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.
Duties and powers of guardian of the person
Under current law, a guardian of the person of a ward must annually report on
the ward's condition to the court and the relevant county department, and must
endeavor to secure necessary care or services on behalf of the ward. If a court finds
that an individual for whom a determination of incompetency is proposed is not
capable of understanding the objective of the elective process, the court may find the
individual ineligible to register to vote or to vote in an election.
The substitute amendment requires that a guardian of the person endeavor to
secure care or services that are in the ward's best interests by, among other things,
regular inspection, in person, of the ward's condition, surroundings, and treatment;
examination of the ward's patient health care records; and inquiry into alternatives
to treatment for the ward if drastic or restrictive treatment is proposed.
The substitute amendment specifies that a guardian of the person has only
those rights and powers that he or she is specifically authorized to exercise by
statute, rule, or court order; any other right is retained by the ward, unless the ward
has been declared by a court incompetent to exercise a right or the guardian of the
person has been authorized by a court to exercise certain rights usually retained by
the ward. The substitute amendment specifies numerous rights that are retained
by individuals who are determined incompetent, specifies a proceeding in which a
court may find, by clear and convincing evidence, that an individual has incapacity
to exercise specified rights, including the right to register to vote or vote and the right
to consent to organ donation. A guardian of the person may not exercise a right on
behalf of a ward who is declared not competent to exercise that right, unless so
authorized by a court. The substitute amendment specifies the standard under
which a court may make this authorization, including the power to give informed
consent, if in the ward's best interests, to voluntary or involuntary administration
of psychotropic medication. Lastly, the substitute amendment specifies a standard
that the guardian of the person must follow in exercising powers and duties
delegated to the guardian of the person by a court.
Temporary guardianships
Currently, after considering a petition, a court may appoint a temporary
guardian for a ward, including for a minor for a medical purpose, for 60 days and may
extend the order for one additional 60-day period. The temporary guardian may
perform duties concerning specific property or as ordered by the court. Statutory
provisions concerning the powers and duties of guardians apply, except as limited by
the court's order. The temporary guardian must report as directed by the court,
account to the court at the termination of the temporary guardianship, and deliver
the ward's estate to those entitled to it. Duties and powers of a temporary
guardianship cease upon the appointment of a guardian, when a minor for whom a
temporary guardianship attains the age of 18, or if the court determines that the
ward's situation that was the cause of the temporary guardianship has ended.
The substitute amendment establishes a standard for the appointment of a
temporary guardian; establishes procedures for appointment of a temporary
guardian, including appointment of a guardian ad litem; provides for a rehearing on
the issue of appointment of the temporary guardian, if requested; clarifies the
duration of the temporary guardianship and the authority of the temporary
guardian; and prohibits the temporary guardian from selling real estate or
expending more than $2,000 unless authorized by the court.
Standby guardianships
Under current law, a person may at any time bring a petition for the
appointment of a standby guardian of the person or estate of a minor or an individual
found incompetent, to assume the duty and authority of guardianship on the death,
incapacity, or resignation of the guardian. If appointed, the standby guardian has
the powers and duties of the guardian and must notify the court upon assuming
office.
The substitute amendment clarifies that a standby guardian of the person may
be appointed for a spendthrift and that appointment of a standby guardian is
effective upon the unwillingness or inability to act, resignation, or court's removal
of the guardian, or during a period when the guardian is temporarily unable to fulfill
his or her duties, including during an extended vacation or illness. Under the
substitute amendment, when a standby guardianship takes effect, the court must
issue new letters of guardianship that specify that the standby guardianship is
permanent or that specify the time period for a limited standby guardianship.
Termination of limited guardianship of property
Currently, upon petition, in a procedure separate from appointment of a
guardian, a court may appoint a limited guardian of property, under which the
limited guardian receives, manages, disburses, and accounts for property of the
ward. Unless limited by a court, an adult ward under a limited guardian of property
may receive and expend wages and other earnings and may contract under certain
circumstances.
This substitute amendment eliminates the appointment of a limited guardian
of property as a procedure separate from appointment of a guardian.
Petition for the receipt and acceptance of a foreign guardian
The substitute amendment establishes a procedure, based on requirements
specified by the Wisconsin Supreme Court in Matter of the Guardianship of Jane E.
P., 275 Wis. 2d 680 (2005), for the receipt and acceptance by Wisconsin of an
out-of-state (foreign) guardianship of a ward who resides in or intends to move to
Wisconsin. The substitute amendment specifies requirements for the petition,
including a certified copy of the foreign guardian order and the address of the foreign
court that issued the guardianship order, and the reason for transfer of the
guardianship. The bill also specifies requirements for notice of the petition and how
and on whom the notice must be served. Part of the notice to the foreign court must
include a request that that court provide certification of any knowledge of failure of
the foreign guardian to perform required duties or any prohibited acts of the
guardian and copies of all relevant filed documents. Failure by the petitioner to
adequately serve the notice deprives a Wisconsin court of jurisdiction, under the
substitute amendment, as does failure of the foreign court to provide the
certifications and copies within 30 days after receipt of notice or to give indication
that the foreign court will comply within a reasonable time. The substitute
amendment requires that a guardian ad litem be appointed for the foreign ward and
specifies time limits for a hearing on the petition. If an interested person who
receives notice of the petition challenges the validity of the foreign guardianship or
the authority of the foreign court to appoint the foreign guardian, the court may stay
the proceeding so that the foreign court may hear the challenge and determine its
merits. The substitute amendment requires the physical or telephone presence of
the petitioner at the hearing and requires that the petition ensure that the foreign
ward attends unless attendance is waived by the guardian ad litem of the foreign
ward or the hearing is held in a place where the foreign ward may attend. The
substitute amendment requires the court to dismiss the petition if the foreign
guardian is not in good standing with the foreign court, the foreign guardian is
moving the foreign ward or the ward's property in order to avoid or circumvent the
foreign guardianship order, or if the transfer is not in the best interests of the foreign
ward. The substitute amendment specifies standards for granting the petition and
authorizes the court to make certain modifications to the order. If the petition is
granted, the court has continuing jurisdiction over the guardian. The court must
coordinate with the foreign court the orderly transfer of the foreign guardianship.
