SB 465 Modifies various provisions relating to guardianships and conservatorships
Sponsor: Emery
LR Number: 2033S.02I Fiscal Notes
Committee: Judiciary and Civil and Criminal Jurisprudence
Last Action: 3/2/2017 - Second Read and Referred S Judiciary and Civil and Criminal Jurisprudence Committee Journal Page: S401
Title: Calendar Position:
Effective Date: August 28, 2017

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Current Bill Summary

SB 465 - This act modifies various provisions relating to guardianships and conservatorships, specifically to the duties of a conservator and a guardian.

In the report that a guardian is required to submit to the court at the court's annual review of the guardianship, the guardian shall include plans for future care, a summary of the guardian's visits with the ward and his or her activities on the ward's behalf, the date the ward was last seen by a professional, the current mental, physical, and social condition of the ward, and the various services provided to the ward, including medical and vocational. In conducting the annual review, the court may contact the appropriate state agencies to investigate the conduct of the guardian. A guardianship may be terminated by the court if the court determines that the guardian is unable to provide the required services because the ward is no longer in the state or due to other circumstances of the ward.

Currently, a ward or protectee or someone on his or her behalf may petition the court to restore the rights of the ward or protectee, or to decrease the powers of the guardian or conservator. The act provides that the court may, after notice and hearing, cite for contempt any person who interferes with such petition.

Under current law, a conservator may change a protectee's beneficiaries, gift the protectee's money, convey the protectee's property, and perform other activities to avoid substantial depletion of the protectee's estate by federal estate taxes upon his or her death. This act repeals these provisions and provides that only after notice to interested persons and upon authorization from the court may a conservator take certain actions regarding the conservator's money and property, including making gifts the protectee might have made, dividing assets as provided under the Medicaid spousal impoverishment provisions, conveying property, and changing beneficiaries. Upon approving such actions, the court shall make certain considerations, as provided, primarily whether the protectee would have made the same decision.

A conservator is prohibited from revoking or amending a power of attorney without the court's authorization. Any decision an agent makes pursuant to a power of attorney takes precedence over decisions of a conservator.

When making health care decisions, the guardian shall maximize the participation of the ward and shall consider medical facts, health care options, and support the ward in understanding the facts and directing a decision. The guardian shall act in accordance with an adult ward's prior direction and directives to the extent known by the guardian.

The act adds that prior to a court order for the management of the estate of a protectee, in setting the amount of support allowance for the protectee or other persons entitled to such support, the court must consider the previous standard of living of the spouse or family, composition of the estate, income and other assets, and expenses.

When managing the estate of a protectee, the conservator shall use reasonable efforts to ascertain the protectee's income, assets, liabilities, needs and preferences, coordinate with the protectee's guardian, prepare a management plan, and provide oversight the protectee's income and assets.

Current law states that a conservator may settle certain claims against the protectee and the estate, and sell personal property without court approval if such actions do not exceed one thousand dollars. The act increases this amount to five thousand dollars. The act also adds to the functions a conservator may perform without court approval.

The act provides that the inventory required when a conservator has been appointed must disclose any nonprobate transferees designated to receive nonprobate transfers after the protectee's death.

The annual settlement of the conservator's accounts shall be filed sixty days after the anniversary of the appointment of the conservator, rather than thirty days after. The act also adds information that must be included in the settlement, which includes an opinion of the conservator as to the need for the conservatorship, compensation requested, and a plan for the coming year. If the protectee's assets are controlled by another fiduciary, the court may waive the requirements of the annual settlement.

The act repeals provisions allowing a conservator, with court approval, to redeem bonds co-owned by the protectee, withdraw funds from a joint account, and sell the protectee's interest in a joint property. In order to pay the protectee's expenses the conservator may, with court authorization, liquidate joint assets as provided in the act.

A transaction entered into by the conservator for the conservator's personal gain or in which a conflict of interest exists is voidable, unless the transaction falls into one of the four exceptions as provided in the act. A conservator is prohibited from combining personal property and estate property. With court approval, the conservator may delegate to an agent the conservator's duties and powers.

The act specifies that a guardian shall make decisions regarding an adult ward's support, care, education, health, and welfare. Prior to making decisions on behalf of an adult ward, the guardian shall first ask the ward for his or her preference and if the adult ward cannot express his or her goals or preferences the guardian shall seek input from others familiar with the adult ward.

The act states that a guardian has the duty to maintain sufficient contact with the ward, file a report with the court within ninety days of an appointment with the ward, make a good faith effort to cooperate with other fiduciaries, and notify the court if the ward's condition has changed to the extent the ward is capable of exercising rights previously removed.

Finally, the act lays out the rights of an incapacitated person in a guardianship. An adult ward may petition the court for various reasons, as provided in the act, which includes the right to contract to marry, consent to medical treatment, and drive a motor vehicle. The appointment of a guardian is not a determination that the ward lacks testamentary capacity.

This act is substantially similar to HB 626 (2017).