ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 4508

(By Mr. Speaker, Mr. Chambers, and Delegates Douglas,

Gallagher, Trump and Kessel)


[Passed March 12, 1994; in effect ninety days from passage.]




AN ACT to repeal article eleven, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to repeal article ten-a, chapter forty-four of said code; and to further amend said code by adding thereto a new chapter, designated chapter forty-four-a, relating to the appointment of guardians and conservators for persons in need of protection.
Be it enacted by the Legislature of West Virginia:

That article eleven, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that article ten-a, chapter forty-four of said code be repealed; and that said code be further amended by adding thereto a new chapter, designated chapter forty-four-a, to read as follows:
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND

CONSERVATORSHIP ACT.

ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.

§ 44A-1-1. Short title and legislative findings.

This chapter shall be known and may be cited as the "West Virginia Guardianship and Conservatorship Act."

The Legislature finds that section six, article eight of the Constitution of the state of West Virginia gives it the discretionary authority to pass legislation which "...provides that all matters of probate, the appointment and qualification of personal representatives, guardians, committees and curators, and the settlements of their accounts..." be under the exclusive jurisdiction of circuit courts. The Legislature further finds and declares that the use of the word "all" does not require an interpretation that the Legislature must place every aspect of such matters with circuit courts, but, that because of the discretionary authority given, the Legislature may transfer, from time to time, only those matters which it believes would be better served under the jurisdiction of circuit courts.
The Legislature hereby further finds and declares that legal proceedings requiring a tribunal to determine whether persons should be appointed to manage the personal or financial affairs of individuals deemed mentally incompetent, mentally retarded or mentally handicapped involve considerations of constitutionally protected rights which can best be resolved within the circuit courts of this state.
§ 44A-1-2. Determinations and appointments under prior law.

(a) Any person determined to be "mentally incompetent", "mentally retarded" or "mentally handicapped" and for such reason deemed to be in need of a guardian or committee pursuant to any order entered and in effect prior to the effective date of this chapter is deemed to be a "protected person" within the meaning of this chapter, from and after its effective date, unless any such determination be revoked or otherwise modified.

(b) Any person heretofore appointed to serve as a committee for an incompetent person and any person appointed to serve as a guardian for a mentally retarded or for a mentally handicapped person, is, as of the effective date of this chapter, deemed to be: (1) A guardian, within the meaning of this chapter, if the order appointing such person provides that the person so appointed has responsibility only for the personal affairs of a mentally incompetent, mentally retarded or mentally handicapped person; (2) a conservator, within the meaning of this chapter, if the order appointing such person provides that the person so appointed had responsibility only for managing the estate and financial affairs of a mentally incompetent, mentally retarded or mentally handicapped person; or (3) a guardian and a conservator, within the meaning of this chapter, if the order appointing such person does not set forth limitations of responsibility for both the personal affairs and the financial affairs of mentally incompetent, mentally retarded or mentally handicapped person.
(c) From and after the effective date of this chapter, the circuit courts shall have exclusive jurisdiction of all matters involving determinations of mental incompetency, mental retardation or mental handicap, including the jurisdiction of any proceedings pending as of such effective date. All orders entered prior to the effective date of this chapter in such cases shall remain in full force and effect until terminated, revoked or modified as provided herein.
(d) All persons heretofore appointed to serve as a committee or as a guardian shall retain their authority, powers and duties in such capacity, except to the extent that their authority, powers and duties as such guardian or conservator under the provisions of this chapter are more specifically enumerated, in which event such committee or guardian shall have the authority, powers and duties so enumerated.
Wherever in the constitution, the code of West Virginia, acts of the Legislature or elsewhere in law a reference is made to a committee for an incompetent person, such reference shall be read, construed and understood to mean guardian and/or conservator as defined in this chapter.
(e) The provisions of this chapter providing for the presentation of reports by guardians and the presentation of accountings by conservators shall not be retroactively applied, and applicable law in effect prior to the effective date of this chapter shall control as to any reports or accountings to be made or filed for any period prior to the effective date of this chapter.
(f) As used in this section, "prior law" refers to article eleven, chapter twenty-seven of this code, relating to the appointment of committees for mentally incompetent persons, and to article ten-a, chapter forty-four, relating to the appointment of guardians for mentally retarded and mentally handicapped persons, as such articles were in effect prior to the effective date of this chapter.
§ 44A-1-3. Advance directives.

The existence of an advance directive such as a living will, medical power of attorney or durable power of attorney, duly executed by a person alleged to be a "protected person", as defined in section four of this article, or the prior appointment of a surrogate decision-maker for the protected person may eliminate, limit or supersede the need for the assistance or protection of a guardian or conservator, and any person so appointed shall be the first preferred nominee for guardian or conservator, as set forth in section eight, article two of this chapter.

§ 44A-1-4. Definitions.

As used in this chapter, unless a different meaning is clearly required by the context:

(1) "Conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of a protected person, and, where the context plainly indicates, the term "conservator" shall mean or include a "limited conservator" or a "temporary conservator."
(2) "Guardian" means a person appointed by the court who is responsible for the personal affairs of a protected person, and, where the context plainly indicates, the term "guardian" shall mean or include a "limited guardian" or a "temporary guardian."
(3) "Protected person" means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment, alone, will not be considered sufficient evidence that the individual is a protected person within the meaning of this subsection.
(4) "Interested person" means (A) an individual who is the subject of a guardianship or conservatorship proceeding, (B) a guardian or conservator of a protected person, and (C) any other person with an actual and substantial interest in the proceeding, either generally or as to a particular matter, as distinguished from a person who has only a nominal, formal, or technical interest in or connection with the proceeding.
(5) "Limited conservator" means a person appointed by the court who has only those responsibilities for managing the estate and financial affairs of a protected person, as specified in the order of appointment.
(6) "Limited guardian" means one appointed by the court who has only those responsibilities for the personal affairs of a protected person, as specified in the order of appointment.
(7) "Person" means, generally, a natural person, any corporation, association, partnership or other business entity, any political subdivision or other public agency, or any estate, trust or other collection of properties to which the law attributes the capacity of having rights or duties.
(8) "Living will" means a living will existing and duly executed in accordance with the provisions of section three, article thirty, chapter sixteen of this code.
(9) "Medical power of attorney" means a power of attorney existing and duly executed in accordance with the provisions of section six, article thirty-a, chapter sixteen of this code.
(10) "Surrogate decision-maker" means an individual identified as such by an attending physician in accordance with the provisions of section seven, article thirty-b, chapter sixteen of this code.
§ 44A-1-5. Rules of civil procedure.

