23.0571.01000
Sixty-eighth
Legislative Assembly SENATE BILL NO. 2224
of North Dakota
Introduced by
Senators Dwyer, Lee, Sickler
Representatives Klemin, Nelson, Schneider
1 A BILL for an Act to create and enact a new section to chapter 30.1-28 and a new subsection to
2 section 30.1-28-10.1 of the North Dakota Century Code, relating to guardianship proceedings
3 for minors becoming incapacitated adults and emergency guardianship; to amend and reenact
4 section 27-20.1-02, subsection 1 of section 27-20.1-09, subsection 2 of section 27-20.1-17,
5 subsection 60 of section 30.1-01-06, subsection 1 of section 30.1-26-01, subsection 2 of section
6 30.1-27-05, sections 30.1-28-03, 30.1-28-04, and 30.1-28-07, subsection 2 of section
7 30.1-28-09, and subsection 7 of section 30.1-28-12 of the North Dakota Century Code, relating
8 to guardianship of minors, sale of property by a guardian, termination of a guardianship, waiver
9 of notice, and guardians ad litem.
10 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
11 SECTION 1. AMENDMENT. Section 27-20.1-02 of the North Dakota Century Code is
12 amended and reenacted as follows:
13 27-20.1-02. Jurisdiction.
14 The juvenile court has exclusive original jurisdiction of proceedings to grant, modify, or
15 terminate guardianship for a child, except the testamentary appointment of a guardian for a
16 minor governed by chapter 30.1-27 and the appointment of a guardian for a minor becoming an
17 incapacitated adult under section 7 of this Act.
18 SECTION 2. AMENDMENT. Subsection 1 of section 27-20.1-09 of the North Dakota
19 Century Code is amended and reenacted as follows:
20 1. If, at any time in the proceeding, the court determines the child is of sufficient age and
21 competency to assist counsel and the interests of the child are or may be inadequately
22 represented, the court may appoint an attorney to represent the child. The court shall
23 make appropriate findings to support the appointment of counsel.
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1 SECTION 3. AMENDMENT. Subsection 2 of section 27-20.1-17 of the North Dakota
2 Century Code is amended and reenacted as follows:
3 2. A guardian's authority and responsibility terminates upon the death, resignation, or
4 removal of the guardian, or upon the child's death, adoption, marriage, or attainment
5 of majority, but termination does not affect the guardian's liability for prior acts or the
6 guardian's obligation to account for funds and assets of the child. For cases arising
7 under section 27-20.3-16, the age of majority is age twenty-one.
8 SECTION 4. AMENDMENT. Subsection 60 of section 30.1-01-06 of the North Dakota
9 Century Code is amended and reenacted as follows:
10 60. "Visitor" means an individual, in guardianship proceedings, who is trained in nursing
11 or, social work, medical care, mental health care, or rehabilitation and is an officer,
12 employee, or special appointee of the court with no personal interest in the
13 proceedings.
14 SECTION 5. AMENDMENT. Subsection 1 of section 30.1-26-01 of the North Dakota
15 Century Code is amended and reenacted as follows:
16 1. "Alternative resource plan" means a plan that provides an alternative to guardianship,
17 using available support services and arrangements which are acceptable to the
18 alleged incapacitated person. The plan may include the use of providers of service
19 such as visiting nurses, homemakers, home health aides, personal care attendants,
20 and adult day care and multipurpose senior citizen centers; home and
21 community-based care, human service zones, and developmental disability services;
22 powers of attorney, durable powers of attorney, health care directives, and supported
23 decisionmaking; representative and protective payees; and licensed congregate care
24 facilities.
25 SECTION 6. AMENDMENT. Subsection 2 of section 30.1-27-05 of the North Dakota
26 Century Code is amended and reenacted as follows:
27 2. The juvenile court under chapter 27-20.1 has exclusive original jurisdiction over
28 proceedings to consider objections to the testamentary appointment under
29 section 30.1-27-07 and over the court appointment of a guardian of a minor except the
30 appointment of a guardian for a minor becoming an incapacitated adult under
31 section 7 of this Act. Any person interested in the welfare of a minor may petition the
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1 juvenile court for the appointment of a guardian under section 27-20.1-05 in the
2 following situations:
3 a. If there is a living parent of the minor, known or unknown;
4 b. If the testamentary guardian fails to accept appointment as guardian within sixty
5 days after the death of the minor's last living parent;
6 c. If both parents are dead or the surviving parent's rights have been terminated by
7 prior court order, but there has been no appointment of a guardian for the minor
8 by will; or
9 d. If a guardianship of a minor is sought for any other reason.
