23.0620.01000
Sixty-eighth
Legislative Assembly SENATE BILL NO. 2222
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 30.1-29 of the North Dakota
2 Century Code, relating to emergency conservators; to amend and reenact section 30.1-03-02,
3 subsection 1 of section 30.1-29-05, sections 30.1-29-07 and 30.1-29-08, subsection 1 of section
4 30.1-29-09, and sections 30.1-29-18, 30.1-29-19, 30.1-29-22, 30.1-29-24, and 30.1-29-25 of the
5 North Dakota Century Code, relating to a conservatorship.
6 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
7 SECTION 1. AMENDMENT. Section 30.1-03-02 of the North Dakota Century Code is
8 amended and reenacted as follows:
9 30.1-03-02. (1-402) Notice - Waiver.
10 A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by
11 a writing signed by the person or the person's attorney and filed in the proceeding. A ward or
12 protected person, for whom a guardianship, conservatorship, or other protective order is sought
13 may not waive notice.
14 SECTION 2. AMENDMENT. Subsection 1 of section 30.1-29-05 of the North Dakota
15 Century Code is amended and reenacted as follows:
16 1. On a petition for appointment of a conservator or other protective order, the petitioning
17 party shall cause notice of the proceeding to be served personally on the person to be
18 protected and the spouse of the person to be protected or, if none, the parents of the
19 person to be protected, must be served personally by the petitioning party with notice
20 of the proceedingor any guardian or conservator, at least fourteen days before the
21 date of hearing if they can be found within the state, or, if they cannot be found within
22 the state, they, any other guardian or conservator, and. If none of these parties can be
23 found, any government agency paying benefits to the person sought to be protected, if
24 the person seeking the appointment has knowledge of the existence of these benefits,
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1 must be given notice in accordance with section 30.1-03-01. Waiver by the person to
2 be protected is not effective unless the proceedings are limited to payment of
3 veterans' administration benefits, the person to be protected attends the hearing, or,
4 unless minority is the reason for the proceeding, waiver is confirmed in an interview
5 with the visitor.
6 SECTION 3. AMENDMENT. Section 30.1-29-07 of the North Dakota Century Code is
7 amended and reenacted as follows:
8 30.1-29-07. (5-407) Procedure concerning hearing and order on original petition.
9 1. Upon receipt of a petition for appointment of a conservator or other protective order
10 because of minority, the court shall set a date for hearing on the matters alleged in the
11 petition. The proposed conservator, if any, shall attend the hearing unless excused by
12 the court for good cause. If, at any time in the proceeding, the court determines that
13 the interests of the minor are or may be inadequately represented, it may appoint an
14 attorney to serve as guardian ad litem for the minor, giving consideration to the choice
15 of the minor if fourteen years of age or older. The duties of a guardian ad litem include:
16 a. Meeting, interviewing, and consulting with the person to be protected regarding
17 the conservatorship proceeding, including explaining the purpose for the
18 interview in the language, mode of communication, and terms the person is most
19 likely to understand, the nature and possible consequences of the proceeding,
20 the rights to which the person is entitled, and the legal options available,
21 including the right to retain an attorney to represent the person;
22 b. Advocating for the best interests of the person to be protected. The appointed
23 attorney serving as guardian ad litem may not represent the person in a legal
24 capacity;
25 c. Ascertaining the views of the person to be protected concerning the proposed
26 conservator, the powers and duties of the proposed conservator, the proposed
27 conservatorship, and the scope and duration of the conservatorship;
28 d. Interviewing the person seeking appointment as conservator;
29 e. Obtaining any other relevant information;
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1 f. Submitting a written report to the court containing the guardian ad litem's
2 response to the petition and an assessment of the protected person's ability to
3 attend the hearing either in person or by remote means; and
4 g. Attending the hearing unless excused by the court for good cause.
