Bill Text: IA SSB1007 | 2021-2022 | 89th General Assembly | Introduced


Bill Title: A bill for an act relating to the opening administration, and termination of adult guardianships and adult and minor conservatorships and terminology changes to the probate code.

Spectrum: Committee Bill

Status: (Introduced) 2021-01-12 - Subcommittee: Bisignano, Dawson, and Schultz. [SSB1007 Detail]

Download: Iowa-2021-SSB1007-Introduced.html
Senate Study Bill 1007 - Introduced SENATE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ZAUN) A BILL FOR An Act relating to the opening administration, and termination 1 of adult guardianships and adult and minor conservatorships 2 and terminology changes to the probate code. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 1313XC (2) 89 cm/jh
S.F. _____ DIVISION I 1 GUARDIANS AND CONSERVATORSHIPS 2 Section 1. Section 633.556, subsections 5 and 8, Code 2021, 3 are amended to read as follows: 4 5. The petition shall list the name and address, to the 5 extent known, of the following: 6 a. The name and address of the proposed guardian or 7 conservator and the reason the proposed guardian or conservator 8 should be selected. 9 b. Any spouse of the respondent. 10 c. Any adult children of the respondent. 11 d. Any parents of the respondent. 12 e. Any adult, who has had lived with or been the primary 13 care of caregiver for the respondent or with whom the 14 respondent has lived for at least six months prior to at any 15 time during the six-month period immediately preceding the 16 filing of the petition, or and any institution or facility 17 where the respondent has resided for at least six months 18 prior to at any time during the six-month period immediately 19 preceding the filing of the petition. 20 f. Any legal representative or representative payee of the 21 respondent. 22 g. Any person designated as an attorney in fact in a durable 23 power of attorney for health care which is valid under chapter 24 144B , or any person designated as an agent in a durable power 25 of attorney which is valid under chapter 633B . 26 8. The A petition for conservator shall provide a brief 27 description of the respondent’s alleged functional limitations 28 that make the respondent unable to communicate or carry out 29 important decisions concerning the respondent’s financial 30 affairs. A petition for guardian shall provide a brief 31 description of the respondent’s alleged functional limitations 32 that make the respondent unable to provide for the respondent’s 33 safety, or to provide for necessities. 34 Sec. 2. Section 633.560, subsection 3, Code 2021, is amended 35 -1- LSB 1313XC (2) 89 cm/jh 1/ 21
S.F. _____ to read as follows: 1 3. The court shall require the proposed guardian or 2 conservator to attend the hearing on the petition but the court 3 may excuse the proposed guardian’s or conservator’s attendance 4 for good cause shown. 5 Sec. 3. Section 633.562, subsections 1 and 3, Code 2021, are 6 amended to read as follows: 7 1. If the court determines that the appointment of a court 8 visitor would be in the best interest of the respondent, 9 the court shall appoint a court visitor at the expense 10 of the respondent or the respondent’s estate, or, if the 11 respondent is indigent, the cost of the court visitor shall 12 be assessed against the county in which the proceedings are 13 pending. The court may appoint any qualified person as a court 14 visitor in a guardianship or conservatorship proceeding. A 15 person is qualified to serve as court visitor if the person 16 has demonstrated sufficient knowledge of guardianships or 17 conservatorships to adequately perform the duties in subsection 18 3. 19 3. Unless otherwise enlarged or circumscribed by the court, 20 the duties of a court visitor with respect to the respondent 21 shall include all of the following: 22 a. Conducting an initial in-person interview with the 23 respondent. 24 b. Explaining to the respondent the substance of the 25 petition , and the purpose and effect of the guardianship or 26 conservatorship proceeding , the rights of the respondent at 27 the hearing, and the general powers and duties of a guardian 28 or conservator . 29 c. Determining , to the extent possible, the views of the 30 respondent regarding the proposed guardian or conservator , 31 the proposed guardian’s or conservator’s powers and duties, 32 and the scope and duration of the proposed guardianship or 33 conservatorship. 34 Sec. 4. Section 633.562, Code 2021, is amended by adding the 35 -2- LSB 1313XC (2) 89 cm/jh 2/ 21