The West Virginia "Rules of Civil Procedure for Trial Courts of Record" shall apply to all proceedings instituted under the provisions of this chapter except as is otherwise specifically provided.

§ 44A-1-6. Relationship to other laws.

Nothing in this chapter may be construed to supersede the provisions of the Uniform Veterans' Guardianship Act, article fifteen, chapter forty-four of this code, nor any provisions of this code regarding testamentary guardianships or appointments of guardians for minors.

§ 44A-1-7. Transfer of venue following appointment.

Following the appointment of a full or limited guardian or conservator, the court with jurisdiction over the proceeding may, upon petition, order the transfer of jurisdiction to another circuit court in this state or to an appropriate tribunal in another state if it appears to the court that the interests of the protected person will be best served by such transfer.

§ 44A-1-8. Persons and entities qualified to serve as guardian or conservator.

(a) Any adult individual may be appointed to serve as a guardian, a conservator, or both, upon determination by the court that the individual is capable of providing an active and suitable program of guardianship or conservatorship for the protected person: Provided, That such individual is not employed by or affiliated with any public agency, entity or facility which is providing substantial services or financial assistance to the protected person.

(b) Any nonprofit corporation chartered in this state and licensed as set forth in subsection (c) of this section or a public agency that is not a provider of health care services to the protected person may be appointed to serve as a guardian, a conservator, or both: Provided, That such entity is capable of providing an active and suitable program of guardianship or conservatorship for the protected person and is not otherwise providing substantial services or financial assistance to the protected person.
(c) A nonprofit corporation chartered in this state may be appointed to serve as a guardian or conservator or as a limited or temporary guardian or conservator for a protected person if it is licensed to do so by the secretary of health and human resources. The secretary shall propose legislative rules, for promulgation in accordance with the provisions of chapter twenty-nine-a of this code, for the licensure of such nonprofit corporations and shall provide for the review of such licenses. The rules shall, at a minimum, establish standards to assure that any corporation licensed for such guardianship or conservatorship:
(1) Has sufficient fiscal and administrative resources to perform the fiduciary duties and make the reports and accountings required by this chapter;
(2) Will respect and maintain the dignity and privacy of the protected person;
(3) Will protect and advocate the legal human rights of the protected person;
(4) Will assure that the protected person is receiving appropriate educational, vocational, residential and medical services in the setting least restrictive of the individual's personal liberty;
(5) Will encourage the protected person to participate to the maximum extent of his or her abilities in all decisions affecting him or her and to act in his or her own behalf on all matters in which he or she is able to do so;
(6) Does not provide educational vocational, residential or medical services to the protected person; and
(7) Has written provisions in effect for the distribution of assets and for the appointment of temporary guardians and conservators for any protected persons it serves in the event the corporation ceases to be licensed by the department of health and human resources or otherwise becomes unable to serve as guardian.
(d) A duly licensed nonprofit corporation that has been appointed to serve as a guardian or as a conservator pursuant to the provisions of this article is entitled to compensation in accordance with the provisions of section thirteen of this article.
(e) Except as provided in section thirteen of this article, no guardian or conservator nor any officer, agent, director, servant or employee of any such guardian or conservator shall do business with or in any way profit, either directly or indirectly, from the estate or income of any protected person for whom services are being performed by such guardian or conservator.
(f) Any bank or trust company authorized to exercise trust powers or to engage in trust business in this state may be appointed as a conservator if the court determines it is capable of providing suitable conservatorship for the protected person. (g) The department of adult protective services or a department designated by the secretary of health and human resources may be appointed to serve as a guardian, a conservator, or both, for individuals under its care or to whom it is providing services or financial assistance, but such appointment may only be made if there is no other individual, nonprofit corporation, bank or trust company, or other public agency that is equally or better qualified and willing to serve.
(h) The sheriff of the county in which a court has assumed jurisdiction may be appointed as a guardian, a conservator, or both.
(i) Other than a bank or trust company authorized to exercise trust powers or to engage in trust business in this state, a person who has an interest as a creditor of a protected person shall not be eligible for appointment as either a guardian or conservator of the protected person.
§ 44A-1-9. Posting of bonds; actions on bond.

(a) The court shall have the discretion to determine whether the posting of a bond by a guardian, once appointed, is necessary.

(b) The court shall require the posting of a bond by a conservator upon appointment except where the conservator is excused from posting bond under the provisions of section eighteen, article four of chapter thirty-one-a of this code. In determining the amount or type of a conservator's bond, the court shall consider:
(1) The value of the personal estate and annual gross income and other receipts within the conservator's control;
(2) The extent to which the estate has been deposited under an arrangement requiring an order of court for its removal;
(3) Whether an order has been entered waiving the requirement that accountings be filed and presented or permitting accountings to be presented less frequently than annually;
(4) The extent to which the income and receipts are payable directly to a facility responsible for or which has assumed responsibility for the care or custody of the protected person;
(5) The extent to which the income and receipts are derived from state or federal programs that require periodic accountings;
(6) Whether a guardian has been appointed, and if so, whether the guardian has presented reports as required; and
(7) Whether the conservator was appointed pursuant to a nomination which requested that bond be waived.
(c) Any required bond shall be with such surety and in such amount and form as the court may order, and the court may order additional bond or reduce the bond whenever the court finds that such modification is in the best interests of the protected person or of the estate. The court may allow a property bond in lieu of a cash bond.
(d) In case of a breach of any condition placed on the bond of any guardian or conservator, an action may be instituted by any interested person for the use and benefit of the protected person, for the estate of the protected person or for the beneficiaries of such estate.
(e) The following requirements and provisions apply to any bond which the court may require under this section:
(1) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the guardian/conservator and with each other.
(2) By executing an approved bond of a guardian or conservator, the surety consents to the jurisdiction of the court in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party respondent. Notice of any proceeding must be delivered to the surety or mailed by registered or certified mail to the address of the surety listed with the court in which the bond is filed. If the party initiating a proceeding possesses information regarding the address of a surety which would appear to be more current than the address listed with the court, notice shall also be mailed by registered or certified mail to the last address of the surety known to the party initiating the proceeding.
(3) On petition of a successor guardian or conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the preceding guardian or conservator.
(4) The bond of the guardian or conservator is not void after any recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(f) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the guardian or conservator is barred by adjudication or limitation.
§ 44A-1-10. Mandatory education.

(a) Any individual appointed to serve as a guardian or conservator shall receive educational material or complete mandated educational training, unless otherwise directed by the court.

