Changes the laws regarding consumer products so that certain individuals and businesses have access to product repair information from certain manufacturers

SECOND REGULAR SESSION HOUSE BILL NO. 2041 103RD GENERAL ASSEMBL Y INTRODUCED BY REPRESENT A TIVE TERR Y . 4175H.01I JOSEPH ENGLER, Chief Clerk AN ACT T o repeal sections 475.010, 475.040, 475.050, 475.060, 475.061, 475.075, 475.082, 475.1 15, 475.120, and 475.361, RSMo, and to enact in lieu thereof ten new sections relating to guardianships and conservatorships. Be it enacted by the General Assembly of the state of Missouri, as follows: Section A. Sections 475.010, 475.040, 475.050, 475.060, 475.061, 475.075, 475.082, 2 475.1 15, 475.120, and 475.361, RSMo, are repealed and ten new sections enacted in lieu 3 thereof, to be known as sections 475.010, 475.040, 475.050, 475.060, 475.061, 475.075, 4 475.082, 475.1 15, 475.120, and 475.361, to read as follows: 475.010. When used in this chapter , unless otherwise apparent from the context, the 2 following terms mean: 3 (1) "Adult", a person who has reached the age of eighteen years; 4 (2) "Claims", liabilities of the protectee arising in contract, in tort or otherwise, before 5 or after the appointment of a conservator , and liabilities of the estate which arise at or after the 6 adjudication of disability or after the appointment of a conservator of the estate, including 7 expenses of the adjudication and of administration. The term does not include demands or 8 disputes regarding title of the protectee to specific assets alleged to be included in the estate; 9 (3) "Conservator", one appointed by a court to have the care and custody of the estate 10 of a minor or a disabled person. A "limited conservator" is one whose duties or powers are 11 limited. The term "conservator", as used in this chapter , includes limited conservator unless 12 otherwise specified or apparent from the context; 13 (4) "Conservator ad litem", one appointed by the court in which particular litigation is 14 pending regarding the management of financial resources on behalf of a minor , a disabled EXPLANA TION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law . Matter in bold-face type in the above bill is proposed language. 15 person, or an unborn person in that particular proceeding or as otherwise specified in this 16 chapter; 17 (5) "Custodial parent", the parent of a minor who has been awarded sole or joint 18 physical custody of such minor , or the parent of an incapacitated person who has been 19 appointed as guardian of such person, by an order or judgment of a court of this state or of 20 another state or territory of the United States, or if there is no such order or judgment, the 21 parent with whom the minor or incapacitated person primarily resides; 22 (6) "Disabled" or "disabled person", one who is: 23 (a) Unable by reason of any physical, mental, or cognitive condition to receive and 24 evaluate information or to communicate decisions to such an extent that the person lacks 25 ability to manage the person's financial resources; or 26 (b) The term disabled or disabled person, as used in this chapter includes the terms 27 partially disabled or partially disabled person unless otherwise specified or apparent from the 28 context; 29 (7) "Eligible person" or "qualified person", a natural person, social service agency , 30 corporation or national or state banking or ganization qualified to act as guardian of the person 31 or conservator of the estate pursuant to the provisions of section 475.055; 32 (8) "Guardian", one appointed by a court to have the care and custody of the person of 33 a minor or of an incapacitated person. A "limited guardian" is one whose duties or powers are 34 limited. A "standby guardian" is one approved by the court to temporarily assume the duties 35 of guardian of a minor or of an incapacitated person under section 475.046. The term 36 guardian, as used in this chapter , includes limited guardian and standby guardian unless 37 otherwise specified or apparent from the context; 38 (9) "Guardian ad litem", one appointed by a court, in which particular litigation is 39 pending on behalf of a minor , an incapacitated person, a disabled person, or an unborn person 40 in that particular proceeding or as otherwise specified in this code; 41 (10) "Guardianship classification", classifications of guardianship that include 42 the following: 43 (a) "General guardianship", a guardianship in which a guardian ad litem is 44 appointed to a person who is found by a court of competent jurisdiction to be disabled 45 or a guardian is appointed to a person who is found by a court of competent jurisdiction 46 to be totally or partially incapacitated because of a physical, cognitive, or mental 47 condition. Wi th r espect to the guardianship order and the exercise of power by the 48 guardian or guardian ad litem, the guardian or guardian ad litem appointed may 49 pursue a course of action or an alternative that allows the person to live, learn, and 50 work with minimum res trictions, as deemed appr opriate based on the incapacitated or 51 disabled person's physical, cognitive, or mental condition and financial means ; HB 2041 2 52 (b) "Specialized guardianship", a guardianship in which a guardian ad litem is 53 appointed to a person who is found by a court of competent jurisdiction to be disabled 54 or a guardian is appointed to a person who is found by a court of competent jurisdiction 55 to be totally or partially incapacitated because of a physical, cognitive, or mental 56 condition and a medical condition that requi res specialized medical care, tr eatment, 57 support, supervision, habilitation, or maintenance and without which the person's life, 58 health, welfare, or safety is in imminent danger . A guardian or guardian ad litem 59 appointed under a specialized guardianship may pursue a course of action or an 60 alternative that allows the incapacitated or disabled person to live, learn, and work with 61 minimum res trictions considering the person's physical, cognitive, mental, medical, or 62 other health care -rel ated condition and financial means; 63 (c) "For ensic guardianship", a guardianship in which a guardian ad litem is 64 appointed to a person who is found by a court of competent jurisdiction to be disabled 65 or a guardian is appointed to a person who is found by a court of competent jurisdiction 66 to be totally or partially incapacitated because of a physical, cognitive, or mental 67 condition, but also: 68 a. Has a substantial criminal history of serious offenses; 69 b. Is on supervised or unsupervised prob ation or par ole; 70 c. Is curr ently under a court order req uiring or pr ohibiting a specified act or 71 action; 72 d. Is r equir ed to regist er as a sex offender; or 73 e. Has demonstrated substantial cause to believe the person is a danger to 74 himself, herself, or others or is likely to commit an offense or violate any term or 75 condition of his or her pr obation or paro le or any court order . 76 77 Under a for ensic guardianship, the guardianship shall operate as set forth under section 78 475.120; 79 (1 1) "Habilitation", a process of treatment, training, care, or specialized attention that 80 seeks to enhance and maximize the ability of a person with an intellectual disability , a mental 81 illness, a cognitive disability , or a developmental disability to cope with the environment and 82 to live as determined by the person as much as possible, as is appropriate for the person 83 considering his or her physical , cognitive, and mental condition and financial means or as 84 otherwise necessary or req uire d by a specialized guardianship or for ensic guardianship ; 85 [ (1 1) ] (12) "Incapacitated person", one who is unable by reason of any physical, 86 mental, or cognitive condition to receive and evaluate information or to communicate 87 decisions to such an extent that the person, even with appropriate services and assistive 88 technology , lacks capacity to manage the person's essential requirements for food, clothing, HB 2041 3 89 shelter , safety or other care such that serious physical injury , illness, or disease is likely to 90 occur . The term incapacitated person as used in this chapter includes the term partially 91 incapacitated person unless otherwise specified or apparent from the context; 92 [ (12) ] (13) "Interested persons", spouses, children, parents, adult members of a ward's 93 or protectee's family , creditors or any others having a property right or claim against the estate 94 of a protectee being administered, trustees of a trust of which the ward or protectee is a 95 beneficiary , agents of a durable power of attorney for a ward or protectee, and children of a 96 protectee who may have a property right or claim against or an interest in the estate of a 97 protectee. This meaning may vary at dif ferent stages and dif ferent parts of a proceeding and 98 shall be determined according to the particular purpose and matter involved; 99 [ (13) ] (14) "Least restrictive alternative", with respect to the guardianship order and 100 the exercise of power by the guardian and consistent with the guardianship classification , 101 a course of action or an alternative that allows the incapacitated person to live, learn, and 102 work with minimum restrictions on the