23.0619.01000
Sixty-eighth
Legislative Assembly SENATE BILL NO. 2225
of North Dakota
Introduced by
Senators Dwyer, Lee, Sickler
Representatives Klemin, Nelson, Schneider
1 A BILL for an Act to create and enact sections 30.1-28-16, 30.1-28-17, 30.1-28-18, and
2 30.1-28-19 of the North Dakota Century Code, relating to court-authorized involuntary treatment
3 of a ward; to amend and reenact sections 25-03.1-18.2 and 30.1-26-01, subsection 2 of section
4 30.1-28-03, and sections 30.1-28-04, 30.1-28-12, and 30.1-28-14 of the North Dakota Century
5 Code, relating to involuntary treatment of a ward with prescribed medication.
6 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
7 SECTION 1. AMENDMENT. Section 25-03.1-18.2 of the North Dakota Century Code is
8 amended and reenacted as follows:
9 25-03.1-18.2. Guardian consent to involuntary treatment with prescribed medication.
10 Notwithstanding sections 25-03.1-16, 25-03.1-18.1, and 25-03.1-24, if a patient refuses
11 treatment with prescribed medication, a treating physician, physician assistant,
12 psychiatristclinical nurse specialist, or advanced practice registered nurse may treat the patient
13 with prescribed mood stabilizer or antipsychotic medication upon consent of the patient's
14 guardian pursuant to subsection 6 of section 30.1-28-12sections 30.1-28-16 through
15 30.1-28-18.
16 1. The guardian's consent for involuntary treatment with prescribed medication may not
17 be in effect for more than ninety days without receiving another recommendation and
18 determination pursuant to subsection 6 of section 30.1-28-12.
19 2. The patient has the right to be free of the effects of medication at the preliminary or
20 treatment hearing by discontinuance of medication no later than twenty-four hours
21 before the hearing unless, in the opinion of the prescriber, the need for the medication
22 still exists or discontinuation would hamper the patient's preparation for and
23 participation in the proceedings.
Page No. 1 23.0619.01000
 Sixty-eighth
Legislative Assembly
1 SECTION 2. AMENDMENT. Section 30.1-26-01 of the North Dakota Century Code is
2 amended and reenacted as follows:
3 30.1-26-01. (5-101) Definitions and use of terms.
4 Unless otherwise apparent from the context, in this title:
5 1. "Alternative resource plan" means a plan that provides an alternative to guardianship,
6 using available support services and arrangements which are acceptable to the
7 alleged incapacitated person. The plan may include the use of providers of service
8 such as visiting nurses, homemakers, home health aides, personal care attendants,
9 adult day care and multipurpose senior citizen centers; home and community-based
10 care, human service zones, and developmental disability services; powers of attorney,
11 representative and protective payees; and licensed congregate care facilities.
12 2. "Incapacitated person" means any adult person who is impaired by reason of mental
13 illness, mental deficiency, physical illness or disability, or chemical dependency to the
14 extent that the person lacks capacity to make or communicate responsible decisions
15 concerning that person's matters of residence, education, medical treatment, legal
16 affairs, vocation, finance, or other matters, or which incapacity endangers the person's
17 health or safety.
18 3. "Least restrictive form of intervention" means that the guardianship imposed on the
19 ward must compensate for only those limitations necessary to provide the needed
20 care and services, and that the ward must enjoy the greatest amount of personal
21 freedom and civil liberties consistent with the ward's mental and physical limitations.
22 4. A "protected person" is a minor or other person for whom a conservator or limited
23 conservator has been appointed or other protective order has been made.
24 5. A "protective proceeding" is a proceeding under the provisions of section 30.1-29-01 to
25 determine that a person cannot effectively manage or apply the person's estate to
26 necessary ends, either because the person lacks the ability or is otherwise
27 inconvenienced, or because the person is a minor, and to secure administration of the
28 person's estate by a conservator or other appropriate relief.
29 6. "Refusal" means a clear and unequivocal response declining to accept prescribed
30 mood stabilizer or antipsychotic medication.
Page No. 2 23.0619.01000
 Sixty-eighth
Legislative Assembly
1 7. A "ward" is a person for whom a guardian or limited guardian has been appointed. A
2 "minor ward" is a minor for whom a guardian has been appointed solely because of
3 minority.
