Bill Text: IA SF348 | 2021-2022 | 89th General Assembly | Amended

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Bill Title: A bill for an act relating to the opening, administration, and termination of adult and minor guardianships and conservatorships. (Formerly SF 31.)

Spectrum: Committee Bill

Status: (Engrossed - Dead) 2022-03-31 - Message from House, with amendment S-5111. S.J. 674. [SF348 Detail]

Download: Iowa-2021-SF348-Amended.html

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Senate File 348 - Reprinted
SENATE FILE 348
BY COMMITTEE ON JUDICIARY
(SUCCESSOR TO SF 31)
(As Amended and Passed by the Senate March 8, 2021 )
A BILL FOR
An Act relating to the opening, administration, and termination
of adult and minor guardianships and conservatorships.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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DIVISION I
MINOR GUARDIANSHIPS
Section 1. Section 232.3, subsection 1, Code 2021, is
amended to read as follows:
1. During the pendency of an action under this chapter , a
party to the action is estopped from litigating concurrently
the custody, guardianship, or placement of a child who is the
subject of the action, in a court other than the juvenile court
with jurisdiction of the pending action under this chapter . A
district judge, district associate judge, juvenile court judge,
magistrate, or judicial hospitalization referee, upon notice
of the pendency of an action under this chapter , shall not
issue an order, finding, or decision relating to the custody,
guardianship, or placement of the child who is the subject of
the action, under any law, including but not limited to chapter
232D, 598, or 598B , or 633 .
Sec. 2. Section 232.3, Code 2021, is amended by adding the
following new subsection:
NEW SUBSECTION . 3. An action which is pending under chapter
232D prior to an action being brought under this chapter shall
be stayed by the court in the chapter 232D action unless the
court follows the procedures in subsection 2 and authorizes a
party to the action to litigate a specific issue under this
chapter.
Sec. 3. Section 232D.103, Code 2021, is amended to read as
follows:
232D.103 Jurisdiction.
The juvenile court has exclusive jurisdiction in a
guardianship proceeding concerning a minor who is alleged to be
in need of a guardianship and guardianships of minors .
Sec. 4. NEW SECTION . 232D.107 Confidentiality.
Official juvenile court records in guardianship proceedings
shall be confidential and are not public records. Confidential
records may be inspected and their contents shall be disclosed
to the following without court order, provided that a person
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or entity who inspects or receives a confidential record under
this section shall not disclose the confidential record or its
contents unless required by law:
1. The judge and professional court staff.
2. The minor and the minor’s counsel.
3. The minor’s parent, guardian or custodian, court
visitor, and any counsel representing such person.
Sec. 5. Section 232D.301, subsection 2, paragraph d,
subparagraph (3), Code 2021, is amended to read as follows:
(3) Any adult who has had the primary care of the minor or
with whom the minor has lived for at least any time during the
six months prior to immediately preceding the filing of the
petition.
Sec. 6. Section 232D.301, subsection 4, Code 2021, is
amended to read as follows:
4. The petition shall state whether a limited guardianship
is appropriate , and whether a conservatorship for the minor is
already in existence .
Sec. 7. Section 232D.302, subsection 2, Code 2021, is
amended to read as follows:
2. Notice shall be served upon the minor’s known parents
listed in the petition in accordance with the rules of civil
procedure. If the parent has not filed a consent to the
appointment of a guardian, the notice shall inform any parent
named in the petition that the parent may be entitled to
representation under the conditions described in section
232D.304.
Sec. 8. Section 232D.305, subsection 1, Code 2021, is
amended to read as follows:
1. The court may appoint a court visitor for the minor. A
person is qualified to serve as a court visitor if the court
determines the person has demonstrated sufficient knowledge of
guardianships to adequately perform the duties in subsection 3.
Sec. 9. Section 232D.306, Code 2021, is amended by adding
the following new subsection:
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NEW SUBSECTION . 4. A hearing on the petition may be
recorded if a court reporter is not used.
Sec. 10. Section 232D.307, subsection 1, Code 2021, is
amended to read as follows:
1. The court shall request criminal record checks and checks
of the child abuse, dependent adult abuse, and sex offender
registries in this state for all proposed guardians other than
financial institutions with Iowa trust powers unless a proposed
guardian has undergone the required background checks in this
section within the twelve six months prior to the filing of
a petition and the background check has been provided to the
court .
Sec. 11. Section 232D.401, subsection 1, Code 2021, is
amended to read as follows:
1. The order by the court appointing a guardian for a minor
shall state the basis for the order and the date on which the
first reporting period for the guardianship will end .
Sec. 12. Section 232D.401, subsection 3, unnumbered
paragraph 1, Code 2021, is amended to read as follows:
An order by the court appointing a guardian for a minor shall
state the powers granted to the guardian until such time as the
guardian files an initial care plan and such plan is approved
by the court as required by section 232D.501, subsection 4 .
Except as otherwise limited by court an order appointing a
guardian for a minor , the court may grant the guardian the
following powers , which may be exercised without prior court
approval :
Sec. 13. Section 232D.501, subsection 1, paragraph a, Code
2021, is amended by adding the following new subparagraph:
NEW SUBPARAGRAPH . (2A) The guardian’s plan, if any, for
applying for and receiving funds and benefits payable for the
support of the minor.
Sec. 14. Section 232D.501, subsection 1, paragraph b, Code
2021, is amended by adding the following new subparagraphs:
NEW SUBPARAGRAPH . (11) The results of the guardian’s
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efforts to apply for funds or benefits for the minor, and
an accounting for the use of such funds or benefits by the
guardian.
NEW SUBPARAGRAPH . (12) Any other information the guardian
deems necessary for the court to consider.
Sec. 15. Section 232D.501, Code 2021, is amended by adding
the following new subsections:
NEW SUBSECTION . 5. The guardian shall provide a copy of the
verified initial care plan and verified annual report required
by this section to the protected person, the protected person’s
attorney, if any, and court visitor, if any.