person, as are appropriate for the person considering 103 his or her physical , cognitive, medical, and mental condition and financial means. Least 104 restrictive alternative also means , taking into consideration the guardianship classification 105 and appr opriateness for the person, choosing the decision or approach that: 106 (a) Places the least possible restriction on the person's personal liberty and exercise of 107 rights and that promotes the greatest possible inclusion of the person into his or her 108 community , as is appropriate for the person considering his or her physical , cognitive, 109 medical, and mental condition and financial means and his or her guardianship 110 classification ; and 111 (b) Is consistent with meeting the person's essential requirements for health, safety , 112 habilitation, welfare, life, treatment, and recovery and protecting the person from abuse, 113 neglect, unnatural death, and financial exploitation; 114 [ (14) ] (15) "Manage financial resources", either those actions necessary to obtain, 115 administer , and dispose of real and personal property , intangible property , business property , 116 benefits, income or any assets, or those actions necessary to prevent waste, loss or dissipation 117 of property , or those actions necessary to provide for the care and support of such person or 118 anyone legally dependent upon such person by a person of ordinary skills and intelligence 119 commensurate with his or her training and education; 120 [ (15) ] (16) "Minor", any person who is under the age of eighteen years; 121 [ (16) ] (17) "Parent", the biological or adoptive mother or father of a child whose 122 parental rights have not been terminated under chapter 21 1, including: 123 (a) A person registered as the father of the child by reason of an unrevoked notice of 124 intent to claim paternity under section 192.016; HB 2041 4 125 (b) A person who has acknowledged paternity of the child and has not rescinded that 126 acknowledgment under section 193.215; and 127 (c) A person presumed to be the natural father of the child under section 210.822; 128 [ (17) ] (18) "Partially disabled person", one who is unable by reason of any physical, 129 mental, or cognitive condition to receive and evaluate information or to communicate 130 decisions to such an extent that such person lacks capacity to manage, in part, his or her 131 financial resources; 132 [ (18) ] (19) "Partially incapacitated person", one who is unable by reason of any 133 physical, mental, or cognitive condition to receive and evaluate information or to 13 4 communicate decisions to the extent that such person lacks capacity to meet, in part, 135 essential requirements for food, clothing, shelter , safety , or other care without court-ordered 136 assistance; 137 [ (19) ] (20) "Protectee", a person for whose estate a conservator or limited conservator 138 has been appointed or with respect to whose estate a transaction has been authorized by the 139 court under section 475.092 without appointment of a conservator or limited conservator; 140 [ (20) ] (21) "Seriously ill", a significant likelihood that a person will become 141 incapacitated or die within twelve months; 142 [ (21) ] (22) "Social service agency", a charitable or ganization or ganized and 143 incorporated as a not-for- profit corporation under the laws of this state and which qualifies as 144 an exempt org anization within the meaning of Section 501(c)(3), or any successor provision 145 thereto of the federal Internal Revenue Code; 146 [ (22) ] (23) "Standby guardian", one who is authorized to have the temporary care and 147 custody of the person of a minor or of an incapacitated person under the provisions of section 148 475.046; 149 [ (23) ] (24) "T reatment", the prevention, amelioration or cure of a person's physical , 150 medical, cognitive, intellectual, developmental, and mental illnesses or incapacities; 151 [ (24) ] (25) "W ard", a minor or an incapacitated person for whom a guardian, limited 152 guardian, or standby guardian has been appointed. 475.040. If it appears to the court, acting on the petition of the guardian as set forth 2 under section 475.120 , the conservator , the respondent or of a ward over the age of fourteen, 3 or on its own motion, at any time before the termination of the guardianship or 4 conservatorship, that the proceeding was commenced in the wrong county , or that the 5 domicile of the ward or protectee has changed to another county , or in case of conservatorship 6 of the estate that it would be for the best interest of the ward or disabled person and his estate, 7 the court may order the proceeding with all papers, files and a transcript of the proceedings 8 transferred to the probate division of the circuit court of another county . The court to which 9 the transfer is made shall take jurisdiction of the case, place the transcript of record and HB 2041 5 10 proceed to the final settlement of the case as if the appointment originally had been made by 11 it. 475.050. 1. Notwithstanding any pr ovision of law , before appointing any other 2 eligible person as guardian of an incapacitated person, or conservator of a disabled person, the 3 court shall [ consider the suitability of appointing any of ] appoint one of the following 4 persons, listed in the order of priority , who are qualified under section 475.055, are 5 suitable, and appear to be willing to serve: 6 (1) If the incapacitated or disabled person is, at the time of the hearing, able to make 7 and communicate a reasonable choice, any eligible person nominated by the person; 8 (2) Unless otherwise pro hibited by law , any eligible person nominated in a durable 9 power of attorney executed by the incapacitated or disabled person, or in an instrument in 10 writing signed by the incapacitated or disabled person and by two witnesses who signed at the 11 incapacitated or disabled person's request, before the inception of the person's incapacity or 12 disability; 13 (3) The spouse, parents, adult children, adult brothers and sisters and other close adult 14 relatives of the incapacitated or disabled person or any person nominated by a pr evious 15 guardian, provi ded that the guardian is in good standing with the court ; 16 (4) Any other eligible person or , with respect to the estate only , any eligible 17 or ganization or corporation, nominated in a duly probated will of such a spouse or relative. 18 2. Consistent with subsection 4 of section 475.120 or section 475.343, when 19 making its decision re garding whom to appoint as guardian of an incapacitated person, 20 the court shall not include the financial reso urces of the prospective guardian in 21 determining who is an eligible person under subsection 1 of this section. 22 3. If the incapacitated person is to r eside with the pro spective guardian and a 23 complaint is made against the pr ospective guardian claiming the guardian is unsuitable 24 because the guardian res ides in substandard housing that pr esents a dangerous or 25 insanitary condition for the incapacitated person and such condition would jeopardize 26 the incapacitated person's health, safety , welfare, or life, the court shall not disqualify 27 the pr ospective guardian unless it is prov ed that the substandard housing exists and is 28 the re sult of the pr ospective guardian's willful negligence. The court shall cause the 29 department of health and senior services to investigate and file a r eport with the court 30 on its findings befor e the court makes a determination regar ding whom to appoint as 31 guardian. 32 4. If an incapacitated person curr ently res ides in or will res ide in any dwelling 33 other than with the pr ospective guardian and a complaint is filed with the court that 34 either the curren t or the prospective dwelling is substandard and present s a dangerous 35 or insanitary condition that would jeopardize the incapacitated person's life, health, HB 2041 6 36 safety , or welfar e, the court shall cause the department of health and senior services or 37 department of mental health to investigate and file a rep ort with the court on its 38 findings , for which the court shall give weight when determining whom to appoint as 39 guardian. 40 5. Substandard housing includes, but is not limited to, any existing or 41 pr ospective cir cumstance or situation that places the incapacitated person in jeopardy 42 of being physically , sexually , or emotionally abused or neglected or killed because of the 43 willful negligence to pr event or corr ect the cir cumstance or situation by the eligible 44 person under subsection 1 of this section. 45 6. The court shall not deny a petition for guardianship because: 46 (1) The petitioner res ides in a low-income dwelling or low-income housing 47 district or are a; 48 (2) The petitioner's financial income is the res ult of any disability that qualifies 49 him or her for any type of Social Security income; 50 (3) Of the petitioner's employment wages; or 51 (4) The petitioner is unemployed at the time of petitioning the court for 52 guardianship. 