Senate File 348 - Reprinted
SENATE FILE 348
BY COMMITTEE ON JUDICIARY
(SUCCESSOR TO SF 31)
(As Amended and Passed by the Senate March 8, 2021)
A BILL FOR
1 An Act relating to the opening, administration, and termination
2 of adult and minor guardianships and conservatorships.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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1 DIVISION I
2 MINOR GUARDIANSHIPS
3 Section 1. Section 232.3, subsection 1, Code 2021, is
4 amended to read as follows:
5 1. During the pendency of an action under this chapter, a
6 party to the action is estopped from litigating concurrently
7 the custody, guardianship, or placement of a child who is the
8 subject of the action, in a court other than the juvenile court
9 with jurisdiction of the pending action under this chapter. A
10 district judge, district associate judge, juvenile court judge,
11 magistrate, or judicial hospitalization referee, upon notice
12 of the pendency of an action under this chapter, shall not
13 issue an order, finding, or decision relating to the custody,
14 guardianship, or placement of the child who is the subject of
15 the action, under any law, including but not limited to chapter
16 232D, 598, or 598B, or 633.
17 Sec. 2. Section 232.3, Code 2021, is amended by adding the
18 following new subsection:
19 NEW SUBSECTION. 3. An action which is pending under chapter
20 232D prior to an action being brought under this chapter shall
21 be stayed by the court in the chapter 232D action unless the
22 court follows the procedures in subsection 2 and authorizes a
23 party to the action to litigate a specific issue under this
24 chapter.
25 Sec. 3. Section 232D.103, Code 2021, is amended to read as
26 follows:
27 232D.103 Jurisdiction.
28 The juvenile court has exclusive jurisdiction in a
29 guardianship proceeding concerning a minor who is alleged to be
30 in need of a guardianship and guardianships of minors.
31 Sec. 4. NEW SECTION. 232D.107 Confidentiality.
32 Official juvenile court records in guardianship proceedings
33 shall be confidential and are not public records. Confidential
34 records may be inspected and their contents shall be disclosed
35 to the following without court order, provided that a person
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1 or entity who inspects or receives a confidential record under
2 this section shall not disclose the confidential record or its
3 contents unless required by law:
4 1. The judge and professional court staff.
5 2. The minor and the minor’s counsel.
6 3. The minor’s parent, guardian or custodian, court
7 visitor, and any counsel representing such person.
8 Sec. 5. Section 232D.301, subsection 2, paragraph d,
9 subparagraph (3), Code 2021, is amended to read as follows:
10 (3) Any adult who has had the primary care of the minor or
11 with whom the minor has lived for at least any time during the
12 six months prior to immediately preceding the filing of the
13 petition.
14 Sec. 6. Section 232D.301, subsection 4, Code 2021, is
15 amended to read as follows:
16 4. The petition shall state whether a limited guardianship
17 is appropriate, and whether a conservatorship for the minor is
18 already in existence.
19 Sec. 7. Section 232D.302, subsection 2, Code 2021, is
20 amended to read as follows:
21 2. Notice shall be served upon the minor’s known parents
22 listed in the petition in accordance with the rules of civil
23 procedure. If the parent has not filed a consent to the
24 appointment of a guardian, the notice shall inform any parent
25 named in the petition that the parent may be entitled to
26 representation under the conditions described in section
27 232D.304.
28 Sec. 8. Section 232D.305, subsection 1, Code 2021, is
29 amended to read as follows:
30 1. The court may appoint a court visitor for the minor. A
31 person is qualified to serve as a court visitor if the court
32 determines the person has demonstrated sufficient knowledge of
33 guardianships to adequately perform the duties in subsection 3.
34 Sec. 9. Section 232D.306, Code 2021, is amended by adding
35 the following new subsection:
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1 NEW SUBSECTION. 4. A hearing on the petition may be
2 recorded if a court reporter is not used.
3 Sec. 10. Section 232D.307, subsection 1, Code 2021, is
4 amended to read as follows:
5 1. The court shall request criminal record checks and checks
6 of the child abuse, dependent adult abuse, and sex offender
7 registries in this state for all proposed guardians other than
8 financial institutions with Iowa trust powers unless a proposed
9 guardian has undergone the required background checks in this
10 section within the twelve six months prior to the filing of
11 a petition and the background check has been provided to the
12 court.
13 Sec. 11. Section 232D.401, subsection 1, Code 2021, is
14 amended to read as follows:
15 1. The order by the court appointing a guardian for a minor
16 shall state the basis for the order and the date on which the
17 first reporting period for the guardianship will end.
