Iowa-2019-SSB3038-Introduced

S.F. _____ Section 1. Section 232D.301, subsection 4, Code 2020, is 1 amended to read as follows: 2 4. The petition shall state whether a limited guardianship 3 is appropriate , and whether a conservatorship for the minor is 4 needed or already in existence . 5 Sec. 2. Section 232D.302, subsection 2, Code 2020, is 6 amended to read as follows: 7 2. Notice shall be served upon the minor’s known parents 8 listed in the petition in accordance with the rules of civil 9 procedure. If the parent has not filed a consent to the 10 appointment of a guardian, the notice shall inform any parent 11 named in the petition that the parent may be entitled to 12 representation under the conditions described in section 13 232D.304. 14 Sec. 3. Section 232D.305, subsection 1, Code 2020, is 15 amended to read as follows: 16 1. The court may appoint a court visitor for the minor. A 17 person is qualified to serve as a court visitor if the person 18 has demonstrated sufficient knowledge of guardianships to 19 adequately perform the duties in subsection 3. 20 Sec. 4. Section 232D.401, subsections 1 and 2, Code 2020, 21 are amended to read as follows: 22 1. The order by the court appointing a guardian for a minor 23 shall state the basis for the order and the date on which the 24 first reporting period for the guardianship will end . 25 2. The order by the court appointing a guardian for a minor 26 shall state whether the guardianship is a limited guardianship 27 and whether a conservator for the minor exists or a petition 28 for a conservatorship has been filed . 29 Sec. 5. Section 232D.401, subsection 3, paragraph e, Code 30 2020, is amended to read as follows: 31 e. Applying for and receiving funds and benefits payable 32 for the support of the minor if the minor does not have a 33 conservator. If the minor has a conservator, the guardian 34 shall notify the conservator at least ten days before applying 35 -1- LSB 5389XC (5) 88 as/jh 1/ 13

S.F. _____ for funds or benefits for the support of the minor . 1 Sec. 6. Section 232D.501, subsection 1, paragraph a, Code 2 2020, is amended by adding the following new subparagraph: 3 NEW SUBPARAGRAPH . (7) The guardian’s plan, if any, for 4 applying for funds or benefits to support the minor. 5 Sec. 7. Section 232D.501, subsection 1, paragraph b, Code 6 2020, is amended by adding the following new subparagraph: 7 NEW SUBPARAGRAPH . (11) The results of the guardian’s 8 efforts to apply for funds or benefits for the minor, and 9 an accounting for the use of such funds or benefits by the 10 guardian. 11 Sec. 8. Section 232D.501, subsection 4, Code 2020, is 12 amended to read as follows: 13 4. Reports of the guardian shall be reviewed and approved 14 by the court. If the total value of funds or benefits retained 15 by the guardian for the minor’s benefit exceeds the amount 16 specified in section 633.555, the court shall determine whether 17 a conservatorship is appropriate for the minor. 18 Sec. 9. Section 633.556, subsection 5, paragraph a, Code 19 2020, is amended to read as follows: 20 a. The name and address of the proposed guardian or 21 conservator and the reason the proposed guardian or conservator 22 should be selected. 23 Sec. 10. Section 633.556, subsection 8, Code 2020, is 24 amended to read as follows: 25 8. The A petition for conservator shall provide a brief 26 description of the respondent’s alleged functional limitations 27 that make the respondent unable to communicate or carry out 28 important decisions concerning the respondent’s financial 29 affairs. A petition for guardianship shall provide a brief 30 description of the respondent’s alleged functional limitations 31 that make the respondent unable to provide for the respondent’s 32 safety, or to provide for necessities. 33 Sec. 11. Section 633.560, subsection 3, Code 2020, is 34 amended to read as follows: 35 -2- LSB 5389XC (5) 88 as/jh 2/ 13