53 7. Consistent with the rights given to wards under subdivision (5) of subsection 1 54 of section 475.361, the court shall consider the wishes of the incapacitated person as to 55 whom the incapacitated person wishes to res ide with and wher e the incapacitated 56 person wishes to res ide when determining the eligible person under subsection 1 of this 57 section, pr ovided that the court finds the wishes of the incapacitated person ar e in his or 58 her best inter ests in accordance with this section. 59 8. The court shall not appoint an unrelated third party as a guardian or conservator 60 unless there is no relative suitable and willing to serve or if the appointment of a relative or 61 nominee is otherwise contrary to the best interests of the incapacitated or disabled person. If 62 the incapacitated or disabled person is a minor under the care of the children's division and is 63 entering adult guardianship or conservatorship, it shall be a rebuttable presumption that he or 64 she has no relative suitable and willing to serve as guardian or conservator . 65 [ 3. ] 9. Except for good cause shown, the court shall make its appointment in 66 accordance with the incapacitated or disabled person's most recent valid nomination of an 67 eligible person qualified to serve as guardian of the person or conservator of the estate or the 68 nomination made by a previ ous guardian or conservator who is in good standing with 69 the court if the incapacitated or disabled person is not capable of making his own or her 70 own decisions . 71 [ 4. ] 10. Except for [ those individuals specified in subdivisions (1) and (2) of this 72 subsection ] public administrators , the court shall require all guardians and conservators who HB 2041 7 73 are seeking appointment and who have a fiduciary responsibility to a ward, an incapacitated 74 person, or a disabled person to submit at their own expense to a background screening that 75 shall include the disqualification lists of the departments of mental health, social services, and 76 health and senior services; the abuse and neglect registries for adults and children; a Missouri 77 criminal record review; and the sexual of fender registry . Individuals seeking appointment as 78 a conservator shall also submit, at their own expense, to a credit history investigation. The 79 nominated guardian or conservator shall file the results of the reports with the court at least 80 ten days prior to the appointment hearing date unless waived or modified by the court for 81 good cause shown by an affidavi t filed simultaneously with the petition for appointment or in 82 the event the protected person requests an expedited hearing. The provisions of this 83 subsection shall not apply to[ : 84 (1) ] public administrators;[ or 85 (2) The ward's, incapacitated person's, or disabled person's spouse, parents, children 86 who have reached eighteen years of age, or siblings who have reached eighteen years of age ] 87 except that, the public administrator shall comply with the pr ovisions of this subsection 88 by maintaining a copy of his or her criminal history record check and disqualification 89 list and credit check records with the county commission for the court's inspection as 90 the court deems necessary . Credi t check record s shall not be public r ecords . 91 [ 5. Guardians certified by a national accrediting org anization may file proof of 92 certification in lieu of the requirements of subsections 4 and 6 of this section. ] 1 1. At any 93 time the court may , upon its own motion or upon rece iving a notice or complaint fr om 94 another person or entity , order the guardian, guardian ad litem, or conservator to 95 submit to a criminal backgrou nd check, fingerprint check, sex offender r egistry check, 96 or disqualification list check fr om the department of mental health, department of social 97 services, or department of health and senior services. The guardian, guardian ad litem, 98 or conservator shall be given: 99 (1) Notice of the order; 100 (2) The re ason or reas ons for the order; 101 (3) If a notice or complaint was filed with the court, the identity of the person or 102 entity filing the notice or complaint and a copy of the specific notice or complaint given 103 to the court; and 104 (4) A hearing with good cause shown. Regardless of whether legal counsel is 105 r etained, the guardian, guardian ad litem, or conservator may file a motion with the 106 court to recei ve an order fr om the court for r eimbursement of all financial costs 107 associated with a notice or complaint filed under this subsection, and the court shall 108 grant the motion if the court determines after the hearing that the notice or complaint 109 was knowingly and intentionally false, with malice, in bad faith, or with the purpose to HB 2041 8 110 obstruct or preven t the guardian, guardian ad litem, or conservator fr om discharging 111 his or her duties and exercising his or her authority in his or her guardian, guardian ad 112 litem, or conservator capacity . 113 [ 6. ] 12. An order appointing a guardian or conservator shall not be signed by the 114 judge until such reports have been filed with the court and reviewed by the judge, who shall 115 consider the reports in determining whether to appoint a guardian or conservator . Such 116 reports, or lack thereof, shall be certified either by an affidavi t or by obtaining a certified copy 117 of the reports. No reports or national criminal history record check shall be required by the 118 court upon the application of a petitioner for an emer gency temporary guardianship or 119 emer gency temporary conservatorship. The court may waive the requirements of this 120 subsection for good cause shown. If appointed, a guardian or conservator may petition the 121 court for reimbursement of the reasonable expenses of the credit history investigation and 122 background screenings. 475.060. 1. Any person may file a petition for the appointment of himself or herself 2 or some other qualified person as guardian of a minor . Such petition shall state: 3 (1) The name, age, domicile, actual place of residence and post of fice address of the 4 minor if known and if any of these facts is unknown, the ef forts made to ascertain that fact; 5 (2) The estimated value of the minor's real and personal property , and the location and 6 value of any real property owned by the minor outside of this state; 7 (3) If the minor has no domicile or place of residence in this state, the county in which 8 the property or major part thereof of the minor is located; 9 (4) The name and address of the parents of the minor and whether they are living or 10 dead; 11 (5) The name and address of the spouse, and the names, ages and addresses of all 12 living children of the minor; 13 (6) The name and address of the person having custody of the person of the minor or 14 who claims to have custody of the person of the minor; 15 (7) The name and address of any guardian of the person or conservator of the estate of 16 the minor appointed in this or any other state; 17 (8) If appointment is sought for a natural person, other than the public administrator , 18 the names and addresses of wards and disabled persons for whom such person is already 19 guardian or conservator; 20 (9) The name and address of the trustees and the purpose of any trust of which the 21 minor is a qualified beneficiary; 22 (10) The reasons why the appointment of a guardian is sought; 23 (1 1) A petition for the appointment of a guardian of a minor may be filed for the sole 24 and specific purpose of school registration or medical insurance coverage. Such a petition HB 2041 9 25 shall clearly set out this limited request and shall not be combined with a petition for 26 conservatorship; 27 (12) If the petitioner requests the appointment of co-guardians, a statement of the 28 reasons why such appointment is sought and whether the petitioner requests that the co- 29 guardians, if appointed, may act independently or whether they may act only together or only 30 together with regard to specified matters; 31 (13) That written consent has been obtained from any person, including a public 32 administrator , who is to be appointed as a co-guardian; and 33 (14) Whether the petitioner knows of any other court having jurisdiction over the 34 minor and the name of the court, if known. 