Lastly, within a reasonable period of time after a petition for receipt and acceptance
of a foreign guardianship is granted, the court must review the guardianship
provisions and inform the guardian and ward of available services.
Post-appointment matters
Inventory
Currently, when a guardian of the estate is appointed, an inventory must be
made of the ward's property under the same requirements as for the inventory of the
estate of a decedent. The guardian of the estate must by oath verify that the
inventory includes all the ward's property; the court may examine the guardian of
the estate as to the inventory or any supposed omission. A court may order a
guardian who neglects to file an inventory to do so.
The substitute amendment establishes requirements for information that the
inventory must provide with respect to each asset of the ward and the time by which
the guardian of the estate must file the initial inventory, specifies persons to whom
the guardian of the estate must provide copies of the inventory and the fee due when
the inventory is filed, and authorizes the court to order that the guardian of the estate
appraise any or all of the ward's income and assets.
Accounts
Currently, every guardian except a corporate guardian must annually, before
April 15, as specified by court order, or at any other time required by a court, file an
account specifying the amount of the ward's property received and held or invested,
the nature of the investment, receipts and expenditures, and any change in status
of the surety on the guardian's bond. The guardian must produce for the court
evidence of the ward's securities, deposits, and other investments. If the account is
unsatisfactory, the court may appoint a guardian ad litem for the ward. The court
may order any person entrusted by the guardian with part of the ward's estate to
appear and render an account. Action by a court on an account is final only if notice
is provided. If a guardian fails to file an account, the court may order the guardian
to show cause for the failure and may issue a warrant. The guardian may be fined
$50, or imprisoned up to 10 days, or both, if the court finds that failure, refusal, or
neglect to file an account under court order is willful or inexcusable.
The substitute amendment makes exceptions to the requirement for annual
submittal of an account, for waiver by a court, or for income and assets of a ward that
do not exceed $20,000; the guardian must notify the court if the ward's income and
assets exceed this amount. The substitute amendment eliminates the exception
from filing for corporate guardians. The substitute amendment creates special
requirements for annual accounts of married wards. Under the substitute
amendment, an action by a court on an account is final only if the guardian first
provides notice to the ward, any guardian ad litem of the ward, and any personal
representative or special administrator of the estate of a deceased ward. For a
guardian who fails to file the account as required by law or as ordered by the court,
the court must direct that a copy of the court's order to the guardian to show cause
be served on the guardian at least 20 days before the court-ordered court appearance
date. The substitute amendment also increases the fine for guardian failure, refusal,
or neglect to $250.
Procedure to expand an order of guardianship
The substitute amendment creates a procedure by which a guardian or other
person may submit to a court a request for removal of rights from a ward and transfer
of powers to the guardian in addition to those specified in the order of appointment.
If, after notice is provided, no objection is submitted, the court may amend the order,
but if an objection to the request is submitted, the court must hold a hearing for
review of the ward's incompetency.
Review of incompetency and general termination of guardianship
Currently, a guardianship of an individual who is found incompetent continues
during the life of the ward or until terminated by the court. Guardianship of a minor
who is found incompetent is reviewed when the minor attains age 18. The court must
conduct a hearing, including a jury trial if requested, if an adult ward or his or her
guardian petitions for a review of incompetency. After a hearing or on its own motion,
a court may terminate or modify the ward's guardianship. Termination of
guardianship of the person occurs when a formerly minor ward attains age 18, unless
the minor was found incompetent; a minor marries; or the court determines that the
ward is competent. Termination of guardianship of the estate occurs under these
same grounds and if the ward dies. In addition, the court may terminate a
guardianship for a ward whose estate is depleted to below $5,000 if it is to the
advantage of the ward to do so. For property of a nonresident ward in the possession
of or due from a guardian appointed in this state, the court may, after receipt of a
petition and provision of notice, order the property delivered to the ward's foreign
guardian.
For a review of a ward's incompetency, the substitute amendment specifies time
limits and procedures; requires the court to appoint a guardian ad litem, fix a time
and place for hearing, and designate persons entitled to notice and the manner of
giving notice; and specifies the right of the ward to counsel, including at county
expense if the ward is indigent. For termination of a guardianship of the person, the
substitute amendment clarifies that the guardianship does not terminate on
attainment of age 18 years or marriage by a minor ward if the guardianship was
ordered on the grounds of incompetency; and expands the grounds for termination
of a guardianship of the person or a guardianship of the estate. For a depleted
guardianship, the standard for depletion is increased to $20,000. If terminating the
guardianship, the court is authorized to order the guardian to make appropriate
financial arrangements for the burial or other disposition of the ward's remains.
Alternatively, the court may continue the guardianship, but waive requirements for
a bond for the guardian and waive or require an accounting by the guardian.
Final accounts
Currently, if a court terminates a guardianship or a guardian resigns, is
removed, or dies, the guardian or the guardian's personal representative must
render a final account to the court, the former ward, the successor guardian, or the
deceased ward's personal representative. After approval of the account and the filing
of receipts, the guardian must be discharged and the guardian's bond released. The
guardian of an estate of not more than $1,000 must render an account only on
termination of the guardian's guardianship or as ordered by the court. If a ward dies
leaving an estate that may be settled under laws relating to summary settlement of
small estates, the court may approve that summary settlement and distribution
without appointing a personal representative.