2013 North Dakota Century Code Title 30.1 Uniform Probate Code Chapter 30.1-29 Protection of Property of Persons Under Disability and Minors
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CHAPTER 30.1-29
PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
30.1-29-01. (5-401) Protective proceedings.
Upon petition and after notice and hearing in accordance with the provisions of this chapter,
the court may appoint a conservator or make other protective order for cause as follows:
1. Appointment of a conservator or other protective order may be made in relation to the
estate and affairs of a minor if the court determines that a minor owns money or
property that requires management or protection which cannot otherwise be provided,
has or may have business affairs which may be jeopardized or prevented by the
minor's minority, or that funds are needed for the minor's support and education and
that protection is necessary or desirable to obtain or provide funds.
2. Appointment of a conservator or other protective order may be made in relation to the
estate and affairs of a person if the court determines that:
a. The person is unable to manage the person's property and affairs effectively for
reasons such as mental illness, mental deficiency, physical illness or disability,
advanced age, chronic use of drugs, chronic intoxication, confinement, detention
by a foreign power, or disappearance.
b. The person has property which will be wasted or dissipated unless proper
management is provided, or that funds are needed for the support, care, and
welfare of the person or those entitled to be supported by the person and that
protection is necessary or desirable to obtain or provide funds.
30.1-29-02. (5-402) Protective proceedings - Jurisdiction of affairs of protected
persons.
Repealed by S.L. 2009, ch. 278, § 2.
30.1-29-03. (5-403) Venue.
Venue for proceedings under this chapter is:
1. In the place in this state where the person to be protected resides whether or not a
guardian has been appointed in another place.
2. If the person to be protected does not reside in this state, in any place where the
person has property.
30.1-29-04. (5-404) Original petition for appointment or protective order.
1. The person to be protected, any person who is interested in the estate, affairs, or
welfare of the person to be protected, including the protected person's parent,
guardian, or custodian, or any person who would be adversely affected by lack of
effective management of property and affairs of the person to be protected may
petition for the appointment of a conservator or for other appropriate protective order.
2. The petition shall set forth, to the extent known, the interest of the petitioner; the name,
age, residence, and address of the person to be protected; the name and address of
the guardian of the person to be protected, if any; the name and address of the
nearest relative of the person to be protected known to the petitioner; a general
statement of property of the person to be protected with an estimate of the value
thereof, including any compensation, insurance, pension, or allowance to which the
person to be protected is entitled; and the reason why appointment of a conservator or
other protective order is necessary. If the appointment of a conservator is requested,
the petition also shall set forth the name and address of the person whose
appointment is sought and the basis of the person's priority for appointment.
30.1-29-05. (5-405) Notice.
1. On a petition for appointment of a conservator or other protective order, the person to
be protected and the spouse of the person to be protected or, if none, the parents of
the person to be protected, must be served personally with notice of the proceeding at
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least fourteen days before the date of hearing if they can be found within the state, or,
if they cannot be found within the state, they, any other guardian or conservator, and
any government agency paying benefits to the person sought to be protected, if the
person seeking the appointment has knowledge of the existence of these benefits,
must be given notice in accordance with section 30.1-03-01. Waiver by the person to
be protected is not effective unless the proceedings are limited to payment of veterans'
administration benefits, the person to be protected attends the hearing, or, unless
minority is the reason for the proceeding, waiver is confirmed in an interview with the
visitor.
Notice of a petition for appointment of a conservator or other initial protective order,
and of any subsequent hearing, must be given to any person who has filed a request
for notice under section 30.1-29-06 and to interested persons and other persons as
the court may direct. Except as otherwise provided in subsection 1, notice shall be
given in accordance with section 30.1-03-01.
30.1-29-06. (5-406) Protective proceedings - Request for notice - Interested person.
Any interested person who desires to be notified before any order is made in a protective
proceeding may file with the court a request for notice subsequent to payment of any fee
required by statute or court rule. The clerk shall mail a copy of the demand to the conservator if
one has been appointed. A request is not effective unless it contains a statement showing the
interest of the person making it and the person's address, or that of the person's attorney, and is
effective only as to matters occurring after the filing. Any governmental agency paying or
planning to pay benefits to the person to be protected is an interested person in protective
proceedings.
