Bill Text: IA SSB1035 | 2021-2022 | 89th General Assembly | Introduced


Bill Title: A bill for an act relating to the creation, administration, and termination of minor and adult guardianships and conservatorships.

Spectrum: Committee Bill

Status: (Introduced) 2021-01-13 - Subcommittee: Dawson, Bisignano, and Whiting. [SSB1035 Detail]

Download: Iowa-2021-SSB1035-Introduced.html
Senate Study Bill 1035 - Introduced SENATE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ZAUN) A BILL FOR An Act relating to the creation, administration, and 1 termination of minor and adult guardianships and 2 conservatorships. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 1338XC (3) 89 cm/jh
S.F. _____ DIVISION I 1 MINOR GUARDIANSHIPS 2 Section 1. Section 232D.301, subsection 2, paragraph d, 3 subparagraph (3), Code 2021, is amended to read as follows: 4 (3) Any adult who has had the primary care of the minor or 5 with whom the minor has lived for at least any time during the 6 six months prior to immediately preceding the filing of the 7 petition. 8 Sec. 2. Section 232D.301, subsection 4, Code 2021, is 9 amended to read as follows: 10 4. The petition shall state whether a limited guardianship 11 is appropriate , and whether a conservatorship for the minor 12 already exists . 13 Sec. 3. Section 232D.302, subsection 2, Code 2021, is 14 amended to read as follows: 15 2. Notice shall be served upon the minor’s known parents 16 listed in the petition in accordance with the rules of civil 17 procedure. If the parent has not filed a consent to the 18 appointment of a guardian, the notice shall inform any parent 19 named in the petition that the parent may be entitled to an 20 attorney under the conditions described in section 232D.304. 21 Sec. 4. Section 232D.305, subsection 1, Code 2021, is 22 amended to read as follows: 23 1. The court may appoint a court visitor for the minor. A 24 person is qualified to serve as a court visitor if the person 25 has demonstrated sufficient knowledge of guardianships to 26 adequately perform the duties in subsection 3. 27 Sec. 5. Section 232D.305, subsection 3, paragraph b, Code 28 2021, is amended to read as follows: 29 b. Explaining Providing to the minor, if the minor’s age 30 is appropriate, the substance of the petition, the purpose and 31 effect of the guardianship proceeding, information regarding 32 the rights of the minor at the hearing, and the general powers 33 and duties of a guardian. 34 Sec. 6. Section 232D.305, Code 2021, is amended by adding 35 -1- LSB 1338XC (3) 89 cm/jh 1/ 20
S.F. _____ the following new subsection: 1 NEW SUBSECTION . 6. The court may order a court visitor to 2 continue to serve if the court determines continued service 3 would be in the best interest of the minor. If the court 4 continues the service of the court visitor, the court may limit 5 the direct duties of the court visitor as the court deems 6 necessary, in which case the court visitor shall thereafter 7 continue to serve until discharged by the court. In the 8 event the court does not order the court visitor to continue, 9 the order appointing the guardian shall discharge the court 10 visitor. 11 Sec. 7. Section 232D.307, subsections 1 and 2, Code 2021, 12 are amended to read as follows: 13 1. The court shall request criminal record checks and checks 14 of the child abuse, dependent adult abuse, and sex offender 15 registries in this state for all proposed guardians other than 16 financial institutions with Iowa trust powers unless a proposed 17 guardian has undergone the required background checks in this 18 section within the twelve six months prior to the filing of a 19 petition and the background checks have been provided to the 20 court . 21 2. The court shall review the results of background checks 22 in determining the suitability of a proposed guardian for 23 appointment , and may, for good cause, share the results of the 24 background check with the proposed guardian . 25 Sec. 8. Section 232D.401, subsections 1 and 3, Code 2021, 26 are amended to read as follows: 27 1. The order by the court appointing a guardian for a minor 28 shall state the basis for the order and the date on which the 29 first reporting period for the guardianship will end . 30 3. An order by the court appointing a guardian for a minor 31 shall state the powers granted to the guardian. Except as 32 otherwise limited by court order, the court may grant the 33 guardian the following powers, which may be exercised without 34 prior further court approval: 35 -2- LSB 1338XC (3) 89 cm/jh 2/ 20