NEW SUBSECTION . 6. The court, for good cause, may extend
the deadline for filing required reports. Required reports of
a guardian which are not timely filed and which are delinquent,
and for which no extension for filing has been granted by the
court, shall be administered in the same manner as provided in
section 633.32.
DIVISION II
ADULT GUARDIANSHIPS AND MINOR AND ADULT CONSERVATORSHIPS
Sec. 16. Section 235B.6, subsection 2, paragraph d, Code
2021, is amended by adding the following new subparagraph:
NEW SUBPARAGRAPH . (7) To a district court conducting
checks of the dependent adult abuse registry for all proposed
guardians and conservators pursuant to section 633.564.
Sec. 17. Section 633.556, subsections 4 and 5, Code 2021,
are amended to read as follows:
4. The petition shall list the name and address of the
petitioner and the petitioner’s relationship to the respondent
following:
a. The respondent .
b. The petitioner and the petitioner’s relationship to the
respondent.
c. The proposed guardian or conservator and the reason the
proposed guardian or conservator should be selected.
5. The petition shall list the name and address, to the
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extent known, of the following:
a. The name and address of the proposed guardian and the
reason the proposed guardian should be selected.
b. Any spouse of the respondent.
c. Any adult children of the respondent.
d. Any parents of the respondent.
e. Any adult, who has had the primary care of the respondent
or with whom the respondent has lived for at least any time
during the six months prior to immediately preceding the filing
of the petition, or any institution or facility where the
respondent has resided for at least six months prior to any
time during the six months immediately preceding the filing of
the petition.
f. Any legal representative or representative payee of the
respondent.
g. Any person designated as an attorney in fact in a durable
power of attorney for health care which is valid under chapter
144B , or any person designated as an agent in a durable power
of attorney which is valid under chapter 633B .
Sec. 18. Section 633.560, subsection 3, Code 2021, is
amended to read as follows:
3. The court shall require the proposed guardian or
conservator to attend the hearing on the petition but the court
may excuse the proposed guardian’s or conservator’s attendance
for good cause shown.
Sec. 19. Section 633.561, subsection 6, Code 2021, is
amended to read as follows:
6. If the court determines that it would be in the
respondent’s best interest to have legal representation
with respect to any further proceedings in a guardianship
or conservatorship, the court may appoint an attorney to
represent the respondent at the expense of the respondent or
the respondent’s estate, or if the respondent is indigent the
cost of the court appointed attorney shall be assessed against
the county in which the proceedings are pending.
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Sec. 20. Section 633.562, subsection 1, Code 2021, is
amended to read as follows:
1. If the court determines that the appointment of a court
visitor would be in the best interest of the respondent, the
court shall appoint a court visitor at the expense of the
respondent or the respondent’s estate, or, if the respondent
is indigent, the cost of the court visitor shall be assessed
against the county in which the proceedings are pending. The
court may appoint any qualified person as a court visitor in
a guardianship or conservatorship proceeding. A person is
qualified to serve in this capacity if the court determines the
person has demonstrated sufficient knowledge of guardianships
or conservatorships to adequately perform the duties in
subsection 3.
Sec. 21. Section 633.562, Code 2021, is amended by adding
the following new subsection:
NEW SUBSECTION . 7. A court visitor shall be discharged
from all further duties upon appointment of a guardian or
conservator, unless otherwise ordered by the court. The court
may order a court visitor to continue to serve if the court
determines continued service would be in the best interest of
the protected person. If the court continues the service of
the court visitor, the court may limit the direct duties of the
court visitor as the court deems necessary. The court visitor
shall thereafter continue to serve until discharged by the
court.
Sec. 22. Section 633.564, subsection 1, Code 2021, is
amended to read as follows:
1. The court shall request criminal record checks and
checks of the child abuse, dependent adult abuse, and sexual
offender registries in this state for all proposed guardians
and conservators, other than financial institutions with Iowa
trust powers , unless a proposed guardian or conservator has
undergone the required background checks required by this
section within the six months prior to the filing of a petition
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and the background check has been provided to the court .
Sec. 23. Section 633.569, Code 2021, is amended to read as
follows:
633.569 Emergency appointment of temporary guardian or
conservator.
1. A person authorized to file a petition under section
633.552, 633.553 , or 633.554 633.556 or 633.557 may file an
application for the emergency appointment of a temporary
guardian or conservator.
2. Such application shall state all of the following:
a. The name and address of the respondent.
0b. The name and address of the petitioner and the
petitioner’s relationship to the respondent.
b. The name and address of the proposed guardian or
conservator and the reason the proposed guardian or conservator
should be selected.
0c. The names and addresses, to the extent known, of any
other persons who must be named in the petition for appointment
of a guardian or conservator under section 633.556 or 633.557.
c. The reason the emergency appointment of a temporary
guardian or conservator is sought.
3. The court may enter an ex parte order appointing a
temporary guardian or conservator on an emergency basis under
this section if the court finds that all of the following
conditions are met:
a. There is not sufficient time to file a petition
and hold a hearing pursuant to section 633.552, 633.553 ,
or 633.554 633.556, 633.557, or 633.560 .
b. The appointment of a temporary guardian or conservator
is necessary to avoid immediate or irreparable harm to the
respondent before a hearing with notice to the respondent can
be held .
c. There is reason to believe that the basis for appointment
of guardian or conservator exists under section 633.552,
633.553 , or 633.554 633.556 or 633.557 .
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4. Notice of a petition for the appointment of a temporary
guardian or conservator and the issuance of an ex parte
order appointing a temporary guardian or conservator shall be
provided to the respondent, the respondent’s attorney, and any
other person the court determines should receive notice.
5. Upon the issuance of an ex parte order, if the respondent
is an adult, the respondent may file a request for a hearing.
If the respondent is a minor, the respondent, a parent having
legal custody of the respondent, or any other person having
legal custody of the respondent may file a written request for
a hearing. Such hearing shall be held no later than seven days
after the filing of a written request.
