2013 North Dakota Century Code Title 30.1 Uniform Probate Code Chapter 30.1-28 Guardians of Incapacitated Persons
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CHAPTER 30.1-28
GUARDIANS OF INCAPACITATED PERSONS
30.1-28-01. (5-301) Testamentary appointment of guardian for incapacitated person.
1. The guardian spouse or guardian parent of an adjudicated incapacitated person may,
by will, appoint a successor guardian of the incapacitated person. A testamentary
appointment by a guardian spouse or guardian parent becomes effective when, after
having given seven days' prior written notice of intention to do so to the incapacitated
person and to the person caring for the incapacitated person or to the nearest adult
relative of the incapacitated person, the successor guardian files acceptance of
appointment in the court in which the will is informally or formally probated.
2. This state shall recognize a testamentary appointment effected by filing acceptance
under a will probated at the testator's domicile in another state.
3. On the filing with the court in which the will was probated of written objection to the
appointment by the person for whom a testamentary appointment of guardian has
been made, the appointment is terminated. An objection does not prevent appointment
by the court in a proper proceeding of the testamentary nominee or any other suitable
person upon an adjudication of incapacity in proceedings under the succeeding
sections of this chapter.
30.1-28-02. (5-302) Venue.
The venue for guardianship proceedings for a proposed ward is in the place where the
proposed ward resides or is present and expected to remain during the pendency of the
proceedings. Notwithstanding section 30.1-02-03, the proposed ward may demand change of
venue to either the county of residence or the county where the proposed ward is present. The
court shall grant the demand if it is filed and served upon the petitioner more than three days
before the hearing. If the demand is filed within three days of the hearing, the court may grant
the demand upon good cause shown.
30.1-28-03. (5-303) Procedure for court appointment of a guardian of an incapacitated
person.
1. Any person interested in the welfare of an allegedly incapacitated person may petition
for the appointment of a guardian. No filing fee under this or any other section may be
required when a petition for guardianship of an incapacitated person is filed by a
member of the individual treatment plan team for the alleged incapacitated person or
by any state employee in the performance of official duties.
2. The petition for appointment of a guardian must state:
a. The name, address, and corporate or agency status of the petitioner, and its
connection with or relationship to the proposed ward;
b. The name, age, and address of the proposed ward;
c. The name and address of any person or institution having care or custody over
the proposed ward;
d. The names and addresses of the spouse, parents, and adult children or, if none,
any adult siblings and any adult with whom the proposed ward resides in a
private residence, or, if none, the nearest adult relative;
e. A brief description of and the approximate value of the real and personal property
and income of the proposed ward, so far as they are known to the petitioner;
f. The extent of the guardianship sought, including whether the nominated guardian
seeks to have full authority, limited authority, or no authority in each area of
residential, educational, medical, legal, vocational, and financial decisionmaking;
g. The occupation and qualifications of the proposed guardian;
h. The name and address of the attorney, if known, who most recently represented
the proposed ward; and
i. A statement alleging specific facts establishing the necessity for the appointment
of a guardian.
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Upon the filing of a petition, the court shall set a date for hearing on the issues of
incapacity, appoint an attorney to act as guardian ad litem, appoint a physician or
clinical psychologist to examine the proposed ward, and appoint a visitor to interview
the proposed guardian and the proposed ward.
The duties of the attorney include:
a. Personally interviewing the proposed ward;
b. Explaining the guardianship proceeding to the proposed ward in the language,
mode of communication, and terms that the proposed ward is most likely to
understand, including the nature and possible consequences of the proceeding,
the right to which the proposed ward is entitled, and the legal options that are
available; and
c. Representing the proposed ward as guardian ad litem. If the appointed attorney
or other attorney is retained by the proposed ward to act as an advocate, the
attorney shall promptly notify the court, and the court may determine whether the
attorney should be discharged from the duties of guardian ad litem.
