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The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter's notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.

THOMAS L. JONES, University of Alabama, School of Law, P.O. Box 5557,

University Station, Tuscaloosa, AL 35486, Chair

RHODA B. BILLINGS, Wake Forest University, School of Law, P.O. Box 7206,

Winston-Salem, NC 27109

MARTHA STARKEY, 2100 One Indiana Square, Indianapolis, IN 46204

CLARKE A. GRAVEL, P.O. Box 369, 76 St. Paul Street, Burlington, VT 05402

MERRILL MOORES, 244 North College Avenue, Indianapolis, IN 46202

ELWAINE F. POMEROY, 1415 S.W. Topeka Boulevard, Topeka, KS 66612

ROBERT C. ROBINSON, P.O. Box 568, Portland, ME 04112-0568

RICHARD V. WELLMAN, University of Georgia, School of Law, Athens,

GA 30602

REBECCA C. MORGAN, Stetson University, College of Law, 1401 61st Street

South, St. Petersburg, FL 33707, Reporter

BION M. GREGORY, Office of Legislative Counsel, State Capitol, Suite 3021,

Sacramento, CA 95814-4996, President

W. JACKSON WILLOUGHBY, Placer County Municipal Court, 11546 B Avenue,

Auburn, CA 95603, Chair, Division B

FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road,

Norman, OK 73019, Executive Director

WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104,

Executive Director Emeritus

SECTION 101. SHORT TITLE 3

SECTION 102. DEFINITIONS 3

SECTION 103. SUPPLEMENTAL GENERAL PRINCIPLES OF LAW APPLICABLE 5

SECTION 104. FACILITY OF TRANSFER 6

SECTION 105. DELEGATION OF POWER BY PARENT OR GUARDIAN 7

SECTION 106. SUBJECT-MATTER JURISDICTION 7

SECTION 107. TRANSFER OF JURISDICTION 7

SECTION 108. VENUE 9

SECTION 109. PRACTICE IN COURT 10

SECTION 110. LETTERS OF OFFICE 10

SECTION 111. EFFECT OF ACCEPTANCE OF APPOINTMENT 11

SECTION 112. TERMINATION OF OR CHANGE IN GUARDIAN'S OR

CONSERVATOR'S APPOINTMENT 11

SECTION 113. NOTICE 12

SECTION 114. WAIVER OF NOTICE 13

SECTION 115. GUARDIAN AD LITEM 13

SECTION 116. REQUEST FOR NOTICE; INTERESTED PERSONS 14

SECTION 117. MULTIPLE APPOINTMENTS OR NOMINATIONS 15

SECTION 201. APPOINTMENT AND STATUS OF GUARDIAN 16

SECTION 202. NONJUDICIAL APPOINTMENT OF GUARDIAN 16

SECTION 203. OBJECTION BY MINOR OR OTHERS TO NONJUDICIAL

APPOINTMENT 20

SECTION 204. JUDICIAL APPOINTMENT OF GUARDIAN: CONDITIONS FOR

APPOINTMENT 21

SECTION 205. JUDICIAL APPOINTMENT OF GUARDIAN: PROCEDURE 23

SECTION 206. JUDICIAL APPOINTMENT OF GUARDIAN: PRIORITY OF MINOR'S

NOMINEE, LIMITED GUARDIANSHIP 25

SECTION 207. DUTIES OF GUARDIAN 25

SECTION 208. POWERS OF GUARDIAN 27

SECTION 209. RIGHTS AND IMMUNITIES OF GUARDIAN 28

SECTION 210. TERMINATION OF GUARDIANSHIP; OTHER PROCEEDINGS AFTER

APPOINTMENT 29

SECTION 301. APPOINTMENT AND STATUS OF GUARDIAN 30

SECTION 302. APPOINTMENT OF GUARDIAN BY WILL OR OTHER WRITING 30

SECTION 303. JUDICIAL APPOINTMENT OF GUARDIAN: PETITION 34

SECTION 304. JUDICIAL APPOINTMENT OF GUARDIAN: PRELIMINARIES TO

HEARING 35

SECTION 305. JUDICIAL APPOINTMENT OF GUARDIAN: PROFESSIONAL

EVALUATION 39

SECTION 306. CONFIDENTIALITY OF RECORDS 39

SECTION 307. JUDICIAL APPOINTMENT OF GUARDIAN: PRESENCE AND RIGHTS

AT HEARING 40

SECTION 308. NOTICE 41

SECTION 309. WHO MAY BE GUARDIAN: PRIORITIES 42

SECTION 310. FINDINGS; ORDER OF APPOINTMENT 43

SECTION 311. EMERGENCY GUARDIAN 44

SECTION 312. TEMPORARY SUBSTITUTE GUARDIAN 46

SECTION 313. DUTIES OF GUARDIAN 47

SECTION 314. POWERS OF GUARDIAN 48

SECTION 315. RIGHTS AND IMMUNITIES OF GUARDIAN; LIMITATIONS 49

SECTION 316. REPORTS; MONITORING OF GUARDIANSHIP 51

SECTION 317. TERMINATION OR MODIFICATION OF GUARDIANSHIP 52

SECTION 401. PROTECTIVE PROCEEDING 54

SECTION 402. JURISDICTION OVER BUSINESS AFFAIRS OF PROTECTED PERSON 55

SECTION 403. ORIGINAL PETITION FOR APPOINTMENT OR PROTECTIVE ORDER 56

SECTION 404. NOTICE 58

SECTION 405. ORIGINAL PETITION: MINORS; PRELIMINARIES TO HEARING 59

SECTION 406. ORIGINAL PETITION: PERSONS UNDER DISABILITY; PRELIMINARIES

TO HEARING 60

SECTION 407. CONFIDENTIALITY OF RECORDS 63

SECTION 408. ORIGINAL PETITION: PROCEDURE AT HEARING 64

SECTION 409. ORIGINAL PETITION: ORDERS 64

SECTION 410. POWERS OF COURT 65

SECTION 411. REQUIRED COURT APPROVAL 66

SECTION 412. PROTECTIVE ARRANGEMENTS AND SINGLE TRANSACTIONS 68

SECTION 413. WHO MAY BE CONSERVATOR: PRIORITIES 69

SECTION 414. PETITION FOR ORDER SUBSEQUENT TO APPOINTMENT 71

SECTION 415. BOND 72

SECTION 416. TERMS AND REQUIREMENTS OF BOND 73

SECTION 417. COMPENSATION AND EXPENSES 74

SECTION 418. GENERAL DUTIES OF CONSERVATOR; PLAN 74

SECTION 419. INVENTORY; RECORDS 75

SECTION 420. REPORTS; APPOINTMENT OF [VISITOR]; MONITORING 76

SECTION 421. TITLE BY APPOINTMENT 77

SECTION 422. PROTECTED PERSON'S INTEREST NON-ALIENABLE 78

SECTION 423. SALE, ENCUMBRANCE, OR OTHER TRANSACTION INVOLVING

CONFLICT OF INTEREST 79

SECTION 424. PROTECTION OF PERSON DEALING WITH CONSERVATOR 79

SECTION 425. POWERS OF CONSERVATOR IN ADMINISTRATION 80

SECTION 426. DELEGATION 84

SECTION 427. PRINCIPLES OF DISTRIBUTION BY CONSERVATOR 85

SECTION 428. DEATH OF PROTECTED PERSON 87

SECTION 429. CLAIMS AGAINST PROTECTED PERSON 88

SECTION 430. PERSONAL LIABILITY OF CONSERVATOR 91

SECTION 431. TERMINATION OF PROCEEDINGS 91

SECTION 432. PAYMENT OF DEBT AND DELIVERY OF PROPERTY TO FOREIGN

CONSERVATOR WITHOUT LOCAL PROCEEDING 93

SECTION 433. FOREIGN CONSERVATOR: PROOF OF AUTHORITY; BOND; POWERS 94

SECTION 501. UNIFORMITY OF APPLICATION AND CONSTRUCTION 95

SECTION 502. SEVERABILITY 95

SECTION 503. EFFECTIVE DATE 95

SECTION 504. REPEAL 95

In reviewing this Act for the Annual Meeting, there are some major points that I am noting in this memo for your consideration. The Act contains provision for what is known in some States as "standby guardianship," that is, in Section 202, a parent of a minor child may, in advance, appoint someone to become guardian upon the occurrence of a certain contingency. A parallel provision is contained in Section 302 for a parent of an adult disabled child or a spouse of an incapacitated person.

The definition of incapacity in Section 102 has changed to reflect that incapacity is not an "all or nothing" proposition, recognizing that a person may have the ability to perform some tasks, while needing help with others. Capacity varies from task to task, and the trend is to tailor the guardianship or conservatorship to fit the incapacitated person's needs, using the least restrictive alternative to provide assistance, removing only those rights that the person can no longer exercise, and establishing only a limited guardianship or conservatorship whenever possible. These concepts are carried throughout the Act in the appropriate sections.

Also in Article I, provisions have been added to prohibit jurisdiction shopping by a guardian who moves the ward to another State and files for a new guardianship to avoid the court's orders in the initiating jurisdiction. A guardianship or conservatorship can be transferred from one jurisdiction to another under Section 107, if such action is in the best interest of the ward or protected person.

The process for establishing a guardianship is changed. When a petition for determination of capacity is filed, a visitor must be appointed. A lawyer may be appointed if requested by the respondent, if recommended by the visitor or if it is determined by the court that the respondent needs representation. The visitor's duties are limited by the relief requested in the petition.

The list of those to whom notice must be given has been expanded. There is also a priority list for preference for appointment as guardian or as conservator. The court may decline to appoint a person with preference if the court finds it to be in the best interest of the incapacitated person to do so.

When a petition to establish a conservatorship has been filed, the court must appoint a visitor. If the respondent is not represented by counsel, a lawyer may be appointed to represent the respondent if requested by the respondent, recommended by the visitor or if it is determined by the court that the respondent needs representation. If the petition seeks a protective order other than a conservatorship, the court may appoint a visitor if the respondent is represented by counsel.

The alleged incapacitated person or person to be protected is required to attend and participate in the hearing on the petition for guardianship or conservatorship, unless excused by the court for good cause. In Section 306 and Section 407, provisions regarding confidentiality of records have changed. It is important that the respondent have access to the files at all times, but others' access is limited for the purpose of the proceeding or on court order for good cause. These sections balance the right of the respondent to privacy in the records against the public policy protections that come from independent review of such court files.

SECTION 101. SHORT TITLE. This [Act] may be cited as the Uniform Guardianship and Protective Proceedings Act.

SECTION 102. DEFINITIONS. In this [Act]:

(1) "Claim", with respect to a protected person, includes a claim against an individual, whether arising in contract, tort, or otherwise, and a claim against an estate which arises at or after the appointment of a conservator, including expenses of administration.

