Bill Summary – FastDemocracy

8009.01000
     Sixty-sixth
     Legislative Assembly                   SENATE BILL NO. 2072
     of North Dakota
     Introduced by
       Judiciary Committee
       (At the request of the Supreme Court)
  A BILL for an Act to amend and reenact sections 30.1-27-01, 30.1-27-02, 30.1-27-05,
  30.1-27-06, 30.1-27-07, 30.1-27-08, 30.1-27-09, and 30.1-27-11 of the North Dakota Century
  Code, relating to guardianship of minors; and to repeal sections 30.1-27-03, 30.1-27-04,
  30.1-27-10, and 30.1-27-12 of the North Dakota Century Code, relating to guardianships of
  minors.
  BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
      SECTION 1. AMENDMENT. Section 30.1-27-01 of the North Dakota Century Code is
  amended and reenacted as follows:
      30.1-27-01. (5-201) Status of guardian of minor - General.
     A person becomes a guardian of a minor under this chapter by acceptance of a
 testamentary appointment or upon appointmentand approval by the court. The guardianship
 status continues until terminated, without regard to the location from time to time of the guardian
 and minor ward.
     SECTION 2. AMENDMENT. Section 30.1-27-02 of the North Dakota Century Code is
 amended and reenacted as follows:
     30.1-27-02. (5-202) Testamentary appointment of guardian of minor.
     The parent of a minor may appoint by will a guardian of an unmarried minor. Subject to the
 right of the minor under section 30.1-27-03, aA testamentary appointment becomes effective
 upon filing the guardian's acceptance in the court in which the will is probated and remains
 effective upon approval by the court either after or without a hearing, if, before acceptance, both
 parents are dead or the surviving parent is adjudged incapacitatedparent's rights have been
 terminated by prior court order. If both parents are dead, an effective appointment by the parent
 who died later has priority. This state recognizes a testamentary appointment effected by filing
 the guardian's acceptance under a will probated in another state which is the testator's domicile
                                               Page No. 1                        19.8009.01000
     Sixty-sixth
     Legislative Assembly
  and upon approval by the court either after or without a hearing. Upon acceptance of
  appointment, written notice of acceptance must be given by the guardian to the minor and to the
  person having the minor's care or to the minor's nearest adult relationrelative under section
  27-20-02. Within forty-five days of the filing of acceptance, the testamentary guardian must file
  with the court a criminal history record check report and affidavit stating whether the proposed
  guardian has been investigated for offenses related to theft, fraud, or the abuse, neglect, or
  exploitation of an adult or child and shall provide a release authorizing access to any record
  information maintained by an agency in this or another state or a federal agency.
      SECTION 3. AMENDMENT. Section 30.1-27-05 of the North Dakota Century Code is
 amended and reenacted as follows:
     30.1-27-05. (5-205) Court appointment of guardian of minor - VenueJurisdiction and
 venue.
     The venue for guardianship proceedings for a minor is in the place where the minor resides
 or is present
     1.   The district court where the will is probated has exclusive jurisdiction over the following
          procedures that are governed by this chapter:
          a.     To approve the acceptance of a testamentary appointment of a guardian; and
          b.     To transfer a case to juvenile court in the event of an objection to the
                 testamentary appointment under section 30.1-27-07.
     2.   The juvenile court under chapter 27-20.1 has exclusive original jurisdiction over
          proceedings to consider objections to the testamentary appointment under
          section 30.1-27-07 and over the court appointment of a guardian of a minor. Any
          person interested in the welfare of a minor may petition the juvenile court for the
          appointment of a guardian under section 27-20.1-05 in the following situations:
          a.     If there is a living parent of the minor, known or unknown;
          b.     If the testamentary guardian fails to accept appointment as guardian within sixty
                 days after the death of the minor's last living parent;
           c.    If both parents are dead or the surviving parent's rights have been terminated by
                 prior court order, but there has been no appointment of a guardian for the minor
                 by will; or
          d.     If a guardianship of a minor is sought for any other reason.
                                                Page No. 2                          19.8009.01000
     Sixty-sixth
     Legislative Assembly
      SECTION 4. AMENDMENT. Section 30.1-27-06 of the North Dakota Century Code is
  amended and reenacted as follows:
      30.1-27-06. (5-206) Court appointment of guardian of minorad litem - Qualifications -
  Priority of minor's nomineeApproval of acceptance of testamentary appointment.
