LRBs0472/1
DAK:kjf:pg
2005 - 2006 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO 2005 SENATE BILL 391
February 7, 2006 - Offered by Senator Olsen.
SB391-SSA1,5,21
1An Act to repeal 32.64, 51.20 (7) (d) 1. a., 51.20 (7) (d) 1. b., 51.40 (1) (h), chapter
2880 (title), subchapter I (title) of chapter 880 [precedes 880.01], 880.01 (intro.),
3880.01 (4), 880.01 (5), 880.01 (6), 880.03, 880.07 (1m), 880.07 (3), 880.07 (4),
4880.08 (1) (title), 880.08 (2), 880.08 (3) (title), 880.08 (3) (e), 880.09 (1) (title),
5880.09 (3) (title), 880.09 (4), 880.09 (5), 880.09 (7) (title), 880.12, 880.125, 880.13
6(3), 880.15 (title), 880.15 (1m), 880.15 (2), 880.16, 880.173 (title), 880.173 (2),
7880.175 (title), 880.19 (title), 880.19 (1) (title), 880.19 (2) (title), 880.19 (3)
8(title), 880.19 (4) (title), 880.19 (5) (title), 880.19 (5) (d), 880.19 (6), 880.191
9(title), 880.192, 880.21, 880.22 (title), 880.22 (1) (title), 880.22 (2) (title), 880.23
10(title), 880.24 (title), 880.24 (1), 880.25 (title), 880.251, 880.26 (title), 880.295,
11880.31 (title), 880.33 (title), 880.33 (2) (d), 880.33 (3), 880.33 (4), 880.33 (4m)
12and (4r), 880.33 (8) (intro.), 880.33 (8) (a), 880.34 (3), 880.34 (6), 880.37, 880.38
13(1), 880.39 (title), subchapter II (title) of chapter 880 [precedes 880.60],
1subchapter III (title) of chapter 880 [precedes 880.61], subchapter IV (title) of
2chapter 880 [precedes 880.75] and subchapter V (title) of chapter 880 [precedes
3880.81];
to renumber 880.06 (title), 880.07 (1) (a), 880.07 (1) (c), 880.07 (1) (e),
4880.07 (1) (f), 880.07 (1) (g), 880.13 (title), 880.13 (2) (title), 880.157 (title),
5880.18 (title), 880.24 (3) (a) 1. to 3., 880.24 (3) (a) 4., 880.331 (4) (intro.), 880.331
6(5) (d), 880.331 (5) (g), 880.36 (title), 880.60 (title), 880.60 (1) (intro.), 880.60 (1)
7(a), 880.60 (5) (b), 880.60 (19), 880.60 (20) and (21), 880.65, 880.665, 880.675,
8880.69, 880.75, 880.82, 880.825, 880.84, 880.85, 880.86, 880.865, 880.875,
9880.88 and 880.885;
to renumber and amend 51.20 (7) (d) 1. (intro.), 51.40 (2)
10(b) 2. a., 51.40 (2) (b) 2. b., 51.40 (2) (b) 2. c., 51.40 (2) (b) 2. d., 880.01 (1), 880.01
11(2), 880.01 (3), 880.01 (7), 880.01 (7m), 880.01 (8), 880.01 (9), 880.01 (10),
12880.02, 880.04 (title), 880.04 (1), 880.04 (2), 880.04 (2m), 880.04 (3), 880.05,
13880.06 (1), 880.06 (2), 880.07 (title), 880.07 (1) (intro.), 880.07 (1) (b), 880.07 (1)
14(d), 880.07 (1) (h), 880.07 (1) (i), 880.07 (1) (j), 880.07 (2), 880.075, 880.08
15(intro.), 880.08 (1), 880.08 (3) (am) (intro.), 880.08 (3) (am) 1., 880.08 (3) (am)
162., 880.08 (3) (am) 3., 880.08 (3) (am) 4., 880.08 (4), 880.09 (intro.), 880.09 (1),
17880.09 (2), 880.09 (3), 880.09 (6), 880.09 (7), 880.10, 880.13 (1), 880.13 (2) (a),
18880.13 (2) (b), 880.14, 880.15 (1), 880.15 (1s), 880.15 (3), 880.155, 880.157 (1),
19880.157 (2), 880.17, 880.173 (1), 880.175, 880.18, 880.19 (1), 880.19 (2) (a),
20880.19 (2) (b), 880.19 (3), 880.19 (4) (a), 880.19 (4) (b), 880.19 (4) (c), 880.19 (5)
21(a), 880.19 (5) (b), 880.19 (5) (c), 880.191 (1), 880.191 (2), 880.195, 880.215,
22880.22 (1), 880.22 (2), 880.23, 880.24 (2), 880.24 (3) (title), 880.24 (3) (a) (intro.),
23880.24 (3) (b), 880.245, 880.25 (1), 880.25 (2), 880.25 (3), 880.25 (4), 880.25 (5),
24880.252, 880.253, 880.26 (1) (intro.), 880.26 (1) (a), 880.26 (1) (b), 880.26 (1) (c),
25880.26 (2) (intro.), 880.26 (2) (a), 880.26 (2) (b), 880.26 (2) (c), 880.26 (2) (d),
1880.26 (3), 880.27, 880.28, 880.29, 880.31 (2), 880.31 (3), 880.31 (6), 880.32,
2880.33 (1), 880.33 (2) (a) 1., 880.33 (2) (a) 2., 880.33 (2) (a) 3., 880.33 (2) (b),
