§ 30.1-28-03 — (5-303) Procedure for court appointment of a guardian of an incapacitated person

North Dakota § 30.1-28-03

• Jurisdiction: North Dakota
• Title 30.1: Uniform Probate Code
• Ch. 30.1-28: Guardians of Incapacitated Persons

Text

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 guardianship authority sought, including full authority, limited
authority, or no authority in each area of residential, educational, medical, legal,
vocational, and financial decisionmaking unless the petitioner is undecided on the
extent of authority in any area, in which case the petition must state the specific
areas in which the authority is sought;
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;

i. A statement alleging specific facts establishing the necessity for the appointment
of a guardian;
j. The name and address of any current conservator appointed for the proposed
ward;
k. The name and address of any person designated as an attorney in fact or agent
in a power of attorney or as an agent in a health care directive;
l. The name and address of any representative payee for the proposed ward;
m. That less intrusive alternatives to guardianship have been considered;
n. In the form of an attached recent statement, the physical, neurological, and
psychological limitations of the proposed ward from an expert examiner, if
available;
o. Whether the petition seeks to restrict any of the following rights:
(1) To vote;
(2) To seek to change marital status;
(3) To obtain or retain a motor vehicle operator's license; or
(4) To use, own, control, or possess a firearm; and
p. If the proposed guardian seeks authority for involuntary treatment with prescribed
mood stabilizer or antipsychotic medication under section 30.1-28-16, facts
specified under subsection 3 of section 30.1-28-16. The petitioner also shall
attach a recent report under subsection 2 of section 30.1-28-16.
3. Upon the filing of a petition, the court promptly shall set a date for hearing on the
issues of incapacity, appoint an attorney to act as guardian ad litem, appoint an expert
examiner to examine the proposed ward, and appoint a visitor to interview the
proposed guardian and the proposed ward. The proposed guardian shall attend the
hearing on the petition unless excused by the court for good cause.
4. The duties of the guardian ad litem 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, including the right to retain an attorney to represent the proposed ward;
c. Advocating for the best interests of the proposed ward. The appointed attorney
serving as legal guardian ad litem may not represent the proposed ward or ward
in a legal capacity;
d. Submitting a written report to the court containing the guardian ad litem's
response to the petition and an assessment of the proposed ward's ability to
attend the hearing either in person or by remote means; and
e. Reviewing the visitor's written report submitted in accordance with subdivision h
and i of subsection 6 and discussing the report with the proposed ward.
5. The expert examiner 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 or physical or mental condition
affects the demeanor of the proposed ward or the ability of the proposed ward to
attend and participate fully in any court proceeding or in any other procedure
required by the court or by court rule.
6. 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 interview other persons interested in the welfare of the proposed ward.
e. To visit the proposed ward's present place of residence.
f. To discuss an alternative resource plan with the proposed ward, if appropriate.
g. To obtain other relevant information as directed by the court.
h. To submit a written report to the court.
i. 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 and a recommendation regarding whether the proposed guardian
should be appointed;
(3) If the visitor recommends the proposed guardian should not be appointed, a
recommendation regarding an alternative individual or entity that should be
appointed as guardian;
(4) 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;
(5) An assessment of the capacity of the proposed ward to perform the
activities of daily living; and
(6) An assessment of the proposed ward's ability to attend the hearing either in
person or by remote means.
7. In determining whether appointment of a guardian is appropriate, the court shall
consider the reports ordered by the court under this section from a guardian ad litem,
visitor, and an expert examiner. The court, guardian ad litem, petitioner, or proposed
ward may subpoena the individual who prepared and submitted the report to appear,
testify, and be cross-examined.
8. The proposed ward must be present at the hearing in person or by remote means,
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 expert examiner and the visitor.
9. Every hearing under this chapter must be closed to the public unless the proposed
ward, the ward, the attorney, or guardian ad litem of the proposed ward or ward
requests it remain open. An individual or entity may request permission to observe or
participate in the hearing and the request must be granted if the court determines the
applicant's participation would be in the best interest of the proposed ward or ward.
10. 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.
11. If the court appoints a visitor, lawyer, or expert examiner 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.
12. If the court approves a guardian or emergency guardian in a guardianship proceeding,
that person may receive reasonable compensation and reimbursement from the ward's
estate if the compensation and reimbursement will not unreasonably jeopardize the
ward's well-being and estate. The court shall consider the following factors when
determining what constitutes reasonable compensation and reimbursement:

a. The size and nature of the ward's estate;
b. The benefit to the ward, or the ward's estate, of the guardian's services;
c. The necessity for the services performed;
d. The ward's anticipated future needs and income;
e. The time spent by the guardian in the performance of the services;
f. Whether the services were routine or required more than ordinary skill or
judgment;
g. Any unusual skill, expertise, or experience brought to the performance of the
services;
h. The guardian's estimate of the value of the services performed;
i. The fee customarily charged in the community for similar services;
j. The nature and length of the relationship with the ward;
k. The experience, reputation, diligence, and ability of the person performing the
service;
l. Any conflict of interest the guardian may have; and
m. Whether the appointment as guardian precluded the guardian from other
employment.
13. The court may determine the weight to be given to each factor under subsection 12,
and to any other factor the court considers relevant. A separate finding is not required
for each factor, but the court's findings must contain sufficient specificity to show the
factual basis for the court's determination.
14. The court must approve compensation and reimbursement before payment to the
guardian is made.