18 Sec. 12. Section 232D.401, subsection 3, unnumbered
19 paragraph 1, Code 2021, is amended to read as follows:
20 An order by the court appointing a guardian for a minor shall
21 state the powers granted to the guardian until such time as the
22 guardian files an initial care plan and such plan is approved
23 by the court as required by section 232D.501, subsection 4.
24 Except as otherwise limited by court an order appointing a
25 guardian for a minor, the court may grant the guardian the
26 following powers, which may be exercised without prior court
27 approval:
28 Sec. 13. Section 232D.501, subsection 1, paragraph a, Code
29 2021, is amended by adding the following new subparagraph:
30 NEW SUBPARAGRAPH. (2A) The guardian’s plan, if any, for
31 applying for and receiving funds and benefits payable for the
32 support of the minor.
33 Sec. 14. Section 232D.501, subsection 1, paragraph b, Code
34 2021, is amended by adding the following new subparagraphs:
35 NEW SUBPARAGRAPH. (11) The results of the guardian’s
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1 efforts to apply for funds or benefits for the minor, and
2 an accounting for the use of such funds or benefits by the
3 guardian.
4 NEW SUBPARAGRAPH. (12) Any other information the guardian
5 deems necessary for the court to consider.
6 Sec. 15. Section 232D.501, Code 2021, is amended by adding
7 the following new subsections:
8 NEW SUBSECTION. 5. The guardian shall provide a copy of the
9 verified initial care plan and verified annual report required
10 by this section to the protected person, the protected person’s
11 attorney, if any, and court visitor, if any.
12 NEW SUBSECTION. 6. The court, for good cause, may extend
13 the deadline for filing required reports. Required reports of
14 a guardian which are not timely filed and which are delinquent,
15 and for which no extension for filing has been granted by the
16 court, shall be administered in the same manner as provided in
17 section 633.32.
18 DIVISION II
19 ADULT GUARDIANSHIPS AND MINOR AND ADULT CONSERVATORSHIPS
20 Sec. 16. Section 235B.6, subsection 2, paragraph d, Code
21 2021, is amended by adding the following new subparagraph:
22 NEW SUBPARAGRAPH. (7) To a district court conducting
23 checks of the dependent adult abuse registry for all proposed
24 guardians and conservators pursuant to section 633.564.
25 Sec. 17. Section 633.556, subsections 4 and 5, Code 2021,
26 are amended to read as follows:
27 4. The petition shall list the name and address of the
28 petitioner and the petitioner’s relationship to the respondent
29 following:
30 a. The respondent.
31 b. The petitioner and the petitioner’s relationship to the
32 respondent.
33 c. The proposed guardian or conservator and the reason the
34 proposed guardian or conservator should be selected.
35 5. The petition shall list the name and address, to the
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1 extent known, of the following:
2 a. The name and address of the proposed guardian and the
3 reason the proposed guardian should be selected.
4 b. Any spouse of the respondent.
5 c. Any adult children of the respondent.
6 d. Any parents of the respondent.
7 e. Any adult, who has had the primary care of the respondent
8 or with whom the respondent has lived for at least any time
9 during the six months prior to immediately preceding the filing
10 of the petition, or any institution or facility where the
11 respondent has resided for at least six months prior to any
12 time during the six months immediately preceding the filing of
13 the petition.
14 f. Any legal representative or representative payee of the
15 respondent.
16 g. Any person designated as an attorney in fact in a durable
17 power of attorney for health care which is valid under chapter
18 144B, or any person designated as an agent in a durable power
19 of attorney which is valid under chapter 633B.
20 Sec. 18. Section 633.560, subsection 3, Code 2021, is
21 amended to read as follows:
22 3. The court shall require the proposed guardian or
23 conservator to attend the hearing on the petition but the court
24 may excuse the proposed guardian’s or conservator’s attendance
25 for good cause shown.
26 Sec. 19. Section 633.561, subsection 6, Code 2021, is
27 amended to read as follows:
28 6. If the court determines that it would be in the
29 respondent’s best interest to have legal representation
30 with respect to any further proceedings in a guardianship
31 or conservatorship, the court may appoint an attorney to
32 represent the respondent at the expense of the respondent or
33 the respondent’s estate, or if the respondent is indigent the
34 cost of the court appointed attorney shall be assessed against
35 the county in which the proceedings are pending.
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1 Sec. 20. Section 633.562, subsection 1, Code 2021, is
2 amended to read as follows:
3 1. If the court determines that the appointment of a court
4 visitor would be in the best interest of the respondent, the
5 court shall appoint a court visitor at the expense of the
6 respondent or the respondent’s estate, or, if the respondent
7 is indigent, the cost of the court visitor shall be assessed
8 against the county in which the proceedings are pending. The
9 court may appoint any qualified person as a court visitor in
10 a guardianship or conservatorship proceeding. A person is
11 qualified to serve in this capacity if the court determines the
12 person has demonstrated sufficient knowledge of guardianships
13 or conservatorships to adequately perform the duties in
14 subsection 3.