3880.33 (2) (e), 880.33 (5), 880.33 (5m), 880.33 (6), 880.33 (7), 880.33 (8) (b),
4880.33 (9), 880.331 (title), 880.331 (1), 880.331 (2), 880.331 (3), 880.331 (4) (a),
5880.331 (4) (b), 880.331 (4) (c), 880.331 (4) (d), 880.331 (4) (e), 880.331 (4) (f),
6880.331 (5) (intro.), 880.331 (5) (a), 880.331 (5) (b), 880.331 (5) (c), 880.331 (5)
7(e), 880.331 (5) (f), 880.331 (6), 880.331 (7), 880.331 (8), 880.34 (title), 880.34 (1),
8880.34 (2), 880.34 (4), 880.34 (5), 880.35, 880.36 (1), 880.36 (2), 880.38 (title),
9880.38 (2), 880.38 (3), 880.39, 880.60 (1) (b) to (g), (2) to (4) and (5) (title) and
10(a), 880.60 (5) (c) and (d) and (6) to (18), 880.61, 880.615, 880.62, 880.625,
11880.63, 880.635, 880.64, 880.645, 880.655, 880.66, 880.67, 880.68, 880.685,
12880.695, 880.70, 880.705, 880.71, 880.715, 880.72, 880.76, 880.81, 880.815,
13880.83, 880.835, 880.845, 880.855, 880.87, 880.89, 880.895, 880.90 and
14880.905;
to consolidate, renumber and amend 880.31 (1) and (7) and 880.31
15(4) and (5);
to amend 6.03 (1) (a), 6.03 (3), 17.03 (6), 19.32 (1m), 29.161, 29.171
16(1), 29.173 (1), 29.182 (4m), 29.184 (6) (c) 1r., 29.184 (6) (c) 2., 29.231 (1), 29.235
17(1), 29.512 (1), 32.05 (4), 32.06 (4), 32.06 (7), 32.075 (3) (b), 32.22 (6) (b), 36.27
18(2) (a) 5., 40.08 (9), 45.36 (1) (b), 46.011 (intro.), 46.27 (1) (e), 46.977 (1) (a),
1946.977 (2) (a), 46.977 (2) (c), 48.14 (2) (b), 48.14 (11), 48.345 (intro.), 48.347
20(intro.), 48.62 (2), 48.831 (1), 48.831 (1m) (e), 48.977 (8), 48.978 (7), 49.001 (8),
2149.498 (3) (a) 1., 49.498 (3) (c), 50.03 (14) (c) 8. e., 50.06 (2) (intro.), 50.06 (2) (c),
2250.09 (3), 50.94 (2) (intro.), 50.94 (6), 51.01 (5) (a), 51.01 (14), 51.03 (3) (a) 6.,
2351.05 (2), 51.10 (8), 51.22 (4), 51.30 (4) (b) 8m., 51.30 (4) (b) 18. a., 51.30 (4) (b)
2418. c., 51.30 (4) (b) 20. (intro.), 51.30 (4) (dm) 2., 51.30 (4) (f), 51.30 (5) (a), 51.30
25(5) (b) 1., 51.30 (5) (e), 51.35 (7), 51.40 (title), 51.40 (1) (e), 51.40 (1) (f), 51.40 (1)
1(g) 1., 51.40 (2) (intro.), 51.40 (2) (a) 1., 51.40 (2) (a) 2., 51.40 (2) (b) (intro.), 51.40
2(2) (b) 1., 51.40 (2) (b) 2. (intro.), 51.40 (2) (g) 1., 51.45 (2) (e), 51.45 (10) (a), 51.45
3(10) (c), 51.45 (13) (c), 51.45 (13) (e), 51.61 (1) (o), 51.61 (1) (w) 3., 55.02, 55.03,
455.05 (2) (d), 55.05 (5) (b) 1., 55.05 (5) (b) 2., 55.06 (1) (intro.), 55.06 (1) (a), 55.06
5(2) (b), 55.06 (3) (c), 55.06 (4), 55.06 (5), 55.06 (6), 55.06 (8) (c), 55.06 (10) (c),
655.06 (14), 55.06 (17) (b), 58.05 (2), 66.0915 (1), 66.0915 (2), 71.07 (3m) (a) 1. e.,
771.28 (2m) (a) 1. e., 71.47 (2m) (a) 1. e., 71.58 (1) (f), 75.03 (title), 75.521 (8),
875.521 (12) (b), 75.521 (13) (b), 88.04 (2), 88.10, 92.03 (4) (intro.), 93.11 (6) (a)
91., 114.135 (2), 115.76 (12) (b) 2., 115.797 (1) (c), 115.807 (intro.), 146.34 (1) (d),
10146.81 (5), 146.82 (2) (a) 9. a., 146.82 (2) (a) 9. c., 146.83 (4) (b), 154.07 (2), 154.13
11(2) (c), 155.05 (1), 155.60 (1), 155.60 (2), 155.65 (2) (c), 179.65, 180.0103 (11),
12181.0103 (14), 186.10 (2), 214.37 (4) (k) 1., 215.14 (9) (title), 215.26 (8) (e) 1.,
13223.03 (6) (intro.), 223.10, 243.07 (3) (a), 243.07 (3) (b), 252.15 (2) (a) 4. a., 252.15
14(2) (a) 4. b., 252.15 (2) (bm) (intro.), 252.15 (5) (a) 15., 253.10 (3) (c) 7., 343.31
15(title), 343.31 (3) (a), 403.308 (1), 565.30 (2), 609.65 (1) (intro.), 628.10 (1),
16705.04 (2), 706.03 (4), 706.09 (1) (f), 753.30 (1), 757.48 (1) (a), 757.48 (3), 757.69
17(1) (h), 758.19 (6) (a), 758.19 (6) (d) 1., 758.19 (6) (d) 2., 765.11 (1), 766.51 (7),
18767.29 (3) (a), 786.01, 786.02, 786.03, 786.04, 786.05, 786.06 (intro.), 786.06 (1),
19786.06 (2), 786.07, 786.08 (1) (a), 786.08 (1) (b), 786.08 (2), 786.10, 786.13,