S.F. _____ a. Taking custody of the minor and establishing the minor’s 1 permanent residence if otherwise consistent with the terms of 2 any order of competent jurisdiction relating to the custody, 3 placement, detention, or commitment of the minor within the 4 state. 5 b. Consenting to medical, dental, and other health care 6 treatment and services for the minor. 7 c. Providing or arranging for the provision of education 8 for the minor including but not limited to preschool education, 9 primary education and secondary education, special education 10 and related services, and vocational services. 11 d. Consenting to professional services for the minor to 12 ensure the safety and welfare of the minor. 13 e. Applying for and receiving funds and benefits payable 14 for the support of the minor if the minor does not have a 15 conservator . If the minor has a conservator, the guardian 16 shall notify the conservator at least ten days before applying 17 for funds or benefits for the support of the minor. 18 f. Any other powers the court may specify. 19 Sec. 9. Section 232D.501, subsection 1, paragraph a, Code 20 2021, is amended by adding the following new subparagraph: 21 NEW SUBPARAGRAPH . (2A) The guardian’s plan, if any, for 22 applying for and receiving funds and benefits payable for the 23 support of the minor. 24 Sec. 10. Section 232D.501, subsection 1, paragraph b, Code 25 2021, is amended by adding the following new subparagraph: 26 NEW SUBPARAGRAPH . (11) The results of the guardian’s 27 efforts to apply for funds or benefits for the minor, and 28 an accounting for the use of such funds or benefits by the 29 guardian. 30 Sec. 11. Section 232D.503, Code 2021, is amended by adding 31 the following new subsection: 32 NEW SUBSECTION . 6. If the court orders termination of a 33 guardianship established under this chapter and the guardian 34 has custody of the minor’s assets, the court shall order 35 -3- LSB 1338XC (3) 89 cm/jh 3/ 20
S.F. _____ delivery of the minor’s assets to the minor or a fiduciary 1 acting under one or more of the following accounts: 2 a. A uniform transfer to minors Act account established for 3 the minor pursuant to chapter 565B or other state law. 4 b. An educational savings plan trust account established for 5 the minor pursuant to section 529 of the Internal Revenue Code 6 or chapter 12D. 7 c. An ABLE savings plan trust account established for the 8 minor pursuant to section 529A of the Internal Revenue Code or 9 chapter 12I. 10 DIVISION II 11 ADULT GUARDIANSHIPS AND CONSERVATORSHIPS 12 Sec. 12. Section 633.556, subsection 5, paragraph a, Code 13 2021, is amended to read as follows: 14 a. The name and address of the proposed guardian or 15 conservator and the reason the proposed guardian or conservator 16 should be selected. 17 Sec. 13. Section 633.556, subsection 8, Code 2021, is 18 amended to read as follows: 19 8. The A petition for conservator shall provide a brief 20 description of the respondent’s alleged functional limitations 21 that make the respondent unable to communicate or carry out 22 important decisions concerning the respondent’s financial 23 affairs. A petition for guardian shall provide a brief 24 description of the respondent’s alleged functional limitations 25 that make the respondent unable to provide for the respondent’s 26 safety, or to provide for necessities. 27 Sec. 14. Section 633.562, subsections 1 and 3, Code 2021, 28 are amended to read as follows: 29 1. If the court determines that the appointment of a court 30 visitor would be in the best interest of the respondent, 31 the court shall appoint a court visitor at the expense 32 of the respondent or the respondent’s estate, or, if the 33 respondent is indigent, the cost of the court visitor shall 34 be assessed against the county in which the proceedings are 35 -4- LSB 1338XC (3) 89 cm/jh 4/ 20
S.F. _____ pending. The court may appoint any qualified person as a court 1 visitor in a guardianship or conservatorship proceeding. A 2 person is qualified to serve in this capacity if the person 3 has demonstrated sufficient knowledge of guardianships or 4 conservatorships to adequately perform the duties in subsection 5 3. 6 3. Unless otherwise enlarged or circumscribed by the court, 7 the duties of a court visitor with respect to the respondent 8 shall include all of the following: 9 a. Conducting an initial in-person interview with the 10 respondent. 11 b. Explaining to the respondent the substance of the 12 petition , and the purpose and effect of the guardianship or 13 conservatorship proceeding , the rights of the respondent at 14 the hearing, and the general powers and duties of a guardian 15 or conservator . 16 c. Determining , to the extent possible, the views of the 17 respondent regarding the proposed guardian or conservator, 18 the proposed guardian’s or conservator’s powers and duties, 19 and the scope and duration of the proposed guardianship or 20 conservatorship. 21 Sec. 15. Section 633.562, Code 2021, is amended by adding 22 the following new subsection: 23 NEW SUBSECTION . 7. A court visitor shall be discharged 24 from all further duties upon appointment of a guardian or 25 conservator, unless otherwise ordered by the court. The court 26 may order a court visitor to continue to serve if the court 27 determines continued service would be in the best interest of 28 the protected person. If the court continues the service of 29 the court visitor, the court may limit the direct duties of 30 the court visitor as the court deems necessary, in which case 31 the court visitor shall thereafter continue to serve until 32 discharged by the court. 33 Sec. 16. Section 633.641, subsection 3, Code 2021, is 34 amended to read as follows: 35 -5- LSB 1338XC (3) 89 cm/jh 5/ 20
