Laws 2003, Chapter 12 - Guardianship and Protective Proceedings Act
Author:	Senator Don Betzold
Prepared by:	Kathleen Pontius, Senate Counsel (651/296-4394)
Date:	June 18, 2003

Part 1 - General Provisions

Section 1 contains the citation.

Section 2 contains the definitions. One significant change in terminology to note is that the term "conservator" is now used exclusively for a person appointed to manage someone's estate. Under current Minnesota law, the term may also apply to someone who has limited powers over an individual. Under this bill, the term "guardian" would always be used with respect to someone who has all or some of the powers over the individual and the term "conservator" would be limited to power over the estate.

The definition of "incapacitated person" in subdivision 6 is basically continued from current Minnesota law in section 525.54, subdivision 2 (see modifications to this definition made in the author's amendment).

Also, note the new definition of "interested person" in subdivision 7. Although this term is used under current law, it is not defined.

The definition of "protected person" in subdivision 14 is new. It means a minor or adult for whom a conservator (of the estate) has been appointed or for whom some other protective order has been made.

Section 3 contains supplemental general principles of law that will apply to all of the provisions of the act.

Section 4 redrafts provisions of current law contained in Minnesota Statutes, section 525.6196, dealing with facility of payment or delivery. It does not include provisions in current law that refer to a more restrictive transfer power under section 524.3-915 of the probate code regarding persons under legal disabilities, as well as the ability to pay directly to a minor who is 16 or 17 or married.

Section 5 specifies the subject matter jurisdiction of this article and includes language specifying that it does not apply to public guardianship of mentally retarded persons, adoption, or child protection proceedings.

Section 6 contains provisions dealing with transfer of jurisdiction, similar to current law in section 525.6194. A court that appointed a guardian or conservator or entered a protective order may transfer a case to another county or to another state consistent with the best interests of the affected individual. A procedure is created for letting a guardian or conservator appointed in another state to be appointed in this state.

Section 7 contains venue provisions. It is consistent with current law in sections 525.617 and 525.6194. In addition, issues not currently covered under Minnesota law are included.

Section 8 specifies that unless otherwise provided in this article, the rules of civil procedure will control guardianship proceedings. Provisions are included for consolidating proceedings.

Section 9 deals with the letters of office and the document that the court gives a guardian or conservator specifying their evidence of authority. It is similar to section 525.618, subdivision 6, which currently deals only with guardians for minors.

Section 10 deals with acceptance of authority by the guardian or conservator, again similar to section 515.6185, which applies only to guardians of minors.

Section 11 deals with termination or change in an appointment and combines provisions in current law into one section. It also adds a new concept that the court may appoint an additional guardian.

Section 12 deals with notice requirements. It replaces current law in sections 525.581 and 525.6185, dealing with hearing notices. The authorization for notice by mail is continued and new requirements are added dealing with plain language notices. Notice requirements are added for health care directives or similar documents. The Commissioner of Human Services must be notified if a proceeding modifies a public guardianship. There is also a notice to the surety for any bond in a case involving a conservator required to file a bond.

Section 13 is a new provision that allows for waiver of notice by specified individuals, other than the ward, a protected person, or respondent.

Section 14 allows the court to appoint a guardian ad litem and is similar to current law in section 525.54, subdivision 6.

Section 15 contains special rules dealing with multiple appointments or nominations of a guardian or conservator. If more than one has been nominated, the most recent document controls.

Section 16 retains background study requirements contained in current law in section 525.545.

Part 2 - Guardian of a Minor

Section 17 contains general language dealing with the appointment status of a guardian of a minor, based on current law in section 525.615. A reference to the standby custodian law as a way of appointing a guardian for a minor is also added in the author's amendment.

Section 18 contains provisions dealing with parental appointment of a guardian by will or by an advance directive to take effect while the parent is still alive. Provisions are included specifying when a parental appointment takes effect and how the guardian indicates acceptance. Appointment of a guardian by one parent does not supersede the other parent's rights. If both are dead, the appointment of the last to die has priority. A guardianship under this section terminates upon appointment of a guardian by the court or the filing of an objection.

Section 19 contains provisions dealing with objection by a minor or others to a parental appointment.

Section 20 contains provisions dealing with judicial appointment of a guardian on behalf of a minor. It includes a provision allowing the court to appoint a guardian for a minor if it is in the minor's best interests and both parents are deceased or parental rights have been terminated (similar to current law under section 525.6165). A temporary guardian may be appointed for up to six months. An emergency guardian may serve up to 30 days and exercise powers specified in the appointing order.

Section 21 contains the procedure for judicial appointment of a guardian on behalf of a minor.

Section 22 contains standards related to judicial appointment of a guardian on behalf of a minor. Paragraph (a) retains language in section 525.6175. Paragraph (b) allows the court to limit a guardian's powers in order to develop self-reliance or for other good cause.