30.1-29-07. (5-407) Procedure concerning hearing and order on original petition.
1. Upon receipt of a petition for appointment of a conservator or other protective order
because of minority, the court shall set a date for hearing on the matters alleged in the
petition. If, at any time in the proceeding, the court determines that the interests of the
minor are or may be inadequately represented, it may appoint an attorney to represent
the minor, giving consideration to the choice of the minor if fourteen years of age or
older. A lawyer appointed by the court to represent a minor has the powers and duties
of a guardian ad litem.
2. Upon receipt of a petition for appointment of a conservator or other protective order for
reasons other than minority, the court shall set a date for hearing. If, at any time in the
proceeding, the court determines that the interests of the person to be protected are or
may be inadequately represented, it may appoint an attorney to represent the person
to be protected. An attorney appointed by the court to represent a protected person
has the powers and duties of a guardian ad litem. If the alleged disability is mental
illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic
intoxication, the court may direct that the person to be protected be examined by a
physician designated by the court, preferably a physician who is not connected with
any institution in which the person is a patient or is detained. The court may send a
visitor to interview the person to be protected. The visitor may be a guardian ad litem
or an officer, employee, or special appointee of the court. In any case in which the
veterans' administration is or may be an interested party, a certificate of an authorized
official of the veterans' administration that the person to be protected has been found
incapable of handling the benefits payable on examination in accordance with the laws
and regulations governing the veterans' administration shall be prima facie evidence of
the necessity for such appointment.
3. After hearing, upon finding that a basis for the appointment of a conservator or other
protective order has been established, the court shall make an appointment or other
appropriate protective order.
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30.1-29-08. (5-408) Permissible court orders.
1. The court shall exercise the authority conferred in this chapter consistent with the
maximum self-reliance and independence of the protected person and make protective
orders only to the extent necessitated by the protected person's actual mental and
adaptive limitations and other conditions warranting the procedure.
2. The court has the following powers which may be exercised directly or through a
conservator in respect to the estate and affairs of protected persons:
a. While a petition for appointment of a conservator or other protective order is
pending and after preliminary hearing and without notice to others, the court has
power to preserve and apply the property of the person to be protected as may
be required for the benefit of the person to be protected or the benefit of the
dependents of the person to be protected.
b. After hearing and upon determining that a basis for an appointment or other
protective order exists with respect to a minor without other disability, the court
has all those powers over the estate and affairs of the minor which are or might
be necessary for the best interests of the minor, the minor's family, and members
of the minor's household.
c. After hearing and upon determining that a basis for an appointment or other
protective order exists with respect to a person for reasons other than minority,
the court has, for the benefit of the person and members of the person's
household, all the powers over the person's estate and affairs which the person
could exercise if present and not under disability, except the power to make a will.
These powers include power to make gifts, to convey or release the person's
contingent and expectant interests in property, including marital property rights
and any right of survivorship incident to joint tenancy, to exercise or release the
person's powers as trustee, personal representative, custodian for minors,
conservator, or donee of a power of appointment, to enter into contracts, to create
revocable or irrevocable trusts of property of the estate which may extend beyond
the person's disability or life, to exercise options of the disabled person to
purchase securities or other property, to exercise the person's rights to elect
options and change beneficiaries under insurance and annuity policies and to
surrender the policies for their cash value, to exercise the person's right to an
elective share in the estate of the person's deceased spouse, and to renounce
any interest by testate or intestate succession or by inter vivos transfer.
d. The court may exercise or direct the exercise of its authority to exercise or
release powers of appointment of which the protected person is donee, to
renounce interests, to make gifts in trust or otherwise exceeding twenty percent
of any year's income of the estate, or to change beneficiaries under insurance
and annuity policies, only if satisfied, after notice and hearing, that it is in the best
interests of the protected person, and that the protected person either is
incapable of consenting or has consented to the proposed exercise of power.
e. An order made pursuant to this section determining that a basis for appointment
of a conservator or other protective order exists has no effect on the capacity of
the protected person.