20786.14, 786.15, 786.16, 786.17 (1), 786.18 (1), 786.19, 786.20, 786.21, 786.25 (1),
21786.25 (2), 786.25 (3), 801.11 (2) (intro.), 801.11 (2) (b), 802.10 (1), 803.01 (3)
22(title), 803.01 (3) (a), 803.01 (3) (b) 2., 803.01 (3) (b) 3., 803.01 (3) (b) 4., 803.01
23(3) (b) 5., 803.01 (3) (b) 6., 803.01 (3) (c) (title), 803.01 (3) (c) 2. (intro.), 803.01
24(3) (c) 2. a., 803.01 (3) (c) 2. b., 803.10 (2), 804.02 (1) (b), 806.04 (4) (intro.), 807.10
25(title), 807.10 (1), 807.10 (2), 807.10 (3), 807.13 (2) (intro.), 808.075 (4) (f)
1(intro.), 808.075 (4) (f) 1., 808.075 (4) (f) 2., 808.075 (4) (f) 3., 808.075 (4) (f) 4.,
2808.075 (4) (f) 5., 808.075 (4) (f) 6., 808.075 (4) (f) 7., 808.075 (4) (f) 8., 808.075
3(4) (f) 9., 808.075 (4) (f) 11., 808.075 (4) (f) 12., 808.075 (4) (f) 13., 813.12 (5) (d),
4813.123 (3) (b) 1., 814.61 (12) (a) 1., 814.66 (1) (b) 2., 814.66 (1) (m), 842.25,
5851.72 (2), 851.72 (3), 851.73 (1) (a), 854.08 (5) (title), 854.13 (2) (f), 854.17,
6857.15, 860.13, 862.03 (title), 862.03 (1), 862.03 (4), 863.43, 863.45, 865.02 (1)
7(b) 1., 865.03 (1), 867.03 (1c), 878.07 (4), 879.09, 879.11, 879.13, 879.15 (1),
8879.19, 879.23 (1), 879.23 (4) (a), 879.23 (4) (c), 879.23 (5), 879.26, 879.27 (4),
9879.27 (5), 879.57, 885.17, 905.04 (4) (a), 905.04 (4) (am), 938.02 (20m) (a) 5.,
10938.345 (1) (e), 949.04 (1) (b), 950.02 (4) (a) 5., 968.20 (1m) (a) 1. and 992.08;
to
11repeal and recreate 29.164 (3) (e) and 51.40 (2) (f); and
to create 29.024 (2u),
1250.02 (2) (ad), 51.01 (4g), 51.01 (4r), 51.01 (14t), 51.40 (1) (em), 51.40 (1) (hm),
1351.40 (1) (m), 51.40 (2) (b) 2. g., 51.40 (2) (g) 6., chapter 54, 55.01 (1v), 55.01 (6t),
1455.01 (6v), 55.06 (3) (d), 55.14, 55.19, 55.195 (7), 55.195 (9), 155.40 (2m), 243.10
15(7) (c), 343.06 (1) (L), 343.31 (2x), 440.121 and 814.66 (1) (n) of the statutes;
16relating to: guardianships, conservatorships, and wards; involuntary
17administration of psychotropic medication; protective placements and
18protective services; powers of attorney for health care; durable powers of
19attorney; venue, residence, and county of responsibility; requiring the exercise
20of rule-making authority; receipt and acceptance of foreign guardianships; and
21providing a penalty.
Analysis by the Legislative Reference Bureau
Current guardianship law
Current guardianship law specifies standards and procedures for
determinations by courts that certain individuals are proper subjects for
guardianship or conservatorship because of incompetency, spendthriftiness, or
minority. For such an individual, after presentation of evidence in a hearing, the
court may approve a petition for guardianship and appoint a guardian of the person
or guardian of the estate, or both, may dismiss the petition, or, for small estates, order
that certain payments be made on behalf of the individual without appointment of
a guardian. A court may consider a petition for appointment of a temporary guardian
and, after presentation of evidence in a hearing, appoint a temporary guardian for
a period not to exceed 60 days or may consider a petition for limited guardianship of
property and, after presentation of evidence in a hearing, appoint such a limited
guardian of property. As an alternative to guardianship, a court may after
presentation of evidence in a hearing, appoint a conservator for an adult who feels
unable to manage his or her own property and has applied for a conservatorship. No
adult may be protectively placed or receive protective services unless he or she has
been determined incompetent under the guardianship laws.
