The Better Chancery Practice Blog

Continuing with an overview of the GAP Act.

Section numbers correspond to SB 2828.

Duties of guardian (312)

Guardian is a fiduciary.

Except as limited by the court, the guardian makes decisions about the support, care, education, health, and welfare of the ward to the extent made necessary by the ward’s limitations.

Guardian promotes self-determination by the ward, encourages participation in decision-making, acts on the ward’s behalf, develops the ward’s capacity to act on the ward’s own behalf.

In carrying out the duties, the guardian may: (1) become personally acquainted with the ward’s limitations and physical and mental health through regular visits and other means; (2) identify the ward’s preferences; (3) identify supportive services and relationships.

Guardian exercises reasonable diligence and prudence in decisions: (1) takes reasonable care of the ward’s personal effects, pets, and service animals; (2) brings conservatorship proceeding if necessary; (3) expends ward’s funds for the ward’s needs; (4) conserves surplus funds for future needs and pays surplus to any conservator; and (5) monitors the services being provided to the ward.

In making a decision for the ward, the guardian makes the decision that the guardian reasonably believes the ward would have made unless it would harm the ward or the ward’s financial interest. The guardian should look to previous statements of preference.

If the ward’s preferences can not be determined, then the guardian makes decisions in the best interest of the ward, considering: (1) information from professionals and other persons in the best interest of the ward; (2) information the G believes the ward would have considered were the ward capable; (3) “Other factors a reasonable person in the circumstances of the adult would consider, including consequences for others.”

The guardian must immediately notify the court if the condition of the adult has changed so that the adult is capable of exercising rights previously taken away.

Powers of the guardian (313):

Except as limited by the court, a guardian may: (1) apply for and receive funds for support of the ward; (2) unless inconsistent with the court order, establish a dwelling place; (3) consent to health or other care, treatment or service; (4) if no conservator has been appointed, initiate proceedings to have one appointed, or initiate proceedings to compel a person to support the ward or pay funds for the ward’s benefit; (5) reasonably delegate decision-making to the adult if reasonable; (6) receive the adult’s health-care information.

In exercising power to select a dwelling, the guardian must: (1) select a dwelling the guardian believes the ward would select if able, and in the adult’s best interest; (2) give priority to a setting that will allow the ward to interact with persons important to the ward and in the least restrictive manner feasible; (3) place the ward in a nursing home, mental health facility, or other restrictive setting only if:

(a) the placement is included in the guardian’s plan under Section 315;

(b) the court authorizes the placement;

(c) the guardian gives 14-days’ advance notice to all entitled to notice per Section 309(4), or court order, and no objection is filed;

(d) move the ward out of state only if consistent with the guardian’s plan and authorized by court order;

(e) move the ward resulting in sale of or surrender of lease of primary residence only if:

(i) such action is specifically included in the guardian’s Section 315 plan;

(ii) the court authorizes such action by specific order;

(iii) notice was given 14 days in advance to the adult and all Section 309(4) persons and no objection is filed; and

(iv) notify the court if the ward’s dwelling has been so damaged by fire, flood, etc. so that the ward has to relocate temporarily or permanently.

In exercising health care decisions, the guardian shall: (1) involve the ward in decision-making to extent feasible; (2) defer to decisions by an agent under a health-care directive, and cooperate with the agent; (3) take into account the risks and benefits of treatment options, and the current and previous wishes of the ward, if known.

Special limitations on guardian’s power (314):

Unless authorized by the court, the guardian may not revoke or amend an advanced health-care directive or POA for finances executed by the adult.

Health-care decisions of an agent under a health-care directive take precedence over those of the guardian.
Financial decisions of an agent under a financial POA take precedence over those of the G.

The guardian must cooperate with the duly-appointed agents.

Guardian may not commit the adult to a mental-health facility except in an involuntary civil commitment procedure.

Guardian may not restrict the ward’s communications, visits, or interactions with others unless: (1) specifically authorized by court order; (2) a protective order is in place; or (3) the guardian has good cause to believe restriction is necessary to protect the ward, and can impose restrictions:

(a) for not to exceed 7 business days if the person restricted had prior family or social relationship with the ward; or

(b) for not more than 60 days for all others.

Guardian’s Plan (315):

If required by the court, the guardian shall file a plan for care of the adult not later than 90 days after the appointment or order to file a plan.

