SB 698 Modifies provisions regarding estate administration and the office of public administrator and establishes the Designated Health Care Decision-Maker Act
Sponsor: Hegeman
LR Number: 4945H.05C Fiscal Notes
Committee: Financial and Governmental Organizations and Elections
Last Action: 5/13/2016 - H Calendar Senate Bills for Third Reading w/HCS Journal Page:
Title: HCS SS SCS SB 698 Calendar Position:
Effective Date: August 28, 2016
House Handler: Cornejo

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Current Bill Summary


HCS/SS/SCS/SB 698 - Currently, if an attorney in fact or his or her successor, appointed to act as agent pursuant to a written power of attorney, acts in bad faith, fraudulently or dishonestly then the attorney in fact shall be liable to the principal or the principal's successors in interest for damages as well as attorney's fees. This act provides that the attorney in fact shall be liable if she or he engages in willful misconduct or fraud or acts with willful disregard for the purposes, terms, or conditions of the power of attorney. For the purposes of the act "successors in interest" include those who can prove that they have been damaged as a result of the attorney in fact's actions (404.717).

This provision is identical to provisions contained in HCS/SB 577 (2016), HB 2105 (2016), and SS/HCS/HB 1765 (2016).

The act creates the Designated Health Care Decision-Maker Act. Under the act, the health care decisions concerning a patient who is incapacitated and who does not have a legally appointed guardian, an agent under a health care durable power of attorney, is not under the jurisdiction of the juvenile court, or does not have any other person who has legal authority to consent for the patient, may be made by the following persons listed by priority: 1) the spouse of the patient; 2) an adult child of the patient; 3) a parent of the patient; 4) an adult sibling of the patient; 5)a religious person who is a member of the patient's community; 6) an adult in a close personal relationship with the patient; or 7) a person unanimously agree upon by those in the priority list. If there is disagreement among such persons listed regarding the incapacitated patient's health care then any person interested in the welfare of the patient may petition the probate court for the appointment of a guardian. Priority shall not be given to those listed if abuse or neglect is reported, the person with priority cannot be reached by the physician, or if the probate court finds that the person with priority is making decisions contrary to the patient's instructions. A designated health care decision maker must make reasonable efforts to obtain information regarding the patient's health preferences and make decisions in the patient's best interests. Additionally, a designated health care decision maker may make the decision to withdraw life support only in certain situations as specified in the act.

Once a health care decision maker or physician believes that the patient is no longer incapacitated then the patient shall be reexamined. If the patient's physician determines that the patient is no longer incapacitated, then the determination shall be noted in the patient's medical record and the rights of the designated health care decision maker shall end. A health care provider or facility may decline to comply with the decision of a health care decision maker if the decision is contrary to the religious beliefs or moral convictions of the health care provider or facility (404.1100 - 404.1110).

These provisions are substantially similar to HCS/HB 2502 (2016).

The act provides that when a noncharitable irrevocable trust is modified or terminated without a court order pursuant to current law, a beneficiary, who is not a qualified beneficiary, may be represented in such nonjudicial proceedings by a qualified beneficiary who has substantially identical interests (456.3-304).

Under current law, a court may modify or terminate a noncharitable irrevocable trust which became irrevocable on or after January 1, 2005, upon finding that the interests of nonconsenting beneficiaries will be protected, and terminating or modifying the trust does not affect the material purpose of the trust. This act provides that a court may modify or terminate all noncharitable irrevocable trusts, which meet such conditions.

The act also repeals a provision of law regarding the termination and modification of a trust instrument that became irrevocable prior to January 1, 2005 (456.4B-411, 456.590).

Under current law, a settlor, cotrustee, or a qualified beneficiary may request the court to remove a trustee or the trustee may be removed by the court's own initiative. This act specifies that a court may also replace the trustee. When a corporation is the trustee being removed the successor trustee shall be selected by the court (456.7-706).

The act provides that the Principal and Income Act shall apply to every trust or decedent's estate existing on or after August 28, 2001, rather than solely to those trusts or decedents' estates existing on August 28, 2001 (469.467).

Current law provides that for letters of administration to be issued an application must be made to the court within one year of the death of the decedent. This act provides that this time limit rule applies on the issuance of letters of administration except as provided under current law that when a will is presented to the probate court within the proper time limits, then administration may be granted on the will at any time after presentation (473.050).

These provisions are identical to provisions in HCS/SB 577 (2016), HB 2105 (2016), and SS/HCS/HB 1765 (2016).

This act provides that candidates for the office of public administrator must provide to the election authority a copy of a signed affidavit from one surety company indicating that the candidate meets the bonding requirements. After being elected to office, a public administrator shall enter into bond to the state in a sum not less than ten thousand dollars with one or more securities, rather than two or more securities (473.730).

This provision is identical to provisions contained in HCS/SB 577 (2016) and is similar to SB 679 (2016) and SB 495 (2015).

A public administrator acting as a guardian or conservator shall not be required to disclose any personal or financial information to any party with which he or she is contracting on behalf of a ward or protectee, and shall not be held personally liable for the debts of his or her ward or protectee. Any person who knowingly violates this provision shall be liable in a civil action for damages and may be required to pay fine of up to fifty dollars. Additionally, a consumer credit reporting agency must provide a copy of a public administrator's credit report on a quarterly basis at no cost and upon request to the public administrator. A consumer credit reporting agency must remove all references to any debt owed by a ward of the public administrator from the credit report and may request that the public administrator provide a copy of the order appointing him or her as the public administrator for a ward (473.748).

These provisions are identical to provisions contained in HCS/SB 577 (2016) and to a provision contained in HB 2090 (2016).

Finally, the act provides that a court's orders for the management of the estate of a protectee may include respite care (475.125).

This provision is identical to a provision in SCS/HCS/HB 1433 (2016), SS/HCS/HB 1765 (2016), HB 1831 (2016), HCS/HB 2332 (2016), and HCS/SB 577 (2016).

JESSI BAKER