15 Sec. 21. Section 633.562, Code 2021, is amended by adding
16 the following new subsection:
17 NEW SUBSECTION. 7. A court visitor shall be discharged
18 from all further duties upon appointment of a guardian or
19 conservator, unless otherwise ordered by the court. The court
20 may order a court visitor to continue to serve if the court
21 determines continued service would be in the best interest of
22 the protected person. If the court continues the service of
23 the court visitor, the court may limit the direct duties of the
24 court visitor as the court deems necessary. The court visitor
25 shall thereafter continue to serve until discharged by the
26 court.
27 Sec. 22. Section 633.564, subsection 1, Code 2021, is
28 amended to read as follows:
29 1. The court shall request criminal record checks and
30 checks of the child abuse, dependent adult abuse, and sexual
31 offender registries in this state for all proposed guardians
32 and conservators, other than financial institutions with Iowa
33 trust powers, unless a proposed guardian or conservator has
34 undergone the required background checks required by this
35 section within the six months prior to the filing of a petition
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1 and the background check has been provided to the court.
2 Sec. 23. Section 633.569, Code 2021, is amended to read as
3 follows:
4 633.569 Emergency appointment of temporary guardian or
5 conservator.
6 1. A person authorized to file a petition under section
7 633.552, 633.553, or 633.554 633.556 or 633.557 may file an
8 application for the emergency appointment of a temporary
9 guardian or conservator.
10 2. Such application shall state all of the following:
11 a. The name and address of the respondent.
12 0b. The name and address of the petitioner and the
13 petitioner’s relationship to the respondent.
14 b. The name and address of the proposed guardian or
15 conservator and the reason the proposed guardian or conservator
16 should be selected.
17 0c. The names and addresses, to the extent known, of any
18 other persons who must be named in the petition for appointment
19 of a guardian or conservator under section 633.556 or 633.557.
20 c. The reason the emergency appointment of a temporary
21 guardian or conservator is sought.
22 3. The court may enter an ex parte order appointing a
23 temporary guardian or conservator on an emergency basis under
24 this section if the court finds that all of the following
25 conditions are met:
26 a. There is not sufficient time to file a petition
27 and hold a hearing pursuant to section 633.552, 633.553,
28 or 633.554 633.556, 633.557, or 633.560.
29 b. The appointment of a temporary guardian or conservator
30 is necessary to avoid immediate or irreparable harm to the
31 respondent before a hearing with notice to the respondent can
32 be held.
33 c. There is reason to believe that the basis for appointment
34 of guardian or conservator exists under section 633.552,
35 633.553, or 633.554 633.556 or 633.557.
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1 4. Notice of a petition for the appointment of a temporary
2 guardian or conservator and the issuance of an ex parte
3 order appointing a temporary guardian or conservator shall be
4 provided to the respondent, the respondent’s attorney, and any
5 other person the court determines should receive notice.
6 5. Upon the issuance of an ex parte order, if the respondent
7 is an adult, the respondent may file a request for a hearing.
8 If the respondent is a minor, the respondent, a parent having
9 legal custody of the respondent, or any other person having
10 legal custody of the respondent may file a written request for
11 a hearing. Such hearing shall be held no later than seven days
12 after the filing of a written request.
13 6. The powers of the temporary guardian or conservator
14 set forth in the order of the court shall be limited to those
15 necessary to address the emergency situation requiring the
16 appointment of a temporary guardian or conservator.
17 7. The temporary guardianship or conservatorship shall
18 terminate within thirty days after the order is issued.
19 8. The court may order an extension of the temporary
20 guardianship or conservatorship for thirty days for good
21 cause shown, including a showing that a hearing on a petition
22 for a guardianship or conservatorship under section 633.556
23 or 633.557 cannot be scheduled within thirty days after the
24 order for a temporary guardianship or conservatorship is
25 ordered. Prior to or contemporaneously with the filing for
26 an application for the extension of time, the guardian or
27 conservator shall file a report with the court setting forth
28 all of the following:
29 a. All actions conducted by the guardian or conservator on
30 behalf of the protected person from the time of the initial
31 appointment of the guardian up to the time of the report.
32 b. All actions that the guardian or conservator plans to
33 conduct on behalf of the protected person during the thirty-day
34 extension period.
35 9. The temporary guardian or conservator shall submit any
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1 ot