Determination of incompetence and appointment of guardian
Jurisdiction and venue; county of residence
Currently, the circuit courts have jurisdiction over all petitions for
guardianship; petitions must be directed to the circuit court of the county of
residence of the proposed ward or of the county in which the proposed ward is
physically present. For nonresidents, the petition may be directed to the circuit court
of a county in which the nonresident or his or her property may be found. The court
in which a petition is first filed must determine venue for a nonresident.
This substitute amendment also permits a petition for guardianship to be
directed to the county in which the petitioner proposes that the proposed ward reside.
Under current law, for purposes of determining responsibility for funding the
provision of social services, mental health and alcohol and other drug abuse services,
and protective placements and protective services, the county of residence of
individuals aged 18 or older with developmental disability or chronic mental illness
in state facilities or nursing homes is determined under numerous criteria. As an
exception to these criteria, the individual's county of residence is that of his or her
guardian if the individual is incapable of indicating intent and has a parent or sibling
who serves as his or her guardian or if the individual's guardian states that the
individual is expected to return to the guardian's county of residence when the
purpose of entering the state facility or nursing home has been accomplished or when
needed care and services can be obtained in the guardian's county of residence. An
individual, an interested person on his or her behalf, or a county may request that
the Department of Health and Family Services (DHFS) make a determination of the
county of responsibility of the individual. The decision is binding on the individual
and on any county that received notice of the proceeding. Currently, under the laws
relating to protective placements and protective services, a petition for appointment
of a guardian and for protective services or protective placement for an individual
must be filed in the county of residence of the individual to be protected. Currently,
under the laws relating to guardianship, all petitions for guardianship must be
directed to the circuit court of the county of residence of the proposed ward or of the
county in which the proposed ward is physically present. For a nonresident, the
petition may be directed to the circuit court of any county in which the nonresident
or his or her property may be found. The court in which the petition is first filed must
determine venue and must order the record certified to the proper court in another
county if it is determined that venue lies in that county. If a guardian or a ward
changes residence to another county, the circuit court for the county in which the
ward resides may appoint a new guardian and may order the guardianship accounts
settled and the property delivered to the new guardian.
With respect to determining a county of residence, the substitute amendment
clarifies that a determination may be made for adults with developmental
disabilities, serious and persistent mental illnesses, degenerative brain disorders,
or other like incapacities who reside in any place, other than a hospital that is
licensed, registered, certified, or approved by DHFS or a county under certain laws.
The substitute amendment also clarifies that a court that issues an order for
involuntary commitment or protective placement or protective services may, after
notice and an opportunity for affected counties and parties to be heard have been
provided, make a specific finding of a county of residence. If an affected county or
party objects, the county or party may request that DHFS make a determination and
a transfer of venue may be suspended until the determination of DHFS is final. The
substitute amendment modifies the criteria for determining a county of residence
and authorizes a guardian to declare a county of residence under certain
circumstances. The substitute amendment requires that the county that is
determined to be the county of residence reimburse any other county, under specified
time limits, for all social services, mental health, alcohol and other drug abuse,
protective placement, and protective services care, treatment, and services.
For laws relating to protective placements or protective services and to
guardianship, the substitute amendment modifies requirements for filing a petition
for protective placement or protective services or guardianship to require filing
either in the county of residence or, under certain circumstances, where the
individual to be protected is physically present. If a person has not previously
received services or has established residence in a different county after receiving
and terminating services, the court may determine the individual's county of
residence. The substitute amendment also requires that the court in which a petition
for protective placement or protective services is first filed determine venue, after
notice to and an opportunity to be heard by potentially affected counties. If an
affected county or party objects to the court's determination, the court may refer the
issue to DHFS for determination and may suspend ruling on a motion for change of
venue until the DHFS determination is final.
Petition for guardianship
Currently, any person may petition for the appointment of a guardian for an
individual. Each petition must state certain information about the individual. If the
petition alleges that the individual is not competent to refuse psychotropic
medication, the petition must also allege certain matters concerning the necessity
for involuntary administration of psychotropic medication.
The substitute amendment eliminates the petition requirements concerning
the involuntary administration of psychotropic medication. The substitute
amendment requires that certain additional information be included in a petition for
guardianship, including whether the proposed ward is a recipient of a public benefit,
the agent under any power of attorney for health care or financial power of attorney
executed by the proposed ward, and whether a full or limited guardian is requested
and, if limited, the specific guardian authority or limitation on the ward's rights that
is sought.
Examination of proposed ward
Under current law, when a guardian is proposed to be appointed for a ward on
the ground of alleged incompetency, a physician or psychologist, or both, must
furnish a written statement, based on an examination, concerning the proposed
ward's mental condition. The proposed ward must be informed that his or her
statements may be used as a basis for a finding of incompetency and for an order for
protective services, including the involuntary administration of psychotropic
medication, and that he or she may remain silent. The statement must be provided
to the proposed ward and his or her guardian ad litem and attorney.