S.F. _____ 3. If a protected person has executed a valid power of 1 attorney under chapter 633B , the conservator shall act in 2 accordance with the applicable power of attorney provisions 3 of chapter 633B and the valid power of attorney controls the 4 conservator’s powers and duties . 5 Sec. 17. Section 633.669, subsection 1, Code 2021, is 6 amended by adding the following new paragraph: 7 NEW PARAGRAPH . 0b. The guardian shall file an amended plan 8 when there has been a substantial change in circumstances or 9 the guardian seeks to deviate significantly from the plan. 10 The guardian must obtain approval of the amended plan before 11 implementing any of its provisions. 12 Sec. 18. Section 633.670, subsection 1, paragraph b, Code 13 2021, is amended to read as follows: 14 b. Within two days after filing the initial plan, the The 15 conservator shall give notice of the filing of the initial plan 16 with a copy of the plan to the protected person, the protected 17 person’s attorney and court visitor, if any, and others as 18 directed by the court. The notice must state that any person 19 entitled to a copy of the plan must file any objections to the 20 plan not later than fifteen twenty days after it is filed. 21 Sec. 19. Section 633.675, subsections 2 and 3, Code 2021, 22 are amended to read as follows: 23 2. The court shall terminate a guardianship if it finds by 24 clear and convincing evidence that the basis for appointing a 25 guardian pursuant to section 633.552 has not been established. 26 3. The court shall terminate a conservatorship if the court 27 finds by clear and convincing evidence that the basis for 28 appointing a conservator pursuant to section 633.553 or 633.554 29 is not satisfied. 30 Sec. 20. REPEAL. Section 633.71, Code 2021, is repealed. 31 DIVISION III 32 CONFORMING CHANGES 33 Sec. 21. Section 633.3, subsections 9, 17, 22, and 23, Code 34 2021, are amended to read as follows: 35 -6- LSB 1338XC (3) 89 cm/jh 6/ 20
S.F. _____ 9. Conservator —— means a person appointed by the court 1 to have the custody and control of the property of a ward 2 protected person under the provisions of this probate code. 3 17. Estate —— the real and personal property of either a 4 decedent or a ward protected person , and may also refer to the 5 real and personal property of a trust described in section 6 633.10 . 7 22. Guardian —— means the person appointed by the court to 8 have the custody of the person of the ward protected person 9 under the provisions of this probate code. 10 23. Guardian of the property —— at the election of the 11 person appointed by the court to have the custody and care of 12 the property of a ward protected person , the term “guardian of 13 the property” may be used, which term shall be synonymous with 14 the term “conservator” . 15 Sec. 22. Section 633.78, subsection 1, unnumbered paragraph 16 1, Code 2021, is amended to read as follows: 17 A fiduciary under this chapter may present a written request 18 to any person for the purpose of obtaining property owned by 19 a decedent or by a ward protected person of a conservatorship 20 for which the fiduciary has been appointed, or property to 21 which a decedent or ward protected person is entitled, or 22 for information about such property needed to perform the 23 fiduciary’s duties. The request must contain statements 24 confirming all of the following: 25 Sec. 23. Section 633.78, subsection 1, paragraph b, Code 26 2021, is amended to read as follows: 27 b. The request has been signed by all fiduciaries acting on 28 behalf of the decedent or ward protected person . 29 Sec. 24. Section 633.78, subsection 4, paragraph a, Code 30 2021, is amended to read as follows: 31 a. Damages sustained by the decedent’s or ward’s protected 32 person’s estate. 33 Sec. 25. Section 633.80, Code 2021, is amended to read as 34 follows: 35 -7- LSB 1338XC (3) 89 cm/jh 7/ 20
