30.1-28 Guardians of Incapacitated Persons

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CHAPTER 30.1-28GUARDIANS OF INCAPACITATED PERSONS30.1-28-01.(5-301) Testamentary appointment of guardian for incapacitatedperson.1.The guardian spouse or guardian parent of an adjudicated incapacitated person may, by will, appoint a successor guardian of the incapacitated person.Atestamentary appointment by a guardian spouse or guardian parent becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person caring for the incapacitated person or to the nearest adult relative of the incapacitated person, the successor guardian files acceptance of appointment in the court in which the will is informally or formally probated.2.This state shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state.3.On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated.An objection does not preventappointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding sections of this chapter.30.1-28-02. (5-302) Venue. The venue for guardianship proceedings for a proposedward is in the place where the proposed ward resides or is present and expected to remain during the pendency of the proceedings. Notwithstanding section 30.1-02-03, the proposed ward may demand change of venue to either the county of residence or the county where the proposed ward is present. The court shall grant the demand if it is filed and served upon the petitioner more than three days before the hearing. If the demand is filed within three days of the hearing, the court may grant the demand upon good cause shown.30.1-28-03.(5-303) Procedure for court appointment of a guardian of anincapacitated person.1.Any person interested in the welfare of an allegedly incapacitated person may petition for the appointment of a guardian. No filing fee under this or any other section may be required when a petition for guardianship of an incapacitated person is filed by a member of the individual treatment plan team for the alleged incapacitated person or by any state employee in the performance of official duties.2.The petition for appointment of a guardian must state:a.The name, address, and corporate or agency status of the petitioner, and its connection with or relationship to the proposed ward;b.The name, age, and address of the proposed ward;c.The name and address of any person or institution having care or custody over the proposed ward;d.The names and addresses of the spouse, parents, and adult children or, if none, any adult siblings and any adult with whom the proposed ward resides in a private residence, or, if none, the nearest adult relative;Page No. 1e.A brief description of and the approximate value of the real and personal property and income of the proposed ward, so far as they are known to the petitioner;f.The extent of the guardianship sought, including whether the nominated guardian seeks to have full authority, limited authority, or no authority in each area of residential, educational, medical, legal, vocational, and financial decisionmaking;g.The occupation and qualifications of the proposed guardian;h.The name and address of the attorney, if known, who most recently represented the proposed ward; andi.A statement alleging specific facts establishing the necessity for the appointment of a guardian.3.Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity, appoint an attorney to act as guardian ad litem, appoint a physician or clinical psychologist to examine the proposed ward, and appoint a visitor to interview the proposed guardian and the proposed ward.4.The duties of the attorney include:a.Personally interviewing the proposed ward;b.Explaining the guardianship proceeding to the proposed ward in the language, mode of communication, and terms that the proposed ward is most likely to understand, including the nature and possible consequences of the proceeding, the right to which the proposed ward is entitled, and the legal options that are available; andc.Representing the proposed ward as guardian ad litem.If the appointedattorney or other attorney is retained by the proposed ward to act as an advocate, the attorney shall promptly notify the court, and the court may determine whether the attorney should be discharged from the duties of guardian ad litem.5.The physician or clinical psychologist shall examine the proposed ward and submit a written report to the court. The written report must contain:a.A description of the nature and degree of any current incapacity or disability, including the medical or psychological history, if reasonably available;b.A medical prognosis or psychological evaluation specifying the estimated severity and duration of any current incapacity or disability;c.A statement as to how or in what manner any underlying condition of physical or mental health affects the proposed ward's ability to provide for personal needs; andd.A statement as to whether any current medication affects the demeanor of the proposed ward or the ability of the proposed ward to participate fully in any court proceeding or in any other procedure required by the court or by court rule.6.The visitor shall have the following duties:Page No. 2a.To meet, interview, and consult with the proposed ward regarding the guardianship proceeding, including explaining the purpose for the interview in a manner the proposed ward can reasonably be expected to understand.b.To ascertain the proposed ward's views concerning the proposed guardian, the powers and duties of the proposed guardian, the proposed guardianship, and the scope and duration thereof.c.To interview the person seeking appointment as guardian.d.To visit the proposed ward's present place of residence.e.To discuss an alternative resource plan with the proposed ward, if appropriate.f.To obtain other relevant information as directed by the court.g.To submit a written report to the court.h.The visitor's written report must contain:(1)A description of the nature and degree of any current impairment of the proposed ward's understanding or capacity to make or communicate decisions;(2)A statement of the qualifications and appropriateness of the proposed guardian;(3)Recommendations, if any, on the powers to be granted to the proposed guardian, including an evaluation of the proposed ward's capacity to perform the functions enumerated under subsections 3 and 4 of section 30.1-28-04; and(4)An assessment of the capacity of the proposed ward to perform the activities of daily living.7.The proposed ward must be present