30.1-29-09. (5-409) Protective arrangements and single transactions authorized.
1. If it is established in a proper proceeding that a basis exists, as described in section
30.1-29-01, for affecting the property and affairs of a person, the court, without
appointing a conservator, may authorize, direct, or ratify any transaction necessary or
desirable to achieve any security, service, or care arrangement meeting the
foreseeable needs of the protected person. Protective arrangements include payment,
delivery, deposit, or retention of funds or property, sale, mortgage, lease, or other
transfer of property, entry into an annuity contract, a contract for life care, a deposit
contract, a contract for training and education, or addition to or establishment of a
suitable trust.
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When it has been established in a proper proceeding that a basis exists, as described
in section 30.1-29-01, for affecting the property and affairs of a person, the court,
without appointing a conservator, may authorize, direct, or ratify any contract, trust, or
other transaction relating to the protected person's financial affairs or involving the
protected person's estate if the court determines that the transaction is in the best
interests of the protected person.
Before approving a protective arrangement or other transaction under this section, the
court shall consider the interests of creditors and dependents of the protected person
and, in view of the protected person's disability, whether the protected person needs
the continuing protection of a conservator. The court may appoint a special
conservator to assist in the accomplishment of any protective arrangement or other
transaction authorized under this section who shall have the authority conferred by the
order and serve until discharged by order, after report to the court of all matters done
pursuant to the order of appointment.
30.1-29-10. (5-410) Who may be appointed conservator - Priorities.
1. The court may appoint an individual, limited liability company, association, corporation,
or other entity with general power to serve as trustee, as conservator of the estate of a
protected person.
2. Unless lack of qualification or other good cause dictates the contrary, the court shall
appoint a conservator in accordance with the protected 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 conservator in the following order:
a. A conservator, guardian of property, or other like fiduciary appointed or
recognized by the appropriate court of any other jurisdiction in which the
protected person resides.
b. An individual or corporation nominated by the protected person by other means
than provided for in subsection 2 if the protected person is fourteen or more years
of age and, in the opinion of the court, has sufficient mental capacity to make an
intelligent choice.
c. The spouse of the protected person.
d. An adult child of the protected person.
e. A parent of the protected person, or a person nominated by the will of a deceased
parent.
f. Any relative of the protected person with whom the protected person has resided
for more than six months prior to the filing of the petition.
g. A person nominated by the person who is caring for or paying benefits to the
protected person.
4. A person denominated in subdivision a, c, d, e, or f of subsection 3 may nominate, in
writing, a substitute to serve instead and thereby transfer the priority to the substitute.
With respect to persons having equal priority, the court is to select the one who is best
qualified of those willing to serve. The court, for good cause, may pass over a person
having higher priority and appoint a person having lower priority or no priority.
30.1-29-11. (5-411) Bond.
Except as provided herein, the court shall require a conservator to furnish a bond
conditioned upon faithful discharge of all duties of the trust according to law, with sureties as it
shall specify. Unless reduced or waived by the court for good cause, the bond shall be in the
amount of the aggregate capital value of the property of the estate in the conservator's control
plus one year's estimated income, including veterans' administration benefits received during
that year, minus the value of securities deposited under arrangements requiring an order of the
court for their removal and the value of any land which the fiduciary, by express limitation of
power, lacks power to sell or convey without court authorization. In lieu of sureties on a bond,
the court may accept other security for the performance of the bond, including a pledge of
securities or a mortgage of land.
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30.1-29-12. (5-412) Terms and requirements of bonds.