S.F. _____ 633.80 Fiduciary of a fiduciary. 1 A fiduciary has no authority to act in a matter wherein the 2 fiduciary’s decedent or ward protected person was merely a 3 fiduciary, except that the fiduciary shall file a report and 4 accounting on behalf of the decedent or ward protected person 5 in said matter. 6 Sec. 26. Section 633.93, Code 2021, is amended to read as 7 follows: 8 633.93 Limitation on actions affecting deeds. 9 No action for recovery of any real estate sold by any 10 fiduciary can be maintained by any person claiming under the 11 deceased, the ward protected person , or a beneficiary, unless 12 brought within five years after the date of the recording of 13 the conveyance. 14 Sec. 27. Section 633.112, Code 2021, is amended to read as 15 follows: 16 633.112 Discovery of property. 17 The court may require any person suspected of having 18 possession of any property, including records and documents, 19 of the decedent, ward protected person , or the estate, or of 20 having had such property under the person’s control, to appear 21 and submit to an examination under oath touching such matters, 22 and if on such examination it appears that the person has the 23 wrongful possession of any such property, the court may order 24 the delivery thereof to the fiduciary. Such a person shall be 25 liable to the estate for all damages caused by the person’s 26 acts. 27 Sec. 28. Section 633.123, subsection 1, paragraph b, 28 subparagraph (3), Code 2021, is amended to read as follows: 29 (3) The needs and rights of the beneficiaries or the ward 30 protected person . 31 Sec. 29. Section 633.580, subsections 1 and 4, Code 2021, 32 are amended to read as follows: 33 1. The name, age, and last known post office address of the 34 proposed ward protected person . 35 -8- LSB 1338XC (3) 89 cm/jh 8/ 20
S.F. _____ 4. A general description of the property of the proposed 1 ward protected person within this state and of the proposed 2 ward’s protected person’s right to receive property; also, the 3 estimated present value of the real estate, the estimated value 4 of the personal property, and the estimated gross annual income 5 of the estate. If any money is payable, or to become payable, 6 to the proposed ward protected person by the United States 7 through the United States department of veterans affairs, the 8 petition shall so state. 9 Sec. 30. Section 633.591A, Code 2021, is amended to read as 10 follows: 11 633.591A Voluntary petition for appointment of conservator 12 for a minor —— standby basis. 13 A person having physical and legal custody of a minor 14 may execute a verified petition for the appointment of a 15 standby conservator of the proposed ward’s protected person’s 16 property, upon the express condition that the petition shall 17 be acted upon by the court only upon the occurrence of an event 18 specified or the existence of a described condition of the 19 mental or physical health of the petitioner, the occurrence 20 of which event, or the existence of which condition, shall be 21 established in the manner directed in the petition. 22 Sec. 31. Section 633.603, Code 2021, is amended to read as 23 follows: 24 633.603 Appointment of foreign conservators. 25 When there is no conservatorship, nor any application 26 therefor pending, in this state, the duly qualified foreign 27 conservator or guardian of a nonresident ward protected 28 person may, upon application, be appointed conservator of the 29 property of such person in this state; provided that a resident 30 conservator is appointed to serve with the foreign conservator; 31 and provided further, that for good cause shown, the court 32 may appoint the foreign conservator to act alone without the 33 appointment of a resident conservator. 34 Sec. 32. Section 633.604, Code 2021, is amended to read as 35 -9- LSB 1338XC (3) 89 cm/jh 9/ 20
S.F. _____ follows: 1 633.604 Application. 2 The application for appointment of a foreign conservator 3 or guardian as conservator in this state shall include the 4 name and address of the nonresident ward protected person , and 5 of the nonresident conservator or guardian, and the name and 6 address of the resident conservator to be appointed. It shall 7 be accompanied by a certified copy of the original letters 8 or other authority conferring the power upon the foreign 9 conservator or guardian to act as such. The application 10 shall also state the cause for the appointment of the foreign 11 conservator to act as sole conservator, if such be the case. 12 Sec. 33. Section 633.605, Code 2021, is amended to read as 13 follows: 14 633.605 Personal property. 15 A foreign conservator or guardian of a nonresident may 16 be authorized by the court of the county wherein such ward 17 protected person has personal property to receive the same upon 18 compliance with the provisions of sections 633.606 , 633.607 and 19 633.608 . 20 Sec. 34. Section 633.607, Code 2021, is amended to read as 21 follows: 22 633.607 Order for delivery. 23 Upon the filing of the bond as above provided, and the court 24 being satisfied with the amount thereof, it shall order the 25 personal property of the ward protected person delivered to 26 such conservator or guardian. 27 Sec. 35. Section 633.633, Code 2021, is amended to read as 28 follows: 29 633.633 Provisions applicable to all fiduciaries shall 30 govern. 31 The provisions of this probate code applicable to all 32 fiduciaries shall govern the appointment, qualification, oath 33 and bond of guardians and conservators, except that a guardian 34 shall not be required to give bond unless the court, for good 35 -10- LSB 1338XC (3) 89 cm/jh 10/ 20
