House File 836 - Introduced
HOUSE FILE 836
BY COMMITTEE ON JUDICIARY
(SUCCESSOR TO HSB 38)
A BILL FOR
1 An Act relating to the opening, administration, and termination
2 of adult guardianships and adult and minor conservatorships.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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1 DIVISION I
2 ADULT GUARDIANSHIPS AND MINOR AND ADULT CONSERVATORSHIPS
3 Section 1. Section 235B.6, subsection 2, paragraph d, Code
4 2021, is amended by adding the following new subparagraph:
5 NEW SUBPARAGRAPH. (7) To a district court conducting
6 checks of the dependent adult abuse registry for all proposed
7 guardians and conservators pursuant to section 633.564.
8 Sec. 2. Section 633.556, subsections 4, 5, and 8, Code 2021,
9 are amended to read as follows:
10 4. The petition shall list the name and address of all
11 of the petitioner and the petitioner’s relationship to the
12 respondent following:
13 a. The respondent.
14 b. The petitioner and the petitioner’s relationship to the
15 respondent.
16 c. The proposed guardian or conservator and the reason the
17 proposed guardian or conservator should be selected.
18 5. The petition shall list the name and address, to the
19 extent known, of the following:
20 a. The name and address of the proposed guardian and the
21 reason the proposed guardian should be selected.
22 b. Any spouse of the respondent.
23 c. Any adult children of the respondent.
24 d. Any parents of the respondent.
25 e. Any adult, who has had the primary care of the respondent
26 or with whom the respondent has lived for at least any time
27 during the six months prior to immediately preceding the filing
28 of the petition, or any institution or facility where the
29 respondent has resided for at least six months prior to any
30 time during the six months immediately preceding the filing of
31 the petition.
32 f. Any legal representative or representative payee of the
33 respondent.
34 g. Any person designated as an attorney in fact in a durable
35 power of attorney for health care which is valid under chapter
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1 144B, or any person designated as an agent in a durable power
2 of attorney which is valid under chapter 633B.
3 8. The petition for conservator shall provide a brief
4 description of the respondent’s alleged functional limitations
5 that make the respondent unable to communicate or carry out
6 important decisions concerning the respondent’s financial
7 affairs. A petition for guardian shall provide a brief
8 description of the respondent’s alleged functional limitations
9 that make the respondent unable to provide for the respondent’s
10 safety, or to provide for necessities.
11 Sec. 3. Section 633.560, subsection 3, Code 2021, is amended
12 to read as follows:
13 3. The court shall require the proposed guardian or
14 conservator to attend the hearing on the petition but the court
15 may excuse the proposed guardian’s or conservator’s attendance
16 for good cause shown.
17 Sec. 4. Section 633.561, subsection 6, Code 2021, is amended
18 to read as follows:
19 6. If the court determines that it would be in the
20 respondent’s best interest to have legal representation
21 with respect to any further proceedings in a guardianship
22 or conservatorship, the court may appoint an attorney to
23 represent the respondent at the expense of the respondent or
24 the respondent’s estate, or if the respondent is indigent the
25 cost of the court appointed attorney shall be assessed against
26 the county in which the proceedings are pending.
27 Sec. 5. Section 633.562, subsections 1 and 3, Code 2021, are
28 amended to read as follows:
29 1. If the court determines that the appointment of a court
30 visitor would be in the best interest of the respondent, the
31 court shall appoint a court visitor at the expense of the
32 respondent or the respondent’s estate, or, if the respondent
33 is indigent, the cost of the court visitor shall be assessed
34 against the county in which the proceedings are pending. The
35 court may appoint any qualified person as a court visitor
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1 in a guardianship or conservatorship proceeding. A person
2 is qualified to serve as a court visitor if the court
3 determines the person has demonstrated sufficient knowledge of
4 guardianships or conservatorships to adequately perform the
5 duties in subsection 3.
6 3. Unless otherwise enlarged or circumscribed by the court,
7 the duties of a court visitor with respect to the respondent
8 shall include all of the following:
9 a. Conducting an initial in-person interview with the
10 respondent.
11 b. Explaining to the respondent the substance of the
12 petition, and the purpose and effect of the guardianship or
13 conservatorship proceeding, the rights of the respondent at
14 the hearing, and the general powers and duties of a guardian
15 or conservator.
16 c. Determining, to the extent possible, the views of the
17 respondent regarding the proposed guardian or conservator,
18 the proposed guardian’s or conservator’s powers and duties,
19 and the scope and duration of the proposed guardianship or
20 conservatorship.