S.F. _____ 3. The court shall require the proposed guardian or 1 conservator to attend the hearing on the petition but the court 2 may excuse the proposed guardian’s or conservator’s attendance 3 for good cause shown. 4 Sec. 12. Section 633.561, subsection 1, paragraph a, Code 5 2020, is amended to read as follows: 6 a. If the respondent is an adult and is not the petitioner , 7 the respondent is entitled to representation by an attorney. 8 Upon the filing of the petition, the court shall appoint an 9 attorney to represent the respondent, set a hearing on the 10 petition, and provide for notice of the appointment of counsel 11 and the date for hearing. 12 Sec. 13. Section 633.561, subsection 4, paragraphs c and f, 13 Code 2020, are amended to read as follows: 14 c. Ensure that the respondent has been properly advised of 15 the respondent’s rights in a guardianship or conservatorship 16 proceeding. 17 f. Ensure that the guardianship or conservatorship 18 procedures conform to the statutory and due process 19 requirements of Iowa law. 20 Sec. 14. Section 633.561, subsection 5, paragraphs a and b, 21 Code 2020, are amended to read as follows: 22 a. Inform the respondent of the effects of the order entered 23 for appointment of guardian or conservator . 24 b. Advise the respondent of the respondent’s rights to 25 petition for modification or termination of the guardianship 26 or conservatorship . 27 Sec. 15. Section 633.561, subsection 6, Code 2020, is 28 amended to read as follows: 29 6. If the court determines that it would be in the 30 respondent’s best interest to have legal representation 31 with respect to any further proceedings in a guardianship 32 or conservatorship, the court may appoint an attorney to 33 represent the respondent at the expense of the respondent or 34 the respondent’s estate, or if the respondent is indigent the 35 -3- LSB 5389XC (5) 88 as/jh 3/ 13

S.F. _____ cost of the court appointed attorney shall be assessed against 1 the county in which the proceedings are pending. 2 Sec. 16. Section 633.562, subsection 1, Code 2020, is 3 amended to read as follows: 4 1. If the court determines that the appointment of a court 5 visitor would be in the best interest of the respondent, 6 the court shall appoint a court visitor at the expense 7 of the respondent or the respondent’s estate, or, if the 8 respondent is indigent, the cost of the court visitor shall 9 be assessed against the county in which the proceedings are 10 pending. The court may appoint any qualified person as a court 11 visitor in a guardianship or conservatorship proceeding. A 12 person is qualified to serve in this capacity if the person 13 has demonstrated sufficient knowledge of guardianships or 14 conservatorships to adequately perform the duties in subsection 15 3. 16 Sec. 17. Section 633.562, subsection 5, paragraphs a and b, 17 Code 2020, are amended to read as follows: 18 a. A recommendation regarding the appropriateness of a 19 limited guardianship or conservatorship for the respondent, 20 including whether less restrictive alternatives are available. 21 b. A statement of the qualifications of the guardian or 22 conservator together with a statement of whether the respondent 23 has expressed agreement with the appointment of the proposed 24 guardian or conservator. 25 Sec. 18. Section 633.569, Code 2020, is amended to read as 26 follows: 27 633.569 Emergency appointment of temporary guardian or 28 conservator. 29 1. A person authorized to file a petition under section 30 633.552 , 633.553 , or 633.554 633.556 or 633.557 may file an 31 application for the emergency appointment of a temporary 32 guardian or conservator. 33 2. Such application shall state all of the following: 34 0a. The name and address of the petitioner and the 35 -4- LSB 5389XC (5) 88 as/jh 4/ 13