If there is a change in circumstances, or if the guardian wishes to deviate from the original plan, the guardian must file a revised plan no later than 90 days after the change or decision to deviate.

Plan must be based on needs of the adult taking into account the adult’s best interest, preferences, values, and prior directives, and must include: (1) the adult’s proposed living arrangements and services; (2) expected social and educational activities; (3) plans for regular visitation and identity of those to visit; (4) nature and frequency of visits and communication; (5) goals for the adult, including restoration of decision-making rights, and how the G intends to accomplish; (6) whether the ward has an existing plan, and if so whether this plan is consistent; and (7) itemization of charges the G anticipates for services to be rendered.

Guardian must give notice and a copy of the plan to the ward, the ward’s spouse, parents, children, and any other person as directed by the court.

Well-being report and monitoring (316):

If any significant change in circumstances or the guardian wishes to deviate from the plan, the guardian must file a report stating: (1) the mental, physical, and social condition of the adult; (2) the living arrangements during the reporting period; (3) summary of services provided and the guardian’s opinion of the adequacy of the ward’s care; (4) summary of the guardian’s visits with the ward including dates; (5) action taken on behalf of the ward; (6) the extent to which the adult has participated in decision-making; (7) if the ward is living in a mental health or health-care facility, the guardian’s opinion as to whether the care is consistent with the adult’s best interest and preferences; (8) any business relationship the guardian has with any person paid by the guardian to provide services; (9) copy of the ’s most recent plan, stating whether the guardian has deviated, and if so how and why; (10) plans for future care and support; (11) recommendation as to whether there is a need for continued guardianship, or whether change in the scope of the guardianship is needed; (12) whether any co-guardian or successor guardian is alive and able to serve; (13) photos of the ward and living conditions, if required by the court; and (14) itemization of amounts requested for reimbursement or legal fees.

The court may appoint a GAL to review a report, or a plan, or to interview the guardian or ward, or to investigate any other matter involving the guardianship.

Notice of filing, with a copy, must be sent not later than 14 days after filing to the adult ward, the spouse, parents, children, and any other person the court determines.

The court is required to establish procedures for monitoring reports and to review each report at least annually to determine whether: (1) the report includes sufficient information to determine whether the guardian has complied with the guardian’s duties; (2) the guardianship should continue; (3) the guardian’s requested fees, if any, should be approved.

If the court determines that there is reason to believe that the guardian has not complied with the guardian’s duties, or that the guardianship should be modified or terminated, the court: (1) shall notify the ward, spouse, parents, children and other persons entitled to notice under Section 309(4) or by court order; (2) may appoint a GAL to investigate; (3) may hold a hearing to consider removal of the guardian, or termination of the guardianship, or change in powers of guardian.

The guardian may petition the court for approval of a report. If the court approves, there is a rebuttable presumption that the report is accurate as to any matter adequately disclosed in it.

Removal of guardian and appointment of successor (317):

“Upon petition and for good cause shown” the court may hold a hearing to consider whether to remove a guardian for failure to perform duties, and the court may appoint a successor.

Notice of a petition must be given to the ward, the guardian, and any other person the court determines.

A ward seeking to remove a guardian has the right to choose an attorney for representation. “The court shall award reasonable attorney’s fees to the attorney as provided in Section 118.”

Not later than 10 days after appointment of a successor guardian, “the court shall give notice” of the appointment to the adult ward, spouse, parents, children, and any other person ordered by the court.

Termination or modification of guardianship (318):

Upon petition and for good cause shown, the court may hold a hearing to consider whether: (1) termination should be ordered because a basis for appointment under Section 301 does not exist; or (2) termination would be in the best interest of the ward; or (3) for other good cause; or (4) modification should be ordered because the extent of protection or assistance ordered is not appropriate, or for other good cause.
Notice of the petition must be given to the ward, the guardian, and any other person the court determines.

“On presentation of prima facie evidence” the court shall order termination unless proven that a basis for appointment exists under Section 301.

The court modifies the powers granted if powers are excessive or inadequate due to changes in the abilities or limitations of the adult, the adult’s supports, or other circumstances.

Unless the court orders otherwise for good cause, the court shall follow the same procedures to safeguard the rights of the adult that apply to a petition for guardianship.

A ward who seeks to terminate may choose an attorney, and the court may award attorney’s fees as provided in Section 118.

Tagged: GAP Act