Section 23 deals with the powers and duties of a guardian of a minor. It is similar to section 525.619 under current law. New language in paragraph (e) provides that the guardian has the power to apply for government benefits and services for a ward who does not have an acting conservator of the estate.

Section 24 contains special provisions dealing with the rights and immunities of a guardian.

Section 25 provides for termination of a guardianship of a minor and other proceedings after appointment. It is similar to current law in section 525.6192 dealing with termination. References are added to emancipation of a minor as a way that a guardianship might end. The court may direct other circumstances under which a guardianship would terminate.

Section 26 deals with delegation of power by a parent or guardian. It is similar to section 524.5-505, except that the bill would allow the delegation to last for one year, instead of the six-month limitation under current law.

Part 3 - Guardian of Incapacitated Person

Section 27 specifies that a person becomes a guardian of an incapacitated person by parental or spousal appointment or appointment by the court. Guardianship continues until terminated, without regard to the location of the guardian or ward.

Section 28 contains new provisions dealing with appointment of a guardian by a will or other writing. A parent may appoint a guardian for an unmarried child who the parent believes is incapacitated by a will or by a writing executed in the same manner as a health care directive. An individual may do the same thing for a spouse. Special provisions are included dealing with the effective dates of these appointments and for early confirmation of an appointment. The circumstances under which a guardian becomes eligible to act are specified. An appointment by a guardian by a will probated in another state would be given effect. Provisions are included for filing a written objection with the court and confirmation after filing acceptance. An appointment of a guardian under this section would not be a determination of incapacity.

Section 29 contains provisions dealing with judicial appointment of a guardian and a petition, similar to current law.

Section 30 deals with judicial appointment of a guardian and procedures that take place prior to a hearing. It combines provisions in current law under sections 525.55, 525.5501, and 525.551, relating to the appointment of a visitor and the right to counsel in involuntary petitions. It provides for the expiration of an attorney appointment. Current law allowing a county to use a screening committee to explore less restrictive options for indigent persons is retained in language added by the author's amendment.

Section 31 deals with presence and rights at the hearing. Paragraph (a) is based on section 525.551, subdivision 1. Paragraph (b) allows the court to grant the request of any person to participate on a showing of good cause and a determination that the best interests of the proposed ward will be served.

Section 32 contains notice requirements. It continues the provisions of current law in section 525.55, subdivision 1, requiring personal service of the petition and notice of hearing to be served on the proposed ward. It specifies other individuals who must receive notice.

Section 33 contains the basic requirements regarding who may be a guardian and the priorities to be considered by the court in making appointments. It specifies that the court will consider otherwise qualified persons as guardians in the priority order listed but also allows the court to deviate from the priorities under certain circumstances.

Section 34 deals with the findings that must be made by the court in appointing a guardian. It combines provisions in current law under section 525.551, subdivision 5, as well as sections 525.5515, subdivision 1; 525.54, subdivision 7; 525.58, subdivision 2; and 525.56, subdivision 2.

Section 35 deals with the appointment of an emergency guardian. It is similar to provisions for appointment of a special guardian under section 525.591. The arrangement may last for 60 days. Special provisions are added under the author's amendment allowing emergency guardianships for up to 90 days in cases involving vulnerable adult investigations. The requirement that the court appoint a lawyer for the proposed ward is specified. A hearing must be held within five days if an emergency guardian must be appointed without a hearing (current law provides for an appointment within seven days or when possible). Appointment of an emergency guardian is not a determination of incapacity. The current provision that there is no appeal from an appointment or refusal to appoint a special guardian is eliminated.

Section 36 contains new provisions dealing with the appointment of a temporary substitute guardian. The court may appoint a temporary substitute guardian for up to six months to replace someone who is not performing effectively. Notice and removal provisions are included.

Section 37 contains the provisions dealing with the powers and duties of guardians. With some modifications, most of these provisions are substantively similar to current law. A new provision is added specifying that a ward does not lose the right to vote unless specified by the court.

Section 38 deals with the rights and immunities of guardians.

Section 39 contains reporting requirements for guardians and monitoring of guardianship by the court. It is similar to current law in section 525.58, subdivision 4. The report contents are modified from current law. The court may appoint a visitor to review a report, interview a guardian or ward, and make other investigations. The court is required to establish a system to monitor guardianships and review annual reports.

Section 40 deals with termination or modification of guardianships. It contains provisions of current law in sections 525.60 and 525.61, subdivision 2, relating to termination of a guardianship by death or restoration of capacity. The court is required to safeguard a ward's rights when terminating a guardianship. Modifications can also be made to address powers that are either excessive or insufficient.

Part 4 - Protection of Property of Protected Person

Section 41 contains the general authorization for a court to appoint a conservator or make any other protective order in relation to the estate and affairs of a minor or incapacitated person. Evidentiary standards are specified.