The physician or clinical psychologist shall examine the proposed ward and submit a
written report to the court. The written report must contain:
a. A description of the nature and degree of any current incapacity or disability,
including the medical or psychological history, if reasonably available;
b. A medical prognosis or psychological evaluation specifying the estimated severity
and duration of any current incapacity or disability;
c. A statement as to how or in what manner any underlying condition of physical or
mental health affects the proposed ward's ability to provide for personal needs;
and
d. A statement as to whether any current medication affects the demeanor of the
proposed ward or the ability of the proposed ward to participate fully in any court
proceeding or in any other procedure required by the court or by court rule.
The visitor shall have the following duties:
a. To meet, interview, and consult with the proposed ward regarding the
guardianship proceeding, including explaining the purpose for the interview in a
manner the proposed ward can reasonably be expected to understand.
b. To ascertain the proposed ward's views concerning the proposed guardian, the
powers and duties of the proposed guardian, the proposed guardianship, and the
scope and duration thereof.
c. To interview the person seeking appointment as guardian.
d. To visit the proposed ward's present place of residence.
e. To discuss an alternative resource plan with the proposed ward, if appropriate.
f. To obtain other relevant information as directed by the court.
g. To submit a written report to the court.
h. The visitor's written report must contain:
(1) A description of the nature and degree of any current impairment of the
proposed ward's understanding or capacity to make or communicate
decisions;
(2) A statement of the qualifications and appropriateness of the proposed
guardian;
(3) Recommendations, if any, on the powers to be granted to the proposed
guardian, including an evaluation of the proposed ward's capacity to perform
the functions enumerated under subsections 3 and 4 of section 30.1-28-04;
and
(4) An assessment of the capacity of the proposed ward to perform the
activities of daily living.
The proposed ward must be present at the hearing in person, unless good cause is
shown for the absence. Good cause does not consist only of the physical difficulty of
the proposed ward to attend the hearing. The proposed ward has the right to present
evidence, and to cross-examine witnesses, including the court-appointed physician
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and the visitor. The issue may be determined at a closed hearing if the proposed ward
or the proposed ward's counsel so requests.
The court shall take all necessary steps to make the courts and court proceedings
accessible and understandable to impaired persons. Accordingly, the court may
convene temporarily, or for the entire proceeding, at any other location if it is in the
best interest of the proposed ward.
If the court approves a visitor, lawyer, physician, guardian, or temporary guardian
appointed in a guardianship proceeding, that person may receive reasonable
compensation from the ward's estate if the compensation will not unreasonably
jeopardize the ward's well-being.
30.1-28-04. (5-304) Findings - Order of appointment.
1. The court shall exercise the authority conferred in this chapter consistent with the
maximum self-reliance and independence of the incapacitated person and make
appointive and other orders only to the extent necessitated by the incapacitated
person's actual mental and adaptive limitations or other conditions warranting the
procedure.
2. At a hearing held under this chapter, the court shall:
a. Hear evidence that the proposed ward is an incapacitated person. Age,
eccentricity, poverty, or medical diagnosis alone is not sufficient to justify a finding
of incapacity;
b. Hear evidence and determine whether there are any existing general durable
powers of attorney and durable powers of attorney for health care. If there are
validly executed durable powers of attorney, the court shall consider the
appointed attorneys in fact and agents appointed thereunder when assessing
alternative resource plans and the need for a guardian; and
c. Appoint a guardian and confer specific powers of guardianship only after finding
in the record based on clear and convincing evidence that:
(1) The proposed ward is an incapacitated person;
(2) There is no available alternative resource plan that is suitable to safeguard
the proposed ward's health, safety, or habilitation which could be used
instead of a guardianship;
(3) The guardianship is necessary as the best means of providing care,
supervision, or habilitation of the ward; and
(4) The powers and duties conferred upon the guardian are appropriate as the
least restrictive form of intervention consistent with the ability of the ward for
self-care.