(b) Upon a determination that the individual who is the subject of proceedings under this chapter is a protected person, as defined in section four of this article, the required educational training shall be completed within thirty days of the court's determination. Upon completion, the appointed guardian or conservator shall provide an affidavit to the court, certifying that such educational training has been completed, and the court shall forthwith issue the order of appointment in accordance with the provisions of section thirteen, article two of this chapter.
(c) The secretary of health and human resources, no later than one year after the effective date of this act, shall develop and implement an educational program for guardians and conservators. The secretary shall also propose legislative rules for promulgation, in accordance with the provisions of chapter twenty-nine-a of this code, regarding mandatory educational training for guardians and conservators. Such educational training may include the following:
(1) Written materials;
(2) Recorded information, whether audio, visual or both; or
(3) A combination of the above.
§ 44A-1-11. Guardian or conservator who resides out of state to designate resident agent.

A guardian or conservator who is or who later becomes a nonresident of this state shall file with the clerk of the circuit court in the county in which the proceeding is pending or where he or she was appointed guardian/conservator a designation of an agent residing in this state to accept service of process. Such filing shall be made promptly following the change of residence.

§ 44A-1-12. Appointment of guardian or conservator acting in another state.

(a) A guardian, conservator or like fiduciary appointed in another state may be appointed to serve as a guardian or conservator in this state upon presentation of a petition therefor, proof of appointment, and a certified copy of such portion of the court record in the other state as the court in this state may require.

(b) Upon proper notice of hearing to all persons entitled to such notice under section six, article two of this chapter, a hearing shall be held, at which the court may, in its discretion, determine that the appointment in another state has sufficiently fulfilled the requirements of this chapter. Upon such determination, appointment will be ordered forthwith, and the guardian/conservator shall immediately assume all responsibilities and duties required under the provisions of this chapter.
§ 44A-1-13. Compensation.

(a) Any guardian or conservator, whether full, temporary, or limited, is entitled to reasonable compensation as allowed by the court from the estate, including reimbursement for costs advanced. The frequency and amount of all compensation must be approved by the court.

(b) No guardian or conservator may use funds out of the estate in defense of an allegation of wrongdoing made on behalf of the protected person against the guardian or conservator.
(c) Attorneys appointed to represent individuals under this article shall be paid a reasonable rate of compensation from the estate, as approved by the circuit court, or, in the event the court determines that the estate is devoid of funds for the payment of such fees, the attorney shall be paid at a rate prescribed by and from funds allocated by the supreme court of appeals.
ARTICLE 2. PROCEDURE FOR APPOINTMENT OF GUARDIANS AND CONSERVATORS FOR PROTECTED PERSONS.

§ 44A-2-1. Filing of petition; jurisdiction; fees.

(a) A petition for the appointment of a guardian or conservator shall be filed with the clerk of the circuit court in the county in which the alleged protected person resides or, if the alleged protected person has been admitted to a health care or correctional facility, in the county in which that facility is located.
(b) The circuit court in which the proceeding is first commenced shall have exclusive jurisdiction unless that court determines that a transfer of venue would be in the best interests of the person alleged to need protection.
(c) The fee for filing a petition shall be seventy dollars, payable upon filing to the circuit clerk, all of which shall be retained by the circuit clerk. The person bringing the petition shall be responsible for fees for filings of the petition and other papers, for service of process, and for copies of court documents and transcripts. In the event that a guardian and/or conservator is appointed by the court, such fees shall be reimbursed to the individual who filed the petition from the protected person's estate, if funds are available. Any person who is pecuniarily unable to pay such fees and costs as set forth in article one, chapter fifty-nine of this code, and article two, chapter fifty-one of this code, will not be required to pay said fees and costs.
§ 44A-2-2. Who may file petition; contents.

(a) A petition for the appointment of a guardian, a conservator, or both, may be filed by the individual alleged to be a protected person, by a person who is responsible for or has assumed responsibility for the individual's care or custody, by the facility providing care to the individual, by the person that the individual has nominated as guardian or conservator, or by any other interested person, including, but not limited to, the department of health and human resources.

(b) A petition for the appointment of a guardian, a conservator, or both, shall state the petitioner's name, place of residence, post office address, and relationship to the alleged protected person, and shall, to the extent known as of the date of filing, include the following:
(1) The alleged protected person's name, date of birth, place of residence or location, and post office address;
(2) The names and post office addresses of the alleged protected person's nearest relatives, in the following order:
(i) The spouse and children, if any; or if none
(ii) The parents and brothers and sisters, if any; or if none
(iii) The nearest known relatives who would be entitled to succeed to the person's estate by intestate succession as set forth in article one, chapter forty-two of this code.
Once a relative or several relatives have been identified in one of the aforementioned categories, relatives in a lower category do not have to be listed in the petition.
(3) The name, place of residence or location, and post office address of the individual or facility that is responsible for or has assumed responsibility for the person's care or custody;
(4) The name, place of residence or location, and post office address of any person designated as a surrogate decision-maker for the alleged protected person, or of any representative or representatives designated under a durable power of attorney, medical power of attorney, or living will, of which the alleged protected person is the principal, and the petitioner shall attach a copy of any such documents, if available;
(5) Whether the person's incapacity will prevent attendance at the hearing and the reasons therefor;
(6) The type of guardianship or conservatorship requested and the reasons for the request;
(7) The proposed guardian or conservator's name, post office address and, if the proposed guardian or conservator is an individual, the individual's age, occupation and relationship to the alleged protected person;
(8) The name and post office address of a guardian nominated by the alleged protected person if different from the proposed guardian or conservator, and, if the person nominated as a guardian or conservator is an individual, the individual's age, occupation and relationship to the alleged protected person;
(9) The name and post office address of any guardian or conservator currently acting, whether in this state or elsewhere;
(10) If the appointment of a limited guardian is requested, the specific areas of protection and assistance to be included in the order of appointment; and
(11) If the appointment of a limited conservator is requested, the specific areas of management and assistance to be included in the order of appointment.
§ 44A-2-3. Evaluation report.

