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S.F. No. 3258 - Guardianship and Conservatorship Modifications and Updates (1st Engrossment)
 
Author: Senator Bill Ingebrigtsen
 
Prepared By: Priyanka Premo, Senate Counsel (651/296-3914)
 
Date: March 4, 2020



 

Overview

SF 3258 makes changes to guardianship and conservatorship laws. This bill updates terminology, makes clarifying changes, and makes several substantive changes, including the following:

  • Modifies the right to communication and related duties under the Bill of Rights;
  • Creates a new form, “a bill of particulars,” that contains confidential information related to a person’s health and finances;
  • Requires the court to consider and make specific findings related to less restrictive means of assisting a person subject to guardianship or conservatorship, like supported decision making, before appointing a guardian or conservator;
  • Requires notice to interested persons when the person subject to guardianship experiences a significant medical or public safety event, or dies;
  • Authorizes the establishment and administration of an ABLE account;
  • Authorizes a conservator to institute cases for civil court actions;
  • Authorizes a person subject to conservatorship to control their own wages;
  • Authorizes a guardian or conservator to seek a restraining order on behalf of a victim who is a person subject to guardianship or conservatorship;
  • Requires durational limits on guardianships when the person subject to guardianship is under the age of 30, but authorizes a petition for an unlimited guardianship if the person is 29 and currently under a limited guardianship;
  • Places durational limits on emergency guardianships and conservatorships; and
  • Authorizes interested persons to waive notice requirements.

Summary

Sec. 1. Scope. Amends section 484.76, subdivision 2. Removes prohibition on using alternative dispute resolution in matters related to guardianship and conservatorship.

Sec. 2. ABLE account. Amends section 524.5-102 by adding subdivision 1a. Adds a definition of “ABLE account” to the Uniform Guardianship and Protective Proceedings Act.

Sec. 3. Incapacitated person. Amends section 524.5-102, subdivision 6. Clarifies that an “incapacitated person” is an individual who lacks sufficient understanding or capacity to make personal decisions and is unable to meet certain personal needs, even with supported decision making.

Sec. 4. Interested person. Amends section 524.5-102, subdivision 7. Updates terminology. Clarifies that “interested person” includes: adult stepchildren of a living spouse; and, in the case of a minor who is an Indian, the tribal chairman or delegated agent and the regional director of the minor child’s tribe.

Sec. 5. Interested party. Amends section 524.5-102, by adding subdivision 7a. Adds a definition of “interested party” to the Uniform Guardianship and Protective Proceedings Act. An “interested party” is a person who has suffered an actual injury, has been granted standing under a legislative enactment, or has a sufficient personal interest in the matter.

Sec. 6. Person subject to conservatorship. Amends section 524.5-102, subdivision 13a.  Updates terminology. Provides a definition for “person subject to conservatorship.”

Sec. 7. Person subject to guardianship. Amends section 524.5-102, by adding subdivision 13b. Updates terminology. Provides a definition for “person subject to guardianship.”

Sec. 8. Professional guardian or professional conservator. Amends section 524.5-102, by adding subdivision 13c. Makes an organizational change by moving the current definition of a “professional guardian” or “professional conservator” to a new subdivision.

Sec. 9. Supported decision making. Amends section 524.5-102, by adding subdivision 16a. Defines “supported decision making” as assistance from one or more persons to help the individual understand the nature and consequences of personal and financial decisions so the individual may make decisions and communicate the decision once it is made.

Sec. 10. Facility of transfer. Amends section 524.5-104. Removes $5,000 statutory cap on transfers to minors and replaces it with a cross-reference to section 2503(b) of the Internal Revenue Code. Authorizes transfer of funds to a minor by transferring it to an ABLE account. Prohibits the guardian from administering the ABLE account in the guardian’s capacity as guardian

Sec. 11. Letters of office. Amends section 524.5-110. Clarifies that letters of guardianship or conservatorship must endorse any limitation on duration of powers of the guardian or conservator.

Sec. 12. Notice. Amends section 524.5-113.  Updates terminology. Clarifies that notice is required of any proceeding seeking a surcharge of any interested party. Authorizes an interested person to waive notice requirements in writing to the court. Authorizes the court, following an initial hearing, to limit notices and reports to persons determined by the court.

Sec. 13. Bill of rights for persons subject to guardianship or conservatorship. Amends section 524.5-120. Updates terminology and makes clarifying changes. Modifies right to communication and visitation to include the right to interact with others, make telephone calls, use email and social media, and participate in social activities unless the guardian has good cause to believe restriction is necessary because interaction with the person poses a risk of significant harm and there is no other means to avoid the significant harm. Requires guardian to provide written notice of any restriction on communication and interaction to the court, to the person subject to guardianship, and to the person subject to restrictions. Authorizes the person subject to the guardianship or the person subject to the restriction to petition the court to remove or modify the restrictions.