4 SECTION 3. AMENDMENT. Subsection 2 of section 30.1-28-03 of the North Dakota
5 Century Code is amended and reenacted as follows:
6 2. The petition for appointment of a guardian must state:
7 a. The name, address, and corporate or agency status of the petitioner, and its
8 connection with or relationship to the proposed ward;
9 b. The name, age, and address of the proposed ward;
10 c. The name and address of any person or institution having care or custody over
11 the proposed ward;
12 d. The names and addresses of the spouse, parents, and adult children or, if none,
13 any adult siblings and any adult with whom the proposed ward resides in a
14 private residence, or, if none, the nearest adult relative;
15 e. A brief description of and the approximate value of the real and personal property
16 and income of the proposed ward, so far as they are known to the petitioner;
17 f. The extent of guardianship authority sought, including full authority, limited
18 authority, or no authority in each area of residential, educational, medical, legal,
19 vocational, and financial decisionmaking unless the petitioner is undecided on the
20 extent of authority in any area, in which case the petition must state the specific
21 areas in which the authority is sought;
22 g. The occupation and qualifications of the proposed guardian;
23 h. The name and address of the attorney, if known, who most recently represented
24 the proposed ward;
25 i. A statement alleging specific facts establishing the necessity for the appointment
26 of a guardian;
27 j. The name and address of any current conservator appointed for the proposed
28 ward;
29 k. The name and address of any person designated as an attorney in fact or agent
30 in a power of attorney or as an agent in a health care directive;
31 l. The name and address of any representative payee for the proposed ward;
Page No. 3 23.0619.01000
 Sixty-eighth
Legislative Assembly
1 m. That less intrusive alternatives to guardianship have been considered;
2 n. In the form of an attached recent statement, the physical, mentalneurological,
3 and emotionalpsychological limitations of the proposed ward from an expert
4 examiner, if available; and
5 o. Whether the petition seeks to restrict any of the following rights:
6 (1) To vote;
7 (2) To seek to change marital status; or
8 (3) To obtain or retain a motor vehicle operator's license; or
9 (4) To use, own, control, or possess a firearm; and
10 p. If the proposed guardian seeks authority for involuntary treatment with prescribed
11 mood stabilizer or antipsychotic medication under section 30.1-28-16, facts
12 specified under subsection 3 of section 30.1-28-16. The petitioner also shall
13 attach a recent report under subsection 2 of section 30.1-28-16.
14 SECTION 4. AMENDMENT. Section 30.1-28-04 of the North Dakota Century Code is
15 amended and reenacted as follows:
16 30.1-28-04. (5-304) Findings - Order of appointment.
17 1. The court shall exercise the authority conferred in this chapter consistent with the
18 maximum self-reliance and independence of the incapacitated person and make
19 appointive and other orders only to the extent necessitated by the incapacitated
20 person's actual mental and adaptive limitations or other conditions warranting the
21 procedure.
22 2. At a hearing held under this chapter, the court shall:
23 a. Hear evidence that the proposed ward is an incapacitated person. Age,
24 eccentricity, poverty, or medical diagnosis alone is not sufficient to justify a finding
25 of incapacity;
26 b. Hear evidence and determine whether there are any existing general durable
27 powers of attorney and durable powers of attorney for health care. If there are
28 validly executed durable powers of attorney, the court shall consider the
29 appointed attorneys in fact and agents appointed thereunder when assessing
30 alternative resource plans and the need for a guardian; and
Page No. 4 23.0619.01000
 Sixty-eighth
Legislative Assembly
1 c. Appoint a guardian and confer specific powers of guardianship only after finding
2 in the record based on clear and convincing evidence that:
3 (1) The proposed ward is an incapacitated person;
4 (2) There is no available alternative resource plan that is suitable to safeguard
5 the proposed ward's health, safety, or habilitation which could be used
6 instead of a guardianship;
7 (3) The guardianship is necessary as the best means of providing care,
8 supervision, or habilitation of the ward; and
9 (4) The powers and duties conferred upon the guardian are appropriate as the
10 least restrictive form of intervention consistent with the ability of the ward for
11 self-care.
12 3. Except upon specific findings of the court, a ward may not be deprived of any of the
13 following legal rights: to vote, to seek to change marital status, or to obtain or retain a
14 motor vehicle operator's license.
15 4. The court may find that the ward retains other specific rights.