35 2. Any person may file a petition for the appointment of himself or herself or some 36 other qualified person as guardian or limited guardian of an incapacitated person. Such 37 petition shall state: 38 (1) If known, the name, age, domicile, actual place of residence, and post of fice 39 address of the alleged incapacitated person, and for the period of three years before the filing 40 of the petition, the most recent addresses, up to three, at which the alleged incapacitated 41 person lived prior to the most recent address, and if any of these facts is unknown, the ef forts 42 made to ascertain that fact. In the case of a petition filed by a public of ficial in his or her 43 of ficial capacity , the information required by this subdivision need only be supplied to the 44 extent it is reasonably available to the petitioner; 45 (2) The estimated value of the alleged incapacitated person's real and personal 46 property , and the location and value of any real property owned by the alleged incapacitated 47 person outside of this state; 48 (3) If the alleged incapacitated person has no domicile or place of residence in this 49 state, the county in which the property or major part thereof of the alleged incapacitated 50 person is located; 51 (4) The name and address of the parents of the alleged incapacitated person and 52 whether they are living or dead; 53 (5) The name and address of the spouse, the names, ages, and addresses of all living 54 children of the alleged incapacitated person, the names and addresses of the alleged 55 incapacitated person's closest known relatives, and the names and relationship, if known, of 56 any adults living with the alleged incapacitated person; if no spouse, adult child, or parent is 57 listed, the names and addresses of the siblings and children of deceased siblings of the alleged 58 incapacitated person; the name and address of any agent appointed by the alleged 59 incapacitated person in any durable power of attorney , and of the presently acting trustees of 60 any trust of which the alleged incapacitated person is the grantor or is a qualified beneficiary 61 or is or was the trustee or cotrustee and the purpose of the power of attorney or trust; HB 2041 10 62 (6) The name and address of the person having custody of the person of the alleged 63 incapacitated person; 64 (7) The name and address of any guardian of the person or conservator of the estate of 65 the alleged incapacitated person appointed in this or any other state; 66 (8) If appointment is sought for a natural person, other than the public administrator , 67 the names and addresses of wards and protectees for whom such person is already guardian or 68 conservator; 69 (9) The factual basis for the petitioner's conclusion that the person for whom 70 guardianship is sought is unable or partially unable by reason of some specified physical, 71 mental, or cognitive condition to receive and evaluate information or to communicate 72 decisions to such an extent that the person lacks capacity to meet essential requirements for 73 food, clothing, shelter , safety , or other care such that serious physical injury , illness, or disease 74 is likely to occur; 75 (10) The specific guardianship classification that is being request ed to creat e a 76 baseline for the guardianship classification but, at any time ther eafter , the guardianship 77 classification may be changed without obtaining a court order; 78 (1 1) The reasons, incidents, and specific behaviors demonstrating why the 79 appointment of a guardian or limited guardian is sought; 80 [ (1 1) ] (12) If the petitioner suggests the appointment of co-guardians, a statement of 81 the reasons why such appointment is sought and whether the petitioner suggests that the co- 82 guardians, if appointed, may act independently or whether they may act only together or only 83 together with regard to specified matters; and 84 [ (12) ] (13) W ritten consent has been obtained from any person, including a public 85 administrator , who is to be appointed as a co-guardian. 86 3. If the person filing the petition seeks the appointment of an emer gency guardian, 87 the petition shall include the same requirements as provided in subsection 1 of this section 88 and shall request the appointment per the requirements provided in subsection 15 of section 89 475.075. 475.061. 1. Any person may file a petition in the probate division of the circuit court 2 of the county of proper venue for the appointment of himself or herself or some other 3 qualified person as conservator of the estate of a minor or disabled person. The petition shall 4 contain the same allegations as are set forth in subdivisions (1), (8), and [ (10) ] (1 1) of 5 subsection 2 of section 475.060 with respect to the appointment of a guardian for an 6 incapacitated person and, in addition thereto, an allegation that the respondent is unable by 7 reason of some specific physical or cognitive condition to receive and evaluate information or 8 to communicate decisions to such an extent that the respondent lacks ability to manage his 9 financial resources or that the respondent is under the age of eighteen years. HB 2041 1 1 10 2. A petition for appointment of a conservator or limited conservator of the estate 11 may be combined with a petition for appointment of a guardian or limited guardian of the 12 person. In such a combined petition allegations need not be repeated. 475.075. 1. Except as otherwise provided in section 475.062, when a petition for the 2 appointment of a guardian ad litem, guardian, or conservator for any potential ward or 3 protectee, who is then referred to as the respondent, is filed under this chapter on grounds 4 other than minority , the court, if satisfied that there is good cause for the exercise of its 5 authority , shall promptly set the petition for hearing. 6 2. The respondent shall be served in person with the following: A copy of the 7 petition; a written notice stating the time and place the proceeding will be heard by the court, 8 the name and address of appointed counsel, and the names and addresses of the witnesses 9 who may be called to testify in support of the petition; and with a copy of the respondent's 10 rights as set forth in subsections 9 and 10 of this section. The notice shall be signed by the 11 judge or clerk of the court and served in person on the respondent a reasonable time before 12 the date set for the hearing. A written notice stating the time and place for the petition to be 13 heard by the court, and the name and address of counsel appointed to represent the respondent 14 shall be served upon the spouse, parents, children who have reached the age of eighteen, any 15 person serving as the respondent's guardian, conservator , limited guardian, or limited 16 conservator , any person proposed to serve as guardian or conservator , any person having 17 power to act in a fiduciary capacity with respect to any of the respondent's financial resources, 18 any person having the respondent's care and custody known to the petitioner , and any co- 19 tenants or co-depositors with the respondent. Each person so listed shall be served in any 20 manner permitted by section 472.100. If no such spouse, parent, or child is known, notice 21 shall be given to at least one of the respondent's closest relatives who have reached eighteen 22 years of age. 23 3. If the public administrator is nominated as guardian or conservator or at any stage 24 of the proceeding is being considered by the court to be nominated as guardian or conservator , 25 the public administrator shall receive a copy of the petition from the petitioner or the court 26 and any accompanying documents, including exhibits and medical opinions, receive written 27 notice indicating the date and time of the proceeding, and have an opportunity to attend and 28 be heard. 29 4. Upon the filing of a petition under the provisions of subsection 1 of this section or 30 for the approval on behalf of the respondent of a transaction pursuant to section 475.092 or 31 for the rendition of emer gency medical treatment under the provisions of section 475.123, the 32 court shall immediately appoint an attorney to represent the respondent in the proceeding. 33 The attorney shall visit the respondent at least twenty-four hours prior to the hearing unless 34 the court finds good cause for waiving this requirement. If the attorney finds that the HB 2041 12 35 respondent is capable of understanding the matter in question or of contributing to the 36 advancement of the respondent's interest, the attorney shall obtain from the respondent all 37 possible aid. If the attorney finds that the respondent is so impaired that the respondent 38 cannot communicate or participate in the proceedings, the attorney shall consider all 39 circumstances then prevailing and act with care to safeguard and advance the interests of the 40 respondent. 41 5. If the court enters an order appointing an attorney for the respondent, it shall 42 specify that the attorney shall have the right to obtain all medical and financial information of 43 the respondent from medical care providers and financial institutions, and no medical care 44 provider or financial institution shall be liable for damages or otherwise for the release of this 45 information to the attorney appointed for the respondent. The court shall allow a reasonable 46 attorney's fee for the services rendered, to be taxed as costs of the proceeding. Upon entry of 47 appearance by private counsel on behalf of the respondent, the court may permit the court- 48 appointed attorney to withdraw only if after a hearing the court finds cause to permit the 49 withdrawal. The private counsel shall meet the requirements of the court-appointed attorney 50 in representing the respondent as provided in subsection 4 of this section. The respondent's 51 attorney shall not also serve as guardian ad litem or conservator ad litem for the respondent 52 unless and until a judgment granting guardianship, conservatorship, limited guardianship, or 53 limited conservatorship has been entered by the court. If the attorney for the respondent has 54 filed or intends to file an appeal of such judgment, the attorney for the respondent shall not 55 serve as guardian ad litem or conservator ad litem for the respondent until all proceedings in 56 connection with such appeal have been finally resolved. The petitioner shall not nominate an 57 attorney for the respondent. 