3. Except upon specific findings of the court, no ward may be deprived of any of the
following legal rights: to vote, to seek to change marital status, to obtain or retain a
motor vehicle operator's license, or to testify in any judicial or administrative
proceedings.
4. The court may find that the ward retains other specific rights.
5. The order appointing a guardian confers upon the guardian only those powers and
duties specified in the order. In addition to any other powers conferred upon the
guardian, the court's order must state whether the guardian has no authority, general
authority, or limited authority to make decisions on behalf of the ward in each of the
areas of residential, educational, medical, legal, vocational, and financial
decisionmaking. A grant of limited authority must specify the limitations upon the
authority of the guardian or the authority retained by the ward.
6. Unless a court of competent jurisdiction determines otherwise, a durable power of
attorney for health care executed pursuant to chapter 23-06.5 takes precedence over
any authority to make medical decisions granted to a guardian pursuant to chapter
30.1-28.
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30.1-28-05. (5-305) Acceptance of appointment - Consent to jurisdiction - Order Letters of guardianship.
1. By accepting appointment, a guardian submits personally to the jurisdiction of the
court in any proceeding relating to the guardianship that may be instituted by any
interested person. Notice of any proceeding so instituted must be served upon the
guardian by the petitioner.
2. A copy of the order appointing the guardian must be served upon the ward and the
ward's attorney by the petitioner. The order must contain the name and address of the
guardian as well as notice of the ward's right to appeal the guardianship appointment
and of the ward's right to seek alteration or termination of the guardianship at any time.
3. Letters of guardianship must contain:
a. The name, address, and telephone number of the guardian;
b. The name, address, and telephone number of the ward;
c. Specification of the guardian's authority to make decisions on behalf of the ward
in residential, educational, medical, legal, vocational, and financial areas. If
limited authority has been granted in any area, the letters must describe the
nature of the limitations;
d. Specification of any other powers or authority conferred upon the guardian; and
e. Specification of limitations by the court upon the rights and privileges of the ward
in matters not governed by powers of the guardian, such as voting, marriage, and
driving.
4. The letters must issue to the guardian. The court shall mail copies to the ward and the
ward's counsel.
30.1-28-06. (5-306) Termination of guardianship.
The authority and responsibility of a guardian for an incapacitated person terminates upon
the death of the guardian or ward, except, the guardian may arrange for a deceased ward's
burial and refer the ward's estate to probate, if no other person is available to perform those
acts, the determination of incapacity of the guardian, or upon removal or resignation as provided
in section 30.1-28-07. Testamentary appointment under an informally probated will terminates if
the will is later denied probate in a formal proceeding. Termination does not affect the guardian's
liability for prior acts nor the guardian's obligation to account for funds and assets of the ward.
30.1-28-07. (5-307) Removal or resignation of guardian - Termination of guardianship.
1. On petition of the ward or any person interested in the ward's welfare, the court may
remove a guardian and appoint a successor if in the best interests of the ward. On
petition of the guardian, the court may accept the guardian's resignation and make any
other order which may be appropriate.
2. The ward or any person interested in the ward's welfare may petition for an order that
the ward is no longer incapacitated, and for removal of the guardian. A request for this
order may be made by informal letter to the court or judge. Any person who knowingly
interferes with transmission of this kind of request to the court or judge may be
adjudged guilty of contempt of court.
3. Before removing a guardian, accepting the resignation of a guardian, or on finding that
the ward is no longer incapacitated and ordering the guardianship terminated, the
court, following the same procedures to safeguard the rights of the ward as apply to a
petition for appointment of a guardian, may send a visitor to the residence of the
present guardian and to the place where the ward resides or is detained, to observe
conditions and report in writing to the court.
30.1-28-08. (5-308) Visitor in guardianship proceedings.
A visitor in guardianship proceedings is a person who is in nursing or social work and is an
officer, employee, or special appointee of the court with no personal interest in the proceedings.
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30.1-28-09. (5-309) Notices in guardianship proceedings.