The substitute amendment requires that the physician or psychologist
examining the proposed ward furnish a report, instead of a statement, stating his or
her professional opinion regarding the presence and likely duration of any medical
or other condition causing the proposed ward's incapacity. The petitioner must
provide a copy of the report to the petitioner's attorney, if any, as well as to the
proposed ward and his or her counsel and guardian ad litem. Either the guardian
ad litem or the physician or psychologist must inform the proposed ward that, absent
a court order, he or she may refuse to participate in the examination. The court must
consider the recency of any such report in determining its accuracy and the weight
to be given to it. The substitute amendment also authorizes submitting a petition
to the court to order the proposed ward to submit to an examination and permits
access by the physician or psychologist to the proposed ward's patient health care
records and mental health treatment records.
Notice
Current law specifies differing requirements for provision of notice, time limits
for service of notice, and required recipients of notice for the appointment of a
guardian for an individual on the basis of incompetency, spendthriftiness, and
minority.
The substitute amendment requires that a notice be in writing and specifies
requirements and standards for the giving of notice. The substitute amendment
requires that, for all notices of proposed guardian appointment on the basis of
incompetency or spendthriftiness, or for rehearings, the petitioner provide notice to
the proposed ward and existing guardian, if any, and to the proposed ward's counsel,
guardian ad litem, presumptive adult heirs, any agent under a financial power of
attorney or power of attorney for health care, custodian, and proposed guardian; any
agency, charity, or foundation from which the proposed ward is receiving aid or
assistance; and any other person required by the court. Special requirements apply
for notice of hearing for the proposed guardianship of a minor and to a notice and
hearing for temporary guardianships.
Appointment of guardian ad litem
Currently, a court must appoint a guardian ad litem when appointment of a
guardian on the ground of incompetency is proposed, to protectively place or provide
protective services to an individual or review a protective placement or protective
services order, or to terminate a protective placement. An interested party in a
proceeding, who appears as counsel in a proceeding, or who is a relative or
representative of an interested person, may not be appointed as guardian ad litem
in that proceeding. A guardian ad litem has numerous duties, including
interviewing the proposed ward and explaining the hearing procedure, right to
counsel, and right to request or continue a limited guardianship; advising the
proposed ward of his or her rights; and presenting evidence concerning the proposed
ward's best interests.
The substitute amendment expands the circumstances under which a court
must appoint a guardian ad litem to include whenever a petition is brought for
appointment of a guardian, to review the scope of guardianship, to expand an order
of guardianship, to review incompetency and terminate a guardianship, and to
review the conduct of a guardian, and any other time that a court determines it
necessary. The substitute amendment expands the prohibition on appointment of
an interested person, as defined in the substitute amendment, or a relative or
representative of an interested person, from appointment as guardian ad litem in
any proceeding that involves the same ward. The substitute amendment also
expands duties of the guardian ad litem, including requiring that the guardian ad
litem interview the proposed guardian, any proposed standby guardian, and any
other person seeking appointment as guardian and report to the court concerning the
fitness of each individual interviewed; review any power of attorney for health care
or financial power of attorney executed by the proposed ward and any other advance
planning for financial and health care decision making of the proposed ward;
interview any agent under such a power of attorney; inform the court if the proposed
ward or ward requests representation by counsel; and attend all court proceedings
related to the guardianship.
Rights of the proposed ward
Currently, a proposed ward has the right to counsel, the right to a trial by jury
if requested at least 72 hours before the hearing, the right to present and
cross-examine witnesses, the right to receipt of the physician's or psychologist's
report 96 hours in advance of the hearing, and the right to secure an independent
medical or psychological evaluation. A court must appoint a guardian ad litem and
require attorney representation if requested, if the involuntary administration of
psychotropic medication is proposed, if the proposed ward is opposed to the
guardianship, or if the interests of justice require it. If a guardian is appointed, a
court may allow payment of reasonable expenses incurred by the ward in contesting
the appointment.
The substitute amendment expands these rights to wards (for reviews of
guardianships and other matters) and provides to the proposed ward or ward the
rights to be present at any hearing regarding the guardianship and to have any such
hearing conducted in a location and manner that is accessible to the proposed ward.
The substitute amendment allows a request for a jury trial to be made at least 48
hours before a hearing. The substitute amendment clarifies that expenses incurred
by the ward in contesting the appointment are payable from the ward's income or
assets before other attorney or guardian ad litem fees.
Appointment of guardian; determination of incompetence
Under current law, a court may appoint a guardian to have care, custody, and
control of, or to manage the estate of, an individual who is determined by the court
to be incompetent, a spendthrift, or a minor. The standard for a finding of
incompetency includes substantial incapability of managing one's property or caring
for oneself by reason of infirmities of aging, developmental disabilities, or other like
incapacities; physical disability without mental incapacity is insufficient to establish
incompetence.