S.F. _____ cause, finds that the best interests of the ward protected 1 person require a bond. The court shall then fix the terms and 2 conditions of such bond. 3 Sec. 36. Section 633.633B, Code 2021, is amended to read as 4 follows: 5 633.633B Tort liability of guardians and conservators. 6 The fact that a person is a guardian or conservator shall not 7 in itself make the person personally liable for damages for the 8 acts of the ward protected person . 9 Sec. 37. Section 633.636, Code 2021, is amended to read as 10 follows: 11 633.636 Effect of appointment of guardian or conservator. 12 The appointment of a guardian or conservator shall not 13 constitute an adjudication that the ward protected person is of 14 unsound mind. 15 Sec. 38. Section 633.637, Code 2021, is amended to read as 16 follows: 17 633.637 Powers of ward protected person . 18 1. A ward protected person for whom a conservator has been 19 appointed shall not have the power to convey, encumber, or 20 dispose of property in any manner, other than by will if the 21 ward protected person possesses the requisite testamentary 22 capacity, unless the court determines that the ward protected 23 person has a limited ability to handle the ward’s protected 24 person’s own funds. If the court makes such a finding, the 25 court shall specify to what extent the ward protected person 26 may possess and use the ward’s protected person’s own funds. 27 2. Any modification of the powers of the ward protected 28 person that would be more restrictive of the ward’s protected 29 person’s control over the ward’s protected person’s financial 30 affairs shall be based upon clear and convincing evidence 31 and the burden of persuasion is on the conservator. Any 32 modification that would be less restrictive of the ward’s 33 protected person’s control over the ward’s protected person 34 financial affairs shall be based upon proof in accordance with 35 -11- LSB 1338XC (3) 89 cm/jh 11/ 20
S.F. _____ the requirements of section 633.675 . 1 Sec. 39. Section 633.637A, Code 2021, is amended to read as 2 follows: 3 633.637A Rights of ward protected person under guardianship. 4 An adult ward protected person under a guardianship has the 5 right of communication, visitation, or interaction with other 6 persons upon the consent of the adult ward protected person , 7 subject to section 633.635, subsection 2 , paragraph “i” , and 8 section 633.635, subsection 3 , paragraph “c” . If an adult ward 9 protected person is unable to give express consent to such 10 communication, visitation, or interaction with a person due 11 to a physical or mental condition, consent of an adult ward 12 protected person may be presumed by a guardian or a court based 13 on an adult ward’s protected person’s prior relationship with 14 such person. 15 Sec. 40. Section 633.638, Code 2021, is amended to read as 16 follows: 17 633.638 Presumption of fraud. 18 If a conservator be appointed, all contracts, transfers and 19 gifts made by the ward protected person after the filing of the 20 petition shall be presumed to be a fraud against the rights 21 and interest of the ward protected person except as otherwise 22 directed by the court pursuant to section 633.637 . 23 Sec. 41. Section 633.639, Code 2021, is amended to read as 24 follows: 25 633.639 Title to ward’s protected person’s property. 26 The title to all property of the ward protected person is 27 in the ward protected person and not the conservator subject, 28 however, to the possession of the conservator and to the 29 control of the court for the purposes of administration, 30 sale or other disposition, under the provisions of the 31 law. Any real property titled at any time in the name of a 32 conservatorship shall be deemed to be titled in the ward’s 33 protected person’s name subject to the conservator’s right of 34 possession. 35 -12- LSB 1338XC (3) 89 cm/jh 12/ 20
S.F. _____ Sec. 42. Section 633.640, Code 2021, is amended to read as 1 follows: 2 633.640 Conservator’s right to possession. 3 Every conservator shall have a right to, and shall take, 4 possession of all of the real and personal property of the 5 ward protected person . The conservator shall pay the taxes 6 and collect the income therefrom until the conservatorship is 7 terminated. The conservator may maintain an action for the 8 possession of the property, and to determine the title to the 9 same. 10 Sec. 43. Section 633.643, Code 2021, is amended to read as 11 follows: 12 633.643 Disposal of will by conservator. 13 When an instrument purporting to be the will of the ward 14 protected person comes into the hands of a conservator, the 15 conservator shall immediately deliver it to the court. 16 Sec. 44. Section 633.644, Code 2021, is amended to read as 17 follows: 18 633.644 Court order to preserve testamentary intent of ward 19 protected person . 