Amendment SSA1-SB391

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 An Act to repeal 32.64, 51.20 (7) (d) 1. a., 51.20 (7) (d) 1. b., 51.40 (1) (h), chapter 880 (title), subchapter I (title) of chapter 880 [precedes 880.01], 880.01 (intro.), 880.01 (4), 880.01 (5), 880.01 (6), 880.03, 880.07 (1m), 880.07 (3), 880.07 (4), 880.08 (1) (title), 880.08 (2), 880.08 (3) (title), 880.08 (3) (e), 880.09 (1) (title), 880.09 (3) (title), 880.09 (4), 880.09 (5), 880.09 (7) (title), 880.12, 880.125, 880.13 (3), 880.15 (title), 880.15 (1m), 880.15 (2), 880.16, 880.173 (title), 880.173 (2), 880.175 (title), 880.19 (title), 880.19 (1) (title), 880.19 (2) (title), 880.19 (3) (title), 880.19 (4) (title), 880.19 (5) (title), 880.19 (5) (d), 880.19 (6), 880.191 (title), 880.192, 880.21, 880.22 (title), 880.22 (1) (title), 880.22 (2) (title), 880.23 (title), 880.24 (title), 880.24 (1), 880.25 (title), 880.251, 880.26 (title), 880.295, 880.31 (title), 880.33 (title), 880.33 (2) (d), 880.33 (3), 880.33 (4), 880.33 (4m) and (4r), 880.33 (8) (intro.), 880.33 (8) (a), 880.34 (3), 880.34 (6), 880.37, 880.38 (1), 880.39 (title), subchapter II (title) of chapter 880 [precedes 880.60], subchapter III (title) of chapter 880 [precedes 880.61], subchapter IV (title) of chapter 880 [precedes 880.75] and subchapter V (title) of chapter 880 [precedes 880.81]; to renumber 880.06 (title), 880.07 (1) (a), 880.07 (1) (c), 880.07 (1) (e), 880.07 (1) (f), 880.07 (1) (g), 880.13 (title), 880.13 (2) (title), 880.157 (title), 880.18 (title), 880.24 (3) (a) 1. to 3., 880.24 (3) (a) 4., 880.331 (4) (intro.), 880.331 (5) (d), 880.331 (5) (g), 880.36 (title), 880.60 (title), 880.60 (1) (intro.), 880.60 (1) (a), 880.60 (5) (b), 880.60 (19), 880.60 (20) and (21), 880.65, 880.665, 880.675, 880.69, 880.75, 880.82, 880.825, 880.84, 880.85, 880.86, 880.865, 880.875, 880.88 and 880.885; to renumber and amend 51.20 (7) (d) 1. (intro.), 51.40 (2) (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 (2), 880.01 (3), 880.01 (7), 880.01 (7m), 880.01 (8), 880.01 (9), 880.01 (10), 880.02, 880.04 (title), 880.04 (1), 880.04 (2), 880.04 (2m), 880.04 (3), 880.05, 880.06 (1), 880.06 (2), 880.07 (title), 880.07 (1) (intro.), 880.07 (1) (b), 880.07 (1) (d), 880.07 (1) (h), 880.07 (1) (i), 880.07 (1) (j), 880.07 (2), 880.075, 880.08 (intro.), 880.08 (1), 880.08 (3) (am) (intro.), 880.08 (3) (am) 1., 880.08 (3) (am) 2., 880.08 (3) (am) 3., 880.08 (3) (am) 4., 880.08 (4), 880.09 (intro.), 880.09 (1), 880.09 (2), 880.09 (3), 880.09 (6), 880.09 (7), 880.10, 880.13 (1), 880.13 (2) (a), 880.13 (2) (b), 880.14, 880.15 (1), 880.15 (1s), 880.15 (3), 880.155, 880.157 (1), 880.157 (2), 880.17, 880.173 (1), 880.175, 880.18, 880.19 (1), 880.19 (2) (a), 880.19 (2) (b), 880.19 (3), 880.19 (4) (a), 880.19 (4) (b), 880.19 (4) (c), 880.19 (5) (a), 880.19 (5) (b), 880.19 (5) (c), 880.191 (1), 880.191 (2), 880.195, 880.215, 880.22 (1), 880.22 (2), 880.23, 880.24 (2), 880.24 (3) (title), 880.24 (3) (a) (intro.), 880.24 (3) (b), 880.245, 880.25 (1), 880.25 (2), 880.25 (3), 880.25 (4), 880.25 (5), 880.252, 880.253, 880.26 (1) (intro.), 880.26 (1) (a), 880.26 (1) (b), 880.26 (1) (c), 880.26 (2) (intro.), 880.26 (2) (a), 880.26 (2) (b), 880.26 (2) (c), 880.26 (2) (d), 880.26 (3), 880.27, 880.28, 880.29, 880.31 (2), 880.31 (3), 880.31 (6), 880.32, 880.33 (1), 880.33 (2) (a) 1., 880.33 (2) (a) 2., 880.33 (2) (a) 3., 880.33 (2) (b), 880.33 (2) (e), 880.33 (5), 880.33 (5m), 880.33 (6), 880.33 (7), 880.33 (8) (b), 880.33 (9), 880.331 (title), 880.331 (1), 880.331 (2), 880.331 (3), 880.331 (4) (a), 880.331 (4) (b), 880.331 (4) (c), 880.331 (4) (d), 880.331 (4) (e), 880.331 (4) (f), 880.331 (5) (intro.), 880.331 (5) (a), 880.331 (5) (b), 880.331 (5) (c), 880.331 (5) (e), 880.331 (5) (f), 880.331 (6), 880.331 (7), 880.331 (8), 880.34 (title), 880.34 (1), 880.34 (2), 880.34 (4), 880.34 (5), 880.35, 880.36 (1), 880.36 (2), 880.38 (title), 880.38 (2), 880.38 (3), 880.39, 880.60 (1) (b) to (g), (2) to (4) and (5) (title) and (a), 880.60 (5) (c) and (d) and (6) to (18), 880.61, 880.615, 880.62, 880.625, 880.63, 880.635, 880.64, 880.645, 880.655, 880.66, 880.67, 880.68, 880.685, 880.695, 880.70, 880.705, 880.71, 880.715, 880.72, 880.76, 880.81, 880.815, 880.83, 880.835, 880.845, 880.855, 880.87, 880.89, 880.895, 880.90 and 880.905; to consolidate, renumber and amend 880.31 (1) and (7) and 880.31 (4) and (5); to amend 6.03 (1) (a), 6.03 (3), 17.03 (6), 19.32 (1m), 29.161, 29.171 (1), 29.173 (1), 29.182 (4m), 29.184 (6) (c) 1r., 29.184 (6) (c) 2., 29.231 (1), 29.235 (1), 29.512 (1), 32.05 (4), 32.06 (4), 32.06 (7), 32.075 (3) (b), 32.22 (6) (b), 36.27 (2) (a) 5., 40.08 (9), 45.36 (1) (b), 46.011 (intro.), 46.27 (1) (e), 46.977 (1) (a), 46.977 (2) (a), 46.977 (2) (c), 48.14 (2) (b), 48.14 (11), 48.345 (intro.), 48.347 (intro.), 48.62 (2), 48.831 (1), 48.831 (1m) (e), 48.977 (8), 48.978 (7), 49.001 (8), 49.498 (3) (a) 1., 49.498 (3) (c), 50.03 (14) (c) 8. e., 50.06 (2) (intro.), 50.06 (2) (c), 50.09 (3), 50.94 (2) (intro.), 50.94 (6), 51.01 (5) (a), 51.01 (14), 51.03 (3) (a) 6., 51.05 (2), 51.10 (8), 51.22 (4), 51.30 (4) (b) 8m., 51.30 (4) (b) 18. a., 51.30 (4) (b) 18. c., 51.30 (4) (b) 20. (intro.), 51.30 (4) (dm) 2., 51.30 (4) (f), 51.30 (5) (a), 51.30 (5) (b) 1., 51.30 (5) (e), 51.35 (7), 51.40 (title), 51.40 (1) (e), 51.40 (1) (f), 51.40 (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) (b) 1., 51.40 (2) (b) 2. (intro.), 51.40 (2) (g) 1., 51.45 (2) (e), 51.45 (10) (a), 51.45 (10) (c), 51.45 (13) (c), 51.45 (13) (e), 51.61 (1) (o), 51.61 (1) (w) 3., 55.02, 55.03, 55.05 (2) (d), 55.05 (5) (b) 1., 55.05 (5) (b) 2., 55.06 (1) (intro.), 55.06 (1) (a), 55.06 (2) (b), 55.06 (3) (c), 55.06 (4), 55.06 (5), 55.06 (6), 55.06 (8) (c), 55.06 (10) (c), 55.06 (14), 55.06 (17) (b), 58.05 (2), 66.0915 (1), 66.0915 (2), 71.07 (3m) (a) 1. e., 71.28 (2m) (a) 1. e., 71.47 (2m) (a) 1. e., 71.58 (1) (f), 75.03 (title), 75.521 (8), 75.521 (12) (b), 75.521 (13) (b), 88.04 (2), 88.10, 92.03 (4) (intro.), 93.11 (6) (a) 1., 114.135 (2), 115.76 (12) (b) 2., 115.797 (1) (c), 115.807 (intro.), 146.34 (1) (d), 146.81 (5), 146.82 (2) (a) 