The substitute amendment changes the standard for a finding of incompetence
and appointment of a guardian of the person or a guardian of the estate, or both, for
an individual, to authorize the finding and appointment only if the court finds, by
clear and convincing evidence, that the individual is aged at least 17 years and nine
months; that (for purposes of appointment of a guardian of the person) because of an
impairment, as defined in the substitute amendment, the individual is unable
effectively to receive and evaluate information or to make or communicate decisions
to such an extent that the individual is unable to meet the essential requirements
for his or her physical health and safety; and that (for purposes of appointment of a
guardian of the estate) because of an impairment, the individual is unable effectively
to receive and evaluate information or to make or communicate decisions related to
management of his or her property or financial affairs, to the extent that the property
will be dissipated, the individual is unable to provide for his or her support, or the
individual is unable to prevent financial exploitation. Further, the individual's need
for assistance in decision making or communication must be unable to be met
effectively and less restrictively through appropriate and reasonably available
training, education, support services, health care, assistive devices, or other means
that the individual will accept. Unless the proposed ward is unable to communicate
decisions effectively in any way, this determination may not be based on mere old age,
eccentricity, poor judgment, or physical disability.
The substitute amendment requires that, in appointing a guardian for an
individual who is found to be incompetent or in appointing a guardian of the estate
for an individual who is found to be a spendthrift, declaring incompetence of the
individual to exercise certain rights, or in determining the powers that are
appropriate for a guardian to exercise, the court consider numerous matters,
including the guardian ad litem report; the medical or psychological report and any
other evaluation; whether appointment of a guardian is the least restrictive means,
as defined in the substitute amendment, to provide for the individual's need; and the
preferences of the individual with regard to personal needs or property management.
The substitute amendment specifies evidence that the court must consider in
appointing a guardian of the estate for a spendthrift or in determining what powers
are appropriate for a guardian of the estate of a spendthrift to exercise. The evidence
includes the report of the guardian ad litem, the required medical or psychological
report, whether other reliable resources are available to provide for the individual's
personal needs or property management, and other matters. As with the
appointment of a guardian for a person who is found to be incompetent, the court
must determine if additional medical, psychological, social, vocational, or
educational evaluation is necessary to make an informed decision concerning the
individual's competency to exercise legal rights. The court must authorize a
guardian of an individual found to be incompetent or, for a spendthrift, a guardian
of the estate to exercise only necessary powers and to exercise them in a manner that
is appropriate and that constitutes the least restrictive form of intervention.
Exceptions to appointment of guardian
Currently, if a minor or an individual who is found incompetent is, except for
his or her incapacity, entitled to have personal property of $10,000 or less, a court,
without requiring the appointment of a guardian, may order the property be
deposited in a bank or other financial institution or invested, make payment to the
natural guardian or person having custody of the minor, make payment to the minor,
or make payment to the person with actual or legal custody of the individual found
incompetent or to the person providing for the care and maintenance of the
individual found incompetent. Similar provisions apply for possession by a minor or
individual found incompetent of $5,000 or less from an estate. The substitute
amendment increases to $20,000 the dollar limitation on personal property for these
types of dispositions.
Nomination of guardian
Currently, a court must consider nominations for guardian that are made by
any interested person, by a minor over 14 years, by a parent in a will, and by an
individual for himself or herself in an anticipatory document. The court must also
consider the opinions of an individual who is alleged to be incompetent and of the
members of the individual's family, potential conflicts of interest, the appointment
of an individual's agent under a power of attorney for health care, and whether a
nonprofit corporation is qualified to serve as guardian. The court must appoint one
or both parents, if suitable and willing, of a minor or person with developmental
disabilities or other like incapacity. No person, except a nonprofit corporation, may
accept guardianship of the person of more than five adult wards who are unrelated
to the person, unless, up to a limit of ten, the additional guardianships are approved
by DHFS under rules promulgated by DHFS under the laws relating to protective
placement.
The substitute amendment requires, unless the court finds that the
appointment is not in the proposed ward's best interests, that the court appoint, as
guardian of the estate, an agent under a proposed ward's financial power of attorney;
as guardian of the person, the agent under a proposed ward's power of attorney for
health care; and as guardian, one or both parents of a minor, or an individual with
developmental disability or with serious and persistent mental illness, as defined in
the substitute amendment. The substitute amendment limits the power of a parent
to nominate by will a guardian of the person or guardian of the estate for the parent's
minor child if the court finds that the appointment is not in the minor's best interests.
A private nonprofit corporation or an unincorporated association that is approved by
the court may be appointed as guardian if no suitable individual is available and if
DHFS, under rules promulgated under the guardianship laws, finds the corporation
or association suitable. The substitute amendment limits the number of adult wards
for whom an individual may have guardianship to five adult wards who are
unrelated to the individual, unless the limitation is waived by a court, and eliminates
restrictions on the number of adult wards for which a nonprofit corporation or
unincorporated association may accept guardianship. At least 96 hours before the
hearing the proposed guardian must submit to the court a sworn and notarized
statement as to whether, among other things, the proposed guardian is currently
charged with or has been convicted of a crime, has filed for or received protection
under the federal bankruptcy laws, has had a professional license suspended or
revoked, or is listed on the caregiver abuse registry.
Hearing
Under current law, a hearing on a petition for guardianship must be open
unless the proposed ward or his or her counsel moves that it be closed. If closed, only
certain persons may be present.