1. In a proceeding for the appointment or removal of a guardian or for an alteration or
termination of a guardianship other than for the appointment of an emergency
guardian or for the temporary suspension of a guardian, notice of hearing shall be
given to each of the following:
a. The ward or the proposed ward and the ward's or proposed ward's spouse,
parents, and adult children;
b. Any person, corporation, or institution who is serving as the ward's guardian,
attorney in fact, representative payee for public benefits, or conservator, or who
has the ward's care and custody;
c. If no other person is notified under subdivision a, then the adult siblings and any
adult with whom the proposed ward resides in a private residence, or if none can
be found, any known adult relative; and
d. The attorney for the proposed ward, the visitor, and the physician or clinical
psychologist, together with a copy of the respective order of appointment for
each.
2. Notice must be served personally on the ward or proposed ward, and the ward's or
proposed ward's spouse and parents if they can be found within the state. Notice to
the spouse and parents, if they cannot be found within the state, and to all other
persons except the ward or proposed ward must be given as provided in section
30.1-03-01. Waiver of notice by the ward or proposed ward is not effective unless the
ward or proposed ward attends the hearing or the ward's or proposed ward's waiver of
notice is confirmed in an interview with the visitor.
3. The notice must be printed with not less than double-spaced twelve-point type. The
notice must inform the ward or proposed ward of the ward's or proposed ward's rights
at the hearing and must include a description of the nature, purpose, and
consequences of an appointment of a guardian.
30.1-28-10. (5-310) Temporary guardians.
Repealed by S.L. 2013, ch. 250, ยง 3.
30.1-28-10.1. Emergency guardian.
1. If the court finds that compliance with the procedures of this chapter likely will result in
substantial harm to the alleged incapacitated individual's health, safety, or welfare, and
that no other person appears to have authority and willingness to act in the
circumstances, the court, on petition by a person interested in the alleged
incapacitated individual's welfare, may appoint an emergency guardian whose
authority may not exceed sixty days and who may exercise only the powers specified
in the order. Immediately upon receipt of the petition for an emergency guardianship,
the court shall appoint an attorney to represent the alleged incapacitated individual in
the proceeding. Except as otherwise provided in subsection 2, reasonable notice of
the time and place of a hearing on the petition must be given to the alleged
incapacitated individual and any other person as the court directs.
2. An emergency guardian may be appointed without notice to the alleged incapacitated
individual and the alleged incapacitated individual's attorney only if the court finds from
affidavit or other sworn testimony that the alleged incapacitated individual will be
substantially harmed before a hearing on the appointment can be held. If the court
appoints an emergency guardian without notice to the alleged incapacitated individual,
the alleged incapacitated individual must be given notice of the appointment within
forty-eight hours after the appointment. The court shall hold a hearing on the
appropriateness of the appointment within five days after the appointment.
3. Appointment of an emergency guardian, with or without notice, is not a determination
of the alleged incapacitated individual's incapacity.
4. The court may remove an emergency guardian at any time. An emergency guardian
shall make any report the court requires. In all other respects, the provisions of this
chapter concerning guardians apply to an emergency guardian.
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30.1-28-11. (5-311) Who may be guardian - Priorities.
1. Any competent person or a designated person from a suitable institution, agency, or
nonprofit group home may be appointed guardian of an incapacitated person. No
institution, agency, or nonprofit group home providing care and custody of the
incapacitated person may be appointed guardian. However, if no one else can be
found to serve as guardian, an employee of an agency, institution, or nonprofit group
home providing care and custody may be appointed guardian if the employee does not
provide direct care to the proposed ward and the court makes a specific finding that
the appointment presents no substantial risk of a conflict of interest.
2. Unless lack of qualification or other good cause dictates the contrary, the court shall
appoint a guardian in accordance with the incapacitated person's most recent
nomination in a durable power of attorney.