20 Upon receiving an instrument purporting to be the will of a 21 living ward protected person under the provisions of section 22 633.643 , the court may open said will and read it. The court 23 with or without notice, as it may determine, may enter such 24 orders in the conservatorship as it deems advisable for the 25 proper administration of the conservatorship in light of the 26 expressed testamentary intent of the ward protected person . 27 Sec. 45. Section 633.645, Code 2021, is amended to read as 28 follows: 29 633.645 Court to deliver will to clerk. 30 An instrument purporting to be the will of a ward protected 31 person coming into the hands of the court under the provisions 32 of section 633.643 , shall thereafter be resealed by the court 33 and be deposited with the clerk to be held by said clerk as 34 provided in sections 633.286 through 633.289 . 35 -13- LSB 1338XC (3) 89 cm/jh 13/ 20
S.F. _____ Sec. 46. Section 633.653A, Code 2021, is amended to read as 1 follows: 2 633.653A Claims for cost of medical care or services. 3 The provision of medical care or services to a ward protected 4 person who is a recipient of medical assistance under chapter 5 249A creates a claim against the conservatorship for the amount 6 owed to the provider under the medical assistance program for 7 the care or services. The amount of the claim, after being 8 allowed or established as provided in this part, shall be paid 9 by the conservator from the assets of the conservatorship. 10 Sec. 47. Section 633.654, Code 2021, is amended to read as 11 follows: 12 633.654 Form and verification of claims —— general 13 requirements. 14 No claim shall be allowed against the estate of a ward 15 protected person upon application of the claimant unless 16 it shall be in writing, filed in duplicate with the clerk, 17 stating the claimant’s name and address, and describing the 18 nature and the amount thereof, if ascertainable. It shall be 19 accompanied by the affidavit of the claimant, or of someone for 20 the claimant, that the amount is justly due, or if not due, 21 when it will or may become due, that no payments have been 22 made thereon which are not credited, and that there are no 23 offsets to the same, to the knowledge of the affiant, except as 24 therein stated. The duplicate of said claim shall be mailed 25 by the clerk to the conservator or the conservator’s attorney 26 of record; however, valid contract claims arising in the 27 ordinary course of the conduct of the business or affairs of 28 the ward protected person by the conservator may be paid by the 29 conservator without requiring affidavit or filing. 30 Sec. 48. Section 633.656, Code 2021, is amended to read as 31 follows: 32 633.656 How claim entitled. 33 All claims filed against the estate of the ward protected 34 person shall be entitled in the name of the claimant against 35 -14- LSB 1338XC (3) 89 cm/jh 14/ 20
S.F. _____ the conservator as such, naming the conservator, and in all 1 further proceedings thereon, this title shall be preserved. 2 Sec. 49. Section 633.660, Code 2021, is amended to read as 3 follows: 4 633.660 Execution and levy prohibited. 5 No execution shall issue upon, nor shall any levy be made 6 against, any property of the estate of a ward protected person 7 under any judgment against the ward protected person or a 8 conservator, but the provisions of this section shall not be so 9 construed as to prevent the enforcement of a mortgage, pledge, 10 or other lien upon property in an appropriate proceeding. 11 Sec. 50. Section 633.661, Code 2021, is amended to read as 12 follows: 13 633.661 Claims of conservators. 14 If the conservator is a creditor of the ward protected 15 person , the conservator shall file the claim as other 16 creditors, and the court shall appoint some competent person as 17 temporary conservator to represent the ward protected person 18 at the hearing on the conservator’s claim. The same procedure 19 shall be followed in the case of coconservators where all 20 such conservators are creditors of the ward protected person ; 21 but if one of the coconservators is not a creditor of the 22 ward protected person , such disinterested conservator shall 23 represent the ward protected person at the hearing on any claim 24 against the ward protected person by a coconservator. 25 Sec. 51. Section 633.662, Code 2021, is amended to read as 26 follows: 27 633.662 Claims not filed. 28 The conservator may pay any valid claim against the estate of 29 the ward protected person even though such claim has not been 30 filed, but all such payments made by the conservator shall be 31 at the conservator’s own peril. 32 Sec. 52. Section 633.664, Code 2021, is amended to read as 33 follows: 34 633.664 Liens not affected by failure to file claim. 35 -15- LSB 1338XC (3) 89 cm/jh 15/ 20