This substitute amendment requires that each hearing under the guardianship
laws be closed unless the proposed ward or his or her counsel moves that it be open.
The substitute amendment requires that petitions for guardianship, except for
temporary guardianship and petitions for protectively placed individuals in certain
facilities, be heard within 90 days after they are filed; that court determinations of
incompetency or spendthriftiness be made by clear and convincing evidence; that the
proposed guardian and any proposed standby guardian be physically present at the
hearing unless excused by the court or unless the court permits their attendance by
telephone; and that an adult proposed ward attend the hearing unless the guardian
ad litem, under certain standards, waives attendance. If the proposed ward is unable
to attend the hearing because he or she resides in a facility or because of physical
inaccessibility or a lack of transportation, and the proposed ward, guardian ad litem,
advocate counsel, or other interested person so requests, the court must hold the
hearing in a place where the proposed ward may attend. A court that finds a
proposed guardian to be inappropriate must require another petition proposing a
suitable guardian, set a date for a subsequent hearing, and require the guardian ad
litem to investigate the suitability of a new proposed guardian.
Disposition of petition
Currently, if a proposed ward has executed a power of attorney for health care,
the court, in a determination of incompetency, may find that the power of attorney
should remain in effect and, if so, must limit the power of the guardian from making
health care decisions for the ward that the agent under the power of attorney may
make, unless the guardian is also the agent. The substitute amendment requires
that such a health care power of attorney remain in effect and permits a court to
revoke it or limit the power of the agent only for good cause shown. Unless the court
makes a revocation or limitation, the guardian is prohibited from making health care
decisions for the ward that may be made by the agent.
Currently, when a guardian is appointed, the court must award from the ward's
estate payment of the petitioner's reasonable attorney fees and costs, including those
related to protective placement, unless the court finds it inequitable to do so after
considering the petitioner's interest in the matter, including a conflict of interest, the
ability of the ward's estate to pay the fees and costs, whether the guardianship was
contested, and any other relevant factor. This award may not be made if the ward
had engaged in advance planning (by, among other things, executing a financial
power of attorney) to avoid guardianship. The substitute amendment eliminates
payment, from the ward's income and assets, of the costs of a protective placement
and changes a finding that the ward had engaged in advance planning for financial
health care decision making to be a factor in awarding payment of the petitioner's
reasonable attorney fees and costs, rather than a prohibition on that payment.
Currently, the court may require a bond from the person appointed guardian
of the estate of a ward and may require a "blanket bond" from a county institutional
employee who is appointed a guardian for numerous residents of county facilities.
The substitute amendment requires that the court order specify the bond amount,
prohibits requiring a bond for the guardian of the person of the ward, and eliminates
the authority to require "blanket bonds."
The substitute amendment clarifies the grounds under which a court must
dismiss a petition for guardianship. If a guardian is appointed, the substitute
amendment specifies the joint decision making powers of any coguardians
appointed; specifies that any financial power of attorney executed by the proposed
ward remains in effect unless, only for good cause shown, it may be revoked or the
agent's powers limited, and prohibits the guardian from making decisions for the
ward that may be made by the agent; specifies that, if a guardian is not appointed,
the petitioner is liable for guardian ad litem fees and fees of the proposed ward's legal
counsel.
Involuntary administration of psychotropic medication
Under current law relating to guardianship, a petition for appointment of a
guardian may allege that the proposed ward is not competent to refuse psychotropic
medication and that the medication is, under several criteria, necessary as a
protective service. "Not competent to refuse psychotropic medication" is defined to
mean that, because of chronic mental illness and after advantages and
disadvantages of and alternatives to accepting psychotropic medication have been
explained to an individual, he or she is incapable of expressing an understanding of
the advantages and disadvantages or is substantially incapable of applying an
understanding of the advantages, disadvantages, and alternatives in order to make
an informed choice about acceptance or refusal. If, at hearing, the court finds that
the individual is not competent to refuse psychotropic medication and that the
medication is necessary, the court must appoint a guardian to consent to or refuse
the medication on behalf of the individual and order development of a treatment plan
for the person. The relevant county department must at least annually review and
evaluate the individual's status and, if appropriate, recommend discharge or change
in the treatment plan. The court also must annually appoint a guardian ad litem to
review the county department's evaluations, inform the individual and his or her
guardian of certain rights, and file a report with the court. The court must order an
independent evaluation and a hearing to continue, modify, or terminate the
guardianship, if requested or on the court's own motion. If the individual
substantially fails to comply with the treatment plan and if certain conditions are
met, the court may authorize the guardian to consent to the involuntary
administration of psychotropic medication to the individual.
For purposes of the guardianship laws, the substitute amendment defines
"psychotropic medication" and establishes a standard for the power of a guardian to
give informed consent (subject to the power of an agent under any power of attorney
for health care of the ward) to the ward's voluntary receipt of psychotropic
medication.