3. Except as provided in subsection 2, persons who are not disqualified have priority for
appointment as guardian in the following order:
a. A person nominated by the incapacitated person prior to being determined to be
incapacitated, when nominated by means other than provided in subsection 2, if
the incapacitated person is fourteen or more years of age and, in the opinion of
the court, acted with or has sufficient mental capacity to make an intelligent
choice.
b. The spouse of the incapacitated person.
c. An adult child of the incapacitated person.
d. A parent of the incapacitated person, including a person nominated by will or
other writing signed by a deceased parent.
e. Any relative of the incapacitated person with whom the incapacitated person has
resided for more than six months prior to the filing of the petition.
f. Any relative or friend who has maintained significant contacts with the
incapacitated person or a designated person from a volunteer agency.
g. A nonprofit corporation established to provide guardianship services; provided,
that the corporation does not provide direct care to incapacitated persons. The
corporation shall file with the court the name of an employee, volunteer, or other
person from the corporation who is directly responsible for the guardianship of
each incapacitated person, and shall notify the court in the event the person for
any reason ceases to so act, or if a successor is named.
h. Any appropriate government agency, including county social service agencies,
except as limited by subsection 1.
i. A person nominated by the person who is caring for or paying benefits to the
incapacitated person.
4. With respect to persons having equal priority, the court shall select the one it deems
best qualified to serve. The court, acting in the best interest of the incapacitated
person, may pass over a person having priority and appoint a person having a lower
priority.
30.1-28-12. (5-312) General powers and duties of guardian.
1. A guardian of an incapacitated person has only the powers and duties specified by the
court.
2. To the extent that it is consistent with the terms of an order by a court of competent
jurisdiction, the guardian is entitled to custody of the person of the ward and may
establish the ward's place of residence within or without this state. However, no
guardian may voluntarily admit a ward to a mental health facility or state institution for
a period of more than forty-five days without a mental health commitment proceeding
or other court order. Notwithstanding the other provisions of this subsection, the
guardian may readmit a ward to a mental health facility or a state institution within sixty
days of discharge from that institution, if the original admission to the facility or
institution had been authorized by the court.
3. If entitled to custody of the ward, the guardian should make provision for the care,
comfort, and maintenance of the ward and, whenever appropriate, arrange for the
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ward's training, education, or habilitative services. The guardian shall take reasonable
care of the ward's clothing, furniture, vehicles, and personal effects.
Notwithstanding general or limited authority to make medical decisions on behalf of the
ward, no guardian may consent to psychosurgery, abortion, sterilization, or
experimental treatment of any kind unless the procedure is first approved by order of
the court.
When exercising the authority granted by the court, the guardian shall safeguard the
civil rights and personal autonomy of the ward to the fullest extent possible by:
a. Involving the ward as fully as is practicable in making decisions with respect to
the ward's living arrangements, health care, and other aspects of the ward's care;
and
b. Ensuring the ward's maximum personal freedom by using the least restrictive
forms of intervention and only as necessary for the safety of the ward or others.
If no conservator for the estate of the ward has been appointed and if the guardian has
been granted authority to make financial decisions on behalf of the ward, the guardian
may:
a. Institute proceedings to compel any person under a duty to support the ward or to
pay sums for the welfare of the ward to perform that duty.
b. Receive money and tangible property deliverable to the ward and apply the
money and property for support, care, and education of the ward; but, the
guardian may not use funds from the ward's estate for room and board which the
guardian or the guardian's spouse, parent, or child have furnished the ward
unless a charge for the service is approved by order of the court made upon
notice to at least one of the next of kin of the ward, if notice is possible. The
guardian shall exercise care to conserve any excess for the ward's needs.
If a conservator has been appointed, all of the ward's estate received by the guardian
in excess of those funds expended to meet current expenses for support, care, and
education of the ward must be paid to the conservator for management as provided in
this title, and the guardian must account to the conservator for funds expended.