The petition shall include a report by a licensed physician or psychologist evaluating the condition of the alleged protected person which shall contain, to the best information and belief of its signatory or signatories:

(1) A description of the nature, type and extent of the person's incapacity, including the person's specific cognitive and functional limitations;
(2) Evaluations of the person's mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills;
(3) If the appointment of a guardian is requested, a description of the services, if any, currently being provided for the person's health, care, safety, habilitation, or therapeutic needs, and a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan and the reasons therefor;
(4) An opinion as to whether the appointment of a guardian or conservator is necessary, the type and scope of the guardianship or conservatorship needed, and the reasons therefor;
(5) If the petition states that the incapacity of the alleged protected person will prevent attendance at the hearing, an opinion as to whether such attendance would be detrimental to the person's health, care, or safety;
(6) If the alleged protected person will attend the hearing, a statement as to whether the individual is on any medications that may affect the person's actions, demeanor and participation at the hearing;
(7) The signature of the evaluating physician or psychologist, and the signatures of any other individuals who performed, supervised or reviewed the assessments or examinations upon which the report is based or who made substantial contributions toward the report's preparation; and
(8) The date or dates of the assessments and examinations upon which the report is based.
The court, for good cause shown, may grant leave to file the petition without an evaluation report. If such leave is granted, the court shall order the appropriate assessments or examinations and shall order that a report be prepared and filed with the court.
§ 44A-2-4. Statement of financial resources.

Prior to a hearing for a conservatorship, the petitioner shall file a statement of the financial resources of the alleged protected person which shall, to the extent known, list the person's social security number, the approximate value of the person's real and personal property, and the person's anticipated annual gross income and other receipts.

§ 44A-2-5. Confidentiality.

Upon filing of a petition requesting appointment of a guardian or conservator, all pleadings, exhibits and other documents contained in the court file shall be considered confidential and not open for public inspection, either during the pendency of the case or after the case is closed. However, the contents of the court file shall be open to inspection and copying by the parties, their designees, and their attorneys.

§ 44A-2-6. Notice of hearing.

(a) Upon the filing of the petition and evaluation report, the court shall promptly issue a notice fixing the date, hour and location for a hearing to take place within sixty days.

(b) The alleged protected person shall be personally served with the notice, a copy of the petition, and the evaluation report not less than fourteen days before the hearing. The person may not waive notice, and a failure to properly notify the person shall be jurisdictional.
(c) A copy of the notice, together with a copy of the petition, shall be mailed by certified mail return receipt requested, by the petitioner, at least fourteen days before the hearing to all individuals seven years of age or older and to all entities whose names and post office addresses appear in the petition. A copy of certified mail return receipts shall be filed in the office of the circuit clerk on or before the date of hearing.
(d) The notice shall include a brief statement in large print of the purpose of the proceedings, and shall inform the alleged protected person of the right to appear at the hearing, the right to an attorney and the right to object to the proposed appointment. Additionally, the notice shall include the following statement in large print:
POSSIBLE CONSEQUENCES OF A COURT FINDING

THAT YOU ARE INCAPACITATED

At the hearing you may lose many of your rights. A guardian may be appointed to make personal decisions for you. A conservator may be appointed to make decisions concerning your property and finances. The appointment may affect control of how you spend your money, how your property is managed and controlled, who makes your medical decisions, where you live, whether you are allowed to vote and other important rights.
§ 44A-2-7. Appointment of counsel.

(a) The court shall appoint legal counsel for the alleged protected person. In appointing legal counsel, the court shall consider any known preferences of the alleged protected person.

(b) Legal counsel shall have the following major areas of concern: (1) Whether or not a guardian is needed; (2) limitation of the role of the guardian to the protected person's specific needs -- e.g., personal supervisor, business affairs, medical consent only; (3) if needed, assure that the person or entity with the greatest interest in the protected person is appointed; (4) if needed, assure the adequacy of the bond; and (5) if needed, assure consideration of proper placement.
(c) In responsibly pursuing the major areas of concern set forth in subsection (b) of this section, counsel may perform any or all of the following: (1) Promptly notify the individual and any caretaker of the appointment of counsel; (2) contact any caretaker, review the file and all other relevant information; (3) maintain contact with the client throughout the case and assure that the client is receiving services as are appropriate to the client's needs; (4) contact persons who have or may have knowledge of the client; (5) interview all possible witnesses; (6) pursue discovery of evidence, formal and informal; (7) file appropriate motions; (8) obtain independent psychological examinations, medical examinations, home studies, as needed; (9) advise the client on the ramifications of the proceeding and inquire into the specific interests and desires of the individual; (10) subpoena witnesses to the hearing; (11) prepare testimony for cross-examination of witnesses to assure relevant material is introduced; (12) review all medical reports; (13) apprise the decision maker of the individual's desires; (14) produce evidence on all relevant issues; (15) interpose objections to inadmissible testimony and otherwise zealously represent the interests and desires of the client; (16) raise appropriate questions to all nominations for guardian and the adequacy of the bond; (17) take all steps to limit the scope of guardianship to the individual's actual needs, and make all arguments to limit the amount of the intervention; (18) ensure that the court considers all issues as to the propriety of the individual's current or intended placement and that the limitations are set forth in the order; (19) inform the client of the right to appeal, and file an appeal to an order when appropriate; and (20) file a motion for modification of an order or a petition for a writ of habeas corpus if a change of circumstances occurs which warrants a modification or termination.
(d) The protected person shall have the right to an independent expert of his or her choice to perform an evaluation and present evidence.
§ 44A-2-8. Nomination of guardian or conservator of alleged protected person; preferences.

Any person who has sufficient capacity to form a preference may at any time nominate any individual or entity to serve as his or her guardian or conservator. The nomination may be made in writing, by an oral request to the court, or may be proved by any other competent evidence. The designation of a representative under a valid medical power of attorney, a living will or of a surrogate decision-maker shall constitute competent evidence of the nomination of a guardian, and the designation of an attorney under a valid durable power of attorney shall constitute competent evidence of the nomination of a conservator. The court shall appoint the one so nominated if the nominee is otherwise eligible to act and would serve in the best interests of the alleged protected person.

§ 44A-2-9. Hearing on petition to appoint.

(a) The court may hear the petition for the appointment of a guardian or conservator or may designate the mental hygiene commissioner in the circuit to serve as the trier of fact at the hearing on the petition. If a mental hygiene commissioner is appointed, a mental hygiene commitment proceeding may not be held simultaneously with a proceeding for the appointment of a guardian or conservator. The designated mental hygiene commissioner shall submit written findings of fact and recommendations to the court upon conclusion of the hearing. The court may accept or reject the recommendations of the mental hygiene commissioner. Only the court may enter an order appointing a guardian or conservator.

