Bill Text: IA SSB3184 | 2017-2018 | 87th General Assembly | Introduced

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Bill Title: A bill for an act relating to the substitute decision maker Act.

Spectrum: Committee Bill

Status: (N/A - Dead) 2018-02-13 - Subcommittee: Costello, Segebart, and Quirmbach. [SSB3184 Detail]

Download: Iowa-2017-SSB3184-Introduced.html

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Senate Study Bill 3184 - Introduced
SENATE/HOUSE FILE _____
BY (PROPOSED DEPARTMENT ON
AGING BILL)
A BILL FOR
An Act relating to the substitute decision maker Act.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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Section 1. Section 22.7, subsection 61, Code 2018, is
amended to read as follows:
61. Records of the department on aging pertaining to clients
served by the state office or a local office of substitute
decision maker public guardian as defined in section 231E.3 .
Sec. 2. Section 231E.1, Code 2018, is amended to read as
follows:
231E.1 Title.
This chapter shall be known and may be cited as the “Iowa
Substitute Decision Maker Public Guardian Act” .
Sec. 3. Section 231E.2, Code 2018, is amended to read as
follows:
231E.2 Office of substitute decision maker public guardian
—— findings and intent.
1. a. The general assembly finds that many adults
in this state are unable to meet essential requirements
to maintain their physical health or to manage essential
aspects of their financial resources and are in need of
substitute decision-making guardianship, conservatorship,
or representative payee services. However, a willing
and responsible person may not be available to serve as a
private substitute decision maker guardian, conservator, or
representative payee or the adult may not have adequate income
or resources to compensate a private substitute decision maker
guardian, conservator, or representative payee .
b. The general assembly further finds that a process
should exist to assist individuals in finding alternatives
to substitute decision-making guardianship, conservatorship,
or representative payee services and less intrusive means of
assistance before an individual’s independence or rights are
limited.
c. The general assembly further finds that a substitute
decision maker may be necessary to finalize a person’s affairs
after death when there is no willing and appropriate person
available to serve as the person’s personal representative.
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2. a. It is, therefore, the intent of the general assembly
to establish a state office of substitute decision maker public
guardian and authorize the establishment of local offices of
substitute decision maker public guardian to provide substitute
decision-making public guardianship services to adults and
their estates after their deaths , when no private substitute
decision maker guardian, conservator, or representative payee
is available.
b. It is also the intent of the general assembly that the
state office of substitute decision maker public guardian
provide assistance to both public and private substitute
decision makers guardians, conservators, and representative
payees throughout the state in securing necessary services
for their wards , principals, and clients, and decedents and
to assist substitute decision makers guardians, conservators,
representative payees , wards, principals, clients, courts,
and attorneys in the orderly and expeditious handling of
substitute decision-making guardianship, conservatorship, and
representative payee proceedings.
Sec. 4. Section 231E.3, Code 2018, is amended to read as
follows:
231E.3 Definitions.
As used in this chapter , unless the context otherwise
requires:
1. “Client” means an individual for whom a representative
payee is appointed.
2. “Commission” means the commission on aging.
3. “Conservator” means conservator as defined in section
633.3 .
4. “Court” means court as defined in section 633.3 .
5. “Decedent” means the individual for whom an estate is
administered or executed.
6. “Department” means the department on aging established
in section 231.21 .
7. 6. “Director” means the director of the department on
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aging.
8. “Estate” means estate as defined in section 633.3 .
9. 7. “Guardian” means guardian as defined in section
633.3 .
10. 8. “Incompetent” means incompetent as defined in
section 633.3 .
11. 9. “Local office” means a local office of substitute
decision maker public guardian .
12. 10. “Local substitute decision maker” public guardian”
means an individual under contract with the department to
act as a substitute decision maker guardian, conservator, or
representative payee .
13. “Personal representative” means personal representative
as defined in section 633.3 .
14. “Planning and service area” means a geographic area
of the state designated by the commission for the purpose of
planning, developing, delivering, and administering services
for elders.
15. “Power of attorney” means a durable power of attorney
for health care as defined in section 144B.1 or a power of
attorney executed pursuant to chapter 633B .
16. “Principal” means an individual for whom a power of
attorney is established.
11. “Public guardian” means the state public guardian or a
local public guardian.