S.F. _____ following new subsection: 1 NEW SUBSECTION . 7. A court visitor shall be discharged 2 from all further duties upon appointment of a guardian or 3 conservator, unless otherwise ordered by the court. The court 4 may order a court visitor to continue to serve if the court 5 determines continued service would be in the best interest of 6 the protected person. If the court continues the service of 7 the court visitor, the court may limit the direct duties of 8 the court visitor as the court deems necessary, in which case 9 the court visitor shall thereafter continue to serve until 10 discharged by the court. 11 Sec. 5. Section 633.563, subsection 1, Code 2021, is amended 12 by adding the following new paragraph: 13 NEW PARAGRAPH . c. The petition is for opening a 14 conservatorship for a minor. 15 Sec. 6. Section 633.564, subsections 1 and 2, Code 2021, are 16 amended to read as follows: 17 1. The court shall request criminal record checks and 18 checks of the child abuse, dependent adult abuse, and sexual 19 offender registries in this state for all proposed guardians 20 and conservators, other than financial institutions with Iowa 21 trust powers , unless a proposed guardian or conservator has 22 undergone the background checks required by this section within 23 six months prior to the filing of a petition and the background 24 checks have been provided to the court . 25 2. The court shall review the results of background checks 26 in determining the suitability of a proposed guardian or 27 conservator for appointment , and may, for good cause, share 28 with the respondent, the respondent’s attorney, the protected 29 person’s attorney, and the proposed guardian or conservator, 30 the results of background checks, unless otherwise prohibited 31 by law . 32 Sec. 7. Section 633.569, subsection 1, Code 2021, is amended 33 to read as follows: 34 1. A person authorized to file a petition under section 35 -3- LSB 1313XC (2) 89 cm/jh 3/ 21
S.F. _____ 633.552, 633.553 , or 633.554 633.556 or 633.557 may file an 1 application for the emergency appointment of a temporary 2 guardian or conservator. 3 Sec. 8. Section 633.569, subsection 3, paragraph a, Code 4 2021, is amended to read as follows: 5 a. There is not sufficient time to file a petition , serve 6 notice, and hold a hearing pursuant to section 633.552 , 7 633.553 , or 633.554 sections 633.556, 633.557, 633.558, 8 633.559, and 633.560 . 9 Sec. 9. Section 633.635, subsection 1, Code 2021, is amended 10 to read as follows: 11 1. The order by the court appointing a guardian shall state 12 the basis for the guardianship pursuant to section 633.552 13 and the date on which the first reporting period for the 14 guardianship will end . 15 Sec. 10. Section 633.669, Code 2021, is amended to read as 16 follows: 17 633.669 Reporting requirements —— assistance by clerk Reports 18 by guardians . 19 1. A guardian appointed by the court under this chapter 20 shall file with the court the following written verified 21 reports which shall not be waived by the court: 22 a. An initial care plan filed within sixty days of 23 appointment. The information in the initial care plan shall 24 include but not be limited to the following information: 25 (1) The current residence of the protected person and the 26 guardian’s plan for the protected person’s living arrangements. 27 (2) The guardian’s plan for payment of the protected 28 person’s living expenses and other expenses. 29 (3) The protected person’s health status and health care 30 needs, and the guardian’s plan for meeting the protected 31 person’s needs for medical, dental, and other health care 32 needs. 33 (4) If applicable, the guardian’s plan for the provision of 34 other professional services needed by the protected person. 35 -4- LSB 1313XC (2) 89 cm/jh 4/ 21
S.F. _____ (5) If applicable, the guardian’s plan for meeting the 1 educational, training, and vocational needs of the protected 2 person. For protected persons with conservatorships, any step 3 the guardian plans to take to develop or restore the ability of 4 the protected person to manage the conservatorship estate. 5 (6) If applicable, the guardian’s plan for facilitating the 6 participation of the protected person in social activities. 7 (7) The guardian’s plan for facilitating contacts between 8 the protected person and the protected person’s family members 9 and other persons significant persons in the life of the 10 protected person . 11 (8) The guardian’s plan for contact with, and activities on 12 behalf of, the protected person. 13 (9) An estimate of the total amount of fees the guardian 14 anticipates charging per year and a statement or list of the 15 amount the guardian proposes to charge for each service the 16 guardian anticipates providing to the protected person. 17 0b. The guardian shall file an amended plan when there has 18 been a substantial change in circumstances or the guardian 19 seeks to deviate significantly from the plan. The guardian 20 must obtain approval of the amended plan before implementing 21 any of the amended plan’s provisions. 22 b. An annual report, filed within sixty days of the close 23 of the reporting period, unless the court otherwise orders on 24 good cause shown. The information in the annual report shall 25 include but not be limited to the following information: 26 (1) The current living arrangements of the protected 27 person. 28 (2) The sources of payment for the protected person’s living 29 expenses and other expenses. 30 (3) A description, if applicable, of the following: 31 (a) The protected person’s physical and mental health 32 status and the medical, dental, and other professional services 33 provided to the protected person. 34 (b) If applicable, the protected person’s employment status 35 -5- LSB 1313XC (2) 89 cm/jh 5/ 21