1. The following requirements and provisions apply to any bond required under section
30.1-29-11:
a. Unless otherwise provided by the terms of the approved bond, sureties are jointly
and severally liable with the conservator and with each other.
b. By executing an approved bond of a conservator, the surety consents to the
jurisdiction of the court which issued letters to the primary obligor in any
proceeding pertaining to the fiduciary duties of the conservator and naming the
surety as a party defendant. Notice of any proceeding shall be delivered to the
surety or mailed to the surety by registered or certified mail at the surety's
address as listed with the court where the bond is filed and to the surety's
address as then known to the petitioner.
c. On petition of a successor conservator or any interested person, a proceeding
may be initiated against a surety for breach of the obligation of the bond of the
conservator.
d. The bond of the conservator is not void after the first recovery but may be
proceeded against from time to time until the whole penalty is exhausted.
2. No proceeding may be commenced against the surety on any matter as to which an
action or proceeding against the primary obligor is barred by adjudication or limitation.
30.1-29-13. (5-413) Acceptance of appointment - Consent to jurisdiction.
By accepting appointment, a conservator submits personally to the jurisdiction of the court
in any proceeding, relating to the estate, that may be instituted by any interested person. Notice
of any proceeding shall be delivered to the conservator, or mailed to the conservator by
registered or certified mail at the conservator's address as listed in the petition for appointment
or as thereafter reported to the court and to the conservator's address as then known to the
petitioner.
30.1-29-14. (5-414) Compensation and expense.
1. When the estate is derived, in whole or in part, from money paid or being paid by the
veterans' administration to the conservator or the conservator's predecessor for the
benefit of the protected person, the compensation allowed from such money to the
conservator shall be limited to five percent of the amount of money received from the
agency during the period covered by the account, except that the court may allow a
minimum compensation of not to exceed fifty dollars per year. No commission or
compensation will be allowed for receipt of moneys or other assets received from a
prior fiduciary nor upon the amount received from liquidation of loans or other
investments.
2. If not otherwise compensated for services rendered, any visitor, lawyer, physician,
conservator, or special conservator appointed in a protective proceeding is entitled to
reasonable compensation from the estate.
30.1-29-15. (5-415) Death, resignation, or removal of conservator.
The court may remove a conservator for good cause, upon notice and hearing, or accept
the resignation of a conservator. After a conservator's death, resignation, or removal, the court
may appoint another conservator. A conservator so appointed succeeds to the title and powers
of the predecessor.
30.1-29-16. (5-416) Petitions for orders subsequent to appointment.
1. Any person interested in the welfare of a person for whom a conservator has been
appointed may file a petition in the appointing court for an order:
a. Requiring bond or security or additional bond or security, or reducing bond;
b. Requiring an accounting for the administration of the trust;
c. Directing distribution;
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Removing the conservator and appointing a temporary or successor conservator;
or
e. Granting other appropriate relief.
A conservator may petition the appointing court for instructions concerning the
conservator's fiduciary responsibility.
Upon notice and hearing, the court may give appropriate instructions or make any
appropriate order.
30.1-29-17. (5-417) General duty of conservator.
In the exercise of conservator's powers, a conservator is to act as a fiduciary and shall
observe the standards of care applicable to trustees.
30.1-29-18. (5-418) Inventory and records.
Within ninety days after appointment, every conservator shall prepare and file with the
appointing court a complete inventory of the estate of the protected person together with the
conservator's oath or affirmation that it is complete and accurate so far as the conservator is
informed. The conservator shall provide a copy thereof to the protected person if the protected
person can be located, has attained the age of fourteen years, and has sufficient mental
capacity to understand these matters, and to any parent or guardian with whom the protected
person resides. The conservator shall keep suitable records of the conservator's administration
and exhibit the same on request of any interested person.
30.1-29-19. (5-419) Annual reports and accounts.
At least once annually and at other times as the court may direct, a conservator must file a
report and account with the court. On termination of the protected person's minority or disability,
a conservator shall file a final report and accounting and provide a copy of the report or
accounting to the protected person. The filing of the report or accounting and the acceptance by
the court or clerk of district court of the report or accounting does not constitute the court's
approval of the report or accounting. The court may approve a report and settle and allow an
accounting only upon notice to the protected person and other interested persons who have
made an appearance or requested notice of proceedings. Subject to appeal or vacation within
the time permitted, an order, made upon notice and hearing, allowing an intermediate account of
a conservator, adjudicates as to liabilities concerning the matters considered in connection
therewith. An order, made upon notice and hearing, allowing a final account adjudicates as to all
previously unsettled liabilities of the conservator to the protected person or the protected
person's successors relating to the conservatorship. In connection with any account, the court
may require a conservator to submit to a physical check of the estate in the conservator's
control, to be made in any manner the court may specify. 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.
