. Such an action may be commenced
20only in a county where the venue would have been proper if
21there were no conservatorship and the action had been commenced
22against the ward protected person.
23 Sec. 52. Section 633.667, Code 2021, is amended to read as
24follows:
25633.667 Payment of claims in insolvent conservatorships.
26When it appears that the assets in a conservatorship are
27insufficient to pay in full all the claims against such
28conservatorship, the conservator shall report such matter to
29the court, and the court shall, upon hearing, with notice to
30all persons who have filed claims in the conservatorship, make
31an order for the pro rata payment of claims giving claimants
32the same priority, if any, as they would have if the ward
33 protected person were not under conservatorship.
34 Sec. 53. Section 633.668, Code 2021, is amended to read as
35follows:
-26- 1633.668 Conservator may make gifts.
2For good cause shown and under order of court, a conservator
3may make gifts on behalf of the ward protected person out of
4the assets under a conservatorship to persons or religious,
5educational, scientific, charitable, or other nonprofit
6organizations to whom or to which such gifts were regularly
7made prior to the commencement of the conservatorship, or on
8a showing to the court that such gifts would benefit the ward
9 protected person or the ward’s protected person’s estate from
10the standpoint of income, gift, estate or inheritance taxes.
11The making of gifts out of the assets must not foreseeably
12impair the ability to provide adequately for the best interests
13of the ward protected person.
14 Sec. 54. Section 633.673, Code 2021, is amended to read as
15follows:
16633.673 Court costs in guardianships.
17The ward protected person or the ward’s protected person’s
18 estate shall be charged with the court costs of a ward’s
19guardianship, including the guardian’s fees and the fees of the
20attorney for the guardian. The court may, upon application,
21enter an order waiving payment of the court costs in indigent
22cases. However, if the ward protected person or ward’s
23 protected person’s estate becomes financially capable of paying
24any waived costs, the costs shall be paid immediately.
25 Sec. 55. Section 633.676, Code 2021, is amended to read as
26follows:
27633.676 Assets exhausted.
28At any time that the assets of the ward’s protected person’s
29 estate do not exceed the amount of the charges and claims
30against it, the court may direct the conservator to proceed to
31terminate the conservatorship.
32 Sec. 56. Section 633.677, Code 2021, is amended to read as
33follows:
34633.677 Accounting to ward protected person — notice.
35Upon the termination of a conservatorship, the conservator
-27-1shall pay the costs of administration and shall render a full
2and complete accounting to the ward protected person or the
3ward’s protected person’s personal representative and to the
4court. Notice of the final report of a conservator shall be
5served on the ward protected person or the ward’s protected
6person’s personal representative, in accordance with section
7633.40, unless notice is waived. An order prescribing notice
8may be made before or after the filing of the final report.
9 Sec. 57. Section 633.681, Code 2021, is amended to read as
10follows:
11633.681 Assets of minor ward protected person exhausted.
12When the assets of a minor ward’s protected person’s
13 conservatorship are exhausted or consist of personal property
14only of an aggregate value not in excess of twenty-five
15thousand dollars, the court, upon application or upon its
16own motion, may terminate the conservatorship. The order
17for termination shall direct the conservator to deliver any
18property remaining after the payment of allowed claims and
19expenses of administration to a custodian under any uniform
20transfers to minors Act. Such delivery shall have the same
21force and effect as if delivery had been made to the ward
22 protected person after attaining majority.
23 Sec. 58. Section 633.682, Code 2021, is amended to read as
24follows:
25633.682 Discharge of conservator and release of bond.
26Upon settlement of the final accounting of a conservator,
27and upon determining that the property of the ward protected
28person has been delivered to the person or persons lawfully
29entitled thereto, the court shall discharge the conservator and
30exonerate the surety on the conservator’s bond.
31EXPLANATION
32The inclusion of this explanation does not constitute agreement with
33the explanation’s substance by the members of the general assembly.
34This bill relates to the administration of adult
35guardianships and adult and minor conservatorships.
-28- 1The bill strikes a reference to “without prior court
2approval” in a Code section listing powers a court may grant
3to a guardian.
4The bill also directs that the initial verified care plan
5must include the guardian’s plan for applying and receiving
6funds and benefits for the support of the minor.