S.F. _____ and the educational, training, and vocational services provided 1 to the protected person. 2 (c) The contact of the protected person with family members 3 and other significant persons. 4 (d) The nature and extent of the guardian’s visits with, and 5 activities on behalf of, the protected person. 6 (4) The guardian’s recommendation as to the need for 7 continuation of the guardianship. 8 (5) The ability of the guardian to continue as guardian. 9 (6) The need of the guardian for assistance in providing or 10 arranging for the provision of the care and protection of the 11 protected person. 12 c. A final report within thirty days of the termination 13 of the guardianship under section 633.675 unless that time is 14 extended by the court. 15 2. The court shall develop a simplified uniform reporting 16 form for use in filing the required reports. 17 3. The clerk of the court shall notify the guardian in 18 writing of the reporting requirements and shall provide 19 information and assistance to the guardian in filing the 20 reports. 21 4. Reports of guardians shall be reviewed and approved by a 22 district court judge or referee. 23 Sec. 11. Section 633.670, subsection 1, paragraph a, 24 subparagraphs (3) and (4), Code 2021, are amended by striking 25 the subparagraphs. 26 Sec. 12. Section 633.670, subsection 1, paragraphs b, c, and 27 d, Code 2021, are amended to read as follows: 28 b. Within two days after filing the initial plan, the 29 The conservator shall give provide notice of the filing of 30 the initial plan with and a copy of the initial plan to the 31 protected person, the protected person’s attorney and court 32 visitor, if any, and others as directed by the court. The 33 notice must state that any person entitled to a copy of the 34 plan must file any objections to the plan not later than 35 -6- LSB 1313XC (2) 89 cm/jh 6/ 21
S.F. _____ fifteen days after it is filed twenty days from the date of 1 mailing notice of filing the initial plan . 2 c. At least If no objections have been filed within twenty 3 days after the plan has been filed, the court shall review and 4 determine whether the plan should be approved or revised, after 5 considering objections filed and whether the plan is consistent 6 with the conservator’s powers and duties mailing notice of 7 the filing of the initial plan, the conservator shall submit 8 a proposed order to the court approving the initial plan. 9 Upon the court’s approval of the plan under this subsection, 10 the conservator shall provide a copy of the approved plan and 11 order approving the plan to the protected person, the protected 12 person’s attorney and court visitor, if any, and others as 13 directed by the court . 14 d. After approval by the court, the conservator shall 15 provide a copy of the approved plan and order approving the 16 plan to the protected person, the protected person’s attorney 17 and court visitor, if any, and others as directed by the court. 18 If any objections to the proposed plan are filed within twenty 19 days after the conservator has mailed notice of the filing of 20 the plan, the conservator shall request that the matter be set 21 for hearing and provide notice of the hearing date, time, and 22 place to the same parties who were sent copies of the initial 23 plan. Following the hearing on the conservator’s proposed 24 plan, the conservator shall provide a copy of the approved 25 plan and order approving the plan to the protected person, the 26 protected person’s attorney and court visitor, if any, and 27 others as directed by the court. 28 Sec. 13. Section 633.670, subsection 3, paragraph a, Code 29 2021, is amended by adding the following new subparagraphs: 30 NEW SUBPARAGRAPH . (7A) All amounts received from any source 31 during the period. 32 NEW SUBPARAGRAPH . (7B) Any changes in investments. 33 NEW SUBPARAGRAPH . (7C) Recommendations of the conservator 34 for retention or disposition of property. 35 -7- LSB 1313XC (2) 89 cm/jh 7/ 21
S.F. _____ Sec. 14. Section 633.670, subsection 3, paragraph b, 1 subparagraph (1), Code 2021, is amended to read as follows: 2 (1) On an annual basis within Within sixty days of the end 3 of the reporting period unless the court orders an extension 4 for good cause shown in accordance with the rules of probate 5 procedure. 6 Sec. 15. Section 633.675, subsections 2 and 3, Code 2021, 7 are amended to read as follows: 8 2. The court shall terminate a guardianship if it finds by 9 clear and convincing evidence that the basis for appointing a 10 guardian pursuant to section 633.552 has not been established. 11 3. The court shall terminate a conservatorship if the court 12 finds by clear and convincing evidence that the basis for 13 appointing a conservator pursuant to section 633.553 or 633.554 14 is not satisfied. 