30.1-29-20. (5-420) Conservators - Title by appointment.
The appointment of a conservator vests in the conservator title as trustee to all property of
the protected person, presently held or thereafter acquired, including title to any property
theretofore held for the protected person by custodians or attorneys in fact, or to the part thereof
specified in the order. An order specifying that only a part of the property of the protected person
vests in the conservator creates a limited conservatorship. The appointment of a conservator is
not a transfer or alienation within the meaning of general provisions of any federal or state
statute or regulation, insurance policy, pension plan, contract, will, or trust instrument imposing
restrictions upon or penalties for transfer or alienation by the protected person of the protected
person's rights or interest, but this section does not restrict the ability of persons to make
specific provision by contract or dispositive instrument relating to a conservator.
Page No. 6
30.1-29-21. (5-421) Recording of conservator's letters.
Letters of conservatorship are evidence of transfer of all assets, or the part thereof specified
in the letters, of a protected person to the conservator. An order terminating a conservatorship is
evidence of transfer of all assets of the estate subjected to the conservatorship from the
conservator to the protected person or the protected person's successors. Subject to the
requirements of general statutes governing the filing or recordation of documents of title to land
or other property, letters of conservatorship, and orders terminating conservatorships, may be
filed or recorded to give record notice of title as between the conservator and the protected
person.
30.1-29-22. (5-422) Sale, encumbrance, or transaction involving conflict of interest Voidable exceptions.
Any sale or encumbrance to a conservator, the conservator's spouse, agent, or attorney, or
any corporation, limited liability company, or trust in which the conservator has a substantial
beneficial interest, or any transaction which is affected by a substantial conflict of interest is
voidable unless the transaction is approved by the court, after notice to interested persons and
others as directed by the court.
30.1-29-23. (5-423) Persons dealing with conservators - Protection.
A person who in good faith either assists a conservator or deals with the conservator for
value in any transaction other than those requiring a court order as provided in section
30.1-29-08 is protected as if the conservator properly exercised the power. The fact that a
person knowingly deals with a conservator does not alone require the person to inquire into the
existence of a power or the propriety of its exercise, except that restrictions on powers of
conservators which are endorsed on letters as provided in section 30.1-29-26 are effective as to
third persons. A person is not bound to see to the proper application of estate assets paid or
delivered to a conservator. The protection here expressed extends to instances in which some
procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of
letters. The protection here expressed is not by substitution for that provided by comparable
provisions of the laws relating to commercial transactions and laws simplifying transfers of
securities by fiduciaries.
30.1-29-24. (5-424) Powers of conservator in administration.
1. A conservator has all of the powers conferred herein and any additional powers
conferred by law on trustees in this state. In addition, a conservator of the estate of an
unmarried minor, as to whom no one has parental rights, has the duties and powers of
a guardian of a minor described in section 30.1-27-09 until the minor marries, but the
parental rights so conferred on a conservator do not preclude appointment of a
guardian as provided by chapter 30.1-27.
2. A conservator has power, without court authorization or confirmation, to invest and
reinvest funds of the estate as would a trustee.
3. A conservator, acting reasonably in efforts to accomplish the purpose for which the
conservator was appointed, may act without court authorization or confirmation, to:
a. Collect, hold, and retain assets of the estate, including land in another state, until,
in the conservator's judgment, disposition of the assets should be made, and the
assets may be retained even though they include an asset in which the
conservator is personally interested.
b. Receive additions to the estate.
c. Continue or participate in the operation of any business or other enterprise.
d. Acquire an undivided interest in an estate asset in which the conservator, in any
fiduciary capacity, holds an undivided interest.
e. Invest and reinvest estate assets in accordance with subsection 2.
f. Deposit estate funds in a bank, including a bank operated by the conservator.