10 SECTION 7. A new section to chapter 30.1-28 of the North Dakota Century Code is created
11 and enacted as follows:
12 Guardianship proceedings for minor becoming an incapacitated adult.
13 1. As used in this section:
14 a. "Legal decisionmaking" means the legal right and responsibility to make all legal
15 decisions for a child including those regarding education, health care, and
16 personal care decisions.
17 b. "Child" means an individual who is under the age of eighteen and is not married.
18 c. "Child becoming an incapacitated adult" means a child who has reached age
19 seventeen years and six months and is proposed to become an incapacitated
20 adult at age eighteen.
21 2. A petition to establish a guardianship for a child becoming an incapacitated adult may
22 be filed by any person interested in the welfare of the child and having knowledge of
23 the facts alleged or information and belief the facts are true.
24 3. The procedure in this chapter for appointment of a guardian of an incapacitated adult
25 must be the procedure used for appointment of a guardian for a child becoming an
26 incapacitated adult except the court shall appoint as the guardian any person that had
27 legal decisionmaking responsibility for the child when the child turned seventeen years
28 and six months of age. If the court finds the appointment of the person with legal
29 decisionmaking authority would be contrary to the best interests of the incapacitated
30 adult, the priorities listed in section 30.1-28-11 may be followed.
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1 4. A guardianship order under this section may take effect immediately on the day the
2 child turns eighteen years of age.
3 SECTION 8. AMENDMENT. Section 30.1-28-03 of the North Dakota Century Code is
4 amended and reenacted as follows:
5 30.1-28-03. (5-303) Procedure for court appointment of a guardian of an incapacitated
6 person.
7 1. Any person interested in the welfare of an allegedly incapacitated person may petition
8 for the appointment of a guardian. No filing fee under this or any other section may be
9 required when a petition for guardianship of an incapacitated person is filed by a
10 member of the individual treatment plan team for the alleged incapacitated person or
11 by any state employee in the performance of official duties.
12 2. The petition for appointment of a guardian must state:
13 a. The name, address, and corporate or agency status of the petitioner, and its
14 connection with or relationship to the proposed ward;
15 b. The name, age, and address of the proposed ward;
16 c. The name and address of any person or institution having care or custody over
17 the proposed ward;
18 d. The names and addresses of the spouse, parents, and adult children or, if none,
19 any adult siblings and any adult with whom the proposed ward resides in a
20 private residence, or, if none, the nearest adult relative;
21 e. A brief description of and the approximate value of the real and personal property
22 and income of the proposed ward, so far as they are known to the petitioner;
23 f. The extent of guardianship authority sought, including full authority, limited
24 authority, or no authority in each area of residential, educational, medical, legal,
25 vocational, and financial decisionmaking unless the petitioner is undecided on the
26 extent of authority in any area, in which case the petition must state the specific
27 areas in which the authority is sought;
28 g. The occupation and qualifications of the proposed guardian;
29 h. The name and address of the attorney, if known, who most recently represented
30 the proposed ward;
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1 i. A statement alleging specific facts establishing the necessity for the appointment
2 of a guardian;
3 j. The name and address of any current conservator appointed for the proposed
4 ward;
5 k. The name and address of any person designated as an attorney in fact or agent
6 in a power of attorney or as an agent in a health care directive;
7 l. The name and address of any representative payee for the proposed ward;
8 m. That less intrusive alternatives to guardianship have been considered;
9 n. In the form of an attached recent statement, the physical, mental, and emotional
10 limitations of the proposed ward from an expert examiner, if available; and
11 o. Whether the petition seeks to restrict any of the following rights:
12 (1) To vote;
13 (2) To seek to change marital status; or
14 (3) To obtain or retain a motor vehicle operator's license.
15 3. Upon the filing of a petition, the court promptly shall set a date for hearing on the
16 issues of incapacity, appoint an attorney to act as guardian ad litem, appoint an expert
17 examiner to examine the proposed ward, and appoint a visitor to interview the
18 proposed guardian and the proposed ward. The proposed guardian shall attend the
19 hearing on the petition unless excused by the court for good cause.