15 DIVISION II 16 TERMINOLOGY CHANGES 17 Sec. 16. Section 633.3, subsections 9, 17, 22, and 23, Code 18 2021, are amended to read as follows: 19 9. Conservator —— means a person appointed by the court 20 to have the custody and control of the property of a ward 21 protected person under the provisions of this probate code. 22 17. Estate —— the real and personal property of either a 23 decedent or a ward protected person , and may also refer to the 24 real and personal property of a trust described in section 25 633.10 . 26 22. Guardian —— means the person appointed by the court to 27 have the custody of the person of the ward protected person 28 under the provisions of this probate code. 29 23. Guardian of the property —— at the election of the 30 person appointed by the court to have the custody and care of 31 the property of a ward protected person , the term “guardian of 32 the property” may be used, which term shall be synonymous with 33 the term “conservator” . 34 Sec. 17. Section 633.78, subsection 1, unnumbered paragraph 35 -8- LSB 1313XC (2) 89 cm/jh 8/ 21
S.F. _____ 1, Code 2021, is amended to read as follows: 1 A fiduciary under this chapter may present a written request 2 to any person for the purpose of obtaining property owned by 3 a decedent or by a ward protected person of a conservatorship 4 for which the fiduciary has been appointed, or property to 5 which a decedent or ward protected person is entitled, or 6 for information about such property needed to perform the 7 fiduciary’s duties. The request must contain statements 8 confirming all of the following: 9 Sec. 18. Section 633.78, subsection 1, paragraph b, Code 10 2021, is amended to read as follows: 11 b. The request has been signed by all fiduciaries acting on 12 behalf of the decedent or ward protected person . 13 Sec. 19. Section 633.78, subsection 4, paragraph a, Code 14 2021, is amended to read as follows: 15 a. Damages sustained by the decedent’s or ward’s protected 16 person’s estate. 17 Sec. 20. Section 633.80, Code 2021, is amended to read as 18 follows: 19 633.80 Fiduciary of a fiduciary. 20 A fiduciary has no authority to act in a matter wherein the 21 fiduciary’s decedent or ward protected person was merely a 22 fiduciary, except that the fiduciary shall file a report and 23 accounting on behalf of the decedent or ward protected person 24 in said matter. 25 Sec. 21. Section 633.93, Code 2021, is amended to read as 26 follows: 27 633.93 Limitation on actions affecting deeds. 28 No action for recovery of any real estate sold by any 29 fiduciary can be maintained by any person claiming under the 30 deceased, the ward protected person , or a beneficiary, unless 31 brought within five years after the date of the recording of 32 the conveyance. 33 Sec. 22. Section 633.112, Code 2021, is amended to read as 34 follows: 35 -9- LSB 1313XC (2) 89 cm/jh 9/ 21
S.F. _____ 633.112 Discovery of property. 1 The court may require any person suspected of having 2 possession of any property, including records and documents, 3 of the decedent, ward protected person , or the estate, or of 4 having had such property under the person’s control, to appear 5 and submit to an examination under oath touching such matters, 6 and if on such examination it appears that the person has the 7 wrongful possession of any such property, the court may order 8 the delivery thereof to the fiduciary. Such a person shall be 9 liable to the estate for all damages caused by the person’s 10 acts. 11 Sec. 23. Section 633.123, subsection 1, paragraph b, 12 subparagraph (3), Code 2021, is amended to read as follows: 13 (3) The needs and rights of the beneficiaries or the ward 14 protected person . 15 Sec. 24. Section 633.580, subsections 1 and 4, Code 2021, 16 are amended to read as follows: 17 1. The name, age, and last known post office address of the 18 proposed ward protected person . 19 4. A general description of the property of the proposed 20 ward protected person within this state and of the proposed 21 ward’s protected person’s right to receive property; also, the 22 estimated present value of the real estate, the estimated value 23 of the personal property, and the estimated gross annual income 24 of the estate. If any money is payable, or to become payable, 25 to the proposed ward protected person by the United States 26 through the United States department of veterans affairs, the 27 petition shall so state. 28 Sec. 25. Section 633.591A, Code 2021, is amended to read as 29 follows: 30 633.591A Voluntary petition for appointment of conservator 31 for a minor —— standby basis. 32 A person having physical and legal custody of a minor 33 may execute a verified petition for the appointment of a 34 standby conservator of the proposed ward’s protected person’s 35 -10- LSB 1313XC (2) 89 cm/jh 10/ 21