6. The powers of the temporary guardian or conservator
set forth in the order of the court shall be limited to those
necessary to address the emergency situation requiring the
appointment of a temporary guardian or conservator.
7. The temporary guardianship or conservatorship shall
terminate within thirty days after the order is issued.
8. The court may order an extension of the temporary
guardianship or conservatorship for thirty days for good
cause shown, including a showing that a hearing on a petition
for a guardianship or conservatorship under section 633.556
or 633.557 cannot be scheduled within thirty days after the
order for a temporary guardianship or conservatorship is
ordered. Prior to or contemporaneously with the filing for
an application for the extension of time, the guardian or
conservator shall file a report with the court setting forth
all of the following:
a. All actions conducted by the guardian or conservator on
behalf of the protected person from the time of the initial
appointment of the guardian up to the time of the report.
b. All actions that the guardian or conservator plans to
conduct on behalf of the protected person during the thirty-day
extension period.
9. The temporary guardian or conservator shall submit any
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other report the court requires.
Sec. 24. Section 633.570, subsections 1 and 2, Code 2021,
are amended to read as follows:
1. In a proceeding for the appointment of a guardian, the
respondent shall be given written notice which advises the
respondent of the powers that the court may grant a guardian
may exercise without court approval pursuant to the powers set
out in section 633.635, subsection 2 , and the powers that the
guardian may exercise only with court approval pursuant to set
out in section 633.635, subsection 3 .
2. In a proceeding for the appointment of a conservator,
the respondent shall be given written notice which advises
the respondent of the powers that the court may grant a
conservator may exercise without court approval pursuant to
the powers set out in section 633.646 and the powers that the
guardian may exercise only with court approval pursuant to
section 633.647 633.642 .
Sec. 25. Section 633.635, subsection 1, Code 2021, is
amended to read as follows:
1. The order by the court appointing a guardian shall state
the factual basis for the guardianship pursuant to section
633.552 and the date on which the first reporting period for
the guardianship shall end .
Sec. 26. Section 633.635, subsection 2, unnumbered
paragraph 1, Code 2021, is amended to read as follows:
Based upon the evidence produced at the hearing An order by
the court appointing a guardian for an adult shall state the
powers granted to the guardian until such time as the guardian
files an initial care plan and such plan is approved by the
court as required by section 633.669. Except as otherwise
limited by an order appointing a guardian for an adult , the
court may grant a guardian the following powers and duties with
respect to a protected person which may be exercised without
prior court approval :
Sec. 27. Section 633.635, subsection 3, unnumbered
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paragraph 1, Code 2021, is amended to read as follows:
A Notwithstanding subsection 2, a guardian may be granted
the following powers which may only be exercised upon court
approval:
Sec. 28. Section 633.641, subsection 3, Code 2021, is
amended to read as follows:
3. If a protected person has executed a valid power of
attorney under chapter 633B , the conservator shall act in
accordance with the applicable provisions of chapter 633B .
If the court appoints a conservator for a protected person
who has previously executed a valid power of attorney under
chapter 633B, the power of attorney is suspended unless the
power of attorney provides otherwise or the court appointing
the conservator orders that the power of attorney should
continue. If the power of attorney continues, the agent is
accountable to the conservator as well as the principal. The
power of attorney shall be reinstated upon termination of the
conservatorship for reasons other than the protected person’s
death.
Sec. 29. Section 633.642, Code 2021, is amended by striking
the section and inserting in lieu thereof the following:
633.642 Powers of conservator.
1. An order by the court appointing a conservator shall
state the basis for the conservatorship pursuant to section
633.553 or section 633.554.
2. Upon appointment by the court, and until such time as the
conservator files an initial financial management plan and such
plan is approved by the court as required by section 633.670,
subsection 1, a conservator has the authority to exercise all
powers applicable to fiduciaries pursuant to sections 633.63
through 633.162, unless expressly modified by the court.
3. In the order approving an initial financial management
plan or an annual report, the court shall approve and set forth
the specific powers of a conservator, which may be thereafter
exercised by the conservator until further court order. Except
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as otherwise ordered by the court, a conservator must give
notice to persons entitled to notice and receive specific prior
authorization by the court before the conservator may take any
other action on behalf of the protected person.
4. Upon the filing of an appropriate oath by the
conservator, the clerk of court shall issue letters of
appointment. A copy of the initial order of the court shall
be attached to the letters of appointment. Upon approval of
an initial financial management plan, approval of an annual
report, or further order of the court granting, modifying,
limiting, or terminating powers of the conservator, the clerk
of court shall issue new letters of appointment which shall
reflect all powers thereafter held by the conservator.
Sec. 30. Section 633.669, Code 2021, is amended to read as
follows:
633.669 Reporting requirements —— assistance Reports by clerk
guardians .
1. A guardian appointed by the court under this chapter
shall file with the court the following written verified
reports which shall not be waived by the court:
a. An initial care plan filed within sixty days of
appointment. The information in the initial care plan shall
include but not be limited to the following information:
(1) The current residence of the protected person and the
guardian’s plan for the protected person’s living arrangements.
(2) The current sources of payment for the protected
person’s living expenses and other expenses, and the guardian’s
plan for payment of the protected person’s living expenses and
other expenses.
(3) The protected person’s health status and health care
needs, and the guardian’s plan for meeting the protected
person’s needs for medical, dental, and other health care
needs.
(3A) Whether the protected person has a living will or
health care power of attorney.
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(4) If applicable, the protected person’s need for other
professional services for mental, behavioral, or emotional
health, and the guardian’s plan for other professional services
needed by the protected person.
(5) If applicable, the protected person’s employment
status, the protected person’s need for educational, training,
or vocational services, and the guardian’s plan for meeting the
educational, training, and vocational needs of the protected
person.
(6) If applicable, the guardian’s plan for facilitating the
participation of the protected person in social activities.
(7) The guardian’s plan for facilitating contacts between
the protected person and the protected person’s family members
and other significant persons significant in the life of the
protected person .