9. a., 146.82 (2) (a) 9. c., 146.83 (4) (b), 154.07 (2), 154.13 (2) (c), 155.05 (1), 155.60 (1), 155.60 (2), 155.65 (2) (c), 179.65, 180.0103 (11), 181.0103 (14), 186.10 (2), 214.37 (4) (k) 1., 215.14 (9) (title), 215.26 (8) (e) 1., 223.03 (6) (intro.), 223.10, 243.07 (3) (a), 243.07 (3) (b), 252.15 (2) (a) 4. a., 252.15 (2) (a) 4. b., 252.15 (2) (bm) (intro.), 252.15 (5) (a) 15., 253.10 (3) (c) 7., 343.31 (title), 343.31 (3) (a), 403.308 (1), 565.30 (2), 609.65 (1) (intro.), 628.10 (1), 705.04 (2), 706.03 (4), 706.09 (1) (f), 753.30 (1), 757.48 (1) (a), 757.48 (3), 757.69 (1) (h), 758.19 (6) (a), 758.19 (6) (d) 1., 758.19 (6) (d) 2., 765.11 (1), 766.51 (7), 767.29 (3) (a), 786.01, 786.02, 786.03, 786.04, 786.05, 786.06 (intro.), 786.06 (1), 786.06 (2), 786.07, 786.08 (1) (a), 786.08 (1) (b), 786.08 (2), 786.10, 786.13, 786.14, 786.15, 786.16, 786.17 (1), 786.18 (1), 786.19, 786.20, 786.21, 786.25 (1), 786.25 (2), 786.25 (3), 801.11 (2) (intro.), 801.11 (2) (b), 802.10 (1), 803.01 (3) (title), 803.01 (3) (a), 803.01 (3) (b) 2., 803.01 (3) (b) 3., 803.01 (3) (b) 4., 803.01 (3) (b) 5., 803.01 (3) (b) 6., 803.01 (3) (c) (title), 803.01 (3) (c) 2. (intro.), 803.01 (3) (c) 2. a., 803.01 (3) (c) 2. b., 803.10 (2), 804.02 (1) (b), 806.04 (4) (intro.), 807.10 (title), 807.10 (1), 807.10 (2), 807.10 (3), 807.13 (2) (intro.), 808.075 (4) (f) (intro.), 808.075 (4) (f) 1., 808.075 (4) (f) 2., 808.075 (4) (f) 3., 808.075 (4) (f) 4., 808.075 (4) (f) 5., 808.075 (4) (f) 6., 808.075 (4) (f) 7., 808.075 (4) (f) 8., 808.075 (4) (f) 9., 808.075 (4) (f) 11., 808.075 (4) (f) 12., 808.075 (4) (f) 13., 813.12 (5) (d), 813.123 (3) (b) 1., 814.61 (12) (a) 1., 814.66 (1) (b) 2., 814.66 (1) (m), 842.25, 851.72 (2), 851.72 (3), 851.73 (1) (a), 854.08 (5) (title), 854.13 (2) (f), 854.17, 857.15, 860.13, 862.03 (title), 862.03 (1), 862.03 (4), 863.43, 863.45, 865.02 (1) (b) 1., 865.03 (1), 867.03 (1c), 878.07 (4), 879.09, 879.11, 879.13, 879.15 (1), 879.19, 879.23 (1), 879.23 (4) (a), 879.23 (4) (c), 879.23 (5), 879.26, 879.27 (4), 879.27 (5), 879.57, 885.17, 905.04 (4) (a), 905.04 (4) (am), 938.02 (20m) (a) 5., 938.345 (1) (e), 949.04 (1) (b), 950.02 (4) (a) 5., 968.20 (1m) (a) 1. and 992.08; to repeal and recreate 29.164 (3) (e) and 51.40 (2) (f); and to create 29.024 (2u), 50.02 (2) (ad), 51.01 (4g), 51.01 (4r), 51.01 (14t), 51.40 (1) (em), 51.40 (1) (hm), 51.40 (1) (m), 51.40 (2) (b) 2. g., 51.40 (2) (g) 6., chapter 54, 55.01 (1v), 55.01 (6t), 55.01 (6v), 55.06 (3) (d), 55.14, 55.19, 55.195 (7), 55.195 (9), 155.40 (2m), 243.10 (7) (c), 343.06 (1) (L), 343.31 (2x), 440.121 and 814.66 (1) (n) of the statutes; relating to: guardianships, conservatorships, and wards; involuntary administration of psychotropic medication; protective placements and protective services; powers of attorney for health care; durable powers of attorney; venue, residence, and county of responsibility; requiring the exercise of rule-making authority; receipt and acceptance of foreign guardianships; and providing 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.