16 5. The order appointing a guardian confers upon the guardian only those powers and
17 duties specified in the order. In addition to any other powers conferred upon the
18 guardian, the court's order must state whether the guardian has no authority, general
19 authority, or limited authority to make decisions on behalf of the ward in each of the
20 areas of residential, educational, medical, legal, vocational, and financial
21 decisionmaking. A grant of limited authority must specify the limitations upon the
22 authority of the guardian or the authority retained by the ward. The court's order must
23 require the guardian to provide within ninety days from the date of the order a
24 beginning inventory of all assets owned by the ward or in which the ward has an
25 interest. The guardian shall provide a copy of the beginning inventory to the ward and
26 any interested persons designated by the court in its order. Unless terminated earlier
27 by the court, an order appointing or reappointing a guardian under this section is
28 effective for up to five years. At least ninety days before the expiration of the initial
29 order of appointment or any following order of reappointment, the court shall request
30 and consider information submitted by the guardian, ward, ward's attorney, if any, and
31 any interested persons regarding whether the need for a guardian continues to exist. If
Page No. 5 23.0619.01000
 Sixty-eighth
Legislative Assembly
1 it is recommended that the guardianship continue, the court may appoint a guardian
2 ad litem or visitor, or both, in accordance with section 30.1-28-03. The court shall hold
3 a hearing on whether the guardianship should continue. Following the hearing and
4 consideration of submitted information, the court may reappoint the guardian for up to
5 another five years, allow the existing order to expire, or appoint a new guardian in
6 accordance with this section. The supreme court, by rule or order, shall provide for the
7 regular review of guardianship in existence on August 1, 2015.
8 6. Unless a court of competent jurisdiction determines otherwise, a durable power of
9 attorney for health care executed pursuant to chapter 23-06.5 takes precedence over
10 any authority to make medical decisions granted to a guardian pursuant to chapter
11 30.1-28.
12 7. A grant of general authority to make medical decisions includes the authority to
13 consent to involuntary treatment with prescribed medications. Except upon specific
14 findings of the court, a grant of limited authority does not include authority to consent
15 to involuntary treatment with prescribed medications.
16 8. The court may require a guardian to furnish a bond in the amount and with sureties as
17 the court specifies.
18 SECTION 5. AMENDMENT. Section 30.1-28-12 of the North Dakota Century Code is
19 amended and reenacted as follows:
20 30.1-28-12. (5-312) General powers and duties of guardian.
21 1. A guardian of an incapacitated person has only the powers and duties specified by the
22 court.
23 2. To the extent that it is consistent with the terms of an order by a court of competent
24 jurisdiction, the guardian is entitled to custody of the person of the ward and may
25 establish the ward's place of residence within or without this state. However, no
26 guardian may voluntarily admit a ward to a mental health facility or state institution for
27 a period of more than forty-five days without a mental health commitment proceeding
28 or other court order. Notwithstanding the other provisions of this subsection, the
29 guardian may readmit a ward to a mental health facility or a state institution within sixty
30 days of discharge from that institution, if the original admission to the facility or
31 institution had been authorized by the court.
Page No. 6 23.0619.01000
 Sixty-eighth
Legislative Assembly
1 3. If entitled to custody of the ward, the guardian should make provision for the care,
2 comfort, and maintenance of the ward and, whenever appropriate, arrange for the
3 ward's training, education, or habilitative services. The guardian shall take reasonable
4 care of the ward's clothing, furniture, vehicles, and personal effects.
5 4. Notwithstanding general or limited authority to make medical decisions on behalf of
6 the ward, no guardian may consent to psychosurgery, abortion, sterilization, or
7 experimental treatment of any kind unless the procedure is first approved by order of
8 the court.
9 5. When exercising the authority granted by the court, the guardian shall safeguard the
10 civil rights and personal autonomy of the ward to the fullest extent possible by:
11 a. Meeting with the ward following the hearing, unless the ward is represented by
12 an attorney, and explaining to the fullest extent possible the contents of the
13 court's order and the extent of the guardian's authority;
14 b. Involving the ward as fully as is practicable in making decisions with respect to
15 the ward's living arrangements, health care, and other aspects of the ward's care;
16 and
17 c. Ensuring the ward's maximum personal freedom by using the least restrictive
18 forms of intervention and only as necessary for the safety of the ward or others.
19 6. A guardian with authority to consent to involuntary treatment with prescribed
20 medications may not provide consent without receiving a recommendation and
21 determination from the ward's treating physician, physician assistant, psychiatrist, or
22 advanced practice registered nurse that:
23 a. The proposed prescribed medication is clinically appropriate and necessary to
24 effectively treat the ward and that the ward requires treatment;
25 b. The ward was offered that treatment and refused it or that the ward lacks the
26 capacity to make or communicate a responsible decision about that treatment;
27 c. Prescribed medication is the least restrictive form of intervention necessary to
28 meet the treatment needs of the ward; and
29 d. The benefits of the treatment outweigh the known risks to the ward.
Page No.