S.F. _____ petitioner’s relationship to the respondent. 1 a. The name and address of the respondent. 2 b. The name and address of the proposed guardian or 3 conservator and the reason the proposed guardian or conservator 4 should be selected. 5 0c. The names and addresses, to the extent known, of any 6 other persons who must be named in a petition for appointment 7 of a guardian or conservator under section 633.556 or 633.557. 8 c. The reason the emergency appointment of a temporary 9 guardian or conservator is sought. 10 3. The court may enter an ex parte order appointing a 11 temporary guardian or conservator on an emergency basis 12 under this section if the court finds by clear and convincing 13 evidence that all of the following conditions are met: 14 a. There is not sufficient time to file a petition and hold 15 a hearing pursuant to section 633.552 , 633.553 , or 633.554 16 633.556, 633.557, or 633.560 . 17 b. The appointment of a temporary guardian or conservator 18 is necessary to avoid immediate or and irreparable harm to the 19 respondent before a hearing with notice to the respondent can 20 be held . 21 c. There is reason to believe that the basis for appointment 22 of guardian or conservator exists under section 633.552 , 23 633.553 , or 633.554 . 24 04. Immediately on filing of an application for the 25 emergency appointment of a temporary guardian or conservator, 26 the court shall appoint an attorney to represent the respondent 27 in the proceeding. 28 4. Notice of a petition for the appointment of a temporary 29 guardian or conservator and the issuance of an ex parte 30 order appointing a temporary guardian or conservator shall be 31 provided not later than forty-eight hours after issuance of 32 the order of appointment to the respondent, the respondent’s 33 attorney, and any other person the court determines should 34 receive notice. Notice shall be provided by personal service 35 -5- LSB 5389XC (5) 88 as/jh 5/ 13

S.F. _____ unless otherwise directed by the court. 1 5. Upon the issuance of an ex parte order, if the respondent 2 is an adult, the respondent may file a request for a hearing. 3 If the respondent is a minor, the respondent, a parent having 4 legal custody of the respondent, or any other person having 5 legal custody of the respondent may file a written request for 6 a hearing. Such hearing shall be held no later than seven days 7 after the filing of a written request. A hearing shall be held 8 not more than seven days after the issuance of an ex parte 9 order appointing a temporary guardian or conservator. 10 6. The powers of the temporary guardian or conservator 11 set forth in the order of the court shall be limited to those 12 necessary to address the emergency situation requiring the 13 appointment of a temporary guardian or conservator. 14 7. The temporary guardianship or conservatorship shall 15 terminate within thirty days after the order is issued. 16 8. The temporary guardian or conservator shall submit any 17 report the court requires. 18 Sec. 19. Section 633.570, subsections 1 and 2, Code 2020, 19 are amended to read as follows: 20 1. In a proceeding for the appointment of a guardian, the 21 respondent shall be given written notice which advises the 22 respondent of the powers that a guardian may exercise without 23 court approval pursuant to section 633.635, subsection 2 , and 24 the powers that the guardian may exercise only with court 25 approval pursuant to section 633.635, subsection 3 , and the 26 pertinent powers the guardian may exercise as a fiduciary . 27 2. In a proceeding for the appointment of a conservator, 28 the respondent shall be given written notice which advises 29 the respondent of the powers that a conservator may exercise 30 without court approval pursuant to section 633.646 , including 31 the pertinent powers the conservator may exercise as a 32 fiduciary, and the powers that the guardian conservator may 33 exercise only with court approval pursuant to section 633.647 . 34 Sec. 20. Section 633.635, subsection 1, Code 2020, is 35 -6- LSB 5389XC (5) 88 as/jh 6/ 13