(b) The hearing may be held at such convenient place as the court or mental hygiene commissioner directs, including the place where the alleged protected person is located. The hearing shall be closed to the public. The proposed guardian or conservator shall attend the hearing except for good cause shown. Any individual or entity may apply for permission to observe or participate at the hearing, and the court or mental hygiene commissioner shall grant the request if reasonably satisfied that the applicant's participation would be in the best interests of the alleged protected person.
(c) The alleged protected person is entitled to attend the hearing, to oppose the petition, to be represented by an attorney, to present evidence, to compel the attendance of witnesses and to confront and cross-examine all witnesses. If the alleged protected person is present at the hearing, the court or mental hygiene commissioner shall verbally inform the person of such rights, of the contents of the petition, and of the purpose and legal effect of the appointment of a guardian or conservator. The hearing shall not proceed if the alleged protected person is not present unless there is an affidavit of a physician presented to the court, qualified expert testimony to warrant a finding that the presence of the individual is not possible due to a physical inability or that such presence would significantly impair his or her health, or evidence that the person refuses to appear.
(d) The standard of proof to be applied in determining whether the alleged protected person is a person for whom a guardian or conservator should be appointed is clear and convincing evidence.
(e) The court shall make specific findings of fact and conclusions of law in support of any orders entered.
(f) Upon request, a transcript of the proceedings of appointment shall be provided for the purposes of an appeal.
§ 44A-2-10. Factors to be considered by court.

(a) The court alone shall determine whether a guardian or conservator should be appointed, the type thereof, and the specific areas of protection, management and assistance to be granted. Any determination that the individual is a protected person shall contain a specific finding that the person meets the definition set forth in section four, article one of this chapter. In making the determination, the court shall consider the suitability of the proposed guardian or conservator, the limitations of the alleged protected person, the development of the person's maximum self-reliance and independence, the availability of less restrictive alternatives including advance directives, and the extent to which it is necessary to protect the person from neglect, exploitation, or abuse.

(b) Except as provided in section eight of this article, the selection of the guardian or conservator shall be in the discretion of the court. The court shall select the individual or entity best qualified to act in the best interest of the protected person, after consideration of the proposed guardian's or conservator's geographic location, familial or other relationship with such person, ability to carry out the powers and duties of the office, commitment to promoting such person's welfare, any potential conflicts of interest, and the recommendations of the spouse, the parents, children or other interested relatives, whether made by will or otherwise. The court may only appoint one guardian and one conservator and it need not appoint the same individual or entity to serve as both guardian and conservator.
(c) A guardianship or conservatorship appointed under this article shall be the least restrictive possible, and the powers shall not extend beyond what is absolutely necessary for the protection of the individual.
 § 44A-2-11. Limited guardianships.
(a) A limited guardian may be appointed for an individual who is deemed to be a protected person in need of a guardian within the meaning of section four, article one of this chapter, but is capable of addressing some of the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs.
(b) A limited guardian may be appointed for an individual who otherwise is deemed to be a protected person within the meaning of this chapter, and who resides in a supervised setting such that the individual's health, care, safety, habilitation and therapeutic needs are being attended to without interference, but whose impairment warrants the appointment of a substitute decision-maker for purposes of the ultimate decisions of the location of residence and major medical decisions, and the like.
(c) A limited guardian may be appointed for the sole purpose of providing for an individual who otherwise is deemed to be a protected person within the meaning of this chapter, and whose health, care, safety, habilitation and therapeutic needs are being attended to in a supervised residence, but whose only need is for a substituted decision-maker in the event of a major medical decision.
§ 44A-2-12. Limited conservatorships.

(a) A limited conservator may be appointed for an individual deemed to be a protected person in need of a conservator within the meaning of section four, article one of this chapter, but whose property or financial affairs are so limited that there is only one or more designated contexts for which a limitation of the individual's legal rights is warranted.

(b) No conservator shall be appointed for a person whose only source or major source of income and property is from the Social Security Administration and who has a representative payee functioning in the best interest of the individual, or for such other person whose opportunity for regular expenditure of resources is so limited that the only practical effect of the appointment of a conservator would be to deprive the individual of the right of daily decisions involving minor personal matters.
§ 44A-2-13. Order of appointment; notice.

(a) An order appointing a guardian or conservator may only be issued by the court upon the following:

(1) The guardian or conservator has subscribed to and filed an oath promising to faithfully perform the duties of the office in accordance with all provisions of this chapter;
(2) Posting of any bond, if required; and
(3) The completion of mandatory education, as required under the provisions of section ten, article one of this chapter, unless waived by the court.
(b) In addition to the findings of fact and conclusions of law required in section nine of this article, the order shall include the specific areas of protection or assistance granted in the case of a guardian and the specific areas of management and assistance granted in the case of a conservator.
(c) Within fourteen days following the entry of an order of appointment, the guardian or conservator shall mail a copy of the order of appointment, together with a brief statement in large print of rights to seek an appeal for modification or termination, to the protected person and to all individuals and entities given notice of the petition.
§ 44A-2-14. Temporary guardians and conservators.

(a) The court may appoint a temporary guardian or temporary conservator, or both, under this section upon a finding that an immediate need exists, that adherence to the procedures otherwise set forth in this chapter for the appointment of a guardian or conservator may result in significant harm to a person or the estate, and that no other individual or entity appears to have authority to act on behalf of the person, or that the individual or entity with authority to act is unwilling, or has ineffectively or improperly exercised the authority.

(b) A temporary guardian or temporary conservator shall have only those powers and duties which are specifically set forth in the order of appointment. The appointment of a temporary guardian or temporary conservator shall expire within forty-five days unless extended by the court for an additional forty-five days for good cause shown.
(c) An appointment of a temporary guardian or temporary conservator shall be made upon timely and adequate notice to the protected person after appointment of counsel and after all other protections have been afforded, in accordance with due process of law, including any other conditions as the court may order. The protected person may petition the court for a substitution of a temporary guardian or temporary conservator at any time.
(d) Within five days following the entry of an order of appointment, a temporary guardian or temporary conservator shall mail a copy of the order of appointment, together with a brief statement in large print of rights to seek an appeal for modification or termination, to the person for whom the appointment was made and to all individuals and entities that would be entitled to notice of hearing on a petition for appointment as set forth in section six of this article.
§ 44A-2-15. Notice of hearing on petitions subsequent to the appointment of a guardian or conservator.

Except as otherwise provided herein or as ordered by the court for good cause shown, notice of hearing on a petition for an order subsequent to the appointment of a guardian or conservator shall be personally served upon the protected person and mailed to all attorneys of record, to those individuals who would be entitled to notice of the filing of an original petition to appoint, to any facility that is responsible for the care or custody of the protected person, to the guardian or conservator, if the guardian or conservator is not the petitioner, and to such other individuals or entities as the court may order. Unless otherwise ordered by the court, the notice shall be personally served upon the protected person or mailed by the petitioner by certified mail return receipt requested to other parties entitled to notice at least fourteen days prior to the hearing and shall be accompanied by a copy of the petition and other relevant documents. A copy of the certified mail return receipts shall be filed in the office of the circuit clerk on or before the date of the hearing. If deceased, notice to a protected person shall be sent to his or her last known address or to his or her successors in interest, if known.