(8) The guardian’s plan for contact with, and activities on
behalf of, the protected person.
(9) The powers that the guardian requests to carry out the
initial care plan.
(10) The guardian shall file an amended plan when there
has been a significant change in the circumstances or the
guardian seeks to deviate significantly from the plan. The
guardian must obtain court approval of the amended plan before
implementing any of its provisions.
b. An annual report, filed within sixty days of the close
of the reporting period , unless the court otherwise orders on
good cause shown . The information in the annual report shall
include but not be limited to the following information:
(1) The current living arrangements of the protected
person.
(2) The sources of payment for the protected person’s living
expenses and other expenses.
(3) A description, if applicable, of the following:
(a) The protected person’s physical and mental health
status and the medical, dental, and other professional health
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services provided to the protected person.
(b) If applicable, the protected person’s employment status
and the educational, training, and vocational services provided
to the protected person.
(0c) The guardian’s facilitation of the participation of
the protected person in social activities.
(c) The contact of the protected person with family members
and other significant persons.
(d) The nature and extent of the guardian’s visits with, and
activities on behalf of, the protected person.
(04) The guardian’s changes to the care plan for the
protected person for the next annual reporting period.
(004) The powers that the guardian requests to carry out
the care plan for the protected person for the next annual
reporting period.
(4) The guardian’s recommendation as to the need for
continuation of the guardianship.
(5) The ability of the guardian to continue as guardian.
(6) The need of the guardian for assistance in providing or
arranging for the provision of the care and protection of the
protected person.
(7) Any other information the guardian deems necessary for
the court to consider.
c. A final report within thirty days of the termination
of the guardianship under section 633.675 unless that time is
extended by the court.
2. The court shall develop a simplified uniform reporting
form for use in filing the required reports.
3. The clerk of the court shall notify the guardian in
writing of the reporting requirements and shall provide
information and assistance to the guardian in filing the
reports.
4. Reports of guardians shall be reviewed and approved by a
district court judge or referee.
5. The court, for good cause, may extend the deadline for
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filing required reports. Required reports of a guardian which
are not timely filed and which are delinquent, and for which no
extension for filing has been granted by the court, shall be
administered as provided in section 633.32.
6. The guardian shall provide a copy of the reports required
by this section to the protected person, the protected person’s
attorney, if any, and the court visitor, if any.
Sec. 31. Section 633.670, Code 2021, is amended to read as
follows:
633.670 Reports by conservators.
1. A conservator shall file an a verified initial financial
management plan for protecting, managing, investing, expending,
and distributing the assets of the conservatorship estate
within ninety days after appointment which shall not be waived
by the court . The plan must be based on the needs of the
protected person and take into account the best interest of the
protected person as well as the protected person’s preference,
values, and prior directions to the extent known to, or
reasonably ascertainable by, the conservator.
a. The initial plan shall include all of the following: The
initial financial management plan shall state the protected
person’s age, residence, living arrangements, and sources of
payment for living expenses.
(1) A budget containing projected expenses and resources,
including an estimate of the total amount of fees the
conservator anticipates charging per year and a statement or
list of the amount the conservator proposes to charge for each
service the conservator anticipates providing to the protected
person.
(2) A statement as to how the conservator will involve
the protected person in decisions about management of the
conservatorship estate.
(3) If ordered by the court, any step the conservator plans
to take to develop or restore the ability of the protected
person to manage the conservatorship estate.
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(4) An estimate of the duration of the conservatorship.
b. If applicable, the protected person’s will shall be filed
with the court clerk and the protected person’s prepaid burial
trust and powers of attorney shall be described.
c. The conservator shall include a proposed budget for the
protected person and budget-related information for the next
annual reporting period including all of the following:
(1) The protected person’s receipts and income and
the projected sources of income including, if applicable,
wages, social security income, pension and retirement plan
distribution, veterans’ benefits, rental income, interest
earnings, and dividends, and the total estimated receipts and
income.
(2) The protected person’s liabilities and debts including,
if applicable, mortgage, car loans, credit card debt, federal,
state, and property taxes owed and the total estimated
liabilities and debts; a list and concise explanation of
any liability or debt owed by the protected person to the
conservator; and a list and concise explanation of the
liability of any other person for a liability of the protected
person.
(3) The protected person’s estimated expenses on a monthly
and annual basis including, if applicable, nursing home or
facility charge, real property expenses for residence, food and
household expenses, utilities, household help and caregiver
expenses, health services and health insurance expenses,
educational and vocational expenses, personal auto and other
transportation expenses, clothing expenses, personal allowance
and other personal expenses, liabilities and debts, attorney
fees and other professional expenses, conservator fees, and
other administrative expenses.
d. The conservator shall include a list of the protected
person’s assets and the conservator’s plan for management
of these assets including, if applicable, financial
accounts including checking and certificates of deposit and
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cash, investments including stocks, bonds, mutual funds,
exchange-traded funds, individual retirement accounts and other
investment accounts, pension, profit-sharing, annuities, and
retirement funds, personal property including household goods
and vehicles, receivables including mortgages and liens payable
to the protected person’s estate or trust, life insurance, and
other property.
e. The conservator shall include a statement as to how the
conservator will involve the protected person in decisions
about management of the conservatorship estate.
f. If ordered by the court, the conservator shall include
any action the conservator plans to take to develop or
restore the ability of the protected person to manage the
conservatorship estate.
g. The conservator shall include the authority that the
conservator requests to carry out the initial financial plan
including expenditures in accordance with the proposed budget
for the protected person and the plan for the management of the
assets of the protected person for the next annual reporting
period.
b. h. Within two days after filing the initial plan, the
The conservator shall give provide notice of the filing of
the initial plan with and a copy of the initial plan to the
protected person, the protected person’s attorney , if any, and
court visitor, if any, and others as directed by the court.