S.F. _____ Nothing in sections 633.654 and 633.658 shall affect or 1 prevent an action or proceeding to enforce any mortgage, 2 pledge, or other lien upon the property of the ward protected 3 person . 4 Sec. 53. Section 633.665, Code 2021, is amended to read as 5 follows: 6 633.665 Separate actions and claims. 7 1. Any action pending against the ward protected person at 8 the time the conservator is appointed shall also be considered 9 a claim filed in the conservatorship if notice of substitution 10 is served on the conservator as defendant and a duplicate of 11 the proof of service of notice of such proceeding is filed in 12 the conservatorship proceeding. 13 2. A separate action based on a debt or other liability 14 of the ward protected person may be commenced against the 15 conservator in lieu of filing a claim in the conservatorship. 16 Such an action shall be commenced by serving an original notice 17 on the conservator and filing a duplicate of the proof of 18 service of notice of such proceeding in the conservatorship 19 proceeding. Such an action shall also be considered a claim 20 filed in the conservatorship. Such an action may be commenced 21 only in a county where the venue would have been proper if 22 there were no conservatorship and the action had been commenced 23 against the ward protected person . 24 Sec. 54. Section 633.667, Code 2021, is amended to read as 25 follows: 26 633.667 Payment of claims in insolvent conservatorships. 27 When it appears that the assets in a conservatorship are 28 insufficient to pay in full all the claims against such 29 conservatorship, the conservator shall report such matter to 30 the court, and the court shall, upon hearing, with notice to 31 all persons who have filed claims in the conservatorship, make 32 an order for the pro rata payment of claims giving claimants 33 the same priority, if any, as they would have if the ward 34 protected person were not under conservatorship. 35 -16- LSB 1338XC (3) 89 cm/jh 16/ 20
S.F. _____ Sec. 55. Section 633.668, Code 2021, is amended to read as 1 follows: 2 633.668 Conservator may make gifts. 3 For good cause shown and under order of court, a conservator 4 may make gifts on behalf of the ward protected person out of 5 the assets under a conservatorship to persons or religious, 6 educational, scientific, charitable, or other nonprofit 7 organizations to whom or to which such gifts were regularly 8 made prior to the commencement of the conservatorship, or on 9 a showing to the court that such gifts would benefit the ward 10 protected person or the ward’s protected person estate from the 11 standpoint of income, gift, estate or inheritance taxes. The 12 making of gifts out of the assets must not foreseeably impair 13 the ability to provide adequately for the best interests of the 14 ward protected person . 15 Sec. 56. Section 633.673, Code 2021, is amended to read as 16 follows: 17 633.673 Court costs in guardianships. 18 The ward protected person or the ward’s protected person’s 19 estate shall be charged with the court costs of a ward’s 20 protected person’s guardianship, including the guardian’s fees 21 and the fees of the attorney for the guardian. The court 22 may, upon application, enter an order waiving payment of the 23 court costs in indigent cases. However, if the ward protected 24 person or ward’s protected person’s estate becomes financially 25 capable of paying any waived costs, the costs shall be paid 26 immediately. 27 Sec. 57. Section 633.676, Code 2021, is amended to read as 28 follows: 29 633.676 Assets exhausted. 30 At any time that the assets of the ward’s protected person’s 31 estate do not exceed the amount of the charges and claims 32 against it, the court may direct the conservator to proceed to 33 terminate the conservatorship. 34 Sec. 58. Section 633.677, Code 2021, is amended to read as 35 -17- LSB 1338XC (3) 89 cm/jh 17/ 20
S.F. _____ follows: 1 633.677 Accounting to ward protected person —— notice. 2 Upon the termination of a conservatorship, the conservator 3 shall pay the costs of administration and shall render a full 4 and complete accounting to the ward protected person or the 5 ward’s protected person’s personal representative and to the 6 court. Notice of the final report of a conservator shall be 7 served on the ward protected person or the ward’s protected 8 person’s personal representative, in accordance with section 9 633.40 , unless notice is waived. An order prescribing notice 10 may be made before or after the filing of the final report. 11 Sec. 59. Section 633.681, Code 2021, is amended to read as 12 follows: 13 633.681 Assets of minor ward protected person exhausted. 