S.F. _____ amended to read as follows: 1 1. The order by the court appointing a guardian shall state 2 the basis for the guardianship pursuant to section 633.552 3 and the date on which the first reporting period for the 4 guardianship shall end . 5 Sec. 21. Section 633.635, subsection 3, paragraph b, Code 6 2020, is amended by adding the following new subparagraph: 7 NEW SUBPARAGRAPH . (4) Any major elective surgery or any 8 other nonemergency major medical procedure, unless advance 9 notice of the procedure was included in the guardian’s initial 10 care plan that was approved by the court. For purposes of 11 this subparagraph, “major elective surgery” and “nonemergency 12 major medical procedure” do not include the provision of 13 routine physical and dental examinations and procedures under 14 anesthesia, if the use of anesthesia is necessitated by the 15 physical or mental disability of the protected person, and if 16 the anesthesia is provided within the scope of the health care 17 practitioner’s scope of practice. 18 Sec. 22. Section 633.641, subsection 3, Code 2020, is 19 amended to read as follows: 20 3. If a protected person has executed a valid power of 21 attorney under chapter 633B , the conservator shall act in 22 accordance with the applicable provisions of chapter 633B . 23 If the court appoints a conservator for a protected person 24 who has previously executed a valid power of attorney under 25 chapter 633B, the power of attorney is suspended unless the 26 power of attorney provides otherwise or the court appointing 27 the conservator orders that the power of attorney should 28 continue. If the power of attorney continues, the agent is 29 accountable to the conservator as well as to the principal. 30 The power of attorney shall be reinstated upon termination of 31 the conservatorship as a result of the principal regaining 32 capacity. 33 Sec. 23. Section 633.642, unnumbered paragraph 1, Code 34 2020, is amended to read as follows: 35 -7- LSB 5389XC (5) 88 as/jh 7/ 13

S.F. _____ Except as expressly modified in this section, conservators 1 shall have the pertinent powers relating to fiduciaries and the 2 authority to collect, receive, and receipt for any principal, 3 income, or other asset of the protected person. Unless the 4 court orders otherwise ordered by the court , a conservator must 5 give notice to persons entitled to notice and receive specific 6 prior authorization by the court before the conservator may 7 take any other action on behalf of the protected person. These 8 other powers requiring court approval include the authority of 9 the conservator to: 10 Sec. 24. Section 633.669, subsection 1, paragraph a, 11 unnumbered paragraph 1, Code 2020, is amended to read as 12 follows: 13 An initial care plan filed within sixty days of appointment. 14 In the case of guardianships established before January 1, 15 2020, a guardian shall file the plan within sixty days after 16 the close of the next reporting period of the guardianship 17 following January 1, 2020. The information in the initial 18 care plan shall include but not be limited to the following 19 information: 20 Sec. 25. Section 633.669, subsection 1, paragraph a, 21 subparagraph (7), Code 2020, is amended to read as follows: 22 (7) The guardian’s plan for facilitating contacts between 23 the protected person and the protected person’s family members 24 and other significant persons significant in the life of the 25 protected person . 26 Sec. 26. Section 633.669, subsection 1, paragraph a, Code 27 2020, is amended by adding the following new subparagraph: 28 NEW SUBPARAGRAPH . (9) The guardian shall file an amended 29 plan when there has been a significant change in circumstance 30 or the guardian seeks to deviate significantly from the plan. 31 The guardian must obtain court approval of the amended plan 32 before implementing any of its provisions. 33 Sec. 27. Section 633.669, subsection 1, paragraph b, 34 unnumbered paragraph 1, Code 2020, is amended to read as 35 -8- LSB 5389XC (5) 88 as/jh 8/ 13