at the hearing in person, unless good cause is shown for the absence. Good cause does not consist only of the physical difficulty of the proposed ward to attend the hearing. The proposed ward has the right to present evidence, and to cross-examine witnesses, including the court-appointed physician and the visitor. The issue may be determined at a closed hearing if the proposed ward or the proposed ward's counsel so requests.8.The court shall take all necessary steps to make the courts and court proceedings accessible and understandable to impaired persons. Accordingly, the court may convene temporarily, or for the entire proceeding, at any other location if it is in the best interest of the proposed ward.9.If the court approves a visitor, lawyer, physician, guardian, or temporary guardian appointed in a guardianship proceeding, that person may receive reasonable compensation from the ward's estate if the compensation will not unreasonably jeopardize the ward's well-being.30.1-28-04. (5-304) Findings - Order of appointment.1.The court shall exercise the authority conferred in this chapter consistent with the maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person's actual mental and adaptive limitations or other conditions warranting the procedure.Page No. 32.At a hearing held under this chapter, the court shall:a.Hear evidence that the proposed ward is an incapacitated person.Age,eccentricity, poverty, or medical diagnosis alone is not sufficient to justify a finding of incapacity;b.Hear evidence and determine whether there are any existing general durable powers of attorney and durable powers of attorney for health care. If there are validly executed durable powers of attorney, the court shall consider the appointed attorneys in fact and agents appointed thereunder when assessing alternative resource plans and the need for a guardian; andc.Appoint a guardian and confer specific powers of guardianship only after finding in the record based on clear and convincing evidence that:(1)The proposed ward is an incapacitated person;(2)There is no available alternative resource plan that is suitable to safeguard the proposed ward's health, safety, or habilitation which could be used instead of a guardianship;(3)The guardianship is necessary as the best means of providing care, supervision, or habilitation of the ward; and(4)The powers and duties conferred upon the guardian are appropriate as the least restrictive form of intervention consistent with the ability of the ward for self-care.3.Except upon specific findings of the court, no ward may be deprived of any of the following legal rights: to vote, to seek to change marital status, to obtain or retain a motor vehicle operator's license, or to testify in any judicial or administrative proceedings.4.The court may find that the ward retains other specific rights.5.The order appointing a guardian confers upon the guardian only those powers and duties specified in the order. In addition to any other powers conferred upon the guardian, the court's order must state whether the guardian has no authority, general authority, or limited authority to make decisions on behalf of the ward in each of the areasofresidential,educational,medical,legal, vocational, and financialdecisionmaking. A grant of limited authority must specify the limitations upon the authority of the guardian or the authority retained by the ward.6.Unless a court of competent jurisdiction determines otherwise, a durable power of attorney for health care executed pursuant to chapter 23-06.5 takes precedence over any authority to make medical decisions granted to a guardian pursuant to chapter 30.1-28.30.1-28-05. (5-305) Acceptance of appointment - Consent to jurisdiction - Order -Letters of guardianship.1.By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding so instituted must be served upon the guardian by the petitioner.2.A copy of the order appointing the guardian must be served upon the ward and the ward's attorney by the petitioner. The order must contain the name and address of the guardian as well as notice of the ward's right to appeal the guardianshipPage No. 4appointment and of the ward's right to seek alteration or termination of the guardianship at any time.3.Letters of guardianship must contain:a.The name, address, and telephone number of the guardian;b.The name, address, and telephone number of the ward;c.Specification of the guardian's authority to make decisions on behalf of the ward in residential, educational, medical, legal, vocational, and financial areas. If limited authority has been granted in any area, the letters must describe the nature of the limitations;d.Specification of any other powers or authority conferred upon the guardian; ande.Specification of limitations by the court upon the rights and privileges of the ward in matters not governed by powers of the guardian, such as voting, marriage, and driving.4.The letters must issue to the guardian. The court shall mail copies to the ward and the ward's counsel.30.1-28-06. (5-306) Termination of guardianship. The authority and responsibility of aguardian for an incapacitated person terminates upon the death of the guardian or ward, except, the guardian may arrange for a deceased ward's burial and refer the ward's estate to probate, if no other person is available to perform those acts, the determination of incapacity of the guardian, or upon removal or resignation as provided in section 30.1-28-07.Testamentaryappointment under an informally probated will terminates if the will is later denied probate in a formal proceeding.Termination does not affect the guardian's liability for prior acts nor theguardian's obligation to account for funds and assets of the ward.30.1-28-07.