The notice must state that any person entitled to a copy of
the plan must file any objections to the plan not later than
fifteen days after it is filed twenty days from the date of
mailing notice of filing the initial plan .
c. i. At least twenty days after the plan has been filed,
the court shall review and determine whether the plan should
be approved or revised, after considering objections filed and
whether the plan is consistent with the conservator’s powers
and duties.
d. j. After approval by the court, the conservator shall
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provide a copy of the approved plan and order approving the
plan to the protected person, the protected person’s attorney ,
if any, and court visitor, if any, and others as directed by
the court.
e. k. The conservator shall file an amended plan when
there has been a significant change in circumstances or the
conservator seeks to deviate significantly from the plan.
Before the amended plan is implemented, the provisions for
court approval of the plan shall be followed as provided in
paragraphs “b” , “c” , and “d” the initial financial management
plan .
2. A conservator shall file attach an inventory of the
protected person’s assets within ninety days after appointment
and debts to the initial financial management plan, which
includes an oath or affirmation that the inventory is believed
to be complete and accurate as far as information permits.
Copies After approval by the court, the conservator shall
provide copies of the inventory shall be provided to the
protected person, the protected person’s attorney , if any,
and court visitor, if any, and others as directed by the
court. When the conservator receives additional property
of the protected person, or becomes aware of its existence,
a description of the property shall be included in the
conservator’s next annual report.
2A. A conservator shall attach to the initial financial
management plan an inventory of the protected person’s assets
and debts, which includes an oath or affirmation that the
inventory is believed to be complete and accurate as far as
information permits. The conservator shall provide copies of
the inventory to the protected person, the protected person’s
attorney, if any, and the court visitor, if any, and others
as directed by the court. Any objections to the inventory
shall be filed in the same manner and according to the same
schedule as objections to the initial financial management
plan. The court shall review the inventory and determine
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whether the inventory should be approved at the same time as
the court reviews the initial financial management plan. When
the conservator receives an additional asset of the protected
person or becomes aware of its existence, or becomes aware
of additional debt of the protected person, a description of
the asset or debt shall be included in the conservator’s next
annual report.
3. A conservator shall file a written and verified report on
an annual basis for the period since the end of the preceding
report period . The court which shall not waive these reports
be waived by the court .
a. These reports shall include all of the following: The
annual report shall state the age, the residence, and the
living arrangements of the protected person, and sources of
payment for the protected person’s living expenses during the
reporting period.
(1) Balance of funds on hand at the beginning and end of the
period.
(2) Disbursements made.
(3) Changes in the conservator’s plan.
(4) List of assets as of the end of the period.
(5) Bond amount and surety’s name.
(6) Residence and physical location of the protected
person.
(7) General physical and mental condition of the protected
person.
(8) Other information reflecting the condition of the
conservatorship estate.
b. These reports shall be filed: The conservator shall
submit with the annual report an inventory of the assets of the
protected person as of the last day of the reporting period the
total value of assets at the beginning and end of the reporting
period.
(1) On an annual basis within sixty days of the end of the
reporting period unless the court orders an extension for good
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cause shown in accordance with the rules of probate procedure.
c. The annual report shall include an itemization of all
income or funds received and all expenditures made by the
conservator on behalf of the protected person. If any of
the expenditures were made to provide support for or pay the
debts of another person, the annual report shall include an
explanation of these expenditures. If any of the expenditures
were made to pay any liability or debt owed by the protected
person to the conservator, the annual report shall include an
explanation of these expenditures. If any of the expenditures
were made to pay any liability or debt that is also owed by
another person or entity, the annual report shall include an
explanation of these expenditures.
d. The annual report shall include the following budget and
information related to the budget for the protected person:
(1) A description of changes, if any, made in the budget
approved by the court for the preceding reporting period.
(2) A proposed budget and budget-related information for
the next reporting period containing the information set forth
in subsection 1, paragraph “c” .
(3) A request for approval of the proposed budget and
authority to make expenditures in accordance with the proposed
budget.
e. The annual report shall include the following information
related to the management of the assets of the protected
person:
(1) A description of changes, if any, in the plan for
management of the assets of the protected person approved by
the court for the preceding reporting period.
(2) A proposed plan for management of the assets of the
protected person for the next reporting period.
(3) A request for approval of the proposed plan for
management of the assets of the protected person and the
authority to carry out the plan.
f. The conservator shall include a statement as to how the
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conservator will involve the protected person in decisions
about management of the conservatorship estate.
g. The annual report shall describe, if ordered by the
court, the actions that have been taken and that will be taken
by the conservator to develop or restore the ability of the
protected person to manage the conservatorship’s assets.
h. The conservator may request court approval of fees
provided by an attorney on behalf of the conservatorship or the
protected person during the preceding reporting period.
i. The conservator may request court approval of fees
provided the conservator on behalf of the conservatorship or
the protected person during the preceding reporting period.
4. The conservator shall file a verified final report with
the court as follows:
(2) a. Within thirty days following removal of the
conservator.
(3) b. Upon the conservator’s filing of a resignation and
before the resignation is accepted by the court.
(4) c. Within sixty days following the termination of the
conservatorship.
(5) d. At other times as ordered by the court.
c. 5. Reports required by this section The conservator
shall provide a copy of the initial financial management
plan, the inventory of the protected person’s assets, and the
annual report shall be served on to the protected person, the
protected person’s attorney , if any, and court visitor, if any,
and the veterans administration if the protected person is
receiving veterans veterans’ benefits.
6. The court, for good cause, may extend the deadline for
filing required reports. Required reports of a conservator
which are not timely filed and which are delinquent, and for
which no extension for filing has been granted by the court,
shall be administered as provided in section 633.32.
Sec. 32. Section 633.675, subsections 2, 3, and 4, Code
2021, are amended to read as follows:
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2. The court shall terminate a guardianship for an adult if
it the court finds by clear and convincing evidence that the
basis for appointing a guardian pursuant to section 633.552 has
not been established.