5 2. Upon receipt of a petition for appointment of a conservator or other protective order for
6 reasons other than minority, the court shall set a date for hearing. The proposed
7 conservator, if any, shall attend the hearing unless excused by the court for good
8 cause. If, at any time in the proceeding, the court determines that the interests of the
9 person to be protected are or may be inadequately represented, the court shall
10 appoint an attorney to serve as guardian ad litem for the person to be protected. The
11 duties of a guardian ad litem include:
12 a. Meeting, interviewing, and consulting with the person to be protected regarding
13 the conservatorship proceeding, including explaining the purpose for the
14 interview in the language, mode of communication, and terms the person is most
15 likely to understand, the nature and possible consequences of the proceeding,
16 the rights to which the person is entitled, and the legal options available,
17 including the right to retain an attorney to represent the person;
18 b. Advocating for the best interests of the person to be protected. The appointed
19 attorney serving as guardian ad litem may not represent the person in a legal
20 capacity;
21 c. Ascertaining the views of the person to be protected concerning the proposed
22 conservator, the powers and duties of the proposed conservator, the proposed
23 conservatorship, and the scope and duration of the conservatorship;
24 d. Interviewing the person seeking appointment as conservator;
25 e. Obtaining any other relevant information;
26 f. Submitting a written report to the court containing the guardian ad litem's
27 response to the petition and an assessment of the protected person's ability to
28 attend the hearing either in person or by remote means; and
29 g. Attending the hearing unless excused by the court for good cause.
30 3. If the petition seeks appointment of a conservator or other protective order for reasons
31 other than minority and the alleged disability is mental illness, mental deficiency,
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1 physical illness or disability, chronic use of drugs, or chronic intoxication, the court
2 shall direct the person to be protected be examined by an expert examiner designated
3 by the court. The expert examiner preferably should be someone who is not
4 connected with any institution in which the person is a patient or is detained.
5 a. An expert examiner appointed under this subsection shall examine the person to
6 be protected and submit a written report to the court. The report must contain:
7 (1) A description of the nature and degree of any current disability, including the
8 medical or psychlogicalpsychological history, if reasonably available;
9 (2) A medical prognosis or psychological evaluation specifying the estimated
10 severity and duration of any current disability;
11 (3) A statement about how or in what manner any underlying condition of
12 physical or mental health affects the ability of the person to be protected to
13 provide for personal needs; and
14 (4) A statement about whether any current medication affectsor physical or
15 mental conditions affect the demeanor of the person to be protected or the
16 ability of the person to attend and participate fully in any court proceeding or
17 in any other procedure required by the court or by court rule.
18 b. In determining whether appointment of a conservator is appropriate, the court
19 shall consider the reports ordered by the court under this subsection from a
20 guardian ad litem and an expert examiner. The court, guardian ad litem,
21 petitioner, or person to be protected may subpoena the expert examiner who
22 prepared and submitted the report to appear, testify, and be cross-examined.
23 4. The person to be protected must be present at the hearing in person or by remote
24 means, unless good cause is shown for the absence. Good cause does not consist of
25 the physical difficulty of the person to be protected to attend the hearing. The court
26 shall take all necessary steps to make the courts and court proceedings accessible
27 and understandable to impaired persons. The court may convene temporarily, or for
28 the entire proceeding, at any other location if it is in the best interest of the person to
29 be protected.
30 5. In determining whether appointment of a conservator is appropriate, the court shall
31 consider the reports ordered by the court under this section from a guardian ad litem
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1 and an expert examiner. In any case in which the veterans' administration is or may be
2 an interested party, a certificate of an authorized official of the veterans' administration
3 that the person to be protected has been found incapable of handling thetheir benefits
4 payable on examination in accordance with the laws and regulations governing the
5 veterans' administration is prima facie evidence of the necessity for a conservator or
6 other protective order.
7 6. After hearing, upon finding that the appointment of a conservator or other protective
8 order is appropriate, the court shall make an appointment or other appropriate
9 protective order. After the hearing, the guardian ad litem must be discharged of the
10 duties as guardian ad litem.