(2) "Conservator" means a person who is appointed by a court to manage the estate of a protected person and includes a limited or special conservator.

(3) "Court" means the [designate appropriate court].

(4) "Guardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or spouse, or by the court, and includes a limited, emergency, or temporary substitute guardian but not a guardian ad litem.

(5) "Incapacitated person" means an individual who, for reasons other than age, is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.

(6) "Legal representative" includes a representative payee, a guardian or conservator acting for a respondent in this State or elsewhere, a trustee or custodian of a trust or custodianship of which the respondent is a beneficiary, and an agent designated under a power of attorney, whether for health care or property, of which the respondent is the principal.

(7) "Letters" includes letters of guardianship and letters of conservatorship.

(8) "Minor" means an unemancipated individual who has not attained [18] years of age.

(9) "Parent" does not include a parent whose parental rights have been terminated.

(10) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(11) "Protected person" means a minor or other individual for whom a conservator has been appointed or other protective order has been made.

(12) "Respondent" means an individual for whom the appointment of a guardian or conservator or other protective order is sought.

(13) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or a territory or insular possession subject to the jurisdiction of the United States.

[(14) "Tribe" means an Indian tribe or band, or Alaskan Native village, which is recognized by federal law or formally acknowledged by a State.]

(15) "Ward" means an individual for whom a guardian has been appointed.

The concepts of limited guardian and conservator, embraced in this Act, are reflected in the definitions of guardian and conservator. Incapacity is based on inability to receive and evaluate information or to make or communicate decisions to the point that the person's ability to care for his or her health, safety or self is compromised. Legal representative includes those who hold nominated positions, such as representative payee, trustee, custodian, and agent, as well as the traditional guardian and conservator.

Section 14 affords the States the ability to authorize a state court's certification of questions to a tribal court as well as to answer questions from a tribal court, but does not authorize tribal courts to certify or answer questions, which is determined by tribal law. If a Tribe wishes to adopt this Act, references to "this State" would be replaced by "this Tribe." The definition of "Tribe" is broad and is intended to include Native American Tribes in the technical sense of that term as well as other Native American Governmental units that perform functions similar to a tribe.

SECTION 103. SUPPLEMENTAL GENERAL PRINCIPLES OF LAW APPLICABLE. Unless displaced by the particular provisions of this [Act], the principles of law and equity supplement its provisions.

SECTION 104. FACILITY OF TRANSFER.

(a) A person required to transfer money or personal property to a minor may do so, as to an amount or value not exceeding [$5,000] a year, by transferring it to:

(1) a person who has the care and custody of the minor and with whom the minor resides;

(2) a guardian of the minor;

(3) a custodian under the Uniform Transfers To Minors Act or custodial trustee under the Uniform Custodial Trust Act; or

(4) a financial institution as a deposit in an interest-bearing account or certificate in the sole name of the minor and giving notice of the deposit to the minor.

(b) This section does not apply if the person making payment or delivery knows that a conservator has been appointed or a proceeding for appointment of a conservator of the estate of the minor is pending.

(c) A person who transfers money or property in compliance with this section is not responsible for its proper application.

(d) A guardian or other person who receives money or property for a minor under subsection (a)(1) or (2) may only apply it to the support, care, education, health, or welfare of the minor, and may not derive a personal financial benefit except for reimbursement for necessary expenses. Any excess must be preserved for the future support, care, education, health, or welfare of the minor and any balance must be transferred to the minor upon emancipation or attaining majority.

SECTION 105. DELEGATION OF POWER BY PARENT OR GUARDIAN. A parent or guardian of a minor or incapacitated person, by a power of attorney, may delegate to another person, for a period not exceeding six months, any power regarding care, custody, or property of the minor or ward, except the power to consent to marriage or adoption.

SECTION 106. SUBJECT-MATTER JURISDICTION. This [Act] applies to, and the court has jurisdiction over, guardianship and related proceedings for individuals domiciled or present in this State, protective proceedings for individuals domiciled in or having property located in this State, and property coming into the control of a guardian or conservator who is subject to the laws of this State.

SECTION 107. TRANSFER OF JURISDICTION.

(a) Following the appointment of a guardian or conservator or entry of another protective order, the court making the appointment or entering the order may transfer the proceeding to a court in another county in this State or to another State if the court is satisfied that a transfer will serve the best interest of the ward or protected person.

(b) If a guardianship or protective proceeding is pending in courts in more than one State, the court in which the later proceeding was commenced shall notify the original court, and after consultation with that court, assume jurisdiction, retain jurisdiction, or transfer the proceeding to the other court, whichever is in the best interest of the ward or protected person.

(c) A guardian, conservator, or like fiduciary appointed in another State may petition the court for appointment as a guardian or conservator in this State if venue in this State is or will be established. The appointment may be made upon proof of appointment in the other State and presentation of a certified copy of the portion of the court record in the other State specified by the court in this State. Notice of hearing on the petition, together with a copy of the petition, must be given to the ward or protected person, if the ward or protected person has attained 14 years of of age, and to the persons who would be entitled to notice if the regular procedures for appointment of a guardian or conservator under this [Act] were applicable. The court shall make the appointment in this State unless it concludes that the appointment would not be in the best interest of the ward or protected person. Upon the filing of an acceptance of office and any required bond, the court shall issue appropriate letters of guardianship or conservatorship. Within 14 days after an appointment, the guardian or conservator shall mail a copy of the order of appointment to the ward or protected person, if the ward or protected person has attained 14 years of age, and to all persons given notice of the hearing on the petition.

This section is designed to prevent forum shopping that some guardians and conservators have engaged in and also to keep better track of guardianships and conservatorships. Some guardians and conservators have attempted to thwart jurisdiction by moving the ward or protected person to another State. The standard in transfers is the best interest of the ward.

Once the guardianship is established, the court does not lose jurisdiction because of a change in location of the guardian or the ward. See Sections 201 and 301.

SECTION 108. VENUE.

(a) Venue for a guardianship proceeding for a minor is in the [county] of this State in which the minor resides or is present at the time the proceeding is commenced.

(b) Venue for a guardianship proceeding for an incapacitated person is in the [county] of this State in which the respondent resides and, if the respondent has been admitted to an institution by order of a court of competent jurisdiction, in the [county] in which that court is located. Venue for the appointment of an emergency or a temporary guardian of an incapacitated person is also in the [county] in which the respondent is present.

(c) Venue for a protective proceeding is in the [county] of this State in which the respondent resides, whether or not a guardian has been appointed in another place or, if the respondent does not reside in this State, in any [county] of this State in which property of the respondent is located.

(d) If a proceeding under this [Act] is brought in more than one [county] in this State, the court of the [county] in which the proceeding is first brought has the exclusive right to proceed unless that court determines that venue is properly in another court or that the interests of justice otherwise require that the proceeding be transferred.

The standard venue rules apply to guardianship and conservatorship. If there are two proceedings, the original court has the right to proceed unless the original court determines that venue lies elsewhere or that the interest of justice require the proceeding to be transferred to the later court. If the nominating instrument creating the guardianship is a will, then the proceeding should be filed in the [county] where the will would be subject to probate. For other nominating instruments, the proceeding should be filed where the minor resides or is present.

SECTION 109. PRACTICE IN COURT.

(a) Except as otherwise provided in this [Act], the rules of civil procedure, including the rules concerning appellate review, govern proceedings under this [Act].

(b) If guardianship and protective proceedings as to the same individual are commenced or pending in the same court, the proceedings may be consolidated.

SECTION 110. LETTERS OF OFFICE. The court shall issue appropriate letters of guardianship upon the guardian's filing of an acceptance of office. The court shall issue appropriate letters of conservatorship upon the conservator's filing of an acceptance of office and any required bond. Letters of guardianship must indicate whether the guardian was appointed by the court, a parent, the spouse, or the prior guardian. Any limitation on the powers of a guardian or conservator or of the assets subject to a conservatorship must be endorsed on the guardian's or conservator's letters.

SECTION 111. EFFECT OF ACCEPTANCE OF APPOINTMENT. By accepting appointment as guardian or conservator, a guardian or conservator submits personally to the jurisdiction of the court in any proceeding relating to the guardianship or conservatorship. The petitioner shall deliver or mail notice of any proceeding to the guardian or conservator at the guardian's or conservator's address shown in the court records and at any other address then known to the petitioner.

SECTION 112. TERMINATION OF OR CHANGE IN GUARDIAN'S OR CONSERVATOR'S APPOINTMENT.

(a) The appointment of a guardian or conservator terminates upon the death, resignation, or removal of the guardian or conservator or upon termination of the guardianship or conservatorship. Resignation of a guardian or conservator is not effective until the resignation has been approved by the court. [A parental or spousal appointment as guardian under an informally probated will terminates if the will is later denied probate in a formal proceeding.] Termination of the appointment of a guardian or conservator does not affect the liability of either for previous acts or the obligation to account for money and other assets of the ward or protected person.

(b) A ward, protected person, or person interested in the welfare of a ward or protected person may petition for removal of a guardian or conservator on the ground that removal would be in the best interest of the ward or protected person or for other good cause. A guardian or conservator may petition for permission to resign. A petition for removal or permission to resign may include a request for appointment of a successor guardian or conservator.

(c) The court may appoint an additional guardian or conservator at any time, to serve immediately or upon some other designated event, and may appoint a successor guardian or conservator in the event of a vacancy or make the appointment prior to a vacancy, to serve when a vacancy occurs. An additional or successor guardian or conservator so appointed must file an acceptance of office within 30 days after becoming eligible to assume the office. A successor guardian or conservator succeeds to the predecessor's powers, and a successor conservator succeeds to the predecessor's title to the protected person's assets.

SECTION 113. NOTICE.

(a) Except as otherwise ordered by the court for good cause, if notice of a hearing on a petition is required, other than a notice for which specific requirements are otherwise provided, the petitioner shall give notice of the time and place of the hearing to the person to be notified or to the person's attorney. Notice must be given:

(1) by mail or personal delivery to the person to be notified at least 14 days before the hearing; or

(2) if the address or identity of the person is not known and cannot be ascertained with reasonable diligence, by publication of the notice in compliance with [the applicable rule of civil procedure].

(b) Proof of notice must be made before or at the hearing and filed in the proceeding.

(c) A notice under this [Act] must be given in plain language.

Subsection (a)(1) contemplates that notice can be given not only by mail, but by private courier or delivery service.

SECTION 114. WAIVER OF NOTICE. A person may waive notice by a writing signed by the person or the person's attorney and filed in the proceeding. However, a respondent, ward, or protected person may not waive notice.

SECTION 115. GUARDIAN AD LITEM. At any stage of a proceeding, a court may appoint a guardian ad litem if the court determines that representation of the interest otherwise would be inadequate. If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several individuals or interests. The court shall state on the record the duties of the guardian ad litem and its reasons for the appointment.