58 6. The court may direct that the respondent be examined by a physician, licensed 59 psychologist, or other appropriate professional if the other professional has experience or 60 training in the alleged mental, physical, or cognitive impairment. The court-appointed 61 physician, licensed psychologist, or other professional shall, prior to examination, explain to 62 the respondent in simple language, the following: 63 (1) That the purpose of the examination is to produce evidence which may be used to 64 determine whether the respondent is incapacitated, disabled, partially incapacitated, or 65 partially disabled; 66 (2) That respondent has the right to remain silent; 67 (3) That anything respondent says may be used at the court hearing, and in making 68 the determination of incapacity or disability . 69 7. The court-appointed physician, licensed psychologist, or other professional shall 70 submit a report in writing to the court and to counsel for all parties. It shall not be a valid 71 objection to the review of the report by the court or the attorneys for the parties that the court HB 2041 13 72 will be responsible for the ultimate determination of incapacity or partial incapacity . If other 73 objections to the report are made by any party , the court may order a hearing for the limited 74 purpose of determining whether the court shall admit the report. The court may allow a 75 reasonable fee for the services rendered by the physician, licensed psychologist, or other 76 professional to be taxed as costs in the proceeding. 77 8. If prima facie proof of partial or complete incapacity or disability , with or without 78 the court-ordered evaluation as provided in subsections 6 and 7 of this section, is made upon 79 motion by any party or the court on its own motion, a physician, licensed psychologist, or 80 other appropriate professional is competent and may be compelled by the court to testify as to 81 information acquired from the respondent, despite otherwise applicable testimonial 8 2 privileges. Evidence received under this subsection that would otherwise be privileged 83 and confidential may not be used in any other civil action or criminal proceeding without the 84 consent of the holder of the privilege. Any resulting report shall be shared with the 85 respondent and counsel for all parties but shall not be used in any other civil action or 86 criminal proceeding without the consent of the holder of the privilege. 87 9. The petitioner has the burden of proving incapacity , partial incapacity , disability , or 88 partial disability by clear and convincing evidence. 89 10. The respondent shall have the following rights in addition to those elsewhere 90 specified and shall be advised of these rights by the attorney for the respondent: 91 (1) The right to be represented by an attorney; 92 (2) The right to have a jury trial; 93 (3) The right to present evidence in the respondent's behalf; 94 (4) The right to cross-examine witnesses who testify against the respondent; 95 (5) The right to remain silent; 96 (6) The right to have the hearing opened or closed to the public as the respondent 97 elects; 98 (7) The right to a hearing conducted in accordance with the rules of evidence in civil 99 proceedings, except as modified by this chapter; 100 (8) The right to be present at the hearing; 101 (9) The right to appeal the court's decision. 102 1 1. If the court finds that the respondent possesses capacity to manage the 103 respondent's essential requirements for food, clothing, shelter , safety , and other care or that 104 the respondent possesses the ability to manage the respondent's financial resources, the court 105 shall deny the petition. On the other hand, if the court finds that the capacity of the 106 respondent to receive and evaluate information or to communicate decisions is impaired to 107 such an extent as to render the respondent incapable of managing some or all of the 108 respondent's essential requirements for food, clothing, shelter , safety or other care so that HB 2041 14 109 serious physical injury , illness, or disease is likely to occur , or that the capacity of the 110 respondent to receive and evaluate information or to communicate decisions is impaired to 111 such an extent so as to render the respondent unable to manage some or all of the respondent's 112 financial resources, the court shall appoint a guardian or limited guardian, a conservator or 113 limited conservator , or both in combination. 114 12. If the court finds the respondent to be in some degree incapacitated or disabled, or 115 both, the court, in determining the degree of supervision necessary , shall apply the least 116 restrictive alternative principle as defined in this chapter and shall not restrict the respondent's 117 personal liberty or the respondent's freedom to manage the respondent's financial resources to 118 any greater extent than is necessary to protect the respondent's person and the respondent's 119 financial resources. The limitations imposed upon the authority of the guardian or 120 conservator as set forth in the findings of the court shall be stated in the letters of the guardian 121 or conservator and shall be set forth in the notice of first publication of letters of 122 conservatorship granted. 123 13. Before appointing a guardian or conservator , the court shall consider whether the 124 respondent's needs may be met without the necessity of the appointment of a guardian or 125 conservator , or both, by a less restrictive alternative including, but not limited to, the 126 following: 127 (1) Evidence that the respondent has appointed an attorney-in-fact in a durable power 128 of attorney executed by the respondent before the petition was filed; 129 (2) The management of the beneficial interests of the respondent in a trust by a 130 trustee; 131 (3) Evidence that a representative payee has been appointed to manage the 132 respondent's public benefits; 133 (4) Supported decision-making agreements or the provision of protective or 134 supportive services or arrangements provided by individuals or public or private services or 135 agencies unless proh ibited by any state or federal law , rule, or regul ation or a financial 136 or other conflict of interes t would exist ; 137 (5) The use of appropriate services or assistive technology; 138 (6) The appointment of a temporary emer gency guardian ad litem or conservator ad 139 litem under subsection 15 of this section; or 140 (7) The appointment of a limited guardian or conservator . 141 14. Excluding a court order , judgment, or adjudication made before August 28, 142 2026, the court shall make and recite in its order detailed findings of fact stating: 143 (1) The extent of the respondent's physical, mental, and cognitive incapacity to 144 manage essential requirements for food, clothing, shelter , safety , or other care; HB 2041 15 145 (2) The extent of the respondent's physical, mental, and cognitive incapacity to 146 manage the respondent's financial resources; 147 (3) Whether the respondent requires placement in a supervised living situation and, if 148 so, the degree of supervision needed; 149 (4) Whether the respondent's financial resources require supervision and, if so, the 150 nature and extent of supervision needed; 151 (5) Whether the respondent retains the right to vote; 152 (6) Whether the respondent is permitted to drive a motor vehicle if the respondent can 153 pass the required driving test; and 154 (7) Whether the respondent retains the right to marry . 155 15. If it is alleged in a petition that an alleged incapacitated or disabled respondent 156 has no guardian or conservator and an emer gency exists that presents a substantial risk that 157 serious physical harm will occur to the respondent's person or irreparable damage will occur 158 to the respondent's property because of the respondent's failure or inability to provide for the 159 respondent's essential human needs or to protect the respondent's property , the court may , 160 with notice to such person's attorney , as provided in subsection 4 of this section, and service 161 of notice upon such person as provided in subsection 2 of this section, and, with or without 162 notice to other persons interested in the proceeding, after hearing, appoint an emer gency 163 guardian ad litem or conservator ad litem for a specified period not to exceed ninety days and 164 for specified purposes. Except for good cause shown, the court shall hold a hearing on 165 petitions filed under this section within five business days of the filing of the petition. Orders 166 appointing the guardian or conservator ad litem may be modified upon motion and hearing. 167 Only after a hearing and a showing of continuing emer gency need, the court may order the 168 extension of the appointment of an emer gency guardian ad litem or conservator ad litem from 169 time to time, not to exceed ninety days each. A guardian ad litem or conservator ad litem may 170 be removed at any time and shall make any report the court requires. Proceedings under this 171 subsection shall not be employed as alternative to proceedings for the involuntary detention 172 and treatment of a mentally ill person under the provisions of chapter 632. If no petition for 173 guardianship, conservatorship, limited guardianship, or limited conservatorship has been filed 174 within the first ninety days following the granting of emer gency authority under this section, 175 the court may terminate the authority granted under the emer gency letters upon motion of the 176 attorney for the respondent and a finding that doing so would not be manifestly contrary to 177 the respondent's interest. 