S.F. _____ property, upon the express condition that the petition shall 1 be acted upon by the court only upon the occurrence of an event 2 specified or the existence of a described condition of the 3 mental or physical health of the petitioner, the occurrence 4 of which event, or the existence of which condition, shall be 5 established in the manner directed in the petition. 6 Sec. 26. Section 633.603, Code 2021, is amended to read as 7 follows: 8 633.603 Appointment of foreign conservators. 9 When there is no conservatorship, nor any application 10 therefor pending, in this state, the duly qualified foreign 11 conservator or guardian of a nonresident ward protected 12 person may, upon application, be appointed conservator of the 13 property of such person in this state; provided that a resident 14 conservator is appointed to serve with the foreign conservator; 15 and provided further, that for good cause shown, the court 16 may appoint the foreign conservator to act alone without the 17 appointment of a resident conservator. 18 Sec. 27. Section 633.604, Code 2021, is amended to read as 19 follows: 20 633.604 Application. 21 The application for appointment of a foreign conservator 22 or guardian as conservator in this state shall include the 23 name and address of the nonresident ward protected person , and 24 of the nonresident conservator or guardian, and the name and 25 address of the resident conservator to be appointed. It shall 26 be accompanied by a certified copy of the original letters 27 or other authority conferring the power upon the foreign 28 conservator or guardian to act as such. The application 29 shall also state the cause for the appointment of the foreign 30 conservator to act as sole conservator, if such be the case. 31 Sec. 28. Section 633.605, Code 2021, is amended to read as 32 follows: 33 633.605 Personal property. 34 A foreign conservator or guardian of a nonresident may 35 -11- LSB 1313XC (2) 89 cm/jh 11/ 21
S.F. _____ be authorized by the court of the county wherein such ward 1 protected person has personal property to receive the same upon 2 compliance with the provisions of sections 633.606 , 633.607 and 3 633.608 . 4 Sec. 29. Section 633.607, Code 2021, is amended to read as 5 follows: 6 633.607 Order for delivery. 7 Upon the filing of the bond as above provided, and the court 8 being satisfied with the amount thereof, it shall order the 9 personal property of the ward protected person delivered to 10 such conservator or guardian. 11 Sec. 30. Section 633.633, Code 2021, is amended to read as 12 follows: 13 633.633 Provisions applicable to all fiduciaries shall 14 govern. 15 The provisions of this probate code applicable to all 16 fiduciaries shall govern the appointment, qualification, oath 17 and bond of guardians and conservators, except that a guardian 18 shall not be required to give bond unless the court, for good 19 cause, finds that the best interests of the ward protected 20 person require a bond. The court shall then fix the terms and 21 conditions of such bond. 22 Sec. 31. Section 633.633B, Code 2021, is amended to read as 23 follows: 24 633.633B Tort liability of guardians and conservators. 25 The fact that a person is a guardian or conservator shall not 26 in itself make the person personally liable for damages for the 27 acts of the ward protected person . 28 Sec. 32. Section 633.636, Code 2021, is amended to read as 29 follows: 30 633.636 Effect of appointment of guardian or conservator. 31 The appointment of a guardian or conservator shall not 32 constitute an adjudication that the ward protected person is of 33 unsound mind. 34 Sec. 33. Section 633.637, Code 2021, is amended to read as 35 -12- LSB 1313XC (2) 89 cm/jh 12/ 21
S.F. _____ follows: 1 633.637 Powers of ward protected person . 2 1. A ward protected person for whom a conservator has been 3 appointed shall not have the power to convey, encumber, or 4 dispose of property in any manner, other than by will if the 5 ward protected person possesses the requisite testamentary 6 capacity, unless the court determines that the ward protected 7 person has a limited ability to handle the ward’s protected 8 person’s own funds. If the court makes such a finding, the 9 court shall specify to what extent the ward protected person 10 may possess and use the ward’s protected person’s own funds. 11 2. Any modification of the powers of the ward protected 12 person that would be more restrictive of the ward’s protected 13 person’s control over the ward’s protected person’s financial 14 affairs shall be based upon clear and convincing evidence 15 and the burden of persuasion is on the conservator. Any 16 modification that would be less restrictive of the ward’s 17 protected person’s control over the ward’s protected person 18 financial affairs shall be based upon proof in accordance with 19 the requirements of section 633.675 . 20 Sec. 34. Section 633.637A, Code 2021, is amended to read as 21 follows: 22 633.637A Rights of ward protected person under guardianship. 23 An adult ward protected person under a guardianship has the 24 right of communication, visitation, or interaction with other 25 persons upon the consent of the adult ward protected person , 26 subject to section 633.635, subsection 2 , paragraph “i” , and 27 section 633.635, subsection 3 , paragraph “c” . If an adult ward 28 protected person is unable to give express consent to such 29 communication, visitation, or interaction with a person due 30 to a physical or mental condition, consent of an adult ward 31 protected person may be presumed by a guardian or a court based 32 on an adult ward’s protected person’s prior relationship with 33 such person. 34 Sec. 35. Section 633.638, Code 2021, is amended to read as 35 -13- LSB 1313XC (2) 89 cm/jh 13/ 21