If the respondent is currently represented, the attorney representing the respondent can not be appointed as the guardian ad litem because of the potential for a conflict of interest. It is important that the court advise the guardian ad litem of his or her role.

SECTION 116. REQUEST FOR NOTICE; INTERESTED PERSONS. An interested person who desires to be notified before any order is made in a guardianship proceeding, including a proceeding after the appointment of a guardian, or in a protective proceeding, may file a request for notice with the clerk of the court in which the proceeding is pending. The clerk shall mail a copy of the request to the guardian and to the conservator if one has been appointed. A request is not effective unless it contains a statement showing the interest of the person making it and the address of that person or a lawyer to whom notice is to be given. The request is effective only as to proceedings conducted after its filing. A governmental agency paying or planning to pay benefits to the respondent or protected person is an interested person in a protective proceeding.

An interested person in a protective proceeding includes a creditor, secured or otherwise.

SECTION 117. MULTIPLE APPOINTMENTS OR NOMINATIONS. If a respondent or other person makes more than one written appointment or nomination of a guardian or a conservator, the most recent controls.

SECTION 201. APPOINTMENT AND STATUS OF GUARDIAN. A person becomes a guardian of a minor upon appointment by a parent or by the court. The guardianship continues until terminated, without regard to the location of the guardian or minor ward.

This article provides for the creation and administration of guardianship over minors. However, the Uniform Child Custody Jurisdiction Act, the Parental Kidnaping Prevention Act, and the Indian Child Welfare Act all concern the welfare of minor children. It is possible that proceedings could be instituted under this Act and one of those Acts. It is possible that a court which under this Act has authority to appoint a guardian, may lose that authority after application of one of these other Acts. The drafters can not mandate that this Act supersede the other Acts. Instead, this Act must be read in conjunction with those laws.

SECTION 202. NONJUDICIAL APPOINTMENT OF GUARDIAN.

(a) A guardian may be appointed by will or other signed writing by a parent for any minor child the parent has or may have in the future. The appointment may specify the desired limitations on the powers to be given to the guardian. The appointing parent may revoke or amend the appointment prior to acceptance or court confirmation.

(b) Upon petition of an appointing parent and a finding that the appointing parent will likely become unable to care for the child within [two] years or less, and after notice as provided in Section 205(b), the court, before the appointment becomes effective, may confirm the parent's selection of a guardian and terminate the rights of others to object.

(c) Subject to Section 203, the appointment of a guardian becomes effective upon the appointing parent's death, an adjudication that the parent is an incapacitated person, or a written determination by a physician who has examined the parent that the parent is no longer able to care for the child, whichever first occurs.

(d) Within 30 days after the appointment becomes effective, a guardian shall:

(1) file a notice of acceptance of appointment and a copy of the will or other appointing instrument with the court of the [county] in which the will was or could be probated or, in the case of another appointing instrument, with the court of the [county] in which the minor resides or is present; and

(2) give written notice of the acceptance of appointment to the appointing parent, if living, the minor, if the minor has attained 14 years of age, and a person other than the parent having care and custody of the minor.

(e) Unless the appointment was previously confirmed by the court, the notice given under subsection (d)(2) must include a statement of the right of those notified to terminate the appointment by filing a written objection in the court as provided in Section 203.

(f) Unless the appointment was previously confirmed by the court, within 30 days after filing the notice and the appointing instrument, a guardian shall petition the court for confirmation of the appointment, giving notice in the manner provided in Section 205(b).

(g) The appointment of a guardian by a parent does not supersede the parental rights of either parent. If both parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who dies or was adjudged incapacitated has priority. An appointment by a parent which is effected by filing the guardian's acceptance under a will probated in the State of the testator's domicile is effective in this State.

(h) The powers of a guardian who timely complies with the requirements of subsections (d) and (e) relate back to give acts by the guardian which are of benefit to the minor and occurred on or after the date the guardian was eligible to file an acceptance of office the same effect as those that occurred after the filing.

(i) The authority of a guardian appointed under this section terminates upon the appointment of a guardian by the court or the filing of an objection pursuant to Section 203, whichever first occurs.

This section has been revised by expanding the circumstances under which a parent can appoint a guardian to serve. The number of contingencies has been increased from death to death, adjudication of incapacity or written determination by a physician that the parent is no longer able to care for a minor child.

In the case of a parent who has disappeared, relief should be sought under the emergency guardianship section Section 204(c), with preference to the nominated guardian absent a showing that it is not in the best interest of the minor child for that person to be appointed.

Subsection (a) recognizes that the appointing parent may have additional children after making the appointment, so the language covers children that may be born, adopted or whose custody may be granted to the appointing parent, without the need to re-execute the nomination.

If a State does not have a definition of child similar to that in the UPC, then the State would need to insert such a definition in the definitions section. In this section, child includes adopted and after-born children, in recognition of the fact that the parent may make the writing now for future contingencies to care for all the parent's children at the time the contingency arises.

The appointment of a person as guardian is a rebuttable presumption that the appointed person should be appointed as guardian and the court should not disregard the appointment without good cause.

The appointing parent has the option of petitioning the court prior to the triggering event for confirmation of the appointment. Court confirmation terminates the right to object and the right of the appointing parent to revoke the appointment.

The purpose of the confirmation of appointment is to convert the nominated guardianship to a regular guardianship as soon as possible. The petition for confirmation of appointment to be filed by a guardian should include the name and address of the minor, the identity and whereabouts of all persons having parental rights or serving as guardian, the petitioner's name and address, relationship to the parent and child, interest in the appointment, information about any custody orders, and a statement of the petitioner's willingness to serve; any limitations placed by the appointing parent on the powers of the appointed guardian; information about the petition; and reasons why the appointment should be confirmed. The petition should be accompanied by a death certificate, an order of adjudication of incapacity or a written statement by the physician who has examined the appointing parent that the appointing parent is no longer able to care for the minor child. In this last case, the written statement should include the prognosis and diagnosis of the parent's condition. The petition should be accompanied by a copy of the appointing instrument. If the selection as guardian was previously confirmed pursuant to subsection (b), a copy of the order of confirmation should accompany the petition.

In the hearing on the petition for confirmation, if the court finds that the appointing parent will not regain the ability to care for the minor child, the court should enter an order confirming the appointment, absent evidence rebutting the presumption of appointment. If the court finds that the parent may regain ability to care for the minor child, the court should enter an order confirming the appointment for a period of time deemed appropriate by the court. An order of confirmation cuts off the right of the minor, the other parent or the person other than the parent having care and custody of the minor to object. The confirmation also supersedes the rights of the non-appointing parent.

Unless stated to the contrary in this section, other sections of this Act apply.

If a parent becomes incapacitated subsequent to the guardian's appointment becoming effective, at that time, the guardian's appointment supersedes the parental rights of the incapacitated parent.

The minor, the other parent or the person other than the parent having care and custody of the minor all have the right to file an objection under Section 203 within a specified time period. If an objection is filed, the appointed guardian has no authority to act and instead must petition the court for appointment as guardian under Section 205. An objection must be filed before court confirmation.

Section (g) Any acts performed before filing relate back to cover the time between the appointment becoming effective and the guardian's filing of the notice of acceptance to give those acts occurring in that time frame the same effect as those occurring after the filing of the notice of acceptance, as long as those prior acts are beneficial to the minor.

SECTION 203. OBJECTION BY MINOR OR OTHERS TO NONJUDICIAL APPOINTMENT. Until the court has confirmed an appointee under Section 202, a minor who is the subject of an appointment by a parent and who has attained 14 years of age, the other parent or a person other than a parent or guardian having custody or care of the minor may prevent or terminate the appointment at any time by filing in the court in which the appointing instrument is filed a written objection. An objection may be withdrawn. An objection does not preclude an appointment of the appointee by the court. The court may treat the filing of an objection as a petition for the appointment of a temporary guardian, and proceed accordingly.

In the case where an objection is filed, the appointee has no authority to act and instead must file a petition for appointment as guardian under Section 205. Although the minor, the other parent, or the person who has care or custody of the minor has the right to object to the appointment, the court still can appoint the appointee over any objection. An objection that is not timely filed will not prevent the appointment.

SECTION 204. JUDICIAL APPOINTMENT OF GUARDIAN: CONDITIONS FOR APPOINTMENT.

(a) The court may appoint a guardian for a minor if the parents consent, all parental rights have been terminated, or the parents are unwilling or unable to exercise their parental rights. If a guardian is appointed nonjudicially pursuant to Section 202 and the appointment has not been prevented or terminated under Section 203, that appointee has priority over that of a guardian appointed by the court. However, the court may proceed with another appointment upon a finding that the appointee under Section 202 has failed to accept the appointment within 30 days after notice of the guardianship proceeding.

(b) If necessary and on petition or motion and whether or not the conditions of subsection (a) have been established, the court may appoint a temporary guardian for a minor upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor. Notice as provided in Section 113 must be given to the parents and to a minor who has attained 14 years of age. Except as otherwise ordered by the court, the temporary guardian has the authority of an unlimited guardian, but the duration of the temporary guardianship may not exceed six months. Within five days after the appointment, the temporary guardian shall mail a copy of the order to all individuals who would be entitled to notice of hearing under Section 205.

(c) If the court finds that following the procedures of this [article] will likely result in immediate and substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor. The duration of the guardian's authority may not exceed [30] days and the guardian may exercise only the powers specified in the order. Reasonable notice of the time and place of a hearing on the petition for appointment of an emergency guardian must be given to the minor who has attained 14 years of age, to each living parent of the minor, and a person having care or custody of the minor, if other than a parent. The court may dispense with the notice if it finds from affidavit or other sworn testimony that the minor will be immediately and substantially harmed before a hearing can be held on the petition. If the guardian is appointed without notice, notice of the appointment must be given within 48 hours after the appointment and a hearing on the appropriateness of the appointment held within five days after the appointment.

The court has to decide whether a parent is unwilling or unable to act. See David M. English, Minor Guardianship in an Age of Multiple Marriage, 1995 Institute on Estate Planning 500, 503 (Matthew Bender) for a discussion of criteria applied in determining unwillingness or unfitness of a parent to care for a minor child.

All individuals who would receive notice in Section 205 are required to receive notice in a temporary guardianship proceeding under subsection (b). The six month limitation on the temporary guardianship does not prevent the renewal or extension of the guardianship by court order at the expiration of the six months. However, if the duration needs to be extended, the court should examine whether a regular guardianship of the minor would be more appropriate. The temporary guardianship provision, Section 204 (b), is based on South Dakota statute 29A-5-210.

An emergency guardianship can be established for a minor when there is an immediate likelihood of danger to the minor. Since following normal procedures for establishment of a guardianship would result in delay which might cause harm to the minor, emergency procedures for hearing and notice are provided in Section 204 (c).

SECTION 205. JUDICIAL APPOINTMENT OF GUARDIAN: PROCEDURE.