14 When the assets of a minor ward’s protected person’s 15 conservatorship are exhausted or consist of personal property 16 only of an aggregate value not in excess of twenty-five 17 thousand dollars, the court, upon application or upon its 18 own motion, may terminate the conservatorship. The order 19 for termination shall direct the conservator to deliver any 20 property remaining after the payment of allowed claims and 21 expenses of administration to a custodian under any uniform 22 transfers to minors Act. Such delivery shall have the same 23 force and effect as if delivery had been made to the ward 24 protected person after attaining majority. 25 Sec. 60. Section 633.682, Code 2021, is amended to read as 26 follows: 27 633.682 Discharge of conservator and release of bond. 28 Upon settlement of the final accounting of a conservator, 29 and upon determining that the property of the ward protected 30 person has been delivered to the person or persons lawfully 31 entitled thereto, the court shall discharge the conservator and 32 exonerate the surety on the conservator’s bond. 33 EXPLANATION 34 The inclusion of this explanation does not constitute agreement with 35 -18- LSB 1338XC (3) 89 cm/jh 18/ 20
S.F. _____ the explanation’s substance by the members of the general assembly. 1 Guardians are persons and entities appointed by the 2 court to make decisions for persons regarding the person’s 3 care, maintenance, health, education, welfare, and safety. 4 Conservators are appointed by the court to make decisions for 5 persons regarding management of their financial affairs. 6 This bill amends Code provisions governing guardianships and 7 conservatorships. 8 DIVISION I —— MINOR GUARDIANSHIPS. Under current law, a 9 petition for guardianship only requires the address and name 10 of any adult who was the primary caregiver or lived with the 11 minor for the six months prior. The bill provides that a 12 petition for guardianship must include the name and address of 13 the primary caregiver or adult with whom the minor has lived 14 anytime during the six months immediately before the filing. 15 Under the bill, the petition must also include whether there is 16 already a conservatorship in place for the minor. 17 The bill provides that notice of a filed petition for 18 guardianship shall inform parents, who have not filed a 19 consent to the appointment of a guardian with the court that 20 the parents may be entitled to an attorney under current Code 21 section 232D.304. 22 The bill provides the qualifications and term of service of 23 a court visitor for the minor. 24 The bill provides that results of background checks of 25 the proposed guardian in the 6 months prior to filing of the 26 petition may be used; current law permits the use of background 27 checks within the prior 12 months. Results of the background 28 checks may be shared with good cause to the proposed guardian. 29 The bill provides that the order appointing a guardian for a 30 minor shall state the date that the first reporting period for 31 the guardianship will end. 32 The bill provides that the initial care plan shall include 33 the guardian’s plan for funds and benefits payable for the 34 support of the minor and the verified annual report shall 35 -19- LSB 1338XC (3) 89 cm/jh 19/ 20
S.F. _____ include the results of the guardian’s efforts to receive 1 funds or benefits and the account for the use of the funds or 2 benefits. 3 The bill provides that upon termination of guardianship 4 in which the guardian has custody of the minor’s assets, the 5 assets must be returned to the minor or a fiduciary for the 6 minor for any of the following accounts: a uniform transfer to 7 minors Act account, an educational savings plan trust account, 8 or an ABLE savings plan trust account. 9 DIVISION II —— ADULT GUARDIANSHIPS. The bill changes the 10 petition for appointment of guardian or conservator for an 11 adult to have the same requirement for both guardianship and 12 conservatorships. Currently, conservatorships are not required 13 to provide the name and address of the proposed conservator and 14 the reason why the conservator was chosen. 15 The bill provides qualifications of who is qualified to 16 serve as a court visitor and when they are discharged. current 17 law does not provide specific qualifications of a court 18 visitor. 19 The bill specifies that when a valid power of attorney has 20 been executed prior to an appointment of a conservator, the 21 power of attorney controls and the conservator must adhere to 22 the relevant provisions of Code chapter 633B. 23 The bill provides that a protected person has 20 days to 24 contest the initial financial plan for conservatorships. Under 25 current law, the protected individual only has 15 days. 26 The bill removes the standard of clear and convincing 27 evidence to prove cause for termination of a guardianship or 28 conservatorship. 29 DIVISION III —— CONFORMING CHANGES. The current Code uses 30 the term “ward” to refer to a person for whom the court has 31 appointed a guardian or conservator. The bill substitutes the 32 term “protected person” for the term “ward”. 33 -20- LSB 1338XC (3) 89 cm/jh 20/ 20
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