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Acquire or dispose of an estate asset, including land in another state for cash or
on credit, at public or private sale, and to manage, develop, improve, exchange,
partition, change the character of, or abandon an estate asset.
Make ordinary or extraordinary repairs or alterations in buildings or other
structures, demolish any improvements, and raze existing or erect new party
walls or buildings.
Subdivide, develop, or dedicate land to public use, to make or obtain the vacation
of plats and adjust boundaries, to adjust differences in valuation on exchange or
to partition by giving or receiving considerations, and to dedicate easements to
public use without consideration.
Enter for any purpose into a lease as lessor or lessee with or without option to
purchase or renew for a term within or extending beyond the term of the
conservatorship.
Enter into a lease or arrangement for exploration and removal of minerals or
other natural resources or enter into a pooling or unitization agreement.
Grant an option involving disposition of an estate asset, to take an option for the
acquisition of any asset.
Vote a security, in person or by general or limited proxy.
Pay calls, assessments, and any other sums chargeable or accruing against or
on account of securities.
Sell or exercise stock or membership interest, subscription or conversion rights,
to consent, directly or through a committee or other agent, to the reorganization,
consolidation, merger, dissolution, or liquidation of a corporation, limited liability
company, or other business enterprise.
Hold a security in the name of a nominee or in other form without disclosure of
the conservatorship so that title to the security may pass by delivery, but the
conservator is liable for any act of the nominee in connection with the stock so
held.
Insure the assets of the estate against damage or loss, and the conservator
against liability with respect to third persons.
Borrow money to be repaid from estate assets or otherwise, to advance money
for the protection of the estate or the protected person, and for all expenses,
losses, and liability sustained in the administration of the estate or because of the
holding or ownership of any estate assets and the conservator has a lien on the
estate as against the protected person for advances so made.
Pay or contest any claim, to settle a claim by or against the estate or the
protected person by compromise, arbitration, or otherwise, and to release, in
whole or in part, any claim belonging to the estate to the extent that the claim is
uncollectible.
Pay taxes, assessments, compensation of the conservator, and other expenses
incurred in the collection, care, administration, and protection of the estate.
Allocate items of income or expense to either estate income or principal, as
provided by law, including creation of reserves out of income for depreciation,
obsolescence, or amortization, or for depletion in mineral or timber properties.
Pay any sum distributable to a protected person or the protected person's
dependent without liability to the conservator, by paying the sum to the distributee
or by paying the sum for the use of the distributee either to the distributee's
guardian or, if none, to a relative or other person with custody of the distributee's
person.
Employ persons, including attorneys, auditors, investment advisers, or agents,
even though they are associated with the conservator, to advise or assist the
conservator in the performance of the conservator's administrative duties, to act
upon their recommendation without independent investigation, and instead of
acting personally, to employ one or more agents to perform any act of
administration, whether or not discretionary.
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Prosecute or defend actions, claims, or proceedings in any jurisdiction for the
protection of estate assets and of the conservator in the performance of the
conservator's duties.
Execute and deliver all instruments which will accomplish or facilitate the exercise
of the powers vested in the conservator.
30.1-29-25. (5-425) Distributive duties and powers of conservator.
1. A conservator may expend or distribute income or principal of the estate without court
authorization or confirmation for the support, education, care, or benefit of the
protected person and the protected person's dependents in accordance with the
following principles:
a. The conservator is to consider recommendations relating to the appropriate
standard of support, education, and benefit for the protected person made by a
parent or guardian, if any. The conservator may not be surcharged for sums paid
to persons or organizations actually furnishing support, education, or care to the
protected person pursuant to the recommendations of a parent or guardian of the
protected person unless the conservator knows that the parent or guardian is
deriving personal financial benefit therefrom, including relief from any personal
duty of support, or unless the recommendations are clearly not in the best
interests of the protected person.
b. The conservator is to expend or distribute sums reasonably necessary for the
support, education, care, or benefit of the protected person with due regard to:
(1) The size of the estate, the probable duration of the conservatorship, and the
likelihood that the protected person, at some future time, may be fully able
to manage the protected person's affairs and the estate which has been
conserved for the protected person.