11 7. If the court approves a conservator, that person may receive reasonable
12 compensation and reimbursement from the protected person's estate if the
13 compensation and reimbursement will not unreasonably jeopardize the protected
14 person's well-being and estate. The court shall consider the following factors when
15 determining what constitutes reasonable compensation and reimbursement:
16 a. The size and nature of the protected person's estate;
17 b. The benefit to the protected person, or the protected person's estate, of the
18 conservator's services;
19 c. The necessity for the services performed;
20 d. The protected person's anticipated future needs and income;
21 e. The time spent by the conservator in the performance of the services;
22 f. Whether the services were routine or required more than ordinary skill or
23 judgment;
24 g. Any unusual skill, expertise, or experience brought to the performance of the
25 services;
26 h. The conservator's estimate of the value of the services performed;
27 i. The fee customarily charged in the community for similar services;
28 j. The nature and length of the relationship with the protected person;
29 k. The experience, reputation, diligence, and ability of the person performing the
30 service;
31 l. Any conflict of interest the conservator may have; and
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1 m. Whether the appointment as conservator precluded the conservator from other
2 employment.
3 8. The court may determine the weight to be given to each factor under subsection 7, if
4 any, and to any other factor the court considers relevant. A separate finding is not
5 required for each factor, but the court's findings must contain sufficient specificity to
6 show the factual basis for the court's determination.
7 9. The court shall approve compensation and reimbursement before payment to the
8 conservator is made.
9 SECTION 4. AMENDMENT. Section 30.1-29-08 of the North Dakota Century Code is
10 amended and reenacted as follows:
11 30.1-29-08. (5-408) Permissible court orders.
12 1. The court shall exercise the authority conferred in this chapter consistent with the
13 maximum self-reliance and independence of the protected person and make
14 protective orders only to the extent necessitated by the protected person's actual
15 mental and adaptive limitations and other conditions warranting the procedure.
16 2. The court has the following powers which may be exercised directly or through a
17 conservator, subject to section 30.1-29-22, in respect to the estate and affairs of
18 protected persons:
19 a. While a petition for appointment of a conservator or other protective order is
20 pending and after preliminary hearing and without prior notice to others, the court
21 has power to preserve and apply the property of the person to be protected as
22 may be required for the benefit of the person to be protected or the benefit of the
23 dependents of the person to be protected.
24 b. After hearing and upon determining that a basis for an appointment or other
25 protective order exists with respect to a minor without other disability, the court
26 has all those powers over the estate and affairs of the minor which are or might
27 be necessary for the best interests of the minor, the minor's family, and members
28 of the minor's household.
29 c. After hearing and upon determining that appointment of a conservator or other
30 protective order is appropriate with respect to a person for reasons other than
31 minority, the court has, for the benefit of the person and members of the person's
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1 household, all the powers over the person's estate and affairs which the person
2 could exercise if present and not under disability, except the power to make a will.
3 These powers include power to make gifts, to convey or release the person's
4 contingent and expectant interests in property, including marital property rights
5 and any right of survivorship incident to joint tenancy, to exercise or release the
6 person's powers as trustee, personal representative, custodian for minors,
7 conservator, or donee of a power of appointment, to enter into contracts, to
8 create revocable or irrevocable trusts of property of the estate which may extend
9 beyond the person's disability or life, to exercise options of the disabled person to
10 purchase securities or other property, to exercise the person's rights to elect
11 options and change beneficiaries under insurance and annuity policies and to
12 surrender the policies for their cash value, to exercise the person's right to an
13 elective share in the estate of the person's deceased spouse, and to renounce
14 any interest by testate or intestate succession or by inter vivos transfer.
15 d. The court may exercise or direct the exercise of its authority to exercise or
16 release powers of appointment of which the protected person is donee, to
17 renounce interests, to make gifts in trust or otherwise exceeding twenty percent
18 of any year's income of the estate, or to change beneficiaries under insurance
19 and annuity policies, only if satisfied, after notice and hearing, that it is in the best
20 interests of the protected person, and that the protected person either is
21 incapable of consenting or has consented to the proposed exercise of power.
22 e. An order made pursuant to this section determining that appointment of a
23 conservator or other