(a) A minor or a person interested in the welfare of a minor may petition for appointment of a guardian.

(b) After a petition is filed, the court shall set a date for hearing, and the petitioner shall give notice of the time and place for hearing the petition, together with a copy of the petition, to:

(1) the minor, if the minor has attained 14 years of age and is not the petitioner;

(2) any person alleged to have had the principal care and custody of the minor during the 60 days before the filing of the petition;

(3) each living parent of the minor or, if there is none, the adult nearest in kinship that can be found;

(4) any person nominated as guardian by the minor if the minor has attained 14 years of age;

(5) any appointee of a parent whose appointment has not been prevented or terminated under Section 203; and

(6) any guardian or conservator currently acting for the minor in this State or elsewhere.

(c) The court, upon hearing, shall make the appointment if it finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the conditions of Section 204(a) have been met, and the best interest of the minor will be served by the appointment. In other cases, the court may dismiss the proceeding or make any other disposition of the matter that will serve the best interest of the minor.

(d) If the court determines at any stage of the proceeding, before or after appointment, that the interests of the minor are or may be inadequately represented, it may appoint a lawyer to represent the minor, giving consideration to the choice of the minor if the minor has attained 14 years of age. The court may confer the powers and impose the duties of a guardian ad litem upon a lawyer appointed to represent a minor.

The court, in order to make the decision on a petition for appointment, must have as much information as possible. The requirements of this section seek to fulfill that by requiring specific information be contained in the petition. The court can, at any stage of the proceeding, appoint a lawyer to represent the minor if the court determines that the minor's interests are not or might not be adequately represented.

SECTION 206. JUDICIAL APPOINTMENT OF GUARDIAN: PRIORITY OF MINOR'S NOMINEE, LIMITED GUARDIANSHIP.

(a) The court shall appoint as guardian a person whose appointment will be in the best interest of the minor. The court shall appoint a person nominated by the minor, if the minor has attained 14 years of age, unless the court finds the appointment will be contrary to the best interest of the minor.

(b) In the interest of developing self-reliance of a ward or for other good cause, the court, at the time of appointment or later, on its own motion or on motion of the minor ward or other interested person, may limit the powers of a guardian otherwise granted by this [article] and thereby create a limited guardianship. Following the same procedure, additional powers may be granted or existing powers may be withdrawn.

SECTION 207. DUTIES OF GUARDIAN.

(a) Except as otherwise limited by the court, a guardian of a minor ward has the duties and responsibilities of a parent regarding the ward's support, care, education, health, and welfare. A guardian shall act at all times in the ward's best interest and exercise reasonable care, diligence, and prudence.

(b) A guardian shall:

(1) become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;

(2) take reasonable care of the ward's personal effects and bring a protective proceeding if necessary to protect other property of the ward;

(3) expend money of the ward that has been received by the guardian for the ward's current needs for support, care, education, health, and welfare;

(4) conserve any excess money of the ward for the ward's future needs, but if a conservator has been appointed for the estate of the ward, the guardian shall pay the money at least quarterly, to the conservator to be conserved for the ward's future needs; and

(5) report the condition of the ward and account for money and other assets in the guardian's possession or subject to the guardian's control, as ordered by the court on application of any person interested in the ward's welfare or as required by court rule.

The guardian is authorized to apply for government benefits to which the ward is entitled and to use those benefits for the ward's support, care, education, health, and welfare.

SECTION 208. POWERS OF GUARDIAN.

(a) Except as otherwise limited by the court, a guardian of a minor ward has the powers of a parent regarding the ward's support, care, education, health, and welfare.

(b) A guardian may:

(1) apply for and receive money for the support of the ward otherwise payable to the ward's parent, guardian, or custodian under the terms of any statutory system of benefits or insurance or any private contract, devise, trust, conservatorship, or custodianship;

(2) if otherwise consistent with the terms of any order by a court of competent jurisdiction relating to custody of the ward, take custody of the person of the ward and establish the ward's place of custodial dwelling, but may only establish or move the ward's custodial dwelling outside the State upon express authorization of the court. The guardian shall inform the court of any change in the ward's custodial dwelling or address;

(3) if a conservator for the estate of a ward has not been appointed with existing authority, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the ward or to pay money for the benefit of the ward;

(5) consent to medical or other care, treatment, or service for the ward; [and]

(6) [consent or withhold consent to the marriage, divorce, or adoption of the ward; and

(7)] if reasonable under all of the circumstances, delegate to the ward certain responsibilities for decisions affecting the ward's well-being.

SECTION 209. RIGHTS AND IMMUNITIES OF GUARDIAN.

(a) A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board, and clothing provided by the guardian to the ward, but only as approved by the court. If a conservator, other than the guardian or one who is affiliated with the guardian, has been appointed for the estate of the ward, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court.

(b) A guardian need not use the guardian's personal funds for the ward's expenses. A guardian is not liable to a third person for acts of the ward solely by reason of the relationship. A guardian is not liable for injury to the ward resulting from the negligence or act of a third person providing medical or other care, treatment, or service for the ward except to the extent that the guardian failed to exercise reasonable care in choosing the provider.

A guardian has no duty to use the guardian's personal funds for the ward. The guardian has no liability for a third person's negligent care, treatment or service to the ward except if the guardian was negligent in choosing the provider.

SECTION 210. TERMINATION OF GUARDIANSHIP; OTHER PROCEEDINGS AFTER APPOINTMENT.

(a) A guardianship of a minor terminates upon the minor's death, adoption, emancipation, or attainment of majority, or as ordered by the court.

(b) A ward or a person interested in the welfare of a ward may petition for any order that is in the best interest of the ward. The petitioner shall give notice of the hearing on the petition to the ward, if the ward has attained 14 years of age and is not the petitioner, the guardian, and any other person as ordered by the court.

SECTION 301. APPOINTMENT AND STATUS OF GUARDIAN. A person becomes a guardian of an incapacitated person upon appointment by a parent, a spouse, or the court. The guardianship continues until terminated, without regard to the location of the guardian or ward.

SECTION 302. APPOINTMENT OF GUARDIAN BY WILL OR OTHER WRITING.

(a) A parent, by will or other signed writing, may appoint a guardian for an unmarried child who the parent believes is an incapacitated person, may specify the desired limitations on the powers to be given to the guardian, and may revoke or amend the appointment before acceptance or judicial confirmation.

(b) An individual by will or other signed writing, may appoint a guardian for his or her spouse who the appointing spouse believes is an incapacitated person, may specify the desired limitations on the powers to be given to the guardian, and may revoke or amend the appointment before acceptance or judicial confirmation.

(c) Subject to the right of the incapacitated person, the person having custody or care of the incapacitated person if other than the appointing parent or spouse, or the adult nearest in kinship to the incapacitated person to object, the guardian's appointment becomes effective upon the death of the appointing parent or spouse, the adjudication of incapacity of the appointing parent or spouse, or a written determination by a physician who has examined the appointing parent or spouse that the appointing parent or spouse is no longer able to care for the incapacitated person, whichever first occurs.

(d) Upon petition of the appointing parent or spouse, and a finding that the appointing parent or spouse will likely become unable to care for the incapacitated person within [two] years or less, and after notice as provided in this section, the court, before the appointment becomes effective, may confirm the appointing parent's or spouse's selection of a guardian and terminate the rights of others to object.

(e) Within 30 days after an appointment becomes effective, the guardian shall:

(1) file a notice of acceptance of appointment and a copy of the will or other appointing instrument with the court of the [county] in which the will was or could be probated or, in the case of another appointing instrument, with the court in the [county] in which the incapacitated person resides or is present; and

(2) give written notice of the acceptance of appointment to the appointing parent or spouse if living, the incapacitated person, a person having custody or care of the incapacitated person other than the appointing parent or spouse, and the adult nearest in kinship.

(f) Unless the appointment was previously confirmed by the court, the notice given under subsection (e)(2) must include a statement of the right of those notified to terminate the appointment by filing a written objection as provided in this section.

(g) An appointment effected by filing the guardian's acceptance under a will probated in the State of the testator's domicile is effective in this State.

(h) The filing of a written objection to an appointment by the alleged incapacitated person or another person interested in the alleged incapacitated person's welfare in the court in which the guardian's written acceptance was filed terminates the appointment. An objection does not preclude the court from appointing the parental or spousal appointee as guardian.

(i) Unless the appointment was previously confirmed by the court, within 30 days after filing the notice and the appointing instrument, a guardian appointed under this section shall file a petition in the court for confirmation of the appointment, giving notice in the manner provided in Section 308, and, if necessary, for an appointment as conservator.

(j) The authority of a guardian appointed under this section terminates upon the appointment of a guardian by the court or the filing of an objection pursuant to subsection (h), whichever first occurs.

(k) The appointment of a guardian under this section is not a determination of incapacity.

This section provides for an appointment by will or other instrument. A parent of an adult unmarried child who the parent believes is incapacitated can make such appointment as can a spouse for the other spouse that the appointing spouse believes to be incapacitated. The appointed guardian's appointment becomes effective on the first to occur: the death of the appointing parent or spouse, adjudication of that parent's or spouse's incapacity or a written determination by a doctor who has examined the appointing parent or spouse that the appointing parent or spouse can no longer care for their adult disabled child or their incapacitated spouse.

The adult disabled child or the incapacitated spouse as well as the person having custody or care of the child or spouse or the adult nearest in kinship have the right to object to the guardian's appointment. If an objection is filed, the guardian's authority terminates, and the guardian must file a petition for appointment of guardian under Section 303. Within 30 days of the contingency giving rise to the guardianship, the guardian has to file a notice of acceptance of appointment and the appointing instrument and give written notice to the appointing parent or spouse, if living, as well as to the incapacitated spouse or adult child and the person having custody or care of the incapacitated person and adult nearest in kinship of the appointment and the right to terminate it by filing a written objection, if not previously confirmed by the court.

The guardian's authority terminates upon the timely filing of an objection or when the appointing parent or spouse regains the ability to care for the incapacitated person, or a guardian is appointed for the incapacitated person. The utilization of guardianship in this section provides for the appointing parent or spouse to designate another to care for the incapacitated spouse or child upon the occurrence of specified contingencies.

The guardianship is to be converted to a regular guardianship as soon as possible. Unless otherwise specified herein, the provisions of this Act apply to a guardian appointed under a writing other than a will.

SECTION 303. JUDICIAL APPOINTMENT OF GUARDIAN: PETITION.

(a) An individual or a person interested in the individual's welfare may petition for a determination of incapacity, in whole or in part, and for the appointment of a limited or unlimited guardian for the individual.