(2) The accustomed standard of living of the protected person and members of
the protected person's household.
(3) Other funds or sources used for the support of the protected person.
c. The conservator may expend funds of the estate for the support of persons
legally dependent on the protected person and others who are members of the
protected person's household, who are unable to support themselves, and who
are in need of support.
d. Funds expended under this subsection may be paid by the conservator to any
person, including the protected person, to reimburse for expenditures that the
conservator might have made, or in advance for services to be rendered to the
protected person when it is reasonable to expect that they will be performed and
advance payments are customary or reasonably necessary under the
circumstances.
2. If the estate is ample to provide for the purposes implicit in the distributions authorized
by the preceding subsection, a conservator for a protected person other than a minor
has power to make gifts to charity and other objects as the protected person might
have been expected to make, in amounts which do not exceed in total for any year
twenty percent of the income from the estate.
3. When a minor who has not been adjudged disabled under subsection 2 of section
30.1-29-01 attains majority, the minor's conservator, after meeting all prior claims and
expenses of administration, shall pay over and distribute all funds and properties to the
former protected person as soon as possible.
4. When the conservator is satisfied that a protected person's disability other than
minority has ceased, the conservator, after meeting all prior claims and expenses of
administration, shall pay over and distribute all funds and properties to the former
protected person as soon as possible.
5. If a protected person dies, the conservator shall deliver to the court for safekeeping
any will of the deceased protected person which may have come into the conservator's
possession, inform the executor or a beneficiary named therein that the conservator
has done so, and retain the estate for delivery to a duly appointed personal
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representative of the decedent or other persons entitled thereto. If after forty days from
the death of the protected person no other person has been appointed personal
representative and no application or petition for appointment is before the court, the
conservator may apply to exercise the powers and duties of a personal representative
so that the conservator may proceed to administer and distribute the decedent's estate
without additional or further appointment. Upon application for an order granting the
powers of a personal representative to a conservator, after notice to any person
demanding notice under section 30.1-13-04 and to any person nominated executor in
any will of which the applicant is aware, the court may order the conferral of the power
upon determining that there is no objection, and endorse the letters of the conservator
to note that the formerly protected person is deceased and that the conservator has
acquired all of the powers and duties of a personal representative. The making and
entry of an order under this section shall have the effect of an order of appointment of
a personal representative as provided in section 30.1-14-08 and chapters 30.1-17
through 30.1-21, except that estate in the name of the conservator, after
administration, may be distributed to the decedent's successors without prior retransfer
to the conservator as personal representative.
30.1-29-26. (5-426) Enlargement or limitation of powers of conservator.
Subject to the restrictions in subdivision d of subsection 2 of section 30.1-29-08, the court
may confer on a conservator at the time of appointment or later, in addition to the powers
conferred on the conservator by sections 30.1-29-24 and 30.1-29-25, any power which the court
itself could exercise under subdivisions b and c of subsection 2 of section 30.1-29-08. The court
may, at the time of appointment or later, limit the powers of a conservator otherwise conferred
by sections 30.1-29-24 and 30.1-29-25, or previously conferred by the court, and may at any
time relieve the conservator of any limitation. If the court limits any power conferred on the
conservator by sections 30.1-29-24 and 30.1-29-25, the limitation shall be endorsed upon the
conservator's letters of appointment.
30.1-29-27. (5-427) Preservation of estate plan.
In investing the estate, and in selecting assets of the estate for distribution under
subsections 1 and 2 of section 30.1-29-25, in utilizing powers of revocation or withdrawal
available for the support of the protected person, and exercisable by the conservator or the
court, the conservator and the court should take into account any known estate plan of the
protected person, including the protected person's will, any revocable trust of which the
protected person is settlor, and any contract, transfer, or joint ownership arrangement with
provisions for payment or transfer of benefits or interests at the protected person's death to
another or others which the protected person may have originated. The conservator may
examine the will of the protected person.