20 4. The duties of the guardian ad litem include:
21 a. Personally interviewing the proposed ward;
22 b. Explaining the guardianship proceeding to the proposed ward in the language,
23 mode of communication, and terms that the proposed ward is most likely to
24 understand, including the nature and possible consequences of the proceeding,
25 the right to which the proposed ward is entitled, and the legal options that are
26 available, including the right to retain an attorney to represent the proposed ward;
27 c. Advocating for the best interests of the proposed ward. The appointed attorney
28 serving as legal guardian ad litem may not represent the proposed ward or ward
29 in a legal capacity;
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1 d. Submitting a written report to the court containing the guardian ad litem's
2 response to the petition and an assessment of the proposed ward's ability to
3 attend the hearing either in person or by remote means; and
4 e. Reviewing the visitor's written report submitted in accordance with subdivision h
5 and i of subsection 6 and discussing the report with the proposed ward.
6 5. The expert examiner shall examine the proposed ward and submit a written report to
7 the court. The written report must contain:
8 a. A description of the nature and degree of any current incapacity or disability,
9 including the medical or psychological history, if reasonably available;
10 b. A medical prognosis or psychological evaluation specifying the estimated severity
11 and duration of any current incapacity or disability;
12 c. A statement as to how or in what manner any underlying condition of physical or
13 mental health affects the proposed ward's ability to provide for personal needs;
14 and
15 d. A statement as to whether any current medication or physical or mental condition
16 affects the demeanor of the proposed ward or the ability of the proposed ward to
17 attend and participate fully in any court proceeding or in any other procedure
18 required by the court or by court rule.
19 6. The visitor shall have the following duties:
20 a. To meet, interview, and consult with the proposed ward regarding the
21 guardianship proceeding, including explaining the purpose for the interview in a
22 manner the proposed ward can reasonably be expected to understand.
23 b. To ascertain the proposed ward's views concerning the proposed guardian, the
24 powers and duties of the proposed guardian, the proposed guardianship, and the
25 scope and duration thereof.
26 c. To interview the person seeking appointment as guardian.
27 d. To interview other persons interested in the welfare of the proposed ward.
28 e. To visit the proposed ward's present place of residence.
29 f. To discuss an alternative resource plan with the proposed ward, if appropriate.
30 g. To obtain other relevant information as directed by the court.
31 h. To submit a written report to the court.
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1 i. The visitor's written report must contain:
2 (1) A description of the nature and degree of any current impairment of the
3 proposed ward's understanding or capacity to make or communicate
4 decisions;
5 (2) A statement of the qualifications and appropriateness of the proposed
6 guardian and a recommendation regarding whether the proposed guardian
7 should be appointed;
8 (3) If the visitor recommends the proposed guardian should not be appointed, a
9 recommendation regarding an alternative individual or entity that should be
10 appointed as guardian;
11 (4) Recommendations, if any, on the powers to be granted to the proposed
12 guardian, including an evaluation of the proposed ward's capacity to
13 perform the functions enumerated under subsections 3 and 4 of section
14 30.1-28-04; and
15 (5) An assessment of the capacity of the proposed ward to perform the
16 activities of daily living; and
17 (6) An assessment of the proposed ward's ability to attend the hearing either in
18 person or by remote means.
19 7. In determining whether appointment of a guardian is appropriate, the court shall
20 consider the reports ordered by the court under this section from a guardian ad litem,
21 visitor, and an expert examiner. The court, guardian ad litem, petitioner, or proposed
22 ward may subpoena the individual who prepared and submitted the report to appear,
23 testify, and be cross-examined.
24 8. The proposed ward must be present at the hearing in person or by remote means,
25 unless good cause is shown for the absence. Good cause does not consist only of the
26 physical difficulty of the proposed ward to attend the hearing. The proposed ward has
27 the right to present evidence, and to cross-examine witnesses, including the
28 court-appointed expert examiner and the visitor. The issue may be determined at a
29 closed hearing if the proposed ward or the proposed ward's counsel so requests.
30 9. Every hearing under this chapter must be closed to the public unless the proposed
31 ward, the ward, the attorney, or guardian ad litem of the proposed ward or ward
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1 requests it remain open. An individual or entity may request permission to observe or
2 participate in the hearing and the request must be granted if the court determines the
3 applicant's participation would be in the