12. “Public guardianship services” means guardianship,
conservatorship, or representative payee services provided by
the state public guardian or a local public guardian.
17. 13. “Representative payee” means an individual
appointed by a government entity to receive funds on behalf of
a client pursuant to federal regulation.
18. 14. “State agency” means any executive department,
commission, board, institution, division, bureau, office,
agency, or other executive entity of state government.
19. 15. “State office” means the state office of substitute
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decision maker public guardian .
20. 16. “State substitute decision maker” public guardian”
means the administrator of the state office of substitute
decision maker public guardian .
21. “Substitute decision maker” means a guardian,
conservator, representative payee, attorney in fact under a
power of attorney, or personal representative.
22. “Substitute decision making” or “substitute
decision-making services” means the provision of services of a
guardian, conservator, representative payee, attorney in fact
under a power of attorney, or personal representative.
23. 17. “Ward” means the individual for whom a guardianship
or conservatorship is established.
Sec. 5. Section 231E.4, Code 2018, is amended to read as
follows:
231E.4 State office of substitute decision maker public
guardian —— established —— duties —— department rules.
1. A state office of substitute decision maker public
guardian is established within the department to create and
administer a statewide network of substitute decision makers
guardians, conservators, and representative payees who provide
substitute decision-making guardianship, conservatorship, or
representative payee services if other substitute decision
makers guardians, conservators, or representative payees are
not available to provide the services.
2. The director shall appoint an administrator of the
state office who shall serve as the state substitute decision
maker public guardian . The state substitute decision maker
public guardian shall be qualified for the position by training
and expertise in substitute decision-making guardianship,
conservatorship, and representative payee law and shall
be licensed to practice law in Iowa. The state substitute
decision maker public guardian shall also have knowledge
of social services available to meet the needs of persons
adjudicated incompetent or in need of substitute decision
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making guardianship, conservatorship, or representative payee
services .
3. The state office shall do all of the following:
a. Select persons through a request for proposals process
to establish local offices of substitute decision maker in
each of the planning and service areas public guardian . Local
offices shall be established statewide on or before July 1,
2018 contingent upon the appropriation of necessary funds to
the department as determined by the director .
b. Monitor and terminate contracts with local offices based
on criteria established by rule of the department.
c. Retain oversight responsibilities for all local
substitute decision makers public guardians .
d. Act as substitute decision maker a guardian, conservator,
or representative payee if a local office public guardian is
not available to so act.
e. Work with the department of human services, the
Iowa department of public health, the Iowa developmental
disabilities council, and other agencies to establish a
referral system for the provision of substitute decision-making
guardianship, conservatorship, and representative payee
services.
f. Develop and maintain a current listing of public and
private services and programs available to assist wards ,
principals, and clients , personal representatives , and their
families , and establish and maintain relationships with public
and private entities to assure the availability of effective
substitute decision-making guardianship, conservatorship,
and representative payee services for wards , principals, and
clients , and estates .
g. Provide information and referrals to the public regarding
substitute decision-making guardianship, conservatorship, and
representative payee services.
h. Provide personal representatives for estates where a
person is not available for that purpose.
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i. h. Maintain statistical data on the local offices
including various methods of funding, the types of services
provided, and the demographics of the wards , principals, and
clients, and decedents and report to the general assembly on or
before November 1, annually, regarding the local offices and
recommend any appropriate legislative action.
j. i. Develop, in cooperation with the judicial council as
established in section 602.1202 , a substitute decision-maker
guardianship, conservatorship, and representative payee
education and training program. The program may be offered to
both public and private substitute decision makers guardians,
conservators, and representative payees . The state office
shall establish a curriculum committee, which includes but is
not limited to probate judges, to develop the education and
training program. The state office shall be the sole authority
for certifying additional curriculum trainers.
4. The state office may do any of the following:
a. Accept and receive gifts, grants, or donations from any
public or private entity in support of the state office. Such
gifts, grants, or donations shall be appropriated pursuant to
section 231E.9 . Notwithstanding section 8.33 , moneys retained
by the department pursuant to this section shall not be subject
to reversion to the general fund of the state.
b. Accept the services of individual volunteers
and volunteer organizations. Volunteers and volunteer
organizations utilized by the state office shall not
provide direct substitute decision-making guardianship,
conservatorship, or representative payee services.
c. Employ staff necessary to administer the state office and
enter into contracts as necessary.