3. The court shall terminate a conservatorship if the court
finds by clear and convincing evidence that the basis for
appointing a conservator pursuant to section 633.553 or 633.554
is not satisfied.
4. The standard of proof and the burden of proof to be
applied in a termination proceeding to terminate a guardianship
or conservatorship for an adult shall be the same as set forth
in section 633.551, subsection 2 .
DIVISION III
CONFORMING CHANGES
Sec. 33. Section 633.3, subsections 9, 17, 22, and 23, Code
2021, are amended to read as follows:
9. Conservator —— means a person appointed by the court
to have the custody and control of the property of a ward
protected person under the provisions of this probate code.
17. Estate —— the real and personal property of either a
decedent or a ward protected person , and may also refer to the
real and personal property of a trust described in section
633.10 .
22. Guardian —— means the person appointed by the court to
have the custody of the person of the ward protected person
under the provisions of this probate code.
23. Guardian of the property —— at the election of the
person appointed by the court to have the custody and care of
the property of a ward protected person , the term “guardian of
the property” may be used, which term shall be synonymous with
the term “conservator” .
Sec. 34. Section 633.78, subsection 1, unnumbered paragraph
1, Code 2021, is amended to read as follows:
A fiduciary under this chapter may present a written request
to any person for the purpose of obtaining property owned by
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a decedent or by a ward protected person of a conservatorship
for which the fiduciary has been appointed, or property to
which a decedent or ward protected person is entitled, or
for information about such property needed to perform the
fiduciary’s duties. The request must contain statements
confirming all of the following:
Sec. 35. Section 633.78, subsection 1, paragraph b, Code
2021, is amended to read as follows:
b. The request has been signed by all fiduciaries acting on
behalf of the decedent or ward protected person .
Sec. 36. Section 633.78, subsection 4, paragraph a, Code
2021, is amended to read as follows:
a. Damages sustained by the decedent’s or ward’s protected
person’s estate.
Sec. 37. Section 633.80, Code 2021, is amended to read as
follows:
633.80 Fiduciary of a fiduciary.
A fiduciary has no authority to act in a matter wherein the
fiduciary’s decedent or ward protected person was merely a
fiduciary, except that the fiduciary shall file a report and
accounting on behalf of the decedent or ward protected person
in said matter.
Sec. 38. Section 633.93, Code 2021, is amended to read as
follows:
633.93 Limitation on actions affecting deeds.
No action for recovery of any real estate sold by any
fiduciary can be maintained by any person claiming under the
deceased, the ward protected person , or a beneficiary, unless
brought within five years after the date of the recording of
the conveyance.
Sec. 39. Section 633.112, Code 2021, is amended to read as
follows:
633.112 Discovery of property.
The court may require any person suspected of having
possession of any property, including records and documents,
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of the decedent, ward protected person , or the estate, or of
having had such property under the person’s control, to appear
and submit to an examination under oath touching such matters,
and if on such examination it appears that the person has the
wrongful possession of any such property, the court may order
the delivery thereof to the fiduciary. Such a person shall be
liable to the estate for all damages caused by the person’s
acts.
Sec. 40. Section 633.123, subsection 1, paragraph b,
subparagraph (3), Code 2021, is amended to read as follows:
(3) The needs and rights of the beneficiaries or the ward
protected person .
Sec. 41. Section 633.580, subsections 1 and 4, Code 2021,
are amended to read as follows:
1. The name, age, and last known post office address of the
proposed ward protected person .
4. A general description of the property of the proposed
ward protected person within this state and of the proposed
ward’s protected person’s right to receive property; also, the
estimated present value of the real estate, the estimated value
of the personal property, and the estimated gross annual income
of the estate. If any money is payable, or to become payable,
to the proposed ward protected person by the United States
through the United States department of veterans affairs, the
petition shall so state.
Sec. 42. Section 633.591A, Code 2021, is amended to read as
follows:
633.591A Voluntary petition for appointment of conservator
for a minor —— standby basis.
A person having physical and legal custody of a minor
may execute a verified petition for the appointment of a
standby conservator of the proposed ward’s protected person’s
property, upon the express condition that the petition shall
be acted upon by the court only upon the occurrence of an event
specified or the existence of a described condition of the
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mental or physical health of the petitioner, the occurrence
of which event, or the existence of which condition, shall be
established in the manner directed in the petition.
Sec. 43. Section 633.603, Code 2021, is amended to read as
follows:
633.603 Appointment of foreign conservators.
When there is no conservatorship, nor any application
therefor pending, in this state, the duly qualified foreign
conservator or guardian of a nonresident ward protected
person may, upon application, be appointed conservator of the
property of such person in this state; provided that a resident
conservator is appointed to serve with the foreign conservator;
and provided further, that for good cause shown, the court
may appoint the foreign conservator to act alone without the
appointment of a resident conservator.
Sec. 44. Section 633.604, Code 2021, is amended to read as
follows:
633.604 Application.
The application for appointment of a foreign conservator
or guardian as conservator in this state shall include the
name and address of the nonresident ward protected person , and
of the nonresident conservator or guardian, and the name and
address of the resident conservator to be appointed. It shall
be accompanied by a certified copy of the original letters
or other authority conferring the power upon the foreign
conservator or guardian to act as such. The application
shall also state the cause for the appointment of the foreign
conservator to act as sole conservator, if such be the case.
Sec. 45. Section 633.605, Code 2021, is amended to read as
follows:
633.605 Personal property.
A foreign conservator or guardian of a nonresident may
be authorized by the court of the county wherein such ward
protected person has personal property to receive the same upon
compliance with the provisions of sections 633.606 , 633.607 and
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633.608 .
Sec. 46. Section 633.607, Code 2021, is amended to read as
follows:
633.607 Order for delivery.
Upon the filing of the bond as above provided, and the court
being satisfied with the amount thereof, it shall order the
personal property of the ward protected person delivered to
such conservator or guardian.
Sec. 47. Section 633.633, Code 2021, is amended to read as
follows:
633.633 Provisions applicable to all fiduciaries shall
govern.
