Bill > S2876

Introduced Session

This bill revises the law pertaining to guardianship in order to provide stronger protections for wards and proposed wards, encourage ethical conduct by guardians, with a particular focus on guardians of the estate, and ensure that the laws pertaining to guardianship of the estate are consistent with the laws pertaining to conservatorships. Specifically, the bill makes the following substantive changes to strengthen the existing guardianship law: The bill requires a ward or proposed ward to be represented by counsel throughout the course of guardianship proceedings and, if a guardianship arrangement is established, until such time as the arrangement is terminated. The bill further requires counsel to personally interview the ward or proposed ward not more than 72 hours before each scheduled hearing related to guardianship and certify to the court that the interview has been performed. If the ward or proposed ward is, at any time, not represented by counsel and is unable to afford counsel, the bill would require the court to appoint counsel for the person. The bill further requires a court, in establishing a guardianship arrangement, to authorize only that level of intervention that the court finds to be least restrictive of the proposed ward's rights while being consistent with the protection of the ward's welfare and safety. The bill clarifies that the court may, at any time, expand or limit the powers of the guardian or revoke or revise any previously ordered expansion or limitation of powers. The bill also specifies that all actions undertaken by a guardian, whether by a guardian of the person or by a guardian of the estate, are to be undertaken with due regard to, and are to be consistent with, the ward's best interests and the ward's expressed wishes and preferences, to the extent that the ward is capable of expressing those wishes and preferences. Current law recognizes that a guardian of the estate holds title as trustee to the property of the ward. The bill would clarify that, whenever a court finds that a guardian has breached the guardian's fiduciary duties to the ward by taking an action that is outside the scope of the guardianship arrangement or that violates the rights of the ward, contradicts or violates the ward's best interests, or is otherwise deemed by the court to be improper for a fiduciary, the guardian of the estate will be liable to the ward or other interested parties for damage or loss resulting from breach of fiduciary duty to the same extent as a trustee of an express trust. Current law also requires a "guardian" to submit reports to the court, at time intervals ordered by the court, but it only imposes specific content requirements in association with reports that are submitted by guardians of the person; not guardians of the estate. The existing law also authorizes the court to waive the reporting requirement entirely, and it does not require the court to actually review any of the submitted reports. The bill would amend the law to: 1) require a report to be submitted by both the guardian of the person and the guardian of the estate at time intervals ordered by the court, but not less often than every six months during the course of the guardianship arrangement; 2) specify the content that must be included in reports submitted by guardians of the estate; 3) eliminate the court's discretion to waive the reporting requirement; and 4) require the court to review the reports submitted pursuant to the bill, on at least an annual basis, in order to ensure that each guardian is properly fulfilling the guardian's duties with respect to the ward or the ward's estate, or both, as the case may be, and is operating in a manner consistent with the ward's best interests. The bill would also authorize the court, at any time, and require the court, whenever its annual review of the submitted reports reveals that the guardian may not be properly fulfilling the guardian's duties or acting in the ward's best interests, to appoint a third-party to interview the ward and the guardian and undertake any other investigation the court may direct. The existing law requires a guardian of the estate to consider the recommendations of the ward's parent or the guardian of the ward's person when expending and distributing funds from the ward's estate; however, an incapacitated person often does not have a living parent, and the guardian of the person may be the same as the guardian of the estate, meaning that, under existing law, there will often be no available third-party to provide recommendations to the guardian of the estate. The bill would, therefore, amend the law to require the guardian of the estate to consider the recommendations of all of the following individuals: 1) the ward, to the extent that the ward is capable of making the recommendations; 2) if the ward is a minor, the ward's parent; 3) if the ward is an incapacitated person, the spouse and any adult children of the ward or, if there are no adult children, the person or persons who are closest in degree of kinship to the ward; 4) the guardian of the ward's person; and 5) the person or persons with whom the ward resides or, if the ward resides in an institution, the chief administrator of that institution. This change will make the law consistent with the law pertaining to conservatorship, which requires a conservator to consider the recommendations of all these persons. The bill also amends the existing guardianship law to modernize and clarify the existing language and paragraph and sentence structure and ensure that language is used consistently and in an active and direct voice throughout the law.

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Jim Beach (D)*, 

Introduced in the Senate, Referred to Senate Health, Human Services and Senior Citizens Committee (on 09/14/2020)