(5-307) Removal or resignation of guardian - Termination ofguardianship.1.On petition of the ward or any person interested in the ward's welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept the guardian's resignation and make any other order which may be appropriate.2.The ward or any person interested in the ward's welfare may petition for an order that the ward is no longer incapacitated, and for removal of the guardian. A request for this order may be made by informal letter to the court or judge. Any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.3.Before removing a guardian, accepting the resignation of a guardian, or on finding that the ward is no longer incapacitated and ordering the guardianship terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian and to the place where the ward resides or is detained, to observe conditions and report in writing to the court.30.1-28-08. (5-308) Visitor in guardianship proceedings. A visitor in guardianshipproceedings is a person who is in nursing or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings.30.1-28-09. (5-309) Notices in guardianship proceedings.Page No. 51.In a proceeding for the appointment or removal of a guardian or for an alteration or termination of a guardianship other than for the appointment of a temporary guardian or for the temporary suspension of a guardian, notice of hearing shall be given to each of the following:a.The ward or the proposed ward and the ward's or proposed ward's spouse, parents, and adult children;b.Any person, corporation, or institution who is serving as the ward's guardian, attorney in fact, representative payee for public benefits, or conservator, or who has the ward's care and custody;c.If no other person is notified under subdivision a, then the adult siblings and any adult with whom the proposed ward resides in a private residence, or if none can be found, any known adult relative; andd.The attorney for the proposed ward, the visitor, and the physician or clinical psychologist, together with a copy of the respective order of appointment for each.2.Notice must be served personally on the ward or proposed ward, and the ward's or proposed ward's spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within the state, and to all other persons except the ward or proposed ward must be given as provided in section 30.1-03-01. Waiver of notice by the ward or proposed ward is not effective unless the ward or proposed ward attends the hearing or the ward's or proposed ward's waiver of notice is confirmed in an interview with the visitor.3.The notice must be printed with not less than double-spaced twelve-point type.30.1-28-10. (5-310) Temporary guardians.1.The court may exercise the power of a guardian pending notice and hearing or, with or without notice, appoint a temporary guardian for a specified period of time, not to exceed ninety days, if:a.An alleged incapacitated person has no guardian and an emergency exists; orb.An appointed guardian is not effectively performing the guardian's duties, and the court finds that the welfare of the ward requires immediate action.2.A temporary guardian is entitled to the care and custody of the ward and the authority of any permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority.A temporary guardian may beremoved at any time.A temporary guardian shall make any report the courtrequires. In other respects the provisions of this title concerning guardians apply to temporary guardians.Appointment of temporary guardian does not have the effect of an adjudication of incapacity or the effect of limitation on the legal rights of the ward other than those specified in the court order. Appointment of a temporary guardian is not evidence of incapacity.30.1-28-11. (5-311) Who may be guardian - Priorities.1.Any competent person or a designated person from a suitable institution, agency, or nonprofit group home may be appointed guardian of an incapacitated person. No institution, agency, or nonprofit group home providing care and custody of the incapacitated person may be appointed guardian. However, if no one else can be found to serve as guardian, an employee of an agency, institution, or nonprofit groupPage No. 6home providing care and custody may be appointed guardian if the employee does not provide direct care to the proposed ward and the court makes a specific finding that the appointment presents no substantial risk of a conflict of interest.2.Unless lack of qualification or other good cause dictates the contrary, the court shall appoint a guardian in accordance with the incapacitated person's most recent nomination in a durable power of attorney.3.Except as provided in subsection 2, persons who are not disqualified have priority for appointment as guardian in the following order:a.A person nominated by the incapacitated person prior to being determined to be incapacitated, when nominated by means other than provided in subsection 2, if the incapacitated person is fourteen or more years of age and, in the opinion of the court, acted with or has sufficient mental capacity to make an intelligent choice.b.The spouse of the incapacitated person.c.An adult child of the incapacitated person.d.A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent.e.Any relative of the incapacitated person with whom the incapacitated person has resided for more than six months prior to the filing of the petition.f.Any relative or friend who has maintained significant contacts with the incapacitated person or a designated person from a volunteer agency.g.A nonprofit corporation established to provide guardianship services; provided, that the corporation does not provide direct care to incapacitated persons. The corporation shall file with the court the name of an employee, volunteer, or other person from the corporation who is directly responsible for the guardianship of each incapacitated person, and shall notify the court in the event the person for any reason ceases to so act, or if a successor is named.h.Any appropriate government agency, including county social service agencies, except as limited by subsection 1.i.A person nominated by the person who is caring for or paying benefits to the incapacitated person.4.With respect to persons having equal priority, the court shall select the one it deems best qualified to serve. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having a lower priority.30.1-28-12. (5-312) General powers and duties of guardian.1.A guardian of an incapacitated person has only the powers and duties specified by the court.2.To the extent that it is consistent with the terms of an order by a court of competent jurisdiction, the guardian is entitled to custody of the person of the ward and may establish the ward's place of residence within or without this state. However, no guardian may voluntarily admit a ward to a mental health facility or state institution for a period of more than forty-five days without a mental health commitment proceeding or other court order.Notwithstanding the other provisions of thisPage No. 7subsection, the guardian may readmit a ward to a mental health facility or a state institution within sixty days of discharge from that institution, if the original admission to the facility or institution had been authorized by the court.3.If entitled to custody of the ward, the guardian should make provision for the care, comfort, and maintenance of the ward and, whenever appropriate, arrange for the ward's training, education, or habilitative services.The guardian shall takereasonable care of the ward's clothing, furniture, vehicles, and personal effects.4.Notwithstanding general or limited authority to make medical decisions on behalf of the ward, no guardian may consent to psychosurgery, abortion, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the court.5.When exercising the authority granted by the court, the guardian shall safeguard the civil rights and personal autonomy of the ward to the fullest extent possible by:a.Involving the ward as fully as is practicable in making decisions with respect to the ward's living arrangements, health care, and other aspects of the ward's care; andb.Ensuring the ward's maximum personal freedom by using the least restrictive forms of intervention and only as necessary for the safety of the ward or others.6.If no conservator for the estate of the ward has been appointed and if the guardian has been granted authority to make financial decisions on behalf of the ward, the guardian may:a.Institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform that duty.b.Receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but, the guardian may not use funds from the ward's estate for room and board which the guardian or the guardian's spouse, parent, or child have furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. The guardian shall exercise care to conserve any excess for the ward's needs.7.If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this title, and the guardian must account to the conservator for funds expended.8.A guardian shall file an annual report with the court informing the court of the status or condition of the ward. The report must include changes that have occurred since the previous reporting period and an accounting of the ward's estate. The guardian shall report whether the ward has resided in an institution, whether the ward continues to require guardianship, and whether any powers of the guardian should be increased or limited. The filing of a report and its acceptance by the court or clerk of district court does not constitute an adjudication or a determination of the merits of the report nor does the filing of the report constitute the court's approval of the report. The court may approve a report and allow and settle an accounting only upon notice to the ward's guardian ad litem and other interested persons who have made an appearance or requested notice of proceedings. The office of the state court administrator shall provide printed forms that may be used to fulfill reporting requirements.Any report must be similar in substance to the state courtPage No. 8administrator's form. The forms must be available in the office of clerk of district court or obtainable through the supreme court's internet website.9.Copies of the guardian's annual report to the court and of any other reports required by the court must be mailed to the ward. The ward's copy must be accompanied by a statement, printed with not less than double-spaced twelve-point type, of the ward's right to seek alteration, limitation, or termination of the guardianship at any time.10.The guardian is entitled to receive reasonable sums for services and for room and board furnished to the ward as approved by the court or as agreed upon between the guardian and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.30.1-28-12.1. Annual reports and accounts - Failure of guardian to file. If a guardianfails to file an annual report as required by section 30.1-28-12, fails to file a report at other times as the court may direct, or fails to provide an accounting of an estate, the court, upon its own motion or upon petition of any interested party, may issue an order compelling the guardian to show cause why the guardian should not immediately make and file the report or account, or be found in contempt for failure to comply.30.1-28-13. (5-313) Proceedings subsequent to appointment - Venue.1.The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting, and other proceedings relating to the guardianship, including proceedings to limit the authority previously conferred on a guardian, or to remove limitations previously imposed.2.If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interest of the ward. A copy of any order accepting a resignation, removing a guardian, or altering a guardian's authority shall be sent to the court in which acceptance of appointment is filed.30.1-28-14. Guardianships established before July 1, 1990. The powers and dutiesof guardians and the rights and privileges of wards under guardianships established before July 1, 1990, are as provided by this chapter as it existed on June 30, 1990, and are not affected by chapter 405 of the 1989 Session Laws, except that guardians appointed before July 1, 1990, must comply with the requirements of subsections 2, 4, 5, and 8 of section 30.1-28-12.30.1-28-15. Appointment of successor guardian.1.If the appointment of a successor guardian is required, the current guardian or any interested person may file a motion with the court for the appointment of a successor guardian.2.The motion and supporting documents must be served on the ward, the ward's guardian ad litem, and every other interested person who has made an appearance or requested notice of proceedings.3.A notice of motion must accompany the motion and must include a statement that provides an opportunity for hearing if requested in regard to the appointment of a successor guardian.Page No. 94.If the current or former guardian serves or served as a public administrator or a corporate guardian with more than ten wards, the motion and notice of motion may be served by first-class mail. The public administrator or corporate guardian shall then provide written notice of the motion to the state office of the protection and advocacy project, along with the contact information for each ward and proposed guardian.5.If a hearing is not requested by or on behalf of the ward listed in the notice, the court may sign an order appointing a successor guardian for that ward.Page No. 10Document Outlinechapter 30.1-28 guardians of incapacitated persons

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30.1-28 Guardians of Incapacitated Persons