§ 30.1-28-04 — (5-304) Findings - Order of appointment

North Dakota § 30.1-28-04

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

Text

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, a ward may not be deprived of any of the
following legal rights: to vote, to seek to change marital status, or to obtain or retain a
motor vehicle operator's license.
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. The court's order must
require the guardian to provide within ninety days from the date of the order a
beginning inventory of all assets owned by the ward or in which the ward has an
interest. The guardian shall provide a copy of the beginning inventory to those
identified in section 30.1-28-09.1. Unless terminated earlier by the court, an order
appointing or reappointing a guardian under this section is effective for up to five
years. At least ninety days before the expiration of the initial order of appointment or
any following order of reappointment, the court shall request and consider information
submitted by the guardian, ward, ward's attorney, if any, and any interested persons
regarding whether the need for a guardian continues to exist. If it is recommended that
the guardianship continue, the court may appoint a guardian ad litem, visitor, or all, in
accordance with section 30.1-28-03. The court shall hold a hearing on whether the
guardianship should continue. Following the hearing and consideration of submitted
information, the court may reappoint the guardian for up to another five years, allow
the existing order to expire, or appoint a new guardian in accordance with this section.
If a review hearing cannot be held before the expiration of an initial order for
guardianship, the court may extend the initial order for up to an additional ninety days
upon good cause shown. New letters of guardianship must be issued reflecting the
extended expiration date. The supreme court, by rule or order, shall provide for the
regular review of guardianship in existence on August 1, 2015.
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.
7. The court may require a guardian to furnish a bond in the amount and with sureties as
the court specifies.
8. After the hearing, the guardian ad litem, visitor, and expert examiner must be
discharged of their duties.