475.082. 1. At least annually , the court shall inquire into the status of every adult 2 ward and protectee under its jurisdiction for the purpose of determining whether the 3 incapacity or disability may have ceased or changed and to insure that the guardian or HB 2041 16 4 conservator is dischar ging the guardian's or conservator's responsibilities and duties in 5 accordance with this chapter . 6 2. In order to implement the court review prescribed by this section, the guardian or 7 limited guardian shall file annually on the anniversary date of the guardian's or limited 8 guardian's letters a report concerning the personal status of the adult ward and plans by the 9 guardian or limited guardian for future care. T aking into consideration the ward's 10 physical, mental, and cognitive condition, the guardian, limited guardian, guardian ad 11 litem, or limited guardian ad litem shall also attach to the guardian's, limited 12 guardian's, guardian ad litem's, or limited guardian ad litem's annual guardianship 13 r eport a statement or affidavit of the ward, which is signed by the ward, pro viding an 14 annual rev iew of the guardian's, limited guardian's, guardian ad litem's, or limited 15 guardian ad litem's performance; whether the ward req uests the court to change or 16 terminate the guardianship; whether the ward feels safe in his or her housing, work, and 17 educational envir onment; how the ward is being tr eated by his or her guardian, limited 18 guardian, guardian ad litem, or limited guardian ad litem and any caregiv er or other 19 similarly situated person; and any specific concerns the ward wants the court to know 20 and consider . The court shall take such statement or affidavit into consideration when 21 r eviewing the guardian's, limited guardian's, guardian ad litem's, or limited guardian 22 ad litem's annual status repo rt and when determining whether to continue, to reduc e, or 23 to terminate the guardianship. Such report may be combined with the settlement of 24 accounts if the guardian is also conservator of the estate of the ward. The report shall be in 25 the form prescribed by the court and shall include the following information: 26 (1) The present address of the ward; 27 (2) The present address of the guardian; 28 (3) Unless the report specifies that the ward is living with the guardian, the number of 29 times the guardian has had contact with the ward, and the nature of such contacts including 30 the date the ward was last seen by the guardian; 31 (4) A summary of the guardian's visits with the ward and activities on the ward's 32 behalf and the extent to which the ward has participated in decisionmaking; 33 (5) If the ward is institutionalized, whether the guardian has received a copy of the 34 treatment or habilitation plan and, if so, the date of such plan, and whether the guardian 35 agrees with its provision; 36 (6) The date the ward was last seen by a physician or other professional and the 37 purpose; 38 (7) The current mental and physical condition of the ward and any major changes in 39 the ward's condition since the last report; HB 2041 17 40 (8) The opinion of the guardian as to the need for the continuation of the guardianship 41 and whether it is necessary to increase or decrease the powers of the guardian; [ and ] 42 (9) A summarized plan for the coming year . If an individual support plan, treatment 43 plan, or plan of care is in place, such plan may be submitted in lieu of the requirements of this 44 subdivision ; 45 (10) The guardianship classification; and 46 (1 1) Whether the ward is in compliance with any court order requ iring or 47 pr ohibiting a specified act or action, term or condition of pr obation or par ole, work 48 r elease pr ogram, sex offender reg istry , or housing requ irem ent. If the ward is 49 noncompliant with any pr ovision under this subdivision, the repor t shall state the 50 r easons for not being compliant and steps the guardian, limited guardian, guardian ad 51 litem, or limited guardian ad litem is taking to bring the ward into compliance . 52 3. The court shall seal any information that discusses, reveal s, or pr ovides 53 information rega rding the ward's medical, psychological, psychiatric, mental health, or 54 other health car e tr eatment, habilitation, support, or supervision plan pro vided by the 55 guardian, limited guardian, guardian ad litem, or limited guardian ad litem on a court 56 form or as an attachment. Any person, official, or entity wanting such information shall 57 file a petition with the pro bate court r equesting the information and pr oviding clear and 58 convincing evidence why the information is necessary or vital to a government 59 operation, need, right, or interes t; that the person, official, or entity req uires such 60 information for his or her petition to take over guardianship or conservatorship; or in 61 furtherance of any statutory duty , right, or authority . The person, official, or entity 62 shall pr ovide a copy of the petition to the existing guardian or guardian ad litem, or 63 both, and ward and the notice of hearing on the petition. The court may , at its 64 discr etion, conduct the hearing in person, by electr onic means, or by telephone, but the 65 court shall take into consideration the financial means, undue harms the guardian or 66 guardian ad litem, or both, or ward would suffer , and any other lack of capabilities of 67 the guardian or guardian ad litem, or both, and ward in making its decision on the type 68 of hearing to conduct on the petition. 69 4. The court may as part of its review , in its discretion, order the performance of a 70 mental status evaluation of the ward and may require any hospital, physician, or custodial 71 facility to submit copies of their records relating to the treatment, habilitation, or care of the 72 ward. The court, as part of its review and in its discretion, may also contact the department of 73 health and senior services or other appropriate agencies to investigate the conduct of the 74 guardian and report its findings to the court. 75 5. All record s, rep orts, and evaluations pr ovided to the court in the mental status 76 r eview shall be sealed by the court, and any person wanting any r eport, r ecord, or HB 2041 18 77 evaluation of the mental status rev iew that was conducted shall comply with subsection 78 3 of this section. The guardian or guardian ad litem, or both, and ward shall not be 79 r equir ed to prov ide the requ esting person, official, or entity a copy of any reco rd, 80 r eport, or evaluation except by court order . 81 6. The court shall not act upon any notice or complaint filed with the court 82 dir ectly or indir ectly req uesting the court to order a mental status evaluation of the 83 ward without the notice or complaint being signed and notarized under oath by the 84 filing person, official, or entity and upon the court receiv ing the signed and notarized 85 notice or complaint. Upon the court receivi ng the signed notarized notice or complaint, 86 the court shall pr ovide the guardian or guardian ad litem, or both, a copy of the notice 87 or complaint and provi de the guardian or guardian ad litem, or both, an opportunity to 88 be heard befor e the court decides whether to order the mental status evaluation. If it 89 becomes appar ent to the court that the notice or complaint: 90 (1) W as filed with malice; 91 (2) W as filed to harass either the guardian or guardian ad litem, or both, or the 92 ward; 93 (3) W as filed to inflict financial damages on the guardian or guardian ad litem, 94 or both, or the ward; 95 (4) Contained an allegation that was made in bad faith; 96 (5) Contained a knowingly false allegation; or 97 (6) W as filed to obstruct or preven t the guardian or guardian ad litem, or both, 98 fr om discharging any duty or exer cising any authority , 99 100 the court may order the filing person, official, or entity to pay the guardian or guardian 101 ad litem, or both, or the ward all actual financial damages sustained by the guardian or 102 guardian ad litem, or both, or ward. If egr egious conduct exists, the court may order 103 the person, official, or entity filing the notice or complaint to pay the guardian or ward 104 r easonable punitive damages. 105 [ 4. ] 7. If there is an indication that the incapacity or disability of the ward or protectee 106 has ceased, the court shall appoint an attorney to file on behalf of the ward or protectee a 107 petition for termination of the guardianship or conservatorship or for restoration. 