ARTICLE 3. ADMINISTRATION OF GUARDIANSHIPS AND CONSERVATORSHIPS.

§ 44A-3-1. Duties of guardian of protected person.

A guardian of a protected person shall be responsible for obtaining provision for and making decisions with respect to the protected person's support, care, health, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of commitment or custody, to determine the protected person's residence. A guardian shall maintain sufficient contact with the protected person to know of the protected person's capabilities, limitations, needs, and opportunities, and such contact shall not be less frequent than one visit every six months. A guardian shall be required to seek prior court authorization to change the protected person's residence to another state, to terminate or consent to a termination of the protected person's parental rights, to initiate a change in the protected person's marital status, to deviate from a protected person's living will or medical power of attorney, or to revoke or amend a durable power of attorney executed by the protected person.

A guardian shall exercise authority only to the extent necessitated by the protected person's limitations, and, where feasible, shall encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage personal affairs. A guardian shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence.
§ 44A-3-2. Reports by guardian of protected person.

Any guardian appointed pursuant to the provisions of this chapter shall file periodic reports, in accordance with section eleven of this article.

(a) The guardian's report shall include:
(1) A description of the current mental, physical, and social condition of the protected person;
(2) A description of the protected person's living arrangements during the reported period;
(3) The medical, educational, vocational, and other professional services provided to the protected person and the guardian's opinion as to the adequacy of the protected person's care;
(4) A summary of the guardian's visits with and activities on behalf of the protected person;
(5) A statement of whether the guardian agrees with the current treatment or habilitation plan;
(6) A recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship;
(7) Any other information requested by the court or useful in the opinion of the guardian;
(8) The compensation requested and the reasonable and necessary expenses incurred by the guardian; and
(9) A verification signed by the guardian stating that all of the information contained in the report is true and correct to the best of his or her knowledge.
(b) The court may order the guardian to attend a hearing on the report by motion of the court, or upon the petition of any interested person. A report of the guardian may be incorporated into and made a part of the accounting of the conservator.
§ 44A-3-3. Distributive duties and powers of the conservator of a protected person.

(a) A conservator of a protected person, without the necessity of seeking prior court authorization, shall apply the income and principal of the estate as needed for the protected person's support, care, health, and if applicable, habilitation, education or therapeutic needs. A conservator shall also apply the income and principal as needed for the support of any legal dependents who are unable to support themselves and who are in need of support.

(b) A conservator, when making distributions, shall exercise authority only to the extent necessitated by the protected person's limitations, and shall, where feasible, encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage the estate and his or her financial affairs. A conservator shall also consider the size of the estate, the probable duration of the conservatorship, the protected person's accustomed manner of living, other resources known to the conservator to be available, and the recommendations of the guardian.
(c) A conservator shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence.
(d) A conservator may not revoke or amend a durable power of attorney which has been executed by the protected person without the prior approval of the court.
§ 44A-3-4. Management powers and duties of conservator.

A conservator, in managing the estate, shall act as a fiduciary and serve in the best interests of the protected person and shall, in addition, have the following powers which may be exercised without prior court authorization except as otherwise specifically provided:

(1) To invest and reinvest the funds of the estate in accordance with a standard of prudent investing;
(2) To collect, hold, and retain assets of the estate, including land in another state, and to receive additions to the estate;
(3) To continue or participate in the operation of any unincorporated business or other enterprise;
(4) To deposit estate funds in a state or federally insured financial institution, including one operated by the conservator;
(5) To manage, control and sell at public or private sale, for cash or for credit, the personal property of the estate;
(6) To perform a contract entered into by a protected person, including a contract to convey or purchase real or personal property;
(7) To renew a lease entered into by a protected person as lessor or lessee with or without an option to purchase, including leases for real and personal property and leases and other arrangements for exploration and removal of minerals or other natural resources notwithstanding that the lease or other arrangement may extend beyond the term of the conservatorship;
(8) To borrow money and to place, renew or extend an encumbrance upon any property, real or personal, including the power to borrow from a financial institution operated by the conservator, subject to the provisions of section twelve of this article;
(9) To abandon property when, in the opinion of the conservator, it is valueless or is so encumbered or in such condition that it is of no benefit to the estate;
(10) To make ordinary or extraordinary repairs or alterations in buildings or other property and to grant easements for public or private use, or both, with or without consideration;
(11) To vote a security, in person or by general or limited proxy, and to consent to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other enterprise;
(12) To sell or exercise stock subscription or conversion rights and to pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;
(13) To hold a security in the name of a nominee or in other form without disclosure of the conservatorship, so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with a security so held;
(14) To insure the assets of the estate against damage or loss, and the guardian and conservator against liability with respect to third persons;
(15) To allow, pay, reject, contest or settle any claim by or against the estate or protected person by compromise or otherwise, and to release, in whole or in part, any claim belonging to the estate to the extent it is uncollectible;
(16) To pay taxes, assessments and other expenses incurred in the collection, care and administration of the estate;
(17) To pay any sum distributable for the benefit of the protected person or for the benefit of a legal dependent by paying the sum directly to the distributee, to the provider of goods and services, to any individual or facility that is responsible for or has assumed responsibility for care and custody, to a distributee's custodian under a Uniform Gifts or Transfers Act of any applicable jurisdiction, or by paying the sum to the guardian of the protected person or, in the case of a dependent, to the dependent's guardian or conservator;
(18) To employ persons, including attorneys, accountants, investment advisors, or agents; to act upon their recommendations without independent investigation; to delegate to them any power, whether ministerial or discretionary; and to pay them reasonable compensation;
(19) To maintain life, health, casualty and liability insurance for the benefit of the protected person, or legal dependents;
(20) To manage the estate following the termination of the conservatorship and until its delivery to the protected person, or successors in interest; and
(21) To execute and deliver all instruments and to take all other actions that will accomplish or facilitate the exercise of the powers conferred in accordance with the provisions of this chapter.
§ 44A-3-5. Sale or mortgage of real estate.

A conservator shall not sell real estate and shall not be authorized to mortgage any real estate until thirty days after persons entitled to notice of hearing of the original petition are notified, and the court has considered any objections and determined whether additional bond is required.

§ 44A-3-6. Protective arrangements.

Upon petition therefor, the court may authorize a conservator to enter into a protective arrangement, to disburse the estate of the protected person and to petition for termination of the conservatorship. "Protective arrangements" include, but are not limited to, the payment, delivery, deposit, or retention of funds or property; the sale, mortgage, lease, or other transfer of property; the execution of an annuity contract, a contract for life care, a deposit contract, or a contract for training and education; and the addition to or establishment of a suitable trust.