5. The department shall provide administrative support to
the state office.
6. The department shall adopt rules in accordance with
chapter 17A necessary to create and administer the state office
and local offices, relating to but not limited to all of the
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following:
a. An application and intake process and standards
for receipt of substitute decision-making guardianship,
conservatorship, or representative payee services from the
state office or a local office.
b. A process for the removal or termination of the state
public guardian or a local substitute decision maker public
guardian .
c. An ideal range of staff-to-client ratios for the state
public guardian and local substitute decision makers public
guardians .
d. Minimum training and experience requirements for
professional staff and volunteers.
e. A fee schedule. The department may establish by rule
a schedule of reasonable fees for the costs of substitute
decision-making public guardianship services provided under
this chapter . The fee schedule established may be based upon
the ability of the ward , principal, or client , or estate to
pay for the services but shall not exceed the actual cost of
providing the services. The state office or a local office
may waive collection of a fee upon a finding that collection
is not economically feasible. The rules may provide that the
state office or a local office may investigate the financial
status of a ward , principal, or client , or estate that requests
substitute decision-making guardianship, conservatorship, or
representative payee services or for whom or which the state
public guardian or a local substitute decision maker public
guardian has been appointed for the purpose of determining the
fee to be charged by requiring the ward , principal, or client ,
or estate to provide any written authorizations necessary
to provide access to records of public or private sources,
otherwise confidential, needed to evaluate the individual’s or
estate’s financial eligibility. The rules may also provide
that the state public guardian or a local substitute decision
maker public guardian may, upon request and without payment of
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fees otherwise required by law, obtain information necessary
to evaluate the individual’s or estate’s financial eligibility
from any office of the state or of a political subdivision
or agency of the state that possesses public records. In
estate proceedings, the state or local decision maker shall be
compensated pursuant to chapter 633, division III, part 8 .
f. Standards and performance measures for evaluation of
local offices.
g. Recordkeeping and accounting procedures to ensure that
the state office and local offices maintain confidential,
accurate, and up-to-date financial, case, and statistical
records. The rules shall require each local office to file
with the state office, on an annual basis, an account of all
public and private funds received and a report regarding the
operations of the local office for the preceding fiscal year.
h. Procedures for the sharing of records held by the court
or a state agency with the state office, which are necessary
to evaluate the state office or local offices, to assess the
need for additional substitute decision makers guardians,
conservators, or representative payees , or to develop required
reports.
Sec. 6. Section 231E.5, Code 2018, is amended to read as
follows:
231E.5 Local office of substitute decision maker public
guardian —— requirements for state and local substitute decision
makers public guardians .
1. The state substitute decision maker public
guardian shall select persons to provide local substitute
decision-making public guardianship services in each of the
planning and service areas , based upon a request for proposals
process developed by the department.
2. The A local office shall comply with all requirements
established for the local office by the department and shall
do all of the following:
a. Maintain a staff of professionally qualified individuals
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to carry out the substitute decision-making guardian,
conservator, and representative payee functions.
b. Identify client needs and local resources to provide
necessary support services to recipients of substitute
decision-making guardianship, conservatorship, and
representative payee services.
c. Collect program data as required by the state office.
d. Meet standards established for the local office.
e. Comply with minimum staffing requirements and caseload
restrictions.
f. Conduct background checks on employees and volunteers.
g. With regard to a proposed ward, the local office shall
do all of the following:
(1) Determine the most appropriate form of substitute
decision making guardianship or conservatorship services
needed, if any, giving preference to the least restrictive
alternative.
(2) Determine whether the needs of the proposed ward require
the appointment of a guardian or conservator.
(3) Assess the financial resources of the proposed ward
based on the information supplied to the local office at the
time of the determination.
(4) Inquire and, if appropriate, search to determine
whether any other person may be willing and able to serve as
the proposed ward’s guardian or conservator.
(5) Determine the form of guardianship or conservatorship
to request of a court, if any, giving preference to the least
restrictive form.