Section 42 contains provisions dealing with jurisdiction over the business affairs of a protected person.

Section 43 provides for a petition for appointment of a conservator or for issuance of a protective order. It specifies who may petition and the contents that must be contained in the petition.

Section 44 contains notice requirements, similar to current law in section 525.55, subdivisions 2 and 3.

Section 45 contains special provisions applicable to cases where the petition is to establish a conservatorship or protective order on behalf of a minor. Paragraph (a), dealing with appointment of counsel, is based on current law in section 525.618, subdivision 4. Paragraph (b) gives the court authority to issue orders to preserve a minor's property pending completion of the proceedings.

Section 46 deals with petitions for persons under a disability (other than a minor). The hearing date, appointment of counsel, and naming of a visitor to interview the proposed protected person are specified. Duties of the visitor are included. Some of these are contained in current law in sections 525.55, subdivision 2, and 525.551, subdivision 1.

Section 47 deals with the original petition and procedure at the hearing, including who must attend. The court may permit any interested person to participate on a showing of good cause and that it would be in the protected person's best interests.

Section 48 deals with the findings and order of appointment.

Section 49 specifies the powers of the court and provisions that may be included in the conservatorship or protective order.

Section 50 contains the powers that may be exercised by a conservator with court approval. In general, it provides for the use of estate planning and medical assistance planning tools that are not available under current law, provided that court approval is received.

Section 51 contains special provisions for protective arrangements and single transactions in cases where protective orders may be necessary without actual appointment of a conservator.

Section 52 specifies who may be a conservator and the priorities for persons in cases where a number are available, similar to the provisions earlier in the bill that deal with the naming of a guardian.

Section 53 contains provisions for a petition subsequent to an appointment that specify issues that a person or interested person may petition the court for. Notice and hearing requirements are included.

Section 54 allows the court to require a conservator to furnish a bond. Under current law in section 525.551, subdivision 1, a bond must be furnished unless the ward has no personal property.

Section 55 specifies the terms and requirement of a bond and provides that the conservator and surety would be jointly and severally liable.

Section 56 specifies the general powers and duties of a conservator.

Section 57 contains the general powers and duties of a conservator over real property.

Section 58 contains inventory and record requirements. A conservator must file an inventory of the estate within 60 days after appointment. Current law in section 525.561 requires an inventory within a month unless the court grants a longer period, and contains more detail about the structure of the inventory. A conservator must keep records and make them available on reasonable request by the court, ward, or protected person or their attorney.

Section 59 contains reporting requirements for conservators, based on the reporting requirements that apply to guardians. An annual report must be made showing assets, receipts, disbursements, and distributions. It is similar to current law under section 525.58.

Section 60 deals with title after appointment. The appointment of a conservator does not vest title to the protected person's property in the conservator. Letters of appointment are evidence of the right to act on behalf of the protected person.

Section 61 contains provisions specifying that the protected person's interest are nonalienable. A protected person may not transfer their interests in property except as provided in the law. Provisions for actions based on restitution or damages are included.

Section 62 contains special provisions dealing with the sale, encumbrance, or other transactions involving a conflict of interest with respect to the conservatorship estate.

Section 63 adds special provisions protecting persons who deal with a conservator.

Section 64 prohibits a conservator from delegating the management of the estate but does allow delegation of certain functions that a prudent person might do under similar circumstances. Standards are specified in selecting an agent and reasonable care requirements for the agent are included.

Section 65 deals with principles of distribution by a conservator. A conservator may use income or principal without further court authorization for specified purposes. Special rules are included with respect to dependents. Factors to be considered in making distributions are specified.

Section 66 deals with death of a protected person. If the protected person dies, the conservator must deliver any will, inform the personal representative, and retain the estate until a personal representative or other appropriate person is appointed. The conservator may seek appointment after 90 days.

Section 67 deals with claims against a protected person and specifies how they are to be handled by the conservator.

Section 68 deals with the personal liability of a conservator.

Section 69 deals with termination of proceedings.

Section 70 provides for payment of debt and delivery of property to a foreign conservator.

Section 71 provides that if there is not a Minnesota conservator, a conservator in another state may file letters of appointment here and act regarding that property.

Part 5 - Miscellaneous

Section 72 contains special provisions dealing with workers' compensation claims. It provides for appointment of a conservator if an incapacitated person or minor has a workers' compensation claim and includes cross-references to current workers' compensation law.

Section 73 deals with compensation and expenses. It is based on current law in section 525.703.

Article 2 amends miscellaneous Minnesota Statutes, consistent with the earlier provisions in the bill.

Current Minnesota Statutes relating to guardians and conservators are repealed. In addition, special transition provisions are included with respect to application of law.

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