The substitute amendment clarifies that a guardian may consent to the
involuntary administration of psychotropic medication only under a court order
under the laws relating to protective placement and protective services. Under these
laws, the substitute amendment establishes an exclusive procedure for involuntary
administration of psychotropic medication as a protective service to an individual
who has been protectively placed. Under this procedure, a petition for involuntary
administration of psychotropic medication must meet all requirements for a
protective services petition and also allege the condition, past behavior, and
numerous other matters relating to the individual's competence to refuse
psychotropic medication. A guardian ad litem must be appointed for the individual
and must report to the court his or her conclusions concerning the allegations, and
the court must appoint legal counsel on behalf of the individual. If requested, the
individual may have an independent medical or psychological evaluation that is
relevant to his or her competency to refuse the medication, the truth of the petition's
allegations, and whether involuntary administration is in the individual's best
interests. After hearing, the court may authorize a guardian to consent to
involuntary administration of psychotropic medication to a ward as a protective
service, if the court or jury finds that, by clear and convincing evidence, the
requirements for the involuntary administration are met. If the court issues such
an order, the order must specify the methods of involuntary administration to which
the guardian may consent; require the presence of certain medical personnel when
administered; require the maintenance of records concerning the methods of
administration used; and require development of a treatment plan. The substitute
amendment specifies procedures for noncompliance with the order, requires annual
review of the order, and requires performance of annual review of the status of the
individual by the relevant county department. Further, the substitute amendment
requires the court to appoint a guardian ad litem after receipt of the annual county
department report and specifies responsibilities of the guardian ad litem with
respect to the ward. The substitute amendment requires the court that issued the
order for involuntary administration of psychotropic medication annually to review
reports of the county department and the guardian ad litem and order either a
summary hearing or full due process hearing, after which the court must terminate,
modify, or order continuation of the order.
Duties and powers of a guardian; limitations
Currently, no guardian may lend guardianship funds to himself or herself and
a guardian is limited in purchasing property of the guardian's ward. A guardian
must pay just debts of the ward from the ward's estate and its income.
The substitute amendment specifies in detail numerous powers and duties of
a guardian (either a guardian of the person or a guardian of the estate) and clarifies
that a guardian's powers are limited to those authorized by statute or court order,
that a ward retains all rights that are not assigned to the guardian or otherwise
limited by statute, and that a guardian's powers are limited to those necessary to
provide for the personal needs or property management of the ward in a manner that
is appropriate to the ward and that constitutes the least restrictive form of
intervention. Under the substitute amendment, a guardian may not lend the ward's
funds to another unless the court first approves the terms, rate of interest, and any
requirement for security, and may purchase property of the ward only at fair market
value and with the approval of the court. The requirement to pay legally enforceable
debts of the ward, including by filing tax returns and paying taxes owed is, under the
substitute amendment, made a duty of a guardian of the estate.
Duties and powers of a guardian of the estate
Currently, although the title to the ward's estate remains the ward's, the
guardian of the estate must take possession of and protect and preserve the ward's
property; rents, income, and other benefits from the property; and any proceeds
arising from the sale or other actions to the property. The substitute amendment
specifies numerous duties of the guardian of the estate, and requires that the
guardian of the estate, after following any applicable requirements concerning
petitioning the court for the authority to sell, mortgage, pledge, lease, or exchange
the ward's property, perform these duties so as to provide the ward with the greatest
amount of independence and self-determination with respect to property
management in light of the ward's functional level, understanding, and appreciation
of his or her functional limitations and in light of the ward's personal wishes and
preferences.
Currently, in exercising powers, the guardian of the estate must use the
judgment and care exercised by persons of prudence, discretion, and intelligence in
the management of their own affairs. Currently, after submittal of a petition and
under court order, assets of a ward may be transferred to the trustee of an existing
revocable living trust for the benefit of the ward or dependents or to the trustee of
a trust for the benefit of a minor ward or, if the minor dies, to his or her estate. A
guardian of the estate appointed for a married ward may exercise, with court
approval, management and control rights over marital or nonmarital property and
the ward's business affairs, join in a transaction for which joinder of both spouses is
required, or execute a marital property agreement, but not make, amend, or revoke
a will. The guardian of the estate may also, if specified in the court's order, continue
the business of a ward, and may apply to the court for adjustment of claims of the
ward. The guardian of the estate may, with court approval, retain real or personal
property of the ward or that the ward acquires by gift or inheritance. The guardian
of the estate may, without court approval, do numerous things on behalf of the ward,
including entering into contracts and applying for public and private benefits.
The substitute amendment requires that the guardian of the estate, in
exercising powers, consider, consistent with the functional limitations of the ward,
the ward's understanding of the harm that he or she is likely to suffer as the result
of his or her inability to manage property and financial affairs, the ward's personal
preferences and desires, and the least restrictive form of intervention for the ward.
The substitute amendment requires that certain actions specified in current law and
numerous others specified in the substitute amendment may be performed by the
guardian of the estate with respect to the ward's income and assets only with the
court's prior written approval following any petition and upon any notice and hearing
that the court requires. Further, the substitute amendment specifies a detailed
procedure that a guardian of the estate must follow in order to transfer any of a
ward's assets to or for the benefit of another person. For a ward who receives
governmental benefits for which a representative payee is appropriate, the
substitute amendment requires that, if no representative payee is appointed, the
guardian apply to be appointed or ensure that a representative payee is appointed.
The substitute amendment also specifies numerous powers, in addition to those in
current law, which the guardian of the estate may perform without first receiving the
court's approval.