A guardian shall file an annual report with the court informing the court of the status or
condition of the ward. The report must include changes that have occurred since the
previous reporting period and an accounting of the ward's estate. The guardian shall
report whether the ward has resided in an institution, whether the ward continues to
require guardianship, and whether any powers of the guardian should be increased or
limited. The filing of a report and its acceptance by the court or clerk of district court
does not constitute an adjudication or a determination of the merits of the report nor
does the filing of the report constitute the court's approval of the report. The court may
approve a report and allow and settle an accounting only upon notice to the ward's
guardian ad litem and other interested persons who have made an appearance or
requested notice of proceedings. The office of the state court administrator shall
provide printed forms that may be used to fulfill reporting requirements. Any report
must be similar in substance to the state court administrator's form. The forms must be
available in the office of clerk of district court or obtainable through the supreme court's
internet website.
Copies of the guardian's annual report to the court and of any other reports required by
the court must be mailed to the ward. The ward's copy must be accompanied by a
statement, printed with not less than double-spaced twelve-point type, of the ward's
right to seek alteration, limitation, or termination of the guardianship at any time.
The guardian is entitled to receive reasonable sums for services and for room and
board furnished to the ward as approved by the court or as agreed upon between the
guardian and the conservator, provided the amounts agreed upon are reasonable
under the circumstances. The guardian may request the conservator to expend the
ward's estate by payment to third persons or institutions for the ward's care and
maintenance.
Page No. 7
30.1-28-12.1. Annual reports and accounts - Failure of guardian to file.
If a guardian fails to file an annual report as required by section 30.1-28-12, fails to file a
report at other times as the court may direct, or fails to provide an accounting of an estate, the
court, upon its own motion or upon petition of any interested party, may issue an order
compelling the guardian to show cause why the guardian should not immediately make and file
the report or account, or be found in contempt for failure to comply.
30.1-28-13. (5-313) Proceedings subsequent to appointment - Venue.
1. The court where the ward resides has concurrent jurisdiction with the court which
appointed the guardian, or in which acceptance of a testamentary appointment was
filed, over resignation, removal, accounting, and other proceedings relating to the
guardianship, including proceedings to limit the authority previously conferred on a
guardian, or to remove limitations previously imposed.
2. If the court located where the ward resides is not the court in which acceptance of
appointment is filed, the court in which proceedings subsequent to appointment are
commenced shall in all appropriate cases notify the other court, in this or another
state, and after consultation with that court determine whether to retain jurisdiction or
transfer the proceedings to the other court, whichever may be in the best interest of
the ward. A copy of any order accepting a resignation, removing a guardian, or altering
a guardian's authority shall be sent to the court in which acceptance of appointment is
filed.
30.1-28-14. Guardianships established before July 1, 1990.
The powers and duties of guardians and the rights and privileges of wards under
guardianships established before July 1, 1990, are as provided by this chapter as it existed on
June 30, 1990, and are not affected by chapter 405 of the 1989 Session Laws, except that
guardians appointed before July 1, 1990, must comply with the requirements of subsections 2,
4, 5, and 8 of section 30.1-28-12.
30.1-28-15. Appointment of successor guardian.
1. If the appointment of a successor guardian is required, the current guardian or any
interested person may file a motion with the court for the appointment of a successor
guardian.
2. The motion and supporting documents must be served on the ward, the ward's
guardian ad litem, and every other interested person who has made an appearance or
requested notice of proceedings.
3. A notice of motion must accompany the motion and must include a statement that
provides an opportunity for hearing if requested in regard to the appointment of a
successor guardian.
4. If the current or former guardian serves or served as a public administrator or a
corporate guardian with more than ten wards, the motion and notice of motion may be
served by first-class mail. The public administrator or corporate guardian shall then
provide written notice of the motion to the state office of the protection and advocacy
project, along with the contact information for each ward and proposed guardian.
5. If a hearing is not requested by or on behalf of the ward listed in the notice, the court
may sign an order appointing a successor guardian for that ward.
Page No. 8
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