(b) The petition must set forth the petitioner's name, residence, current address if different, relationship to the respondent, and interest in the appointment and, to the extent known, state or contain the following with respect to the respondent and the relief requested:

(1) the respondent's name, age, principal residence, current street address, and, if different, the address of the dwelling in which it is proposed that the respondent will reside if the appointment is made;

(2) the name and address of the respondent's:

(A) spouse, domestic partner or companion; and

(B) adult children or, if the respondent has none, the respondent's parents and adult brothers and sisters, or if the respondent has none, at least one of the adults nearest in kinship to the respondent who can be found;

(3) the name and address of the person responsible for care or custody of the respondent;

(4) the name and address of any legal representative for the respondent;

(5) the name and address of any person nominated as guardian by the respondent;

(6) the name and address of any proposed guardian and the reason why the proposed guardian should be selected;

(7) the reason why guardianship is necessary, including a brief description of the nature and extent of the respondent's alleged incapacity;

(8) if an unlimited guardianship is requested, the reason why limited guardianship is inappropriate and, if a limited guardianship is requested, the powers to be granted to the limited guardian; and

(9) a general statement of the respondent's property with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts.

Although the individual can petition for appointment of a guardian for the individual in such a case, it would be better for the individual to execute a durable power of attorney. The petition has to contain the names and addresses of the spouse, domestic partner or companion and adult children. If there are several adults of equal degree of kinship to the respondent, notice to one is all that is required, not notice to the entire class.

SECTION 304. JUDICIAL APPOINTMENT OF GUARDIAN: PRELIMINARIES TO HEARING.

(a) Upon receipt of a petition to establish a guardianship, the court shall set a date and time for hearing the petition and appoint a [visitor]. The duties and reporting requirements of the [visitor] are limited to the relief requested in the petition. The [visitor] must be an individual having training or experience in the type of incapacity alleged.

(b) The court shall appoint a lawyer to represent the respondent in the proceeding if:

(1) requested by the respondent;

(2) recommended by the [visitor]; or

(3) the court determines that the respondent needs representation.

(c) The [visitor] shall:

(1) interview the respondent in person and explain to the respondent, in a manner the respondent is able to understand, the substance of the petition, the nature, purpose, and effect of the proceeding, the respondent's rights at the hearing, and the general powers and duties of a guardian;

(2) determine the respondent's views about the proposed guardian, the proposed guardian's powers and duties, and the scope and duration of the proposed guardianship;

(3) inform the respondent of the right to employ and consult with a lawyer at the respondent's own expense and the right to request a court-appointed lawyer;

(4) interview the petitioner and the proposed guardian;

(5) visit the respondent's present dwelling and the place where the respondent will dwell if the appointment is made;

(6) interview any physician or other person who is known to have treated, advised, or assessed the respondent;

(7) inform the respondent that all costs and expenses of the proceeding, including attorney's fees, will be paid from the respondent's estate; and

(8) make any other investigation the court directs.

(d) The [visitor] shall promptly file a report in writing with the court, which must include:

(1) a recommendation whether a lawyer should be appointed to represent the respondent;

(2) a summary of daily functions the respondent can manage without assistance, could manage with the assistance of supportive services or benefits, including use of appropriate technological assistance; and cannot manage;

(3) recommendations regarding the appropriateness of guardianship, including whether less restrictive means of intervention are available, the type of guardianship; and, if a limited guardianship, the powers to be granted to the limited guardian;

(4) a statement of the qualifications of the proposed guardian, together with a statement as to whether the respondent approves or disapproves of the proposed guardian, and the powers and duties proposed or the scope of the guardianship;

(5) a statement as to whether the proposed dwelling meets the respondent's individual needs;

(6) a recommendation as to whether a professional evaluation or further evaluation is necessary; and

(7) any other matters the court directs.

Appointment of a [visitor] is mandatory. The [visitor] serves as the information gathering arm of the court. The [visitor] can be a physician, psychologist, or other individual qualified to evaluate the alleged impairment. The [visitor] must individually meet with the respondent, the petitioner and the proposed guardian. The [visitor's] report contains information and recommendations to the court regarding the appropriateness of the guardianship, whether lesser restrictive alternatives might meet the respondent's needs, recommendations about further evaluations, powers to be given the guardian, and the appointment of counsel. Appointment of counsel for an unrepresented respondent is mandated when requested by the respondent, recommended by the [visitor] or when the court determines the respondent needs representation. If there is an estate, the [visitor] would be paid from it. If there is no estate, the [visitor] would be compensated from the general fund of the [county]. Payment is made pursuant to the procedures provided in Section 417.

Courts seeking guidance as to those factors that may be considered in evaluating the alleged incapacitated person's abilities should refer to those contained in California Probate Code 812.

The National Probate Court Standards, Standard 3.3.4 provides

The probate court should require a court appointee to visit with the respondent in a guardianship petition to (1) explain the rights of the respondent; (2) investigate the facts of the petition; and (3) explain the circumstances and consequences of the action; the visitor should investigate the need for additional court appointments and should file a written report with the court promptly after the visit.

SECTION 305. JUDICIAL APPOINTMENT OF GUARDIAN: PROFESSIONAL EVALUATION. At or before a hearing under this [article], the court may order a professional evaluation of the respondent and shall order the evaluation if the respondent so demands. If the court orders the evaluation, the respondent must be examined by a physician, psychologist, or other individual appointed by the court who is qualified to evaluate the respondent's alleged impairment. The examiner shall promptly file a written report with the court. Unless otherwise directed by the court, the report must contain:

(1) a description of the nature, type, and extent of the respondent's specific cognitive and functional limitations;

(2) an evaluation of the respondent's mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;

(3) a prognosis for improvement and a recommendation as to the appropriate treatment or habilitation plan; and

(4) the date of any assessment or examination upon which the report is based.

The evaluation in (2) must include a summary of the consultation with the respondent's treating physician.

SECTION 306. CONFIDENTIALITY OF RECORDS. The written report of a [visitor] and any professional evaluation are confidential and must be sealed upon filing, but are available to:

(1) the court;

(2) the respondent without limitation as to use;

(3) the petitioner, the [visitor], and the petitioner's and respondent's lawyers, for purposes of the proceeding; and

(4) other persons for such purposes as the court may order for good cause.

SECTION 307. JUDICIAL APPOINTMENT OF GUARDIAN: PRESENCE AND RIGHTS AT HEARING.

(a) Unless excused by the court for good cause, the proposed guardian shall attend the hearing. The respondent shall attend and participate in the hearing, unless excused by the court for good cause. The respondent may present evidence and subpoena witnesses and documents; examine witnesses, including any court-appointed physician, psychologist, or other individual qualified to evaluate the alleged impairment, and the [visitor]; and otherwise participate in the hearing. The hearing may be held in a location convenient to the respondent and may be closed upon the request of the respondent and a showing of good cause.

(b) Any person may request permission to participate in the proceeding. The court may grant the request, with or without hearing, upon determining that the best interest of the respondent will be served. The court may attach appropriate conditions to the participation.

The proposed guardian must attend the hearing. The respondent must attend the hearing unless excused by the court, and may take an active role, including presentation of evidence and witness testimony as well as cross-examination of witnesses. The respondent can request that the hearing be closed, but good cause must be shown for this to occur.

SECTION 308. NOTICE.

(a) A copy of the petition and notice of the hearing on a petition for guardianship must be served personally on the respondent. The notice must include a statement that the respondent must be physically present, inform the respondent of the respondent's rights at the hearing, and include a description of the nature, purpose, and consequences of an appointment. A failure to serve the respondent precludes the court from granting the petition.

(b) In a proceeding to establish a guardianship, the petitioner shall give notice of the hearing to all other persons listed in the petition. Failure to give notice under this subsection does not preclude the appointment of a guardian or the making of a protective order.

(c) A petitioner shall give notice of the hearing on a petition for an order after appointment of a guardian and notice of the filing of a guardian's report, together with a copy of the petition or other document, to the ward, the guardian, and any other person the court directs. The notice must be mailed within 14 days after the filing.

SECTION 309. WHO MAY BE GUARDIAN: PRIORITIES.

(a) Subject to subsection (c), the court in appointing a guardian shall consider persons otherwise qualified in the following order of priority:

(1) a guardian, other than a temporary or emergency guardian, currently acting for the respondent in this State or elsewhere;

(2) a person nominated as guardian by the respondent, including the respondent's most recent nomination made in a durable power of attorney, if at the time of the nomination the respondent had sufficient capacity to express a preference;

(3) an agent appointed by the respondent under [a durable power of attorney for health care] [the Uniform Health-Care Decisions Act];

(4) the spouse of the respondent or a person nominated by will or other signed writing of a deceased spouse;

(5) an adult child of the respondent;

(6) a parent of the respondent, or an individual nominated by will or other signed writing of a deceased parent; and

(7) an adult with whom the respondent has resided for more than six months before the filing of the petition.

(b) With respect to persons having equal priority, the court shall select the one it considers best qualified. The court, acting in the best interest of the respondent, may decline to appoint a person having priority and appoint a person having a lower priority or no priority.

(c) An owner, operator, or employee of [a long-term-care institution] at which the respondent is receiving care may not be appointed as guardian unless related to the respondent by blood, marriage, or adoption.

A guardian or individual nominated by the respondent or the respondent's agent in a health care power of attorney has priority over relatives. The nomination includes anyone nominated orally at the hearing. Anyone affiliated with a long-term care institution at which the respondent receives care is not eligible to be guardian absent a blood, marital or adoptive relationship. Each State adopting the Act needs to insert a list of those facilities considered to be long-term care institutions.

The six month period in Section 309(a)(7) is contained in the law of many States. The six month limitation does not have to be immediately preceding the filing of the petition. A temporary guardian was specifically excluded since a temporary guardian is contemplated for the short term, and thus should not be given preference for a long-term or even "permanent" appointment.

A professional guardian, including a public agency or nonprofit corporation, was specifically not given priority as those given priority are individuals with whom the ward has a close relationship. A professional guardian can still be appointed guardian if no one else with priority is available and willing to serve, but is not given a statutory preference, unless coming under subsection (a)(1)-(7). A public agency or nonprofit corporation is eligible to be appointed guardian as long as it can provide an active and suitable guardianship program and is not otherwise providing substantial services or assistance to the protected person, but is not entitled to statutory priority in appointment as guardian.

SECTION 310. FINDINGS; ORDER OF APPOINTMENT.

(a) The court may appoint a limited or unlimited guardian for a respondent only if it finds by clear and convincing evidence that:

(1) the respondent is an incapacitated person; and

(2) the respondent's identified needs cannot be met by less restrictive means, including use of appropriate technological assistance.

(b) Alternatively, the court, with appropriate findings, may treat the petition as one for a protective order under Section 401, enter any other appropriate order, or dismiss the proceeding.

(c) The court, whenever feasible, shall grant to a guardian only those powers necessitated by the ward's limitations and demonstrated needs and make appointive and other orders that will encourage the development of the ward's maximum self-reliance and independence.