The provisions of this probate code applicable to all
fiduciaries shall govern the appointment, qualification, oath
and bond of guardians and conservators, except that a guardian
shall not be required to give bond unless the court, for good
cause, finds that the best interests of the ward protected
person require a bond. The court shall then fix the terms and
conditions of such bond.
Sec. 48. Section 633.633B, Code 2021, is amended to read as
follows:
633.633B Tort liability of guardians and conservators.
The fact that a person is a guardian or conservator shall not
in itself make the person personally liable for damages for the
acts of the ward protected person .
Sec. 49. Section 633.636, Code 2021, is amended to read as
follows:
633.636 Effect of appointment of guardian or conservator.
The appointment of a guardian or conservator shall not
constitute an adjudication that the ward protected person is of
unsound mind.
Sec. 50. Section 633.637, Code 2021, is amended to read as
follows:
633.637 Powers of ward protected person .
1. A ward protected person for whom a conservator has been
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appointed shall not have the power to convey, encumber, or
dispose of property in any manner, other than by will if the
ward protected person possesses the requisite testamentary
capacity, unless the court determines that the ward protected
person has a limited ability to handle the ward’s protected
person’s own funds. If the court makes such a finding, the
court shall specify to what extent the ward protected person
may possess and use the ward’s protected person’s own funds.
2. Any modification of the powers of the ward protected
person that would be more restrictive of the ward’s protected
person’s control over the ward’s protected person’s financial
affairs shall be based upon clear and convincing evidence
and the burden of persuasion is on the conservator. Any
modification that would be less restrictive of the ward’s
protected person’s control over the ward’s protected person’s
financial affairs shall be based upon proof in accordance with
the requirements of section 633.675 .
Sec. 51. Section 633.637A, Code 2021, is amended to read as
follows:
633.637A Rights of ward protected person under guardianship.
An adult ward protected person under a guardianship has the
right of communication, visitation, or interaction with other
persons upon the consent of the adult ward protected person ,
subject to section 633.635, subsection 2 , paragraph “i” , and
section 633.635, subsection 3 , paragraph “c” . If an adult ward
protected person is unable to give express consent to such
communication, visitation, or interaction with a person due
to a physical or mental condition, consent of an adult ward
protected person may be presumed by a guardian or a court based
on an adult ward’s protected person’s prior relationship with
such person.
Sec. 52. Section 633.638, Code 2021, is amended to read as
follows:
633.638 Presumption of fraud.
If a conservator be appointed, all contracts, transfers and
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gifts made by the ward protected person after the filing of the
petition shall be presumed to be a fraud against the rights
and interest of the ward protected person except as otherwise
directed by the court pursuant to section 633.637 .
Sec. 53. Section 633.639, Code 2021, is amended to read as
follows:
633.639 Title to ward’s protected person’s property.
The title to all property of the ward protected person is
in the ward protected person and not the conservator subject,
however, to the possession of the conservator and to the
control of the court for the purposes of administration,
sale or other disposition, under the provisions of the
law. Any real property titled at any time in the name of a
conservatorship shall be deemed to be titled in the ward’s
protected person’s name subject to the conservator’s right of
possession.
Sec. 54. Section 633.640, Code 2021, is amended to read as
follows:
633.640 Conservator’s right to possession.
Every conservator shall have a right to, and shall take,
possession of all of the real and personal property of the
ward protected person . The conservator shall pay the taxes
and collect the income therefrom until the conservatorship is
terminated. The conservator may maintain an action for the
possession of the property, and to determine the title to the
same.
Sec. 55. Section 633.643, Code 2021, is amended to read as
follows:
633.643 Disposal of will by conservator.
When an instrument purporting to be the will of the ward
protected person comes into the hands of a conservator, the
conservator shall immediately deliver it to the court.
Sec. 56. Section 633.644, Code 2021, is amended to read as
follows:
633.644 Court order to preserve testamentary intent of ward
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protected person .
Upon receiving an instrument purporting to be the will of a
living ward protected person under the provisions of section
633.643 , the court may open said will and read it. The court
with or without notice, as it may determine, may enter such
orders in the conservatorship as it deems advisable for the
proper administration of the conservatorship in light of the
expressed testamentary intent of the ward protected person .
Sec. 57. Section 633.645, Code 2021, is amended to read as
follows:
633.645 Court to deliver will to clerk.
An instrument purporting to be the will of a ward protected
person coming into the hands of the court under the provisions
of section 633.643 , shall thereafter be resealed by the court
and be deposited with the clerk to be held by said clerk as
provided in sections 633.286 through 633.289 .
Sec. 58. Section 633.653A, Code 2021, is amended to read as
follows:
633.653A Claims for cost of medical care or services.
The provision of medical care or services to a ward protected
person who is a recipient of medical assistance under chapter
249A creates a claim against the conservatorship for the amount
owed to the provider under the medical assistance program for
the care or services. The amount of the claim, after being
allowed or established as provided in this part, shall be paid
by the conservator from the assets of the conservatorship.
Sec. 59. Section 633.654, Code 2021, is amended to read as
follows:
633.654 Form and verification of claims —— general
requirements.
No claim shall be allowed against the estate of a ward
protected person upon application of the claimant unless
it shall be in writing, filed in duplicate with the clerk,
stating the claimant’s name and address, and describing the
nature and the amount thereof, if ascertainable. It shall be
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accompanied by the affidavit of the claimant, or of someone for
the claimant, that the amount is justly due, or if not due,
when it will or may become due, that no payments have been
made thereon which are not credited, and that there are no
offsets to the same, to the knowledge of the affiant, except as
therein stated. The duplicate of said claim shall be mailed
by the clerk to the conservator or the conservator’s attorney
of record; however, valid contract claims arising in the
ordinary course of the conduct of the business or affairs of
the ward protected person by the conservator may be paid by the
conservator without requiring affidavit or filing.