      The court may appoint as guardian any person whose appointment would be in the best
  interests of the minor. The court shall appoint a person nominated by the minor, if the minor is
  fourteen years of age or older, unless the court finds the appointment contrary to the best
  interests of the minor
      1.   Upon the filing of an acceptance of a testamentary appointment, the court shall
          appoint an attorney promptly to act as guardian ad litem. The guardian ad litem fees
          must be paid from the estate of the deceased parent, if available.
     2.   The duties of the guardian ad litem include:
          a.    Personally interviewing the minor, the testamentary guardian, and other persons
                interested in the welfare of the minor;
          b.    Explaining the guardianship proceeding to the minor in the language, mode of
                communication, and terms that the minor is most likely to understand, including
                the nature and consequences of the proceeding, the rights to which the minor is
                entitled, and the available legal options, including the right to retain an attorney to
                represent the minor;
           c.   Advocating for the best interests of the minor consistent with section 14-09-06.2.
                The appointed attorney serving as guardian ad litem may not represent the minor
                in a legal capacity;
          d.    Consulting juvenile court and other agency records to determine whether the
                testamentary guardian has a criminal history of abuse, neglect, exploitation, and
                review of the criminal history records. The guardian ad litem may access to
                confidential juvenile court records and other confidential agency records in the
                exercise of the guardian ad litem's official duties;
          e.    Submitting a written report to the court within sixty days of the guardian ad litem's
                appointment containing the guardian ad litem's findings on whether the
                appointment of the testamentary guardian is in the best interests of the child;
                                                Page No. 3                         19.8009.01000
     Sixty-sixth
     Legislative Assembly
           f.   Notifying the court if the minor objects to the appointment of the testamentary
                guardian; and
           g.   If the guardian ad litem's report states the guardian ad litem believes the
                appointment of the testamentary guardian is contrary to the best interests of the
                minor, the case must be transferred to juvenile court.
      3.   The guardian ad litem shall serve a copy of the report on the minor if the minor is
           fourteen years of age or older, the testamentary guardian, the person having the
           minor's care or the minor's nearest adult relative under section 27-20-02, and the
           personal representative of the deceased parent's estate.
     4.   After reviewing the guardian ad litem's report, the court may approve the acceptance
          of the testamentary appointment without a hearing if no objection is raised by the
          minor, the guardian ad litem, or any other person within fourteen days of the filing of
          the report of the guardian ad litem.
     5.   The appointment of the guardian ad litem terminates immediately after the approval of
          the acceptance or upon transfer of the case to juvenile court.
     6.   Upon the court's approval of the guardian's acceptance of the appointment, the court
          shall issue letters of guardianship. The letters of guardianship must include:
          a.   The name, address, and telephone number of the guardian;
          b.   The full name of the minor;
          c.   Any limitations on the guardian's authority to make decisions on behalf of the
               minor;
          d.   The expiration date of the appointment; and
          e.   The date by which the guardian must file the annual report required under
               27-20.1-15.
     7.   A written report prepared and submitted under this section is closed to the public and
          is not open to inspection except by the court, parties to the proceeding or the parties'
          counsel, other persons for those purposes as the court may order for good cause, and
          others authorized by court rule.
     8.   Medical, psychological, or other treatment information protected by federal law or
          regulation and any financial account numbers related to a child are confidential and
          may not be disclosed except to parties to the proceeding, their counsel, and others
                                                 Page No. 4                      19.8009.01000
     Sixty-sixth
     Legislative Assembly
           authorized by court rule. The court may permit access by other persons for good
           cause.
     SECTION 5. AMENDMENT. Section 30.1-27-07 of the North Dakota Century Code is
  amended and reenacted as follows:
     30.1-27-07. (5-207) CourtObjection to the appointment of the testamentary guardian
  of minor - Procedure.
      1.   Notice of the time and place of hearing of a petition for the appointment of a guardian
           of a minor is to be given by the petitioner in the manner prescribed by section
           30.1-03-01 to:
          a.   The minor, if the minor is fourteen or more years of age.
          b.   The person who has had the principal care and custody of the minor during the
               sixty days preceding the date of the petition.
          c.   Any living parent of the minor.
     2.   Upon hearing, if the court finds that a qualified person seeks appointment, venue is
          proper, the required notices have been given, the requirements of section 30.1-27-04
          have been met, and the welfare and best interests of the minor will be served by the
          requested appointment, it shall make the appointment. In other cases, the court may
          dismiss the proceedings or make any other disposition of the matter that will best
          serve the interest of the minor.
     3.   If necessary, the court may appoint a temporary guardian, with the status of an
          ordinary guardian of a minor, but the authority of a temporary guardian shall not last
          longer than six months.