(d) Within 14 days after an appointment, a guardian shall mail to the ward and to all other persons given notice of the hearing on the petition a copy of the order of appointment, together with a notice of the right to request termination or modification.

A guardian is to be appointed only when no lesser restrictive alternative will meet the respondent's identified needs. If a guardian is to be appointed, the guardian shall be given only those powers needed to meet the ward's needs and limitations. The court must specify the powers granted to the guardian and the limits on the incapacitated person's rights.

SECTION 311. EMERGENCY GUARDIAN.

(a) If the court finds that compliance with the procedures of this [article] will likely result in immediate and substantial harm to the respondent's health, safety, or welfare, and that no other person appears to have authority to act in the circumstances, the court, on petition by a person interested in the respondent's welfare, may appoint an emergency guardian whose authority may not exceed [60] days and who may exercise only the powers specified in the order. Immediately upon receipt of the petition for an emergency guardianship, the court shall appoint a lawyer to represent the respondent in the proceeding. Except as otherwise provided in subsection (b), reasonable notice of the time and place of a hearing on the petition must be given to the respondent and any other persons as the court directs.

(b) An emergency guardian may be appointed without notice to the respondent and the respondent's lawyer only if the court finds from affidavit or other sworn testimony that the respondent will be immediately and substantially harmed before a hearing on the appointment can be held. If the court appoints an emergency guardian without notice to the respondent, the respondent must be given notice of the appointment within 48 hours after the appointment. The court shall hold a hearing on the appropriateness of the appointment within five days after the appointment.

(c) Appointment of an emergency guardian, with or without notice, is not a determination of the respondent's incapacity.

(d) The court may remove an emergency guardian at any time. An emergency guardian shall make any report the court requires. In other respects, the provisions of this [Act] concerning guardians apply to an emergency guardian.

An emergency guardian can only be appointed without notice when there is sworn testimony that the respondent would be immediately and substantially harmed before the hearing on the appointment. In such case, notice must be given within 48 hours and a hearing held within 5 days. (Section 113 provides the procedures of giving notice in this Article.) States adopting this Act should look at the time frames for the ex parte hearing and determine whether to adopt the time frames contained in this section or whether to impose their own time frames.

SECTION 312. TEMPORARY SUBSTITUTE GUARDIAN.

(a) If the court finds that a guardian is not effectively performing the guardian's duties and that the welfare of the ward requires immediate action, it may appoint a temporary substitute guardian for the ward for a specified period not exceeding six months. Except as otherwise ordered by the court, a temporary substitute guardian so appointed has the powers set forth in the previous order of appointment. The authority of any unlimited or limited guardian previously appointed by the court is suspended as long as a temporary substitute guardian has authority. If an appointment is made without previous notice to the ward or the affected guardian, within five days after the appointment, the court shall inform the ward or guardian of the appointment.

(b) The court may remove a temporary substitute guardian at any time. A temporary substitute guardian shall make any report the court requires. In other respects, the provisions of this [Act] concerning guardians apply to a temporary substitute guardian.

A temporary substitute guardian may be appointed under this section. However, a temporary substitute guardian does not automatically have preference to be appointed the guardian. States adopting this Act should look at the time period set out in this section and determine whether to adopt it as contained in this section or to modify it.

SECTION 313. DUTIES OF GUARDIAN.

(a) Except as otherwise limited by the court, a guardian shall make decisions regarding the ward's support, care, education, health, and welfare. A guardian shall exercise authority only as necessitated by the ward's limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian at all times shall act in the ward's best interest and exercise reasonable care, diligence, and prudence.

(b) A guardian shall:

(1) become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;

(2) take reasonable care of the ward's personal effects and bring protective proceedings if necessary to protect the property of the ward;

(3) expend money of the ward that has been received by the guardian for the ward's current needs for support, care, education, health, and welfare;

(4) conserve any excess money of the ward for the ward's future needs, but if a conservator has been appointed for the estate of the ward, the guardian shall pay the money to the conservator, at least quarterly, to be conserved for the ward's future needs; and

(5) immediately notify the court if the ward's condition has changed so that the ward is capable of exercising rights previously removed.

SECTION 314. POWERS OF GUARDIAN. Except as otherwise limited by the court, a guardian may:

(1) apply for and receive money payable to the ward or the ward's guardian or custodian for the support of the ward under the terms of any statutory system of benefits or insurance or any private contract, devise, trust, conservatorship, or custodianship;

(2) if otherwise consistent with the terms of any order by a court of competent jurisdiction relating to custody of the ward, take custody of the person of the ward and establish the ward's place of dwelling within or without this State. The guardian may establish or move the ward's place of dwelling outside this State only if expressly authorized by the court. The guardian shall inform the court of any change in the ward's custodial dwelling or address;

(3) if a conservator for the estate of the ward has not been appointed with existing authority, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the ward or to pay money for the benefit of the ward;

(4) consent to medical or other care, treatment, or service for the ward;

(5) [consent or withhold consent to the marriage, divorce or adoption of the ward]; and

(6) if reasonable under all of the circumstances, delegate to the ward certain responsibilities for decisions affecting the ward's well-being.

There is a split among the jurisdictions as to whether a guardian has the power to initiate a divorce for the ward. Those jurisdictions that do not allow the guardian to do so, generally hold such because of the personal nature of marriage.

SECTION 315. RIGHTS AND IMMUNITIES OF GUARDIAN; LIMITATIONS.

(a) A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board, and clothing provided to the ward, but only as approved by order of the court. If a conservator, other than the guardian or one who is affiliated with the guardian, has been appointed for the estate of the ward, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court.

(b) A guardian need not use the guardian's personal funds for the ward's expenses. A guardian is not liable to a third person for acts of the ward solely by reason of the relationship. A guardian is not liable for injury to the ward resulting from the wrongful conduct of a third person providing medical or other care, treatment, or service for the ward except to the extent that the guardian failed to exercise reasonable care in choosing the provider.

(c) A guardian, without authorization of the court, may not revoke a power of attorney for health care [made pursuant to the Uniform Health-Care Decisions Act] of which the ward is the principal. If a power of attorney for health care [made pursuant to the Uniform Health-Care Decisions Act] is in effect, absent an order of the court to the contrary, a health-care decision of the agent takes precedence over that of a guardian.

(d) A guardian may not initiate the commitment of a ward to a [mental health-care] institution except in accordance with the State's procedure for involuntary civil commitment.

If the ward had made a power of attorney for health care, the guardian can not revoke it without court order. Further, the agent's decision takes priority over those of the guardian unless the power of attorney has been revoked by court order. A mental health-care institution includes those institutions or treatment facilities defined in the Uniform Health-Care Decisions Act as adopted by the State. Commitment to a mental health-care institution can not occur without following the State's procedures for involuntary civil commitment. Although a guardian can not commit a ward to a mental health-care institution, the guardian may initiate proceedings under the State's applicable health care act for voluntary or involuntary, commitment, outpatient treatment, or involuntary medication for mental health treatment.

SECTION 316. REPORTS; MONITORING OF GUARDIANSHIP.

(a) Within 30 days after appointment, a guardian shall report to the court in writing on the condition of the ward and account for money and other assets in the guardian's possession or subject to the guardian's control. A guardian shall report at least annually thereafter and whenever ordered by the court. A report must state or contain:

(1) the current mental, physical, and social condition of the ward;

(2) the living arrangements for all addresses of the ward during the reporting period;

(3) the medical, educational, vocational, and other services provided to the ward and the guardian's opinion as to the adequacy of the ward's care;

(4) a summary of the guardian's visits with the ward and activities on the ward's behalf and the extent to which the ward has participated in decision-making;

(5) if the ward is institutionalized, whether the guardian considers the current plan for care, treatment, or habilitation to be in the ward's best interest;

(6) plans for future care; and

(7) a recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship.

(b) The court may appoint a [visitor] to review a report, interview the ward or guardian, and make any other investigation the court directs.

(c) The court shall establish a system for monitoring guardianships, including the filing and review of annual reports.

The report has to contain the current mental, physical and social condition of the ward. Letters from the treating physician should accompany the report.

SECTION 317. TERMINATION OR MODIFICATION OF GUARDIANSHIP.

(a) A guardianship terminates upon the death of the ward or order of the court.

(b) On petition of a ward, a guardian, or another person interested in the ward's welfare, the court may terminate a guardianship if the ward no longer needs the assistance or protection of a guardian. The court may modify the type of appointment or powers granted to the guardian if the extent of protection or assistance previously granted is currently excessive or insufficient or the ward's capacity to provide for support, care, education, health, or welfare has so changed as to warrant that action.

(c) Except as otherwise ordered by the court for good cause, the court, before terminating a guardianship, shall follow the same procedures to safeguard the rights of the ward as apply to a petition for guardianship. Upon presentation by the petitioner of evidence establishing a prima facie case for termination, the court shall order the termination unless the guardian proves that continuation of the guardianship is in the best interest of the ward.

If the ward's condition changes so that the guardian believes that the ward is capable of exercising some or all of the rights that were previously removed, the guardian should immediately notify the court and not wait until the due date of the next report to be filed under Section 316.

SECTION 401. PROTECTIVE PROCEEDING. Upon petition and after notice and hearing, the court may appoint a limited or unlimited conservator or make any other protective order provided in this [article] in relation to the estate and affairs of:

(1) a minor, if the court determines that the minor owns money or property requiring management or protection that cannot otherwise be provided or has or may have business affairs that may be jeopardized or prevented because of the minor's age, or that money is needed for support and education and that protection is necessary or desirable to obtain or provide money; and

(2) any individual, including a minor, if the court determines that, for reasons other than age:

(A) by clear and convincing evidence, the individual is unable to manage property and business affairs because of an impairment in the ability to receive and evaluate information or make decisions, even with the use of appropriate technological assistance, or because the individual is missing, detained, or unable to return to the United States; and

(B) by a preponderance of evidence, the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual or of individuals who are entitled to the individual's support and that protection is necessary or desirable to obtain or provide money.

The concept of conservatorship includes both limited and unlimited conservatorships.

SECTION 402. JURISDICTION OVER BUSINESS AFFAIRS OF PROTECTED PERSON. After the service of notice in a proceeding seeking a conservatorship or other protective order and until termination of the proceeding, the court in which the petition is filed has:

(1) exclusive jurisdiction to determine the need for a conservatorship or other protective order;

(2) exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this State must be managed, expended, or distributed to or for the use of the protected person, individuals who are dependent upon the protected person, or other claimants; and

(3) concurrent jurisdiction to determine the validity of claims against the person or estate of the protected person and questions of title concerning assets of the estate.

SECTION 403. ORIGINAL PETITION FOR APPOINTMENT OR PROTECTIVE ORDER.

(a) The following may petition for the appointment of a conservator or for any other appropriate protective order:

(1) the person to be protected;

(2) an individual interested in the estate, affairs, or welfare of the person to be protected, including a parent, guardian, or custodian; or

(3) a person who would be adversely affected by lack of effective management of the property and business affairs of the person to be protected.