Sec. 60. Section 633.656, Code 2021, is amended to read as
follows:
633.656 How claim entitled.
All claims filed against the estate of the ward protected
person shall be entitled in the name of the claimant against
the conservator as such, naming the conservator, and in all
further proceedings thereon, this title shall be preserved.
Sec. 61. Section 633.660, Code 2021, is amended to read as
follows:
633.660 Execution and levy prohibited.
No execution shall issue upon, nor shall any levy be made
against, any property of the estate of a ward protected person
under any judgment against the ward protected person or a
conservator, but the provisions of this section shall not be so
construed as to prevent the enforcement of a mortgage, pledge,
or other lien upon property in an appropriate proceeding.
Sec. 62. Section 633.661, Code 2021, is amended to read as
follows:
633.661 Claims of conservators.
If the conservator is a creditor of the ward, the conservator
shall file the claim as other creditors, and the court shall
appoint some competent person as temporary conservator to
represent the ward protected person at the hearing on the
conservator’s claim. The same procedure shall be followed in
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the case of coconservators where all such conservators are
creditors of the ward protected person ; but if one of the
coconservators is not a creditor of the ward protected person ,
such disinterested conservator shall represent the ward at the
hearing on any claim against the ward protected person by a
coconservator.
Sec. 63. Section 633.662, Code 2021, is amended to read as
follows:
633.662 Claims not filed.
The conservator may pay any valid claim against the estate of
the ward protected person even though such claim has not been
filed, but all such payments made by the conservator shall be
at the conservator’s own peril.
Sec. 64. Section 633.664, Code 2021, is amended to read as
follows:
633.664 Liens not affected by failure to file claim.
Nothing in sections 633.654 and 633.658 shall affect or
prevent an action or proceeding to enforce any mortgage,
pledge, or other lien upon the property of the ward protected
person .
Sec. 65. Section 633.665, Code 2021, is amended to read as
follows:
633.665 Separate actions and claims.
1. Any action pending against the ward protected person at
the time the conservator is appointed shall also be considered
a claim filed in the conservatorship if notice of substitution
is served on the conservator as defendant and a duplicate of
the proof of service of notice of such proceeding is filed in
the conservatorship proceeding.
2. A separate action based on a debt or other liability
of the ward protected person may be commenced against the
conservator in lieu of filing a claim in the conservatorship.
Such an action shall be commenced by serving an original notice
on the conservator and filing a duplicate of the proof of
service of notice of such proceeding in the conservatorship
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proceeding. Such an action shall also be considered a claim
filed in the conservatorship. Such an action may be commenced
only in a county where the venue would have been proper if
there were no conservatorship and the action had been commenced
against the ward protected person .
Sec. 66. Section 633.667, Code 2021, is amended to read as
follows:
633.667 Payment of claims in insolvent conservatorships.
When it appears that the assets in a conservatorship are
insufficient to pay in full all the claims against such
conservatorship, the conservator shall report such matter to
the court, and the court shall, upon hearing, with notice to
all persons who have filed claims in the conservatorship, make
an order for the pro rata payment of claims giving claimants
the same priority, if any, as they would have if the ward
protected person were not under conservatorship.
Sec. 67. Section 633.668, Code 2021, is amended to read as
follows:
633.668 Conservator may make gifts.
For good cause shown and under order of court, a conservator
may make gifts on behalf of the ward protected person out of
the assets under a conservatorship to persons or religious,
educational, scientific, charitable, or other nonprofit
organizations to whom or to which such gifts were regularly
made prior to the commencement of the conservatorship, or on
a showing to the court that such gifts would benefit the ward
protected person or the ward’s protected person’s estate from
the standpoint of income, gift, estate or inheritance taxes.
The making of gifts out of the assets must not foreseeably
impair the ability to provide adequately for the best interests
of the ward protected person .
Sec. 68. Section 633.673, Code 2021, is amended to read as
follows:
633.673 Court costs in guardianships.
The ward protected person or the ward’s protected person’s
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estate shall be charged with the court costs of a ward’s
guardianship, including the guardian’s fees and the fees of the
attorney for the guardian. The court may, upon application,
enter an order waiving payment of the court costs in indigent
cases. However, if the ward protected person or ward’s
protected person’s estate becomes financially capable of paying
any waived costs, the costs shall be paid immediately.
Sec. 69. Section 633.676, Code 2021, is amended to read as
follows:
633.676 Assets exhausted.
At any time that the assets of the ward’s protected person’s
estate do not exceed the amount of the charges and claims
against it, the court may direct the conservator to proceed to
terminate the conservatorship.
Sec. 70. Section 633.677, Code 2021, is amended to read as
follows:
633.677 Accounting to ward protected person —— notice.
Upon the termination of a conservatorship, the conservator
shall pay the costs of administration and shall render a full
and complete accounting to the ward protected person or the
ward’s protected person’s personal representative and to the
court. Notice of the final report of a conservator shall be
served on the ward protected person or the ward’s protected
person’s personal representative, in accordance with section
633.40 , unless notice is waived. An order prescribing notice
may be made before or after the filing of the final report.
Sec. 71. Section 633.681, Code 2021, is amended to read as
follows:
633.681 Assets of minor ward protected person exhausted.
When the assets of a minor ward’s protected person’s
conservatorship are exhausted or consist of personal property
only of an aggregate value not in excess of twenty-five
thousand dollars, the court, upon application or upon its
own motion, may terminate the conservatorship. The order
for termination shall direct the conservator to deliver any
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property remaining after the payment of allowed claims and
expenses of administration to a custodian under any uniform
transfers to minors Act. Such delivery shall have the same
force and effect as if delivery had been made to the ward
protected person after attaining majority.
Sec. 72. Section 633.682, Code 2021, is amended to read as
follows:
633.682 Discharge of conservator and release of bond.
Upon settlement of the final accounting of a conservator,
and upon determining that the property of the ward protected
person has been delivered to the person or persons lawfully
entitled thereto, the court shall discharge the conservator and
exonerate the surety on the conservator’s bond.
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