Sec. 14. Bill of particulars. Amends section 524.5-121. Requires a bill of particulars to be filed with the court, consistent with applicable court rules for submitting confidential or nonpublic documents. Requires service of the bill of particulars on certain persons, including interested persons or their attorneys who file objections. The bill of particulars must also be served upon or otherwise provided to any other person: (1) with consent of certain persons involved in the matter; or (2) by order of the court for good cause shown. Any person served or provided with a bill of particulars may only disclose information within it to those persons authorized to receive the information. Provides that filing a bill of particulars is not a violation of the Minnesota Health Records Act.

Sec. 15. Judicial appointment of guardian; procedure. Amends section 524.5-205. Updates terminology. Provides that any documents or information disclosing health or financial information must be filed as confidential documents.

Sec. 16. Delegation of power by parent or guardian. Amends section 524.5-211. Updates terminology and makes clarifying changes. Authorizes a professional guardian of a minor or incapacitated person to delegate to another person, via a power of attorney, for a period of 30 days or less certain powers, except the power to consent to marriage or adoption of a minor person subject to a guardianship. Requires the professional guardian to submit a power of attorney related to a delegation of parental rights to the court.

Sec. 17. Judicial appointment of guardian: petition. Amends section 524.5-303. Clarifies that adult children includes adult stepchildren of a living spouse. Clarifies that the petition may provide a post-office box (as opposed to an address). Requires the petition to describe details related to the less restrictive means attempted and considered and why such means have not sufficiently met the respondent’s identified needs. Limits information required related to the proposed guardian’s history under bankruptcy laws to the last five years. Limits information required related to the proposed guardian’s criminal history to convictions for gross misdemeanors or felonies. Requires the petition to provide information about the proposed guardian’s rates. Provides that certain information about the respondent related to their health or finances must be filed as confidential documents.

Sec. 18. Judicial appointment of guardian: preliminaries to hearing. Amends section 524.5-304. Updates terminology. Clarifies that the appointed visitor’s report must be filed as a confidential document.

Sec. 19. Guardian proceedings; presence and rights at hearing. Amends section 524.5-307. Provides that a respondent to a guardianship petition and any person subject to guardianship in any other guardianship proceeding has not placed their health, physical, or mental condition in controversy. The respondent’s or person’s denials, allegations, or affirmative assertions regarding capacity do not place these matters in controversy.

Sec. 20. Findings; order of appointment. Amends section 524.5-310. Updates terminology. Before appointing a guardian, requires the court to make specific findings related to less restrictive means like supported decision making, community and residential services, and the appointment of a health care agent. Authorizes the court to limit the duration of any guardianship. For persons subject to guardianship who are under 30 years of age on the date the court files an order appointing a guardian, the guardianship must not exceed 72 months and may be limited further by the court. However, also authorizes a petition for an indefinite guardianship for any person 29 years or older who is currently subject to a guardianship of limited duration. Requires the guardian to annually send a copy of the bill of rights to the person subject to guardianship and to interested persons.

Sec. 21. Emergency guardian. Amends section 524.5-311. Provides that an emergency guardian’s appointment may only be extended once for a period up to 60 days if the court finds good cause for the extension. Any documents filed with information related to health and finances must be filed as confidential documents.

Sec. 22. Powers and duties of guardian. Amends section 524.5-313. Updates terminology. Adds the same language related to the right to communication and interaction from the bill of rights to the statute governing the duties and powers of the guardian. Prohibits a guardian from restricting the ability of the person subject to guardianship to communicate and interact with others unless the guardian has good cause to believe the restriction is necessary. The guardian must provide notice to the court of any restriction on communication and persons affected by the restriction may petition the court to remove or modify the restriction. Authorizes the court to grant the guardian with the powers to: (1) establish an ABLE account; and (2) if no conservator is appointed, represent the person subject to guardianship in civil proceedings, except that the guardian may not settle a claim or debt owed to the estate without court approval.

Sec. 23. Reports; monitoring of guardianship; court orders. Amends section 524.5-316. Updates terminology. Clarifies that the guardian’s report to the court must include restrictions on communication. Unless prohibited by the court, a guardian must communicate to all interested persons within one day of awareness: (1) any significant change in health requiring physician treatment or hospitalization of the person subject to guardianship; (2) a significant situation that requires action by emergency service providers; or (2) death of the person subject to guardianship. Unless the move was by prior order of the court, a guardian must communicate to all interested persons at least 14 days in advance of a permanent change in primary dwelling. Exempts advance notice requirement if the move is due to accident, injury, illness, but requires notice to interested persons within seven days of the move. Requires documents with health information to be filed as confidential documents.

Sec. 24. Treatment or modification of guardianship; court orders. Amends section 524.5-317. Updates terminology. Clarifies that a guardianship terminates upon the expiration of the duration of the guardianship established in the court’s appointment order. Requires documents related to health and financial information to be filed as confidential documents. Provides that the guardian has the right to petition the court for discharge from the guardianship.