30.1-29-28. (5-428) Claims against protected person - Enforcement.
1. A conservator must pay from the estate all just claims against the estate and against
the protected person arising before or after the conservatorship upon their
presentation and allowance. A claim may be presented by either of the following
methods:
a. The claimant may deliver or mail to the conservator a written statement of the
claim indicating its basis, the name and address of the claimant, and the amount
claimed.
b. The claimant may file a written statement of the claim, in the form prescribed by
rule, with the clerk of the court and deliver or mail a copy of the statement to the
conservator.
A claim is deemed presented on the first to occur of either receipt of the written
statement of claim by the conservator, or the filing of the claim with the court. A
presented claim is allowed if it is not disallowed by written statement mailed by the
conservator to the claimant within sixty days after its presentation. The presentation of
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2.
3.
a claim tolls any statute of limitation relating to the claim until thirty days after its
disallowance.
A claimant whose claim has not been paid may petition the court for determination of
the claim at any time before it is barred by the applicable statute of limitation, and,
upon due proof, procure an order for its allowance and payment from the estate. If a
proceeding is pending against a protected person at the time of appointment of a
conservator or is initiated against the protected person thereafter, the moving party
must give notice of the proceeding to the conservator if the outcome is to constitute a
claim against the estate.
If it appears that the estate in conservatorship is likely to be exhausted before all
existing claims are paid, preference is to be given to prior claims for the care,
maintenance, and education of the protected person or the protected person's
dependents and existing claims for expenses of administration.
30.1-29-29. (5-429) Individual liability of conservator.
1. Unless otherwise provided in the contract, a conservator is not individually liable on a
contract properly entered into in the conservator's fiduciary capacity in the course of
administration of the estate unless the conservator fails to reveal the conservator's
representative capacity and identify the estate in the contract.
2. The conservator is individually liable for obligations arising from ownership or control
of property of the estate or for torts committed in the course of administration of the
estate only if the conservator is personally at fault.
3. Claims based on contracts entered into by a conservator in the conservator's fiduciary
capacity, on obligations arising from ownership or control of the estate, or on torts
committed in the course of administration of the estate, may be asserted against the
estate by proceeding against the conservator in the conservator's fiduciary capacity,
whether or not the conservator is individually liable therefor.
4. Any question of liability between the estate and the conservator individually may be
determined in a proceeding for accounting, surcharge, or indemnification, or other
appropriate proceeding or action.
30.1-29-30. (5-430) Termination of proceeding.
The protected person, the protected person's personal representative, the conservator, or
any other interested person may petition the court to terminate the conservatorship. A protected
person seeking termination is entitled to the same rights and procedures as in an original
proceeding for a protective order. The court, upon determining, after notice and hearing, that the
minority or disability of the protected person has ceased, may terminate the conservatorship.
Upon termination, title to assets of the estate passes to the former protected person or to the
protected person's successors subject to provision in the order for expenses of administration or
to conveyances from the conservator to the former protected person or the former protected
person's successors to evidence the transfer.
30.1-29-31. (5-431) Payment of debt and delivery of property to foreign conservator
without local proceedings.
Any person indebted to a protected person, or having possession of property or of an
instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay
or deliver to a conservator, guardian of the estate, or other like fiduciary appointed by a court of
the state of residence of the protected person, upon being presented with proof of the
appointment and an affidavit made by the fiduciary or on the fiduciary's behalf stating:
1. That no protective proceeding relating to the protected person is pending in this state.
2. That the foreign conservator is entitled to payment or to receive delivery.
If the person to whom the affidavit is presented is not aware of any protective proceeding
pending in this state, payment or delivery in response to the demand and affidavit discharges
the debtor or possessor.
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30.1-29-32. (5-432) Delivery to foreign conservator.
Repealed by S.L. 2009, ch. 278, § 2.
Page No. 12
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