21 Sec. 6. Section 633.562, Code 2021, is amended by adding the
22 following new subsection:
23 NEW SUBSECTION. 7. A court visitor shall be discharged
24 from all further duties upon appointment of a guardian or
25 conservator, unless otherwise ordered by the court. The court
26 may order a court visitor to continue to serve if the court
27 determines continued service would be in the best interest of
28 the protected person. If the court continues the service of
29 the court visitor, the court may limit the direct duties of the
30 court visitor as the court deems necessary. The court visitor
31 shall thereafter continue to serve until discharged by the
32 court.
33 Sec. 7. Section 633.563, subsection 1, Code 2021, is amended
34 by adding the following new paragraph:
35 NEW PARAGRAPH. c. The petition is for opening a
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1 conservatorship for a minor.
2 Sec. 8. Section 633.564, subsections 1 and 2, Code 2021, are
3 amended to read as follows:
4 1. The court shall request criminal record checks and
5 checks of the child abuse, dependent adult abuse, and sexual
6 offender registries in this state for all proposed guardians
7 and conservators, other than financial institutions with Iowa
8 trust powers, unless a proposed guardian or conservator has
9 undergone the required background checks required by this
10 section within the six months prior to the filing of a petition
11 and the background check has been provided to the court.
12 2. The court shall review the results of background checks
13 in determining the suitability of a proposed guardian or
14 conservator for appointment, and may, for good cause shown,
15 share the results of background checks with the respondent, the
16 respondent’s attorney, the protected person’s attorney, and the
17 proposed guardian or conservator.
18 Sec. 9. Section 633.569, Code 2021, is amended to read as
19 follows:
20 633.569 Emergency appointment of temporary guardian or
21 conservator.
22 1. A person authorized to file a petition under section
23 633.552, 633.553, or 633.554 633.556 or 633.557 may file an
24 application for the emergency appointment of a temporary
25 guardian or conservator.
26 2. Such application shall state all of the following:
27 a. The name and address of the respondent.
28 0b. The name and address of the petitioner and the
29 petitioner’s relationship to the respondent.
30 b. The name and address of the proposed guardian or
31 conservator and the reason the proposed guardian or conservator
32 should be selected.
33 0c. The names and addresses, to the extent known, of any
34 other persons who must be named in the petition for appointment
35 of a guardian or conservator under section 633.556 or 633.557.
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1 c. The reason the emergency appointment of a temporary
2 guardian or conservator is sought.
3 3. The court may enter an ex parte order appointing a
4 temporary guardian or conservator on an emergency basis under
5 this section if the court finds that all of the following
6 conditions are met:
7 a. There is not sufficient time to file a petition and hold
8 a hearing pursuant to section 633.552, 633.553, or 633.554
9 633.556, 633.557, 633.558, 633.559, or 633.560.
10 b. The appointment of a temporary guardian or conservator
11 is necessary to avoid immediate or irreparable harm to the
12 respondent before a hearing with notice to the respondent can
13 be held.
14 c. There is reason to believe that the basis for appointment
15 of guardian or conservator exists under section 633.552,
16 633.553, or 633.554 633.556 or 633.557.
17 4. Notice of a petition for the appointment of a temporary
18 guardian or conservator and the issuance of an ex parte
19 order appointing a temporary guardian or conservator shall be
20 provided to the respondent, the respondent’s attorney, and any
21 other person the court determines should receive notice.
22 5. Upon the issuance of an ex parte order, if the respondent
23 is an adult, the respondent may file a request for a hearing.
24 If the respondent is a minor, the respondent, a parent having
25 legal custody of the respondent, or any other person having
26 legal custody of the respondent may file a written request for
27 a hearing. Such hearing shall be held no later than seven days
28 after the filing of a written request.
29 6. The powers of the temporary guardian or conservator
30 set forth in the order of the court shall be limited to those
31 necessary to address the emergency situation requiring the
32 appointment of a temporary guardian or conservator.
33 7. The temporary guardianship or conservatorship shall
34 terminate within thirty days after the order is issued unless
35 extended by the court.
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1 8. The temporary guardian or conservator shall submit any
2 other report the court requires.
3 Sec. 10. Section 633.570, subsections 1 and 2, Code 2021,
4 are amended to read as follows:
5 1. In a proceeding for the appointment of a guardian, the
6 respondent shall be given written notice which advises the
7 respondent of the powers that the court may grant a guardian
8 may exercise without court approval pursuant to the powers set
9 out in section 633.635, subsection 2, and the powers that the
10 guardian may exercise only with court approval pursuant to set
11 out in section 633.635, subsection 3.