S.F. _____ follows: 1 633.638 Presumption of fraud. 2 If a conservator be appointed, all contracts, transfers and 3 gifts made by the ward protected person after the filing of the 4 petition shall be presumed to be a fraud against the rights 5 and interest of the ward protected person except as otherwise 6 directed by the court pursuant to section 633.637 . 7 Sec. 36. Section 633.639, Code 2021, is amended to read as 8 follows: 9 633.639 Title to ward’s protected person’s property. 10 The title to all property of the ward protected person is 11 in the ward protected person and not the conservator subject, 12 however, to the possession of the conservator and to the 13 control of the court for the purposes of administration, 14 sale or other disposition, under the provisions of the 15 law. Any real property titled at any time in the name of a 16 conservatorship shall be deemed to be titled in the ward’s 17 protected person’s name subject to the conservator’s right of 18 possession. 19 Sec. 37. Section 633.640, Code 2021, is amended to read as 20 follows: 21 633.640 Conservator’s right to possession. 22 Every conservator shall have a right to, and shall take, 23 possession of all of the real and personal property of the 24 ward protected person . The conservator shall pay the taxes 25 and collect the income therefrom until the conservatorship is 26 terminated. The conservator may maintain an action for the 27 possession of the property, and to determine the title to the 28 same. 29 Sec. 38. Section 633.643, Code 2021, is amended to read as 30 follows: 31 633.643 Disposal of will by conservator. 32 When an instrument purporting to be the will of the ward 33 protected person comes into the hands of a conservator, the 34 conservator shall immediately deliver it to the court. 35 -14- LSB 1313XC (2) 89 cm/jh 14/ 21
S.F. _____ Sec. 39. Section 633.644, Code 2021, is amended to read as 1 follows: 2 633.644 Court order to preserve testamentary intent of ward 3 protected person . 4 Upon receiving an instrument purporting to be the will of a 5 living ward protected person under the provisions of section 6 633.643 , the court may open said will and read it. The court 7 with or without notice, as it may determine, may enter such 8 orders in the conservatorship as it deems advisable for the 9 proper administration of the conservatorship in light of the 10 expressed testamentary intent of the ward protected person . 11 Sec. 40. Section 633.645, Code 2021, is amended to read as 12 follows: 13 633.645 Court to deliver will to clerk. 14 An instrument purporting to be the will of a ward protected 15 person coming into the hands of the court under the provisions 16 of section 633.643 , shall thereafter be resealed by the court 17 and be deposited with the clerk to be held by said clerk as 18 provided in sections 633.286 through 633.289 . 19 Sec. 41. Section 633.653A, Code 2021, is amended to read as 20 follows: 21 633.653A Claims for cost of medical care or services. 22 The provision of medical care or services to a ward protected 23 person who is a recipient of medical assistance under chapter 24 249A creates a claim against the conservatorship for the amount 25 owed to the provider under the medical assistance program for 26 the care or services. The amount of the claim, after being 27 allowed or established as provided in this part, shall be paid 28 by the conservator from the assets of the conservatorship. 29 Sec. 42. Section 633.654, Code 2021, is amended to read as 30 follows: 31 633.654 Form and verification of claims —— general 32 requirements. 33 No claim shall be allowed against the estate of a ward 34 protected person upon application of the claimant unless 35 -15- LSB 1313XC (2) 89 cm/jh 15/ 21
S.F. _____ it shall be in writing, filed in duplicate with the clerk, 1 stating the claimant’s name and address, and describing the 2 nature and the amount thereof, if ascertainable. It shall be 3 accompanied by the affidavit of the claimant, or of someone for 4 the claimant, that the amount is justly due, or if not due, 5 when it will or may become due, that no payments have been 6 made thereon which are not credited, and that there are no 7 offsets to the same, to the knowledge of the affiant, except as 8 therein stated. The duplicate of said claim shall be mailed 9 by the clerk to the conservator or the conservator’s attorney 10 of record; however, valid contract claims arising in the 11 ordinary course of the conduct of the business or affairs of 12 the ward protected person by the conservator may be paid by the 13 conservator without requiring affidavit or filing. 14 Sec. 43. Section 633.656, Code 2021, is amended to read as 15 follows: 16 633.656 How claim entitled. 17 All claims filed against the estate of the ward protected 18 person shall be entitled in the name of the claimant against 19 the conservator as such, naming the conservator, and in all 20 further proceedings thereon, this title shall be preserved. 21 Sec. 44. Section 633.660, Code 2021, is amended to read as 22 follows: 23 633.660 Execution and levy prohibited. 24 No execution shall issue upon, nor shall any levy be made 25 against, any property of the estate of a ward protected person 26 under any judgment against the ward protected person or a 27 conservator, but the provisions of this section shall not be so 28 construed as to prevent the enforcement of a mortgage, pledge, 29 or other lien upon property in an appropriate proceeding. 30 Sec. 45. Section 633.661, Code 2021, is amended to read as 31 follows: 32 633.661 Claims of conservators. 33 If the conservator is a creditor of the ward protected 34 person , the conservator shall file the claim as other 35 -16- LSB 1313XC (2) 89 cm/jh 16/ 21