§ 44A-3-7. Estate planning.

(a) Upon petition, the court may authorize a conservator to exercise the following powers over the estate or financial affairs of a protected person which the protected person could have exercised if he or she were not subject to conservatorship:

(1) To make gifts to charity or other donees and to convey interests in any property;
(2) To provide support for individuals who are not legal dependents;
(3) To amend or revoke trusts or to create or make additions to revocable or irrevocable trusts even though such trusts may extend beyond the life of the protected person;
(4) To disclaim, renounce, or release any interest or power, or to exercise any power;
(5) To exercise options or change the beneficiary on or withdraw the cash value of any life insurance policy, annuity policy, or retirement plan;
(6) To elect against the estate of the protected person's spouse;
(7) To withdraw funds from multiple party bank accounts, to change the beneficiary on or dispose of any payable or transfer on death arrangement, or to dispose of any property specifically devised or bequeathed under the protected person's will.
(b) The court, in authorizing the conservator to exercise any of the above powers, shall primarily consider the decision which the protected person would have made, to the extent that the decision can be ascertained. The court shall also consider the financial needs of the protected person and the needs of legal dependents for support, possible reduction of income, estate, inheritance or other tax liabilities, eligibility for governmental assistance, the protected person's prior pattern of giving or level of support, the existing estate plan, the protected person's probable life expectancy, the probability that the conservatorship will terminate prior to the protected person's death, and any other factors which the court believes pertinent.
(c) No order may be entered under this section unless notice of hearing is first given to the protected person, to the beneficiaries of the protected person's estate plan and to the individuals who would succeed to the protected person's estate by intestate succession. No trust may be amended or revoked without prior notice of hearing to the trustee thereof.
(d) In making a determination under this section, the court shall be entitled to compel the production of documents, including the protected person's will.
(e) Nothing in this section shall be construed to create a duty on the part of a conservator to revise a protected person's estate plan.
§ 44A-3-8. Conservator's inventory.

(a) Within ninety days following entry of an order of appointment, a conservator shall file with the court an inventory of the real and personal estate of the protected person which has come into the conservator's possession or knowledge. The inventory shall include, with reasonable detail, a listing of each item of the estate, its approximate fair market value and the type and amount of encumbrance to which it is subject. If any real or personal estate comes into the possession or knowledge of the conservator subsequent to the filing of the initial inventory, the conservator shall either amend the inventory or list the same in the next accounting required to be filed with the court, as described in section eight of this article.

(b) A conservator shall mail a copy of the inventory to the individuals and entities who received notice of hearing, as specified in section six, article two of this chapter, no later than fourteen days following its presentation of the inventory.
§ 44A-3-9. Accountings by conservator.

Any conservator appointed pursuant to the provisions of this chapter shall file periodic accountings as provided for under section eleven of this article.

(a) The accounting shall include:
(1) A listing of the receipts, disbursements and distributions from the estate under the conservator's control during the period covered by the accounting;
(2) A listing of the estate;
(3) The services being provided to the protected person;
(4) The significant actions taken by the conservator during the reporting period;
(5) A recommendation as to the continued need for conservatorship and any recommended change in the scope of the conservatorship.
(6) Any other information requested by the court or useful in the opinion of the conservator;
(7) The compensation requested and the reasonable and necessary expenses incurred by the conservator; and
(8) A verification signed by the conservator stating that all of the information contained in the accounting is true and correct to the best of his or her knowledge.
(b) The court may order the conservator to attend a hearing on the accounting by motion of the court or upon the petition of any interested person. An accounting by a conservator may be incorporated into and made a part of the report of the guardian.
§ 44A-3-10. Waiver of accountings.

(a) The court, upon petition therefor, may waive the requirement that accountings be filed or may permit accountings to be filed less frequently than annually if it determines that the expense involved or burden placed on the conservator in preparing and presenting annual accountings outweighs the benefit and protection afforded thereby to the protected person.

(b) In determining whether accountings may be waived or filed less frequently than annually, the court shall consider:
(1) The relationship of the conservator to the protected person;
(2) The value of the estate and annual gross income and other receipts within the conservator's control;
(3) The amount of the bond;
(4) The extent to which the estate has been deposited under an arrangement requiring an order of court for its removal;
(5) The extent to which the income and receipts are payable directly to a facility responsible for the care or custody of the protected person;
(6) The extent to which the income and receipts are derived from state or federal programs that require periodic accountings;
(7) Whether a guardian has been appointed, and if so, whether the guardian has presented reports as required; and
(8) Any other factors which the court deems appropriate.
 § 44A-3-11. Filing of reports and accountings.
(a) Reports of guardians and accountings of conservators, as described in this article shall be filed with the circuit clerk of the county in which appointed, within sixty days following the first anniversary of the appointment and:
(1) At least annually thereafter;
(2) When the court orders additional reports or accountings to be filed;
(3) When the guardian or conservator resigns or is removed; and
(4) When the appointment of the guardian or conservator is terminated, except that in the case of a guardian, the court may determine that there is no need for a report upon such termination; and in the case of a conservator, no accounting will be required if the persons entitled to the estate consent thereto.
(b) A guardian or conservator may elect to file a periodic report or accounting on a calendar-year basis; however, in no event may such a report or accounting cover a period of more than one year. A calendar-year report or accounting shall be filed with the circuit clerk no later than the fifteenth day of April of the succeeding year.
§ 44A-3-12. Self-dealing and conflicts of interest.

(a) Unless court approval is first obtained, or unless such relationship existed prior to the appointment and was disclosed in the petition for appointment, a conservator may not:

(1) Have any interest, financial or otherwise, directly or indirectly, in any business transaction or activity with the conservatorship;
(2) Acquire an ownership, possessors, security, or other pecuniary interest adverse to the protected person, or to the estate, or an interest in an asset in which the protected person also owns an interest;
(3) Directly or indirectly purchase, lease, or sell any property from or to the protected person or from or to the estate;
(4) Borrow or loan funds to the protected person or to the estate, except for reasonable advances without interest for the protection of the estate;
(5) Compromise or otherwise modify a debt owed by the conservator to the protected person or to the estate;
(6) Employ individuals or entities who were associated with or employed by the conservator prior to the appointment; or
(7) Directly or indirectly purchase, lease or sell property or services from or to any entity in which the conservator or a relative of the conservator is an officer, director, shareholder or proprietor, or owns a significant financial interest.
(b) Any activity prohibited by this section is voidable by the court upon the petition of any interested person or upon a motion of the court. This section does not limit any other remedies which may be available for a breach by the conservator or others of their fiduciary duty to the protected person or to the estate.
§ 44A-3-13. Personal liability of guardians.