(6) If determined necessary, file a petition for the
appointment of a guardian or conservator pursuant to chapter
633 .
h. With regard to an estate, the local office may appoint a
personal representative to file a petition to open an estate
who shall do all of the following:
(1) Retain legal counsel as described in section 231E.11
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to be compensated from the proceeds of the estate pursuant to
chapter 633, division III, part 8 .
(2) Liquidate all assets of the estate.
(3) Distribute the assets of the estate pursuant to
chapter 633, division VII, parts 7 and 8 , and other applicable
provisions of law.
3. A local office may do any of the following:
a. Contract for or arrange for provision of services
necessary to carry out the duties of a local substitute
decision maker public guardian .
b. Accept the services of volunteers or consultants and
reimburse them for necessary expenses.
c. Employ staff and delegate to members of the staff the
powers and duties of the local substitute decision maker
public guardian . However, the local office shall retain
responsibility for the proper performance of the delegated
powers and duties. All delegations shall be to persons who
meet the eligibility requirements of the specific type of
substitute decision maker public guardian .
4. An individual acting as the state public guardian or a
local substitute decision maker public guardian shall comply
with applicable requirements for guardians , and conservators ,
or personal representatives pursuant to chapter 633 , attorneys
in fact under a power of attorney pursuant to chapter 633 or a
durable power of attorney for health care pursuant to chapter
144B , or representative payees pursuant to federal law and
regulations.
5. Notwithstanding any provision to the contrary, an
individual acting as the state public guardian or a local
substitute decision maker public guardian shall not be
subject to the posting of a bond pursuant to chapter 633 . An
individual acting as the state public guardian or a local
substitute decision maker public guardian shall complete at
least eight hours of training annually as certified by the
department.
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Sec. 7. Section 231E.6, Code 2018, is amended to read as
follows:
231E.6 Court-initiated or petition-initiated appointment
of state or local substitute decision maker public guardian ——
guardianship or conservatorship —— discharge.
1. The court may appoint on its own motion or upon petition
of any person, the state office or a local office of substitute
decision maker , to serve as guardian or conservator for any
proposed ward in cases in which the court determines that
the proceeding will establish the least restrictive form of
substitute decision making guardianship or conservatorship
services suitable for the proposed ward and if the proposed
ward meets all of the following criteria:
a. Is a resident of the planning and service area in which
the local office is located from which services would be
provided or is a resident of the state, if the state office
would provide the services.
b. Is eighteen years of age or older.
c. Does not have suitable family or another appropriate
entity willing and able to serve as guardian or conservator.
d. Is incompetent.
e. Is an individual for whom guardianship or conservatorship
services are the least restrictive means of meeting the
individual’s needs.
2. For all appointments made pursuant to this section ,
notice shall be provided to the state office or local office
of substitute decision maker prior to appointment. For
appointments made pursuant to this section , the state office
or local office of substitute decision maker shall only accept
appointments made pursuant to the filing of an involuntary
petition for appointment of a conservator or guardianship
pursuant to chapter 633 .
Sec. 8. Section 231E.7, Code 2018, is amended to read as
follows:
231E.7 Substitute decision maker-initiated Public
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guardian-initiated appointment —— interventions.
The state office or local office may on its own motion or
at the request of the court intervene in a guardianship or
conservatorship proceeding if the state office or local office
or the court considers the intervention to be justified because
of any of the following:
1. An appointed guardian or conservator is not fulfilling
prescribed duties or is subject to removal under section
633.65 .
2. A willing and qualified guardian or conservator is not
available.
3. The best interests of the ward require the intervention.
Sec. 9. Section 231E.8, Code 2018, is amended to read as
follows:
231E.8 Provisions applicable to all appointments and
designations —— discharge.
1. The court shall only appoint or intervene on its own
motion or act upon the petition of any person under section
231E.6 or 231E.7 if such appointment or intervention would
comply with staffing ratios established by the department and
if sufficient resources are available to the state office or
local office. Notice of the proposed appointment shall be
provided to the state office or local office prior to the
granting of such appointment.
2. The state office or local office shall maintain
reasonable personal contact with each ward , principal, or
client for whom the state office or local office is appointed
or designated in order to monitor the ward’s , principal’s, or
client’s care and progress. For any estates in which the state
office or local office is involved, the state office or local
office shall move estate proceedings forward in a reasonable
and expeditious manner and shall monitor the progress of any
legal counsel retained on a regular basis.