     4.   If, at any time in the proceeding, the court determines that the interests of the minor
          are or may be inadequately represented, it may appoint an attorney to represent the
          minor, giving consideration to the preference of the minor if the minor is fourteen years
          of age or older.
     1.   Any person interested in the welfare of a minor subject to a testamentary appointment
          of a guardian, including the minor, may object to the appointment of the testamentary
          guardian as contrary to the best interests of the minor within fourteen days of the filing
          of the report of the guardian ad litem.
                                                 Page No. 5                      19.8009.01000
     Sixty-sixth
     Legislative Assembly
      2.    An objection must contain a statement alleging specific facts that demonstrate the
            appointment of the testamentary guardian is contrary to the best interests of the minor.
      3.    Upon filing of the objection or on the court's own motion, the court immediately shall
            transfer the case to the juvenile court in the county where the original probate matter
            was filed.
      SECTION 6. AMENDMENT. Section 30.1-27-08 of the North Dakota Century Code is
  amended and reenacted as follows:
      30.1-27-08. (5-208) Consent to service by acceptanceAcceptance of appointment -
  Notice.
     By accepting a testamentary or court appointment as guardian, a guardian submits
 personally to the jurisdiction of the court in any proceeding relating to the guardianship that may
 be instituted by any interested person. Notice of any proceeding shall be delivered to the
 guardian or mailed to the guardian by ordinary mail at the guardian's address as listed in the
 court records and to the guardian's address as then known to the petitioner. Letters of
 guardianship must indicate whether the guardian was appointed by will or by court order.
     SECTION 7. AMENDMENT. Section 30.1-27-09 of the North Dakota Century Code is
 amended and reenacted as follows:
     30.1-27-09. (5-209) Powers and duties of guardian of minor.
     A guardian of a minor has the powers and responsibilities of a parent who has not been
 deprived of custody of the parent's minor and unemancipated child, except that a guardian is
 not legally obligated to provide from the guardian's own funds for the ward and is not liable to
 third persons by reason of the parental relationship for acts of the ward. In particular, and
 without qualifying the foregoing, a guardian has the following powers and duties:
     1.    The guardian must take reasonable care of the ward's personal effects and
           commence protective proceedings if necessary to protect other property of the ward.
     2.    The guardian may receive money payable for the support of the ward to the ward's
           parent, guardian, or custodian under the terms of any statutory benefit or insurance
           system or any private contract, devise, trust, conservatorship, or custodianship. The
           guardian also may receive money or property of the ward paid or delivered by virtue of
           section 30.1-26-03. Any sums so received shall be applied to the ward's current needs
           for support, care, and education. The guardian must exercise due care to conserve
                                               Page No. 6                         19.8009.01000
     Sixty-sixth
     Legislative Assembly
           any excess for the ward's future needs unless a conservator has been appointed for
           the estate of the ward, in which case excess shall be paid over at least annually to the
           conservator. Sums so received by the guardian are not to be used for compensation
           for the guardian's services except as approved by order of court or as determined by a
           duly appointed conservator other than the guardian. A guardian may institute
           proceedings to compel the performance by any person of a duty to support the ward or
           to pay sums for the welfare of the ward.
      3.   The guardian is empowered to facilitate the ward's education, social, or other activities
           and to authorize medical or other professional care, treatment, or advice. A guardian is
          not liable by reason of this consent for injury to the ward resulting from the negligence
          or acts of third persons unless it would have been illegal for a parent to have
          consented. A guardian may consent to the marriage or adoption of the ward.
     4.   A guardian shall file an annual report with the court informing the court of the status or
          condition of the ward and provide a copy of the report to the ward. The report must
          include changes that have occurred since the previous reporting period and an
          accounting of the ward's estate. The guardian shall report whether the ward has
          resided in an institution, whether the ward continues to require guardianship, and
          whether any powers of the guardian should be increased or limited. The filing of a
          report and its acceptance by the court or clerk of district court does not constitute an
          adjudication or a determination of the merits of the report nor does the filing of the
          report constitute the court's approval of the report. The court may approve a report
          and allow and settle an accounting only upon notice to the ward's guardian ad litem
          and other interested persons who have made an appearance or requested notice of
          proceedings. The office of state court administrator shall provide printed forms that
          may be used to fulfill reporting requirements. Any report must be similar in substance
          to the state court administrator's form. The forms must be available in the office of
          clerk of district court or obtainable through the supreme court's internet website
     The powers and duties of a guardian of a minor under this chapter are defined under
 section 27-20.1-15.
     SECTION 8. AMENDMENT. Section 30.1-27-11 of the North Dakota Century Code is
 ame