(b) The petition must set forth the petitioner's name, residence, current address if different, relationship to the respondent, and interest in the appointment or other protective order, and, to the extent known, state or contain the following with respect to the respondent and the relief requested:

(1) the respondent's name, age, principal residence, current street address, and, if different, the address of the dwelling where it is proposed that the respondent will reside if the appointment is made;

(2) if the petition alleges impairment in the respondent's ability to receive and evaluate information, a brief description of the nature and extent of the respondent's alleged impairment;

(3) if the petition alleges that the respondent is missing, detained, or unable to return to the United States, a statement of the relevant circumstances, including the time and nature of the disappearance or detention and a description of any search or inquiry concerning the respondent's whereabouts;

(4) the name and address of the respondent's:

(A) spouse, domestic partner, or companion; and

(B) adult children or, if the respondent has none, the respondent's parents and adult brothers and sisters or, if the respondent has none, at least one of the adults nearest in kinship to the respondent who can be found;

(5) the name and address of the person responsible for care or custody of the respondent;

(6) the name and address of any legal representative for the respondent;

(7) a general statement of the respondent's property with an estimate of its value, including any insurance or pension, and the source and amount of other anticipated income or receipts; and

(8) the reason why a conservatorship or other protective order is in the best interest of the respondent.

(c) If a conservatorship is requested, the petition must also set forth to the extent known:

(1) the name and address of any proposed conservator and the reason why the proposed conservator should be selected;

(2) the name and address of any person nominated as conservator by the respondent if the respondent has attained 14 years of age; and

(3) the type of conservatorship requested and, if an unlimited conservatorship, the reason why limited conservatorship is inappropriate or, if a limited conservatorship, the property to be placed under the conservator's control and any limitation on the conservator's powers and duties.

Although the person to be protected can petition for the appointment of a conservator, the person should instead investigate the use of a durable power of attorney. The petition should list names and addresses of the spouse, domestic partner or companion and adult siblings or if none, then at least one of the adult relatives nearest in kinship who can be found.

SECTION 404. NOTICE.

(a) A copy of the petition and the notice of hearing on a petition for conservatorship or other protective order must be served personally on the respondent, but if the respondent's whereabouts is unknown or personal service cannot be made, service on the respondent must be made by [substituted service] [or] [publication]. The notice must include a statement that the respondent must be physically present, inform the respondent of the respondent's rights at the hearing, and, if the appointment of a conservator is requested, include a description of the nature, purpose, and consequences of an appointment. A failure to serve the respondent precludes the court from granting the petition.

(b) In a proceeding to establish a conservatorship or for another protective order, the petitioner shall give notice of the hearing to all other persons listed in the petition. Failure to give notice under this subsection does not preclude the appointment of a conservator or the making of another protective order.

(c) A petitioner shall give notice of the hearing on a petition for an order after appointment of a conservator or making of another protective order and notice of the filing of an inventory, report, or plan of conservatorship, together with a copy of the petition or other document, to the protected person, if the protected person has attained 14 years of age and is not missing, detained, or unable to return to the United States, any conservator of the protected person's estate, and any other person as ordered by the court. The notice must be mailed within 14 days after the filing.

SECTION 405. ORIGINAL PETITION: MINORS; PRELIMINARIES TO HEARING.

(a) Upon the filing of a petition to establish a conservatorship or for another protective order for the reason that the respondent is a minor, the court shall set a date for hearing. If the court determines at any stage of the proceeding that the interests of the minor are or may be inadequately represented, it may appoint a lawyer to represent the minor, giving consideration to the choice of the minor if the minor has attained 14 years of age. The court may confer the powers and impose the duties of a guardian ad litem upon a lawyer appointed to represent a minor.

(b) While a petition to establish a conservatorship or for another protective order is pending, after preliminary hearing and without notice to others, the court may make orders to preserve and apply the property of the minor as may be required for the support of the minor or individuals who are dependent upon the minor, and may appoint a [master] to assist in that task.

The attorney should be aware of the potential for conflict of interest if serving as both the attorney for the minor and acting as a de facto guardian ad litem if the court were to confer the powers and imposes the duties of a guardian ad litem upon the attorney representing a minor. The court should be made aware of this potential for a conflict.

SECTION 406. ORIGINAL PETITION: PERSONS UNDER DISABILITY; PRELIMINARIES TO HEARING.

(a) Upon the filing of a petition for a conservatorship or other protective order for a respondent for reasons other than age, the court shall set a date for hearing. The court shall appoint a [visitor] unless the petition does not request the appointment of a conservator and the respondent is represented by a lawyer. The duties and reporting requirements of the [visitor] are limited to the relief requested in the petition. The [visitor] must be an individual having training or experience in the type of incapacity alleged.

(b) The court shall appoint a lawyer to represent the respondent in the proceeding if:

(1) requested by the respondent;

(2) recommended by the [visitor]; or

(3) the court determines that the respondent needs representation.

(c) The [visitor] shall:

(1) interview the respondent in person and explain to the respondent in a manner the respondent is able to understand, the substance of the petition and the nature, purpose, and effect of the proceeding;

(2) if the appointment of a conservator is requested, inform the respondent of the general powers and duties of a conservator and determine the respondent's views regarding the proposed conservator, the proposed conservator's powers and duties, and the scope and duration of the proposed conservatorship;

(3) inform the respondent of the respondent's rights, including the right to employ and consult with a lawyer at the respondent's own expense, and the right to request a court-appointed lawyer;

(4) interview the petitioner and the proposed conservator, if any; and

(5) make any other investigations the court directs.

(d) The [visitor] shall promptly file a report with the court which must include:

(1) a recommendation as to whether a lawyer should be appointed to represent the respondent;

(2) recommendations regarding the appropriateness of a conservatorship, including whether less restrictive means of intervention are available, the type of conservatorship, and, if a limited conservatorship, the powers and duties to be granted the limited conservator, and the assets over which the conservator should be granted authority;

(3) a statement of the qualifications of the proposed conservator, together with a statement as to whether the respondent approves or disapproves of the proposed conservator, and the powers and duties proposed or the scope of the conservatorship;

(4) a recommendation as to whether a professional evaluation or further evaluation is necessary; and

(5) any other matters the court directs.

(e) The court may also appoint a physician, psychologist, or other individual qualified to evaluate the alleged impairment to conduct an examination of the respondent.

(f) While a petition to establish a conservatorship or for another protective order is pending, after preliminary hearing and without notice to others, the court may make orders to preserve and apply the property of the respondent as may be required for the support of the respondent or individuals who are dependent upon the respondent, and may appoint a [master] to assist in that task.

Appointment of a visitor is mandatory when the respondent is not represented by counsel. Although a lawyer can be appointed as a visitor, the attorney's role is that of a visitor and not as the attorney for the respondent. The visitor serves as the information gathering arm of the court. If the relief sought is a protective order, the visitor's powers and duties should be limited to that of the relief sought in the protective order. When the relief sought is a conservatorship, the visitor has an expanded list of duties. The visitor's report contains information and recommendations to the court regarding the appropriateness of the conservatorship, whether lesser restrictive alternatives might meet the respondent's needs, recommendations about further evaluations, powers to be given the conservator and the appointment of counsel.

Appointment of counsel is mandated when requested by the respondent, recommended by the visitor or when the court determines the respondent needs representation. This is in keeping with the Probate Judges Standards

The National Probate Court Standards, Standard 3.3.4 provides

The probate court should require a court appointee to visit with the respondent in a guardianship petition to (1) explain the rights of the respondent; (2) investigate the facts of the petition; and (3) explain the circumstances and consequences of the action; the visitor should investigate the need for additional court appointments and should file a written report with the court promptly after the visit.

The court may order a professional evaluation of the respondent.

SECTION 407. CONFIDENTIALITY OF RECORDS. The written report of a [visitor] and any professional evaluation are confidential and must be sealed upon filing, but are available to:

(1) the court;

(2) the respondent without limitation as to use;

(3) the petitioner, the [visitor], and the petitioner's and respondent's lawyers, for purposes of the proceeding; and

(4) other persons for such purposes as the court may order for good cause.

SECTION 408. ORIGINAL PETITION: PROCEDURE AT HEARING.

(a) Unless excused by the court for good cause, a proposed conservator shall attend the hearing. The respondent shall attend and participate in the hearing, unless excused by the court for good cause. The respondent may present evidence and subpoena witnesses and documents, examine witnesses, including any court-appointed physician, psychologist, or other individual qualified to evaluate the alleged impairment, and the [visitor], and otherwise participate in the hearing. The hearing may be held in a location convenient to the respondent and may be closed upon request of the respondent and a showing of good cause.

(b) Any person may request permission to participate in the proceeding. The court may grant the request, with or without hearing, upon determining that the best interest of the respondent will be served. The court may attach appropriate conditions to the participation.

SECTION 409. ORIGINAL PETITION: ORDERS.

(a) If a proceeding is brought for the reason that the respondent is a minor, after a hearing on the petition, upon finding that the appointment of a conservator or other protective order is in the best interest of the minor, the court shall make an appointment or other appropriate protective order.

(b) If a proceeding is brought for reasons other than age, after a hearing on the petition, upon finding that a basis exists for a conservatorship or other protective order, the court shall make the least restrictive order consistent with its findings. The court shall make orders necessitated by the protected person's limitations and demonstrated needs, including appointive and other orders that will encourage the development of maximum self-reliance and independence of the protected person.

(c) Within 14 days after an appointment, the conservator shall mail a copy of the order of appointment, together with a statement of the right to seek termination or modification, to the protected person, if the protected person has attained 14 years of age and is not missing, detained, or unable to return to the United States, and to all other persons given notice of the petition.

(d) The appointment of a conservator or the entry of another protective order is not a determination of incapacity of the protected person.

The court, in granting the conservatorship, shall in its order, grant the conservator only those powers needed for the conservator to exercise. The court must ensure in its order that the protected person's self-reliance and independence are maximized.

SECTION 410. POWERS OF COURT.

(a) After hearing and upon determining that a basis for a conservatorship or other protective order exists, the court has the following powers, which may be exercised directly or through a conservator:

(1) with respect to a minor for reasons of age, all the powers over the estate and business affairs of the minor which may be necessary for the best interest of the minor and members of the minor's immediate family.

(2) with respect to an adult, or to a minor for reasons other than age, for the benefit of the protected person and individuals who are dependent on the protected person for support, all the powers over the estate and business affairs of the protected person which the protected person could exercise if an adult, present, and not under conservatorship or other protective order.

(b) Subject to the provisions of Section 110 relating to letters of office, the court may at any time limit the powers of a conservator otherwise conferred and may remove or modify any limitation.

SECTION 411. REQUIRED COURT APPROVAL.