3. Notwithstanding any provision of law to the contrary,
the state office or local office appointed by the court or
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designated under a power of attorney document may access all
confidential records concerning the ward or principal for whom
the state office or local office is appointed or designated,
including medical records and abuse reports.
4. In any proceeding in which the state or a local office is
appointed or is acting as guardian or conservator, the court
shall waive court costs or filing fees, if the state office or
local office certifies to the court that the state office or
local office has waived its fees in their entirety based upon
the ability of the ward to pay for the services of the state
office or local office. In any estate proceeding, the court
costs shall be paid in accordance with chapter 633, division
VII, part 7 .
5. The state public guardian or a local substitute decision
maker public guardian shall be subject to discharge or removal,
by the court, on the grounds and in the manner in which other
guardians , or conservators , or personal representatives are
discharged or removed pursuant to chapter 633 .
6. The state public guardian or a local substitute decision
maker public guardian may petition to be removed as guardian
or conservator. A petition for removal shall be granted for
any of the following reasons:
a. The ward displays assaultive or aggressive behavior that
causes the substitute decision maker public guardian to fear
for their personal safety.
b. The ward refuses the services of the substitute decision
maker public guardian .
c. The ward refuses to have contact with the substitute
decision maker public guardian .
d. The ward moves out of Iowa.
7. An appointment nominating the state office or a local
office under a power of attorney shall not take effect unless
the nominated state or local office has consented to the
appointment in writing.
Sec. 10. Section 231E.9, Code 2018, is amended to read as
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follows:
231E.9 Fees —— appropriated.
Fees received by the state office and by local offices
for services provided as the state public guardian or as a
local substitute decision maker public guardian shall be
deposited in the general fund of the state and the amounts
received are appropriated to the department for the purposes
of administering this chapter .
Sec. 11. Section 231E.10, Code 2018, is amended to read as
follows:
231E.10 Conflicts of interest —— limitations.
Notwithstanding section 633.63 or any other provision to the
contrary, a local substitute decision maker public guardian
shall not provide direct services to or have an actual or
the appearance of any conflict of interest relating to any
individual for whom the local substitute decision maker public
guardian acts in a substitute decision-making the capacity of
a guardian, conservator, or representative payee, unless such
provision of direct services or the appearance of a conflict
of interest is approved and monitored by the state office in
accordance with rules adopted by the department.
Sec. 12. Section 231E.11, subsection 3, Code 2018, is
amended to read as follows:
3. A Notwithstanding section 13.7, the state public
guardian or a local public guardian may retain a local attorney
to represent the state office or a local office in legal
proceedings. A local attorney retained under this subsection
shall be experienced in probate matters may represent the
personal representative for all routine matters associated with
probating an estate .
Sec. 13. Section 235B.6, subsection 2, paragraph e,
subparagraph (11), Code 2018, is amended to read as follows:
(11) The state office or a local office of substitute
decision maker public guardian as defined in section 231E.3 ,
if the information relates to the provision of legal services
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for a client served by the state or local office of substitute
decision maker public guardian .
Sec. 14. Section 633.63, subsection 4, Code 2018, is amended
to read as follows:
4. The state public guardian or a local substitute
decision maker public guardian as defined in section 231E.3
is authorized to act in a fiduciary capacity in this state in
accordance with chapter 231E .
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill relates to the substitute decision maker Act (Code
chapter 231E) by changing references relative to the state
and local offices of substitute decision maker and substitute
decision-making services, and to instead refer to these offices
and services in terms of the state and local offices of public
guardian and public guardianship services.
The bill eliminates as services provided by the state and
local offices of public guardian, services provided by an
attorney in fact under a durable power of attorney for health
care pursuant to Code chapter 144B, an agent under a power
of attorney executed pursuant to Code chapter 633B, and a
personal representative (an executor or administrator) under
Code chapter 633 relating to the opening and administering of
an estate. Under the bill, the remaining services provided by
a public guardian are conservator, guardian, and representative
payee services.
The bill requires that local offices of public guardian be
established by the state office of public guardian, contingent
upon an appropriation to the department on aging of necessary
funds as determined by the director of the department on aging.
The bill makes additional conforming changes in the Code to
reflect the changes in terminology and the services provided.
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