S.F. _____ follows: 1 An annual report, filed within sixty days of the close of 2 the reporting period, unless the court otherwise orders on 3 good cause shown. The information in the annual report shall 4 include but not be limited to the following information: 5 Sec. 28. Section 633.670, subsection 1, unnumbered 6 paragraph 1, Code 2020, is amended to read as follows: 7 A conservator shall file an initial plan for protecting, 8 managing, investing, expending, and distributing the assets 9 of the conservatorship estate within ninety days after 10 appointment. In the case of conservatorships established 11 before January 1, 2020, a conservator shall file the plan 12 within ninety days after the close of the next reporting period 13 ending after January 1, 2020. The plan must be based on the 14 needs of the protected person and take into account the best 15 interest of the protected person as well as the protected 16 person’s preference, values, and prior directions to the extent 17 known to, or reasonably ascertainable by, the conservator. 18 Sec. 29. Section 633.670, subsection 1, paragraph a, 19 subparagraph (4), Code 2020, is amended by striking the 20 subparagraph. 21 Sec. 30. Section 633.670, subsection 1, paragraphs b, c, and 22 d, Code 2020, are amended to read as follows: 23 b. Within two days after filing the initial plan, the 24 The conservator shall give provide notice of the filing of 25 the initial plan with and a copy of the initial plan to the 26 protected person, the protected person’s attorney and court 27 advisor visitor , if any, and others as directed by the court. 28 The notice must state that any person entitled to a copy of 29 the plan must file any objections to the plan not later than 30 fifteen days after it is filed twenty days from the date of 31 mailing notice of filing the initial plan . 32 c. At least If no objections have been filed within twenty 33 days after the plan has been filed, the court shall review 34 and determine whether the plan should be approved or revised, 35 -9- LSB 5389XC (5) 88 as/jh 9/ 13

S.F. _____ after considering objections filed and whether the plan is 1 consistent with the conservator’s powers and duties mailing 2 notice of filing the initial plan, the conservator shall submit 3 a proposed order to the court approving the initial plan. 4 Upon the court’s approval of the plan under this subsection, 5 the conservator shall provide a copy of the approved plan and 6 order approving the plan to the protected person, the protected 7 person’s attorney and court visitor, if any, and others as 8 directed by the court . 9 d. After approval by the court, the conservator shall 10 provide a copy of the approved plan and order approving the 11 plan to the protected person, the protected person’s attorney 12 and court advisor, if any, and others as directed by the court. 13 If any objections to the proposed plan are filed within twenty 14 days after the conservator has mailed notice of filing the 15 plan, the court shall set the matter for hearing and provide 16 notice of the hearing date, time, and place to the same parties 17 who were sent copies of the initial plan. Following the 18 hearing on the conservator’s proposed plan, the conservator 19 shall provide a copy of the approved plan and order approving 20 the plan to the protected person, the protected person’s 21 attorney and court visitor, if any, and others as directed by 22 the court. 23 Sec. 31. Section 633.670, subsection 2, Code 2020, is 24 amended to read as follows: 25 2. A conservator shall file an inventory of the protected 26 person’s assets within ninety days after appointment which 27 includes an oath or affirmation that the inventory is believed 28 to be complete and accurate as far as information permits. 29 Copies of the inventory shall be provided to the protected 30 person, the protected person’s attorney and court advisor 31 visitor , if any, and others as directed by the court. When 32 the conservator receives additional property of the protected 33 person, or becomes aware of its existence, a description of the 34 property shall be included in the conservator’s next annual 35 -10- LSB 5389XC (5) 88 as/jh 10/ 13

S.F. _____ report. 1 Sec. 32. Section 633.670, subsection 3, paragraph b, 2 subparagraph (1), Code 2020, is amended to read as follows: 3 (1) On an annual basis within Within sixty days of the end 4 of the reporting period unless the court orders an extension 5 for good cause shown in accordance with the rules of probate 6 procedure. 7 Sec. 33. Section 633.670, subsection 3, paragraph c, Code 8 2020, is amended to read as follows: 9 c. Reports required by this section shall be served on the 10 protected person’s attorney and court advisor visitor , if any, 11 and the veterans administration if the protected person is 12 receiving veterans benefits. 13 Sec. 34. Section 633.675, subsections 2 and 3, Code 2020, 14 are amended to read as follows: 15 2. The court shall terminate a guardianship if it the 16 court finds by clear and convincing evidence that the basis 17 for appointing a guardian pursuant to section 633.552 is not 18 satisfied. 19 3. The court shall terminate a conservatorship if the court 20 finds by clear and convincing evidence that the basis for 21 appointing a conservator pursuant to section 633.553 or 633.554 22 is not satisfied. 23 Sec. 35. EFFECTIVE DATE. The following, being deemed of 24 immediate importance, take effect upon enactment: 25 1. The sections of this Act amending section 633.669. 26 2. The sections of this Act amending section 633.670. 27 Sec. 36. RETROACTIVE APPLICABILITY. The following apply 28 retroactively to January 1, 2020: 29 1. The sections of this Act amending section 633.669. 30 2. The sections of this Act amending section 633.670. 31 EXPLANATION 32 The inclusion of this explanation does not constitute agreement with 33 the explanation’s substance by the members of the general assembly. 34 This bill relates to the opening, administration, 35 -11- LSB 5389XC (5) 88 as/jh 11/ 13