108 [ 5. ] 8. If it appears to the court as part of its review or at any time upon motion of any 109 interested person, including the ward or protectee or some person on behalf of the ward or 110 protectee, that the guardian or conservator is not dischar ging the guardian's or conservator's 111 responsibilities and duties as required by this chapter or has not acted in the best interests of 112 the ward or protectee, the court may order that a hearing be held and direct that the guardian 113 or conservator appear before the court. In the event that such a hearing is ordered and the HB 2041 19 114 ward or protectee is not represented by an attorney , the court shall appoint an attorney to 115 represent the ward or protectee in the proceedings. At the conclusion of the hearing, if the 116 court finds that the guardian or conservator is not dischar ging his or her duties and 117 responsibilities as required by this code or is not acting in the best interests of the ward or 118 protectee, the court shall enter such orders as it deems appropriate under the circumstances. 119 Such orders may include the removal of the guardian or conservator and the appointment of a 120 successor guardian or conservator or termination of the guardianship or conservatorship on 121 finding that the ward has recovered capacity or the protectee is no longer disabled. The court, 122 in framing its orders and findings, shall give due consideration to the exercise by the guardian 123 or conservator of any discretion vested in the guardian or conservator by law . 475.1 15. 1. When a guardian or conservator dies, is removed by order of the court, or 2 resigns and his or her resignation is accepted by the court, the court shall have the same 3 authority as it has in like cases over personal representatives and their sureties and may 4 appoint another guardian or conservator in the same manner and subject to the same 5 requirements as are herein provided for an original appointment of a guardian or conservator . 6 2. When determining whether to appoint a successor guardian or conservator , or 7 both, the court shall consider as evidence that the incapacitated or disabled person was 8 alr eady appointed a guardian or conservator , or both. A person petitioning the court to 9 be a successor guardian or conservator , or both, shall not be requ ired to rees tablish 10 incapacity or a disability , or both, unless an oral or written objection is made by the 11 person who is being appointed a successor guardian or conservator , or both, because of 12 a substantial change in his or her capacity or disability indicating that the person no 13 longer requ ires a guardian or conservator , or both. The oral or written objection 14 pr oviding that the person no longer requ ires a guardian or conservator , or both, because 15 of a substantial change in capacity or disability shall be confirmed by a physician, who 16 shall be subject to dir ect and cro ss examination . 17 3. If the court receives fro m one or mor e inter ested parties a simple request for 18 temporary appointment of guardianship or conservatorship, or both, to ensur e the ward 19 has a guardian or conservator , or both, until the court can hear and rule on a formal 20 petition, the court shall r eview the r equest for temporary guardianship or 2 1 conservatorship, or both, and, upon the court selecting the best-suited appointment 22 based on the requ est and any exhibits provi ded, the court shall immediately appoint a 23 temporary guardian or conservator , or both, until such time as the court gives for the 24 parties to file a formal petition with the court. The appointment of a temporary 25 guardian or conservator , or both, shall have the same for ce and effect as any other 26 appointment for guardianship or conservator , or both. HB 2041 20 27 4. A public administrator may request transfer of any case to the jurisdiction of 28 another county by filing a petition for transfer . If the public administrator of the receiving 29 county consents to the transfer , the court shall transfer the case. The court with jurisdiction 30 over the receiving county shall, without the necessity of any hearing as required by section 31 475.075, appoint the public administrator of the receiving county as successor guardian and/ 32 or successor conservator and issue letters therein. In the case of a conservatorship, the final 33 settlement of the public administrator's conservatorship shall be filed within thirty days of the 34 court's transfer of the case, in the court with jurisdiction over the original conservatorship, and 35 forwarded to the receiving county upon audit and approval. 475.120. 1. The guardian of the person of a minor shall be entitled to the custody and 2 control of the ward and shall provide for the ward's education, support, and maintenance. 3 2. A guardian or limited guardian of an incapacitated person shall act in the best 4 interest of the ward. A limited guardian of an incapacitated person shall have the powers and 5 duties enumerated by the court in the adjudication order or any later modifying order . 6 3. [ Except as otherwise limited by the court, a guardian shall make decisions 7 regarding the adult ward's support, care, education, health, and welfare. A guardian shall 8 exercise authority only as necessitated by the adult ward's limitations and, to the extent 9 possible, shall encourage the adult ward to participate in decisions, act on the adult ward's 10 own behalf, and develop or regain the capacity to manage the adult ward's personal affair s. ] 11 The general powers and duties of a guardian of an incapacitated person shall be to take 12 charge of the ward and provi de for the ward's care, tr eatment, habilitation, education, 13 support, and maintenance. However , the guardian or guardian ad litem, or both, shall 14 not be financially liable for the ward's car e, tr eatment, habilitation, education, support, 15 and maintenance. The powers and duties of guardians and guardians ad litem, 16 consistent with the ward's guardianship classification, shall include, but shall not be 17 limited to, the following: 18 (1) Assure that the ward resides in the best and least restrictive setting reasonably 19 available; 20 (2) Assure that the ward receives medical care and other services that are needed; 21 (3) Promote and protect the care, comfort, safety , health, and welfare of the ward; 22 (4) Provide required consents on behalf of the ward; 23 (5) Exercis e authority and discharge duties necessary based on the ward's state 24 of incapacity or disability and the ward's guardianship classification; 25 (6) T o the extent possible and practicable considering the ward's physical, 26 mental, and cognitive conditions and abilities, assist the ward in obtaining the lowest 27 guardianship classification level for the ward and encourage the ward to participate in 28 decision-making pr ocesses; HB 2041 21 29 (7) T o the extent possible and practicable considering the ward's physical, 30 mental, and cognitive conditions and abilities as the guardian or guardian ad litem, or 31 both, reas onably believes such conditions to be, assist the ward to act on the ward's own 32 behalf and develop or rega in the capacity to manage the ward's personal affairs; 33 (8) Ensure the ward recei ves the prop er level of structur e, supervision, and 34 support needed and in accordance with the guardianship classification; 35 (9) Assist the ward, as the guardian or guardian ad litem, or both, deems 36 appr opriate for the ward, to comply with any and all terms and conditions of any court 37 order; any supervised or unsupervised pr obation, par ole, or work r elease pr ogram; any 38 car e, tr eatment, or habilitation progra m or service; and any sex offender or other 39 r egistration or housing r estriction requ irem ent; 40 (10) T o exercise all powers and dischar ge all duties necessary or proper to implement 41 the provisions of this section. 42 4. Consistent with subsection 3 of this section and section 475.343, a guardian of 43 an adult or minor ward [ is ] shall not be obligated by virtue of such guardian's appointment to 44 use the guardian's own financial resources for the support , car e, tr eatment, housing, 45 transportation, debt, fees, supervision, habilitation, maintenance, or other financial 46 costs of the ward. If the ward's estate and available public benefits are inadequate for the 47 proper care of the ward, the guardian or conservator may apply to the county commission 48 pursuant to section 475.370. 49 5. No guardian of the person shall have authority to seek admission of the guardian's 50 ward to a mental health or intellectual disability facility for more than thirty days for any 51 purpose without court order except as otherwise provided by law . 52 6. The ward shall not be committed or incar cerated in any government or 53 privately operated institution, facility , jail, prison, pr ogram, housing, or mental health 54 or psychiatric unit solely on the basis of being in a for ensic guardianship, and the ward 55 shall not be denied participation in and the benefits fr om any government or privately 56 operated institution, facility , pro gram, housing, or unit solely on the basis of being in a 57 for ensic guardianship unless otherwise pr ohibited by a clearly established state or 58 federal law , rule, or reg ulation or any term or condition of a court order , prob ation, 59 par ole, or any jail or prison work r elease pr ogram rule or reg ulation. 60 7. Only the director or chief administrative of ficer of a social service agency serving 61 as guardian of an incapacitated person, or such person's designee, is legally authorized to act 62 on behalf of the ward. 63 [ 7. ] 8. A social service agency serving as guardian of an incapacitated person shall 64 notify the court within fifteen days after any change in the identity of the professional HB 2041 22 65 individual who has primary responsibility for providing guardianship services to the 66 incapacitated person. 