Sec. 25. Original petition for appointment or protective order. Amends section 524.5-403. Clarifies that adult children includes adult stepchildren of a living spouse. Requires a petition for conservatorship to provide details related to the less restrictive means considered and why such means did not sufficiently meet the respondent’s needs. Clarifies that the petition may provide a post-office box (as opposed to an address). Limits information required related to the proposed conservator’s history under bankruptcy laws to the last five years. Requires the petition to provide information about the proposed conservator’s rates. Provides that certain information related to health or finances must be filed as confidential documents.

Sec. 26. Original petition; persons under disability; preliminaries to hearing. Amends section 524.5-406. Updates terminology. Clarifies that the appointed visitor’s report must be filed as a confidential document.

Sec. 27. Conservatorship proceedings; procedure at hearing. Amends section 524.5-408. Provides that a respondent to a conservatorship or protective proceeding petition and any person subject to conservatorship in any other conservatorship or protective proceeding has not placed their health, physical, or mental condition in controversy. Any denials, allegations, or affirmative assertions regarding capacity do not place these matters in controversy.

Sec. 28. Findings; order of appointment. Amends section 524.5-409. Updates terminology. Before appointing a conservator, requires the court to make specific findings related to less restrictive means like supported decision making, representative payee, trusts, banking or bill paying assistance, or appointment of an attorney-in-fact. Requires the conservator to annually provide the bill of rights to the person subject to conservatorship and interested persons. Provides that an emergency conservator’s appointment may only be extended once for a period up to 60 days if the court finds good cause for the extension. Any documents filed with information related to health and finances must be filed as confidential documents.

Sec. 29. Required court approval. Amends section 524.5-411. Updates terminology. Provides that certain documents disclosing health or financial information must be filed as confidential documents.

Sec. 30. Protective arrangements and single transactions. Amends section 524.5-412. Updates terminology. Authorizes establishment and administration of an ABLE account and authorizes the conservator to exercise all powers over the ABLE account for the benefit of the person subject to conservatorship. Requires the conservator to act as a fiduciary with regard to all in ABLE account investments. Provides that certain documents disclosing health or financial information must be filed as confidential documents.

Sec. 31. Petition for order subsequent to appointment. Amends section 524.5-414. Updates terminology. Provides that certain documents disclosing health or financial information must be filed as confidential documents.

Sec. 32. Bond. Amends section 524.5-415. Provides that a bond is not required for a conservator that is a bank or trust company if the total conservatorship assets do not exceed $1,000,000, but a bond is required if the assets exceed $1,000,000.

Sec. 33. Terms and requirements of bond. Amends section 524.5-416. Makes clarifying changes. Updates terminology.

Sec. 34. General powers and duties of conservator. Amends section 524.5-417. Updates terminology. Clarifies conservator’s duty to represent the person subject to conservatorship in any civil proceeding (as opposed to “any court proceeding”). Provides the conservator with the power to establish an ABLE account and exercise all powers over the account. Unless otherwise ordered by the court, the salary and wages of a person subject to conservatorship shall be within the control of the person subject to conservatorship and not part of the conservatorship estate.

Sec. 35. Reports; appointment of visitor; monitoring; court orders. Amends section 524.5-420. Updates terminology. Makes clarifying changes. Authorizes an interested person to waive notice requirements. Unless otherwise required by the court, a conservator’s annual report submitted under this section must be filed publicly. If there is no guardian, requires the conservator to communicate the death of the person subject to conservatorship to all interested persons and the court as soon as reasonably practicable. Authorizes the conservator to delegate this task, if reasonable.

Sec. 36. Sale, encumbrance, or other transaction involving conflict of interest. Amends section 524.5-423. Removes language authorizing the court to allow a transaction for the conservator’s benefit if the protected person is related to the conservator.

Sec. 37. Termination of proceedings. Amends section 524.5-431. Updates terminology. Clarifies that order of termination must provide for payment of fees and costs of final administration for guardians, conservators, and attorneys. Provides that certain documents disclosing health or financial information must be filed as confidential documents. Authorizes the conservator to petition for discharge from the conservatorship.

Sec. 38. Compensation and expenses. Amends section 524.5-502. Updates terminology.

Sec. 39. Restraining order; court jurisdiction. Amends section 609.748, subdivision 2. Clarifies that a victim’s guardian or conservator may seek a restraining order on behalf of the victim.

Sec. 40. Definitions. Amends section 611A.01. Clarifies that the term “victim” includes a conservator.

Sec. 41. Revisor instruction. Requires the revisor of statutes to substitute the terms “person subject to guardianship” for the term “ward” and “person subject to conservatorship” for the term “protected person” in certain statutes and make grammatical corrections related to the change in terms.

Sec. 42. Effective date. This bill is effective August 1, 2020. Provides that certain changes in this bill apply only to cases commenced on or after that date and certain changes apply to cases commenced before, on, or after that date.

 
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