S.F. _____ creditors, and the court shall appoint some competent person as 1 temporary conservator to represent the ward protected person 2 at the hearing on the conservator’s claim. The same procedure 3 shall be followed in the case of coconservators where all 4 such conservators are creditors of the ward protected person ; 5 but if one of the coconservators is not a creditor of the 6 ward protected person , such disinterested conservator shall 7 represent the ward protected person at the hearing on any claim 8 against the ward protected person by a coconservator. 9 Sec. 46. Section 633.662, Code 2021, is amended to read as 10 follows: 11 633.662 Claims not filed. 12 The conservator may pay any valid claim against the estate of 13 the ward protected person even though such claim has not been 14 filed, but all such payments made by the conservator shall be 15 at the conservator’s own peril. 16 Sec. 47. Section 633.664, Code 2021, is amended to read as 17 follows: 18 633.664 Liens not affected by failure to file claim. 19 Nothing in sections 633.654 and 633.658 shall affect or 20 prevent an action or proceeding to enforce any mortgage, 21 pledge, or other lien upon the property of the ward protected 22 person . 23 Sec. 48. Section 633.665, Code 2021, is amended to read as 24 follows: 25 633.665 Separate actions and claims. 26 1. Any action pending against the ward protected person at 27 the time the conservator is appointed shall also be considered 28 a claim filed in the conservatorship if notice of substitution 29 is served on the conservator as defendant and a duplicate of 30 the proof of service of notice of such proceeding is filed in 31 the conservatorship proceeding. 32 2. A separate action based on a debt or other liability 33 of the ward protected person may be commenced against the 34 conservator in lieu of filing a claim in the conservatorship. 35 -17- LSB 1313XC (2) 89 cm/jh 17/ 21
S.F. _____ Such an action shall be commenced by serving an original notice 1 on the conservator and filing a duplicate of the proof of 2 service of notice of such proceeding in the conservatorship 3 proceeding. Such an action shall also be considered a claim 4 filed in the conservatorship. Such an action may be commenced 5 only in a county where the venue would have been proper if 6 there were no conservatorship and the action had been commenced 7 against the ward protected person . 8 Sec. 49. Section 633.667, Code 2021, is amended to read as 9 follows: 10 633.667 Payment of claims in insolvent conservatorships. 11 When it appears that the assets in a conservatorship are 12 insufficient to pay in full all the claims against such 13 conservatorship, the conservator shall report such matter to 14 the court, and the court shall, upon hearing, with notice to 15 all persons who have filed claims in the conservatorship, make 16 an order for the pro rata payment of claims giving claimants 17 the same priority, if any, as they would have if the ward 18 protected person were not under conservatorship. 19 Sec. 50. Section 633.668, Code 2021, is amended to read as 20 follows: 21 633.668 Conservator may make gifts. 22 For good cause shown and under order of court, a conservator 23 may make gifts on behalf of the ward protected person out of 24 the assets under a conservatorship to persons or religious, 25 educational, scientific, charitable, or other nonprofit 26 organizations to whom or to which such gifts were regularly 27 made prior to the commencement of the conservatorship, or on 28 a showing to the court that such gifts would benefit the ward 29 protected person or the ward’s protected person estate from the 30 standpoint of income, gift, estate or inheritance taxes. The 31 making of gifts out of the assets must not foreseeably impair 32 the ability to provide adequately for the best interests of the 33 ward protected person . 34 Sec. 51. Section 633.673, Code 2021, is amended to read as 35 -18- LSB 1313XC (2) 89 cm/jh 18/ 21