7The bill allows a district court conducting checks of the
8dependent adult abuse registry for all proposed guardians and
9conservators pursuant to Code section 633.564 to have access
10to dependent adult abuse information other than unfounded
11dependent adult abuse information.
12The bill provides that the petition for guardianship shall
13list the name and address of the following: the respondent,
14the petitioner and the petitioner’s relationship to the
15respondent, the proposed guardian or conservator and the
16reason why the person should be selected, and any adult who
17has had primary care of the respondent or any institution or
18facility where the respondent resided any time during the six
19months immediately preceding the filing of the petition. The
20petition for guardianship shall provide a brief description of
21the respondent’s alleged functional limitations that make a
22guardianship necessary.
23The bill provides that a court visitor will be discharged
24upon the appointment of a guardian or conservator unless
25ordered by the court to continue.
26The bill provides that the court shall not order a
27professional evaluation of the respondent if the petition is
28for opening a conservatorship for a minor.
29The bill changes the requirements of the background checks
30for a proposed guardian. Previously, the proposed guardian
31could use background checks from the past 12 months prior to
32filing the petition. The bill changes that time frame to six
33months and adds that the background check needs to have been
34provided to the court.
35The court may share the results of the background checks
-29-1with the respondent, the respondent’s attorney, the protected
2person’s attorney, and the proposed guardian or conservator.
3The bill provides that a person authorized under Code
4section 633.556 (petition for appointment of guardian or
5conservator for an adult) or Code section 633.557 (petition for
6appointment of a conservator for a minor) file an emergency
7appointment of temporary guardian or conservatorship petition.
8The application shall include the name and address of the
9respondent, the petitioner and the petitioner’s relationship
10to the respondent, the name and address of the proposed
11guardian or conservator and the reason the proposed guardian
12or conservator should be selected, and the names and addresses
13of any other person who must be named in the petition for
14appointment pursuant to Code section 633.556 or Code section
15633.557. The bill provides that an ex parte order may be
16entered if the court finds that it is necessary to avoid
17immediate or irreparable harm to the respondent before a
18hearing with notice to the respondent can be held.
19The bill enacts new Code section 633.640A, which provides
20the powers of a conservator upon appointment. The bill
21provides that an order appointing a conservator shall state
22the basis for the conservatorship, and upon appointment
23the conservator may exercise the powers relating to all
24fiduciaries, unless expressly modified by the court, without
25prior court approval. These powers include but are not
26limited to the following: making written requests for the
27purpose of obtaining the property of the protected person or
28obtaining information about the property of the protected
29person; designating and employing an attorney to assist in
30the administration of the estate of the protected person;
31holding investments in the name of a bank or trustee company;
32and requiring a bank to show ownership of investments held in
33nominee name and keep them separate from the assets of the
34bank. The bill further provides that until the conservator
35files and the court approves an initial financial management
-30-1plan, the conservator may exercise the following powers without
2court approval except as otherwise ordered by the court:
3collect, receive, and receipt for any principal or income of
4the protected person; receive property of the protected person
5from any source; and continue to hold any investment or other
6property of the protected person. The bill also provides that
7the clerk of the court shall issue letters of appointment upon
8the filing of an appropriate oath by the conservator and a
9copy of the initial order of the court and any future order,
10granting or limiting the authority of the conservator to act
11on behalf of the protected person, shall be attached to the
12letters of appointment.
13The bill amends the information required to be contained in
14a guardian’s written verified reports including the initial
15care plan and annual reports, and information required to be
16included in reports by conservators including the initial
17financial management plan, including an inventory of the
18protected person’s assets and debts, the annual report, and the
19final report.
20The bill amends reporting requirements for guardians, and
21requires that guardians must obtain court approval prior to any
22significant deviation from the initial care plan filed with the
23court.
24The bill amends reporting requirements for conservators.
25The conservator must give notice of filing a plan, and if no
26objection is made within 20 days, the conservator must submit
27a proposed order to the court approving the initial plan. If
28there are objections to the plan, the court must set the matter
29for hearing.
30The bill makes conforming changes to the probate code by
31changing the term “ward” to “protected person”.
-31-cm/jh