S.F. _____ and termination of adult and minor guardianships and 1 conservatorships, and includes effective date and applicability 2 provisions. 3 The bill provides that a petition for a minor guardianship 4 must state whether a minor needs or currently has a 5 conservatorship. The bill requires that notice that a petition 6 has been filed be given to a parent who has not consented 7 to a guardianship and that court may appoint an attorney to 8 represent the parent. 9 The bill describes who is qualified to serve as a court 10 visitor for a minor. 11 The bill adds additional report requirements for cases where 12 a minor has a conservatorship, requires the guardian to report 13 to the district court in the case of minor conservatorships, 14 and requires that the reporting period be listed on the report. 15 The bill also amends information in a guardian report when 16 guardians are authorized to apply for funds or benefits for a 17 minor. 18 As relates to a petition for an adult guardianship or 19 conservatorship, the bill amends several Code sections to 20 include both guardians and conservators. 21 The bill amends current law to provide that a petition 22 must name the proposed guardian or conservator. Further, 23 the petition must provide a brief description of the adult’s 24 alleged functional limitations which makes the person unable to 25 provide for the person’s safety or to provide for necessities. 26 The bill describes who is qualified to serve as a court 27 visitor for an adult. 28 The bill amends the provisions involved in the emergency 29 appointment of a temporary guardian or conservator, and 30 provides that any person authorized to file a petition for 31 guardianship or conservatorship may file for the emergency 32 appointment of a guardian or conservator. Prior law only 33 authorized a guardian to file an emergency petition. 34 The bill provides that conservators have all of the 35 -12- LSB 5389XC (5) 88 as/jh 12/ 13

S.F. _____ pertinent powers of a fiduciary unless limited by the court or 1 their personalized financial plan. 2 The bill requires that a guardian have a prior court order 3 for major elective surgeries or other major nonemergency 4 medical procedures outside the initial care plan, and requires 5 that the dates of the reporting period should be contained in 6 the order. 7 The bill provides that if a court appoints a conservator for 8 a protected person who has previously executed a valid power of 9 attorney, the power of attorney is suspended unless the power 10 of attorney provides otherwise or the court appointing the 11 conservator orders that the power of attorney should continue. 12 Further, if the power of attorney continues, the agent is 13 accountable to the conservator, and the power of attorney will 14 be reinstated at the termination of the conservatorship as a 15 result of the protected person regaining capacity. 16 The bill amends reporting requirements for guardians, and 17 requires that guardians must obtain court approval prior to any 18 significant deviation from the initial care plan filed with the 19 court. These changes are immediately effective and retroactive 20 to January 1, 2020. 21 The bill amends reporting requirements for conservators. 22 The conservator must give notice of filing a plan, and if no 23 objection is made within 20 days, the conservator must submit 24 a proposed order to the court approving the initial plan. If 25 there are objections to the plan, the court must set the matter 26 for hearing. These changes are immediately effective and 27 retroactive to January 1, 2020. 28 The bill removes the language “by clear and convincing 29 evidence” from the Code section concerning the causes for 30 termination of a guardianship or conservatorship. 31 -13- LSB 5389XC (5) 88 as/jh 13/ 13