S.F. _____ follows: 1 633.673 Court costs in guardianships. 2 The ward protected person or the ward’s protected person’s 3 estate shall be charged with the court costs of a ward’s 4 protected person’s guardianship, including the guardian’s fees 5 and the fees of the attorney for the guardian. The court 6 may, upon application, enter an order waiving payment of the 7 court costs in indigent cases. However, if the ward protected 8 person or ward’s protected person’s estate becomes financially 9 capable of paying any waived costs, the costs shall be paid 10 immediately. 11 Sec. 52. Section 633.676, Code 2021, is amended to read as 12 follows: 13 633.676 Assets exhausted. 14 At any time that the assets of the ward’s protected person’s 15 estate do not exceed the amount of the charges and claims 16 against it, the court may direct the conservator to proceed to 17 terminate the conservatorship. 18 Sec. 53. Section 633.677, Code 2021, is amended to read as 19 follows: 20 633.677 Accounting to ward protected person —— notice. 21 Upon the termination of a conservatorship, the conservator 22 shall pay the costs of administration and shall render a full 23 and complete accounting to the ward protected person or the 24 ward’s protected person’s personal representative and to the 25 court. Notice of the final report of a conservator shall be 26 served on the ward protected person or the ward’s protected 27 person’s personal representative, in accordance with section 28 633.40 , unless notice is waived. An order prescribing notice 29 may be made before or after the filing of the final report. 30 Sec. 54. Section 633.681, Code 2021, is amended to read as 31 follows: 32 633.681 Assets of minor ward protected person exhausted. 33 When the assets of a minor ward’s protected person’s 34 conservatorship are exhausted or consist of personal property 35 -19- LSB 1313XC (2) 89 cm/jh 19/ 21
S.F. _____ only of an aggregate value not in excess of twenty-five 1 thousand dollars, the court, upon application or upon its 2 own motion, may terminate the conservatorship. The order 3 for termination shall direct the conservator to deliver any 4 property remaining after the payment of allowed claims and 5 expenses of administration to a custodian under any uniform 6 transfers to minors Act. Such delivery shall have the same 7 force and effect as if delivery had been made to the ward 8 protected person after attaining majority. 9 Sec. 55. Section 633.682, Code 2021, is amended to read as 10 follows: 11 633.682 Discharge of conservator and release of bond. 12 Upon settlement of the final accounting of a conservator, 13 and upon determining that the property of the ward protected 14 person has been delivered to the person or persons lawfully 15 entitled thereto, the court shall discharge the conservator and 16 exonerate the surety on the conservator’s bond. 17 EXPLANATION 18 The inclusion of this explanation does not constitute agreement with 19 the explanation’s substance by the members of the general assembly. 20 This bill relates to the opening, administration, and 21 termination of adult guardianships and adult and minor 22 conservatorships, and makes terminology changes to the probate 23 code. 24 The bill provides that notice of a guardianship proceeding 25 must be given to any adult with whom the minor has lived with 26 for the six months immediately preceding the filing of the 27 petition. 28 The bill provides qualifications for a person to serve as a 29 court visitor. 30 The bill provides that a court visitor will be discharged 31 upon the appointment of a guardian or conservator unless 32 ordered by the court to continue. 33 The bill specifies that a court-ordered professional 34 evaluation conducted at or before a hearing on a petition for 35 -20- LSB 1313XC (2) 89 cm/jh 20/ 21
S.F. _____ the appointment of a guardian or conservator for a minor must 1 be filed with the court. 2 The bill provides that if the proposed guardian has 3 undergone the required background checks within six months 4 prior to the filing of the petition and the background checks 5 have been provided to the court, the proposed guardian does 6 not need to undergo a new background check. The bill further 7 provides that the results of the background checks may be 8 shared with the respondent, respondent’s attorney, the 9 protected person’s attorney, and the proposed guardian or 10 conservator. 11 The bill changes Code references regarding the emergency 12 appointment of a temporary guardian or conservator. 13 The bill also directs that the initial verified care plan 14 includes any steps the guardian plans to take to develop 15 or restore the protected person’s ability to manage the 16 conservatorship estate, estimate of the total amount of fees 17 the guardian anticipates charging, and instructs the guardian 18 to file an amended plan should there be a substantial change 19 in circumstances. 20 The bill provides instructions to the conservator to provide 21 notice of the filing of the initial plan and the timeline for 22 objections. 23 The bill further provides for new disclosures that written 24 and verified reports must include. 25 The bill changes the standard of proof needed to be found 26 by the court concerning termination of guardianships and 27 conservatorships from clear and convincing evidence to a 28 preponderance of the evidence. 29 The bill replaces the term “ward” with “protected person” 30 throughout the probate code. 31 -21- LSB 1313XC (2) 89 cm/jh 21/ 21
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