67 [ 8. ] 9. Any social service agency serving as guardian may not provide other services 68 to the ward. 69 [ 9. ] 10. In the absence of any written direction from the ward to the contrary , a 70 guardian may execute a preneed contract for the ward's funeral services, including cremation, 71 or an irrevocable life insurance policy to pay for the ward's funeral services, including 72 cremation, and authorize the payment of such services from the ward's resources. Nothing in 73 this section shall interfere with the rights of [ next-of-kin ] next of kin to direct the disposition 74 of the body of the ward upon death under section 194.1 19. If a preneed arrangement such as 75 that authorized by this subsection is in place and no [ next-of-kin ] next of kin exercises the 76 right of sepulcher within ten days of the death of the ward, the guardian may sign consents for 77 the disposition of the body , including cremation, without any liability therefor . A guardian 78 who exercises the authority granted in this subsection shall not be personally financially 79 responsible for the payment of services. 80 1 1. T o ensure a statutory pathway exists for a ward to have equal access to the 81 courts and equal protect ion of law and due proce ss if ther e is only a guardian and no 82 conservator appointed but the guardian is the payee of the ward, the guardian shall 83 institute all suits and pro secutions, with or without reta ining legal counsel, that may be 84 necessary to r ecover pr operty , debts, civil damages, punitive awards, papers, or other 85 estates of the ward. The guardian shall be substituted for the ward and institute and 86 pr osecute the suit in the guardian's own name, as a real party in interes t, in his or her 87 capacity as guardian and to pr osecute the action, with or without ret aining legal 88 counsel, as the guardian chooses citing this subsection in the petition or motion filed 89 with the court unless otherwise determined by a ruling of the Missouri supr eme court. 90 12. T o ensur e a statutory pathway exists for a guardian to have equal access to 91 the courts and equal pro tection of law and due pr ocess if the guardian has suffer ed 92 economic or noneconomic damages by a person other than the ward or is obstructed or 93 pr evented fr om discharging his or her duties or authority prov ided under this section, 94 the guardian shall have a cause of action independent of the ward to enforce his or her 95 duties and authority by court order and to rem edy any economic or noneconomic 96 damages sustained as a r eal party in inter est in the guardian's own name and capacity 97 as guardian and to prosecute the action with or without r etaining legal counsel as the 98 guardian chooses. The guardian shall cite this subsection in the petition or motion filed 99 unless otherwise determined by a ruling of the Missouri suprem e court. 100 13. A guardian or guardian ad litem, or both, shall receiv e notice and a copy of 101 any grievance, complaint, notice, petition, or motion filed against the guardian or HB 2041 23 102 guardian ad litem, or both, under any section of this chapter or any other state or 103 federal law , rule, or regula tion that alleges any breach of any guardianship fiduciary 104 duty or guardianship power or any violation of any other state or federal law , rule, or 105 r egulation without any r edaction being made to the grievance, complaint, notice, 106 petition, or motion. The guardian or guardian ad litem, or both, shall have an 107 opportunity to be heard by the court thr ough r esponsive pleadings, motions, and court 108 hearings, with or without the guardian or guardian ad litem, or both, r etaining legal 109 counsel, and to pr offer any and all evidence in his or her defense for the court to 110 consider . The guardian shall have the right to confr ont his or her accuser and witnesses 111 by direc t and cr oss examination. If the court finds any part of the grievance, complaint, 112 notice, petition, or motion filed against the guardian or guardian ad litem, or both: 113 (1) Contains knowingly false or malicious allegations or is filed in bad faith or 114 with purpose to harass the guardian or guardian ad litem, or both, or to obstruct or 115 pr event the guardian or guardian ad litem, or both, fro m discharging his or her 116 guardianship duties or powers; 117 (2) Defames the character or rep utation of the guardian or guardian ad litem, or 118 both; or 119 (3) Causes the guardian to suffer damages, 120 121 upon a motion filed by the guardian or guardian ad litem, or both, the court shall order 122 the party or parties filing the grievance, complaint, notice, petition, or motion to pay the 123 guardian or guardian ad litem, or both, actual damages. If the court finds that the 124 grievance, complaint, notice, petition, or motion filed is egr egious, the court shall also 125 grant the guardian or guardian ad litem, or both, a reas onable monetary punitive award 126 and enter any and all other orders as the court deems just and prop er . 475.361. 1. The provisions of section 475.078 notwithstanding to the contrary and 2 consistent with the ward's guardianship classification and the req uirements , needs, 3 rights, and liberties arising fr om the guardianship classification , in every guardianship, 4 the ward has the right to: 5 (1) A guardian who acts in the best interests of the ward; 6 (2) A guardian who is reasonably accessible to the ward; 7 (3) Communicate freely and privately with family , friends, and other persons other 8 than the guardian; except that, such right may be limited by the guardian for good cause but 9 only as necessary to ensure the ward's condition, safety , habilitation, or sound therapeutic 10 treatment or such right may be res tricted by a court order; any term or condition of 11 pr obation or par ole; a work relea se pro gram; or a state or federal statute, rule, or 12 r egulation ; HB 2041 24 13 (4) Consult with his or her guardian or guardian ad litem, or both, in private if 14 the ward is being held in custody so that the guardian or guardian ad litem, or both, 15 may determine if the guardian or guardian ad litem, or both, shall invoke the ward's 16 rights against giving self-incriminating statements or to give any consent on behalf of 17 the ward to give statements ; 18 (5) Individually or through the ward's representative , guardian or guardian ad 19 litem, or both, or legal counsel, bring an action relating to the guardianship, including the 20 right to file a petition alleging that the ward is being unjustly denied a right or privilege 21 granted by this chapter , including the right to bring an action to modify or terminate the 22 guardianship under the provisions of section 475.083; 23 [ (5) ] (6) The least restrictive form of guardianship assistance, taking into 24 consideration the ward's functional limitations, personal needs, and preferences , and any 25 legal or medical r equir ements imposed on the ward ; 26 [ (6) ] (7) Be restored to capacity at the earliest possible time and, in accordance with 27 the ward's mental, physical, cognitive, and medical condition, be in the lowest 28 guardianship classification possible and practicable considering the ward's mental, 29 physical, cognitive, and medical condition and available tr eatment ; 30 [ (7) ] (8) Receive information from the court that describes the ward's rights, 31 including rights the ward may seek by petitioning the court; and 32 [ (8) ] (9) Participate in any health care decision-making process. 33 2. Consistent with section 475.120, an adult ward may petition the court to grant the 34 ward the right to: 35 (1) Contract to marry or to petition for dissolution of marriage; 36 (2) Make, modify , or terminate other contracts or ratify contracts made by the ward; 37 (3) Consent to medical treatment; 38 (4) Establish a residence or dwelling place; 39 (5) Change domicile; 40 (6) Bring or defend any action at law or equity , in accordance with section 475.120, 41 except an action relating to the guardianship; or 42 (7) Drive a motor vehicle if the ward can pass the required driving test. The 43 pr ovisions of this subdivision shall be subject to the court's r eview and any 44 determinations made by the court based on the ward's past motor vehicle driving 45 r ecords and any driver's license suspensions or r evocations in each state the ward has 46 r esided in while able to legally drive. 47 3. The appointment of a guardian shall revoke the powers of an agent who was 48 previously appointed by the ward to act as an agent under a durable power of attorney for 49 health care[ , unless the court so orders ] . If a guardian is appointed in addition to the HB 2041 25 50 agent, the court shall grant only a limited guardianship that excludes the duties, powers, 51 and authority conferr ed upon the agent in a durable power of attorney . 52 4. The appointment of a guardian is not a determination that the ward lacks 53 testamentary capacity , but the ward's capacity shall be rev iewable and determined by a 54 court of competent jurisdiction if the ward's capacity is disputed . ✔ HB 2041 26