(a) Express authorization of the court is required for a conservator to:

(1) make gifts, except as otherwise provided in Section 427(b);

(2) convey, release, or disclaim contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entireties;

(3) exercise or release a power of appointment;

(4) create a revocable or irrevocable trust of property of the estate, whether or not the trust extends beyond the duration of the conservatorship, or to revoke or amend a trust revocable by the protected person;

(5) exercise rights to elect options and change beneficiaries under insurance policies and annuities or surrender the policies and annuities for their cash value;

(6) exercise any right to an elective share in the estate of the protected person's deceased spouse and to renounce or disclaim any interest by testate or intestate succession or by transfer inter vivos; and

(7) make, amend, or revoke the protected person's will.

(b) A conservator, in making, amending, or revoking the protected person's will, shall comply with [the enacting jurisdiction's statute for executing wills].

(c) The court, in exercising or in approving a conservator's exercise of the powers listed in subsection (a), shall consider primarily the decision that the protected person would have made, to the extent that the decision can be ascertained. The court shall also consider:

(1) the financial needs of the protected person and the needs of individuals who are dependent on the protected person for support and the interest of creditors;

(2) possible reduction of income, estate, inheritance, or other tax liabilities;

(3) eligibility for governmental assistance;

(4) the protected person's previous pattern of giving or level of support;

(5) the existing estate plan;

(6) the protected person's life expectancy and the probability that the conservatorship will terminate before the protected person's death; and

(7) any other factors the court considers relevant.

(d) Without authorization of the court, a conservator may not revoke or amend a durable power of attorney of which the protected person is the principal. If a durable power of attorney is in effect, absent a court order to the contrary, a decision of the agent takes precedence over that of a conservator.

SECTION 412. PROTECTIVE ARRANGEMENTS AND SINGLE TRANSACTIONS.

(a) If a basis is established for a protective order with respect to an individual, the court, without appointing a conservator, may:

(1) authorize, direct, or ratify any transaction necessary or desirable to achieve any arrangement for security, service, or care meeting the foreseeable needs of the protected person, including:

(A) sale, mortgage, lease, or other transfer of property;

(B) purchase of an annuity;

(C) making a contract for life-time care, a deposit contract, or a contract for training and education; or

(D) addition to or establishment of a suitable trust[, including a trust created under the Uniform Custodial Trust Act]; and

(2) authorize, direct, or ratify any other contract, trust, will, or transaction relating to the protected person's property and business affairs, including a settlement of a claim, upon determining that it is in the best interest of the protected person.

(b) In deciding whether to approve a protective arrangement or other transaction under this section, the court shall consider the factors listed in Section 411(c).

(c) The court may appoint a [master] to assist in the accomplishment of any protective arrangement or other transaction authorized under this section. The [master] has the authority conferred by the order and shall serve until discharged by order after report to the court.

The settlement of a claim includes the settlement of a personal injury lawsuit brought on behalf of the minor.

SECTION 413. WHO MAY BE CONSERVATOR: PRIORITIES.

(a) Except as otherwise provided in subsection (d), the court in appointing a conservator shall consider persons otherwise qualified in the following order of priority:

(1) a conservator, guardian of the estate, or other like fiduciary appointed or recognized by an appropriate court of any other jurisdiction in which the protected person resides;

(2) a person nominated as conservator by the respondent, including the respondent's most recent nomination made in a durable power of attorney, if the respondent has attained 14 years of age and at the time of the nomination had sufficient capacity to express a preference;

(3) an agent appointed by the respondent to manage the respondent's property under a durable power of attorney;

(4) the spouse of the respondent;

(5) an adult child of the respondent;

(6) a parent of the respondent; and

(7) an adult with whom the respondent has resided for more than six months before the filing of the petition.

(b) A person having priority under subsection (a)(1), (4), (5), or (6) may designate in writing a substitute to serve instead and thereby transfer the priority to the substitute.

(c) With respect to persons having equal priority, the court shall select the one it considers best qualified. The court, acting in the best interest of the protected person, may decline to appoint a person having priority and appoint a person having a lower priority or no priority.

(d) An owner, operator, or employee of [a long-term care institution] at which the respondent is receiving care may not be appointed as conservator unless related to the respondent by blood, marriage, or adoption.

Priority for consideration of appointment as conservator is given first to a fiduciary such as a conservator or guardian, then to the respondent's appointee or respondent's agent under a durable power of attorney before preference is given to spouse or relatives. Anyone affiliated with a long-term care facility at which the respondent is receiving care is ineligible to be conservator absent a blood, marital or adoptive arrangement. Subsections (a)(4) and (6) allow someone who has been nominated as conservator to have a statutory preference when the court determines who should be appointed as conservator of the respondent. However, the person so designated has no authority to act without a court order and must follow the procedures for the establishment of a conservatorship. The process for appointing a guardian is much more detailed because of the need to protect the person in such circumstances and because there are other mechanisms available to the appointing individual to protect the property besides a conservatorship. However, in some circumstances, conservatorship may be necessary, so it is incumbent on the appointed guardian to determine whether there is a need for a conservatorship, and if so, petition for appointment. A person named in a writing, will or otherwise, should be appointed unless not qualified.

SECTION 414. PETITION FOR ORDER SUBSEQUENT TO APPOINTMENT.

(a) A protected person or a person interested in the welfare of a protected person may file a petition in the appointing court for an order:

(1) requiring bond or collateral or additional bond or collateral, or reducing bond;

(2) requiring an accounting for the administration of the protected person's estate;

(3) directing distribution;

(4) removing the conservator and appointing a temporary or successor conservator;

(5) modifying the type of appointment or powers granted to the conservator if the extent of protection or management previously granted is currently excessive or insufficient or the protected person's ability to manage the estate and business affairs has so changed as to warrant the action; or

(6) granting other appropriate relief.

(b) A conservator may petition the appointing court for instructions concerning fiduciary responsibility.

(c) On notice and hearing the petition, the court may give appropriate instructions and make any appropriate order.

SECTION 415. BOND. The court may require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the conservatorship according to law, with sureties as it may specify. Unless otherwise directed by the court, the bond must be in the amount of the aggregate capital value of the property of the estate in the conservator's control, plus one year's estimated income, and minus the value of assets deposited under arrangements requiring an order of the court for their removal and the value of any real property that the fiduciary, by express limitation of power, lacks power to sell or convey without court authorization. The court, in place of sureties on a bond, may accept collateral for the performance of the bond, including a pledge of securities or a mortgage of real property.

The bond may be set pursuant to an order entered on the court's own motion or a petition by the protected person or an individual interested in the protected person's welfare.

SECTION 416. TERMS AND REQUIREMENTS OF BOND.

(a) The following rules apply to any bond required:

(1) Except as otherwise provided by the terms of the bond, sureties and the conservator are jointly and severally liable.

(2) By executing the bond of a conservator, a surety submits to the jurisdiction of the court that issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator in which the surety is named as a party. Notice of any proceeding must be delivered or mailed to the surety at the address shown in the court records at the place where the bond is filed and to any other address then known to the petitioner.

(3) On petition of a successor conservator or any interested person, a proceeding may be brought against a surety for breach of the obligation of the bond of the conservator.

(4) The bond of the conservator may be proceeded against until liability under the bond is exhausted.

(b) A proceeding may not be brought against a surety on any matter as to which an action or proceeding against the primary obligor is barred.

SECTION 417. COMPENSATION AND EXPENSES. If not otherwise compensated for services rendered, a guardian, conservator, lawyer for the respondent, lawyer whose services resulted in a protective order or in an order beneficial to a protected person's estate, and any other person appointed by the court is entitled to reasonable compensation from the estate. Compensation may be paid and expenses reimbursed without court order, but, if the court later determines that the compensation is excessive or the expenses are inappropriate, the excessive or inappropriate amount must be repaid to the estate.

Compensation for services rendered or expenses incurred by those serving the respondent or representing the respondent or anyone else appointed by the court are paid from the estate without court order. Excessive or inappropriate payments must be repaid to the estate. If the estate is limited or inadequate, the estate would be divided among those entitled to compensation or reimbursement. The reasonableness of the compensation or expenses would be determined by looking at the size of the estate. It is contemplated that if the respondent is found to be indigent, compensation and expenses will be paid from the general fund of the county, probably at a fixed rate.

SECTION 418. GENERAL DUTIES OF CONSERVATOR; PLAN.

(a) A conservator, in relation to powers conferred by this [article], or implicit in the title acquired by virtue of the proceeding, shall act as a fiduciary and observe the standards of care applicable to a trustee.

(b) A conservator may exercise authority only as necessitated by the limitations of the protected person, and to the extent possible, encourage the person to participate in decisions, to act in the person's own behalf, and to develop or regain the ability to manage the person's estate and business affairs.

(c) Within 60 days after appointment, a conservator shall file with the appointing court a plan for managing, expending, and distributing the assets of the protected person's estate. The plan must be based on the actual needs of the person and take into consideration the best interest of the person. The conservator shall include in the plan steps to develop or restore the person's ability to manage the person's property, an estimate of the duration of the conservatorship, and projections of expenses and resources.

(d) In investing an estate, selecting assets of the estate for distribution, and invoking powers of revocation or withdrawal available for the use and benefit of the protected person and exercisable by the conservator, a conservator shall take into account any estate plan of the person known to the conservator and may examine the will and any other donative, nominative, or other appointive instrument of the person.

Under subsection (c), the conservator has to annually review the plan and file a written report with the court. In the written report, the conservator should indicate any changes or additions to the initial plan, and include a revised estimate as to the duration of the conservatorship and an updated projection of expenses and resources. The report should also include a narrative of the steps taken to develop or restore the person's ability to manage the person's property and progress made toward achieving that goal.

SECTION 419. INVENTORY; RECORDS.

(a) Within 60 days after appointment, a conservator shall prepare and file with the appointing court a detailed inventory of the estate subject to the conservatorship, together with an oath or affirmation that the inventory is believed to be complete and accurate as far as information permits.

(b) A conservator shall keep records of the administration of the estate and make them available for examination on reasonable request of an interested person.

The conservator has the authority that the protected person would have.

SECTION 420. REPORTS; APPOINTMENT OF [VISITOR]; MONITORING.

(a) A conservator shall report to the court for administration of the estate annually unless the court otherwise directs, upon resignation or removal, upon termination of the conservatorship, and at other times as the court directs. An order, after notice and hearing, allowing an intermediate report of a conservator adjudicates liabilities concerning the matters adequately disclosed in the accounting. An order, after notice and hearing, allowing a final report adjudicates all previously unsettled liabilities relating to the conservatorship.

(b) An report must state or contain:

(1) a listing of the assets of the estate under the conservator's control and a listing of the receipts, disbursements, and distributions during the reporting period;

(2) a listing of the services provided to the protected person; and

(3) any recommended changes in the plan for the conservatorship as well