12 2. In a proceeding for the appointment of a conservator,
13 the respondent shall be given written notice which advises the
14 respondent of the powers that the court may grant a conservator
15 may exercise without court approval pursuant to section 633.646
16 and the powers that the guardian may exercise only with court
17 approval pursuant to section 633.647 the powers set out in
18 sections 633.641 and 633.642.
19 Sec. 11. Section 633.635, subsection 1, Code 2021, is
20 amended to read as follows:
21 1. The order by the court appointing a guardian shall state
22 the factual basis for the guardianship pursuant to section
23 633.552 and the date on which the first reporting period for
24 the guardianship shall end.
25 Sec. 12. Section 633.635, subsection 2, unnumbered
26 paragraph 1, Code 2021, is amended to read as follows:
27 Based upon the evidence produced at the hearing, the court
28 may grant a guardian the following powers and duties with
29 respect to a protected person which may be exercised without
30 prior court approval:
31 Sec. 13. NEW SECTION. 633.640A Powers of conservator upon
32 appointment.
33 1. The order by the court appointing a conservator shall
34 state the basis for the conservatorship pursuant to section
35 633.553 or pursuant to section 633.554.
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1 2. Upon appointment, the conservator may exercise the
2 powers relating to all fiduciaries as set out in sections
3 633.63 through 633.162, unless expressly modified by the court,
4 without prior court approval.
5 3. Until such time as the conservator files an initial
6 financial management plan and such plan is approved by the
7 court as required by section 633.670, subsection 1, the
8 conservator may exercise the following powers with respect to
9 a protected person without court approval except as otherwise
10 ordered by the court:
11 a. Collect, receive, and receipt for any principal or income
12 of the protected person.
13 b. Receive property of the protected person from any source.
14 c. Continue to hold any investment or other property of the
15 protected person.
16 d. Pay insurance premiums on existing policies, utilities,
17 taxes, care costs, medical and dental expenses, and serve as
18 representative payee for social security purposes.
19 e. Sell and transfer personal property of a perishable
20 nature and personal property for which there is a regularly
21 established market.
22 4. Powers conferred upon appointment of a conservator will
23 continue only until the court has approved the conservator’s
24 initial financial plan. The continuation of any powers
25 conferred upon appointment must be requested by a conservator
26 in the initial financial plan and may be continued only if the
27 initial financial plan is approved by the court.
28 Sec. 14. Section 633.641, Code 2021, is amended to read as
29 follows:
30 633.641 Duties of conservator.
31 1. A conservator is a fiduciary and has duties of prudence
32 and loyalty to the protected person.
33 2. In investing and selecting specific property for
34 distribution, a conservator shall consider any estate plan or
35 other donative, nominative, or appointive instrument of the
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1 protected person, known to the conservator.
2 3. If a protected person has executed a valid power of
3 attorney under chapter 633B, the conservator shall act in
4 accordance with the applicable provisions of chapter 633B
5 If the court appoints a conservator for a protected person
6 who has previously executed a valid power of attorney under
7 chapter 633B, the power of attorney is suspended unless the
8 power of attorney provides otherwise or the court appointing
9 the conservator orders that the power of attorney should
10 continue. If the power of attorney continues, the agent is
11 accountable to the conservator as well as the principal. The
12 power of attorney shall be reinstated upon termination of
13 the conservatorship as a result of the principal regaining
14 capacity.
15 4. The conservator shall report to the department of human
16 services the protected person’s assets and income, if the
17 protected person is receiving medical assistance under chapter
18 249A. Such reports shall be made upon establishment of a
19 conservatorship for an individual applying for or receiving
20 medical assistance, upon application for benefits on behalf
21 of the protected person, upon annual or semiannual review of
22 continued medical assistance eligibility, when any significant
23 change in the protected person’s assets or income occurs, or
24 as otherwise requested by the department of human services.
25 Written reports shall be provided to the department of human
26 services office for the county in which the protected person
27 resides or the office in which the protected person’s medical
28 assistance is administered.
29 5. When investing and selecting specific property for
30 distribution, a conservator shall consider any estate plan or
31 other donative, nominative, or appointive instrument of the
32 protected person which is known to the conservator.
33 Sec. 15. Section 633.642, Code 2021, is amended to read as
34 follows:
35 633.642 Responsibilities of conservator.
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