(a) A guardian shall have a fiduciary duty to the protected person for whom he or she was appointed guardian and may be held personally liable for a breach of that duty.

(b) A guardian shall not be liable for the acts of the protected person, unless the guardian is personally negligent, nor shall a guardian be required to expend personal funds on behalf of the protected person.
§ 44A-3-14. Personal liability of conservators.

(a) A conservator shall have a fiduciary duty to the protected person for whom he or she was appointed conservator and may be held personally liable for a breach of that duty.

(b) Unless otherwise provided in the contract, a conservator is not personally liable on a contract entered into in a fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the representative capacity or to identify the estate in the contract.
(c) A conservator is personally liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if personally negligent.
(d) Claims based upon contracts entered into by a conservator in a fiduciary capacity, obligations arising from ownership or control of the estate, or torts committed in the course of administration of the estate, may be asserted against the estate by proceeding against the conservator in a fiduciary capacity, whether or not the conservator is personally liable therefor.
(e) A successor conservator is not personally liable for the contracts or actions of a predecessor. However, a successor conservator is not immunized from liability for a breach of fiduciary duty committed by a predecessor if the successor learns of the breach and fails to take reasonable corrective action.
§ 44A-3-15. Protection for persons conducting business with guardians and conservators.

Any individual or entity who, in good faith, conducts business with a guardian or conservator as to any matter or transaction is entitled to presume that the guardian or conservator is properly authorized to act. The fact that an individual or entity conducts business with a guardian or conservator with knowledge of the representative capacity does not alone require an inquiry into the authority of the guardian or conservator, except that any such individual or entity shall be charged with knowledge of restrictions which may appear in an order appointing the guardian or conservator. No individual or entity shall be required to see to the proper application of any funds or property paid to or delivered to a conservator.

§ 44A-3-16. Court modification of powers and duties of guardian or conservator.

Nothing in this chapter shall prohibit the court from limiting the powers which may otherwise be exercised by a guardian or conservator without prior court authorization, from authorizing transactions which might otherwise be prohibited, or from granting additional powers to a guardian or conservator. Nothing in this chapter shall prohibit a guardian or conservator from seeking court authorization, instructions or ratification for any actions, proposed actions, or omissions to act.

ARTICLE 4. TERMINATION, REVOCATION AND MODIFICATION OF APPOINTMENTS.

§ 44A-4-1. Termination of appointment of guardian or conservator.

The appointment of a guardian or conservator shall terminate upon the death, resignation, or removal of the guardian or conservator or upon the termination of the guardianship or conservatorship. A termination of an appointment does not affect the liability of a guardian or conservator for prior acts or the responsibility of a conservator to account for the estate of the protected person.

§ 44A-4-2. Appointment of successor guardian or conservator.

The court may appoint a successor guardian or conservator prior to or at the time of a termination. A successor guardian appointed prior to a termination shall be immediately empowered to assume the duties of office but shall be required to file the requisite oath, post any required bond, and complete mandatory education, if required by the court, within thirty days of the termination of the predecessor. A successor guardian or conservator shall succeed to the powers and duties of the predecessor unless otherwise ordered by the court.

§ 44A-4-3. Resignation of guardian or conservator.

A guardian or conservator shall petition the court for permission to resign at least sixty days prior to the effective date of resignation. The court shall grant the permission to resign, except for good cause, and, pursuant to the provisions of section two of this article, shall appoint a suitable successor who is willing to serve.

§ 44A-4-4. Removal of guardian or conservator.

Upon the petition of any interested person or upon the motion of the court, the court may remove a guardian or conservator or order other appropriate relief if the guardian or conservator:

(1) Is acting under an order entered pursuant to material misrepresentation or mistake, whether fraudulent or innocent;
(2) Has an incapacity or illness, including substance abuse, which affects his or her fitness to perform or is adjudged to be a protected person in this or in any other jurisdiction;
(3) Is convicted of a crime which reflects upon his or her fitness to perform;
(4) Wastes or mismanages the estate, unreasonably withholds distributions or makes distributions in a negligent or reckless manner or otherwise abuses powers or fails to discharge duties;
(5) Neglects the care and custody of the protected person or legal dependents;
(6) Has an interest adverse to the faithful performance of duties such that there is a substantial risk that the guardian or conservator will fail to properly perform those duties;
(7) Fails to file reports or accountings when required, or fails to comply with any court order;
(8) Fails to file sufficient bond after being ordered by the court to do so;
(9) Avoids service of process or notice;
(10) Becomes incapable of performing duties; or
(11) Is not acting in the best interests of the protected person or of the estate, with or without fault. The court may appoint a temporary guardian pending a determination on a petition for removal of a guardian or conservator.
§ 44A-4-5. Termination of guardianship or conservatorship of protected person - When authorized.

A guardianship or conservatorship of a protected person shall terminate upon the death of the protected person, whenever jurisdiction is transferred to another state or if ordered by the court following a hearing on the petition of any interested person.

§ 44A-4-6. Petition for termination, revocation or modification; standards.

(a) Upon a petition filed pursuant to this section, or upon a petition for a writ of habeas corpus, duly filed, the court may terminate the appointment of a guardian or conservator.

(b) Upon petition by the protected person, by the guardian or conservator, by any other interested person, or upon the motion of the court, the court may terminate a guardianship, conservatorship, or both, or modify the type of appointment or the areas of protection, management or assistance previously granted. Such termination, revocation or modification may be ordered if:
(1) The protected person is no longer in need of the assistance or protection of a guardian or conservator;
(2) The extent of protection, management or assistance previously granted is either excessive or insufficient considering the current need therefor;
(3) The protected person's understanding or capacity to manage the estate and financial affairs or to provide for his or her health, care or safety has so changed as to warrant such action;
(4) No suitable guardian or conservator can be secured who is willing to exercise the assigned duties; or
(5) It is otherwise in the best interest of the protected person.
(c) In making a determination under this section, the court shall appoint legal counsel for the protected person and may appoint such other persons whom it deems qualified to make such evaluations as it shall determine appropriate.
§ 44A-4-7. Hearing on petition to terminate, revoke or modify.

A hearing on a petition to terminate, revoke or modify shall be conducted with the same notice and in the same manner and the protected person shall have the same rights as the protected person would obtain at a hearing on a petition for the appointment of a guardian or conservator. The protected person and the guardian or conservator shall attend the hearing except for good cause shown.