§ 30.1-29-07 — (5-407) Procedure concerning hearing and order on original petition

North Dakota § 30.1-29-07

• Jurisdiction: North Dakota
• Title 30.1: Uniform Probate Code
• Ch. 30.1-29: Protection of Property of Persons Under Disability and Minors

Text

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. The proposed conservator, if any, shall attend the hearing unless excused by
the court for good cause. 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 serve as guardian ad litem for the minor, giving consideration to the choice
of the minor if fourteen years of age or older. The duties of a guardian ad litem include:
a. Meeting, interviewing, and consulting with the person to be protected regarding
the conservatorship proceeding, including explaining the purpose for the interview
in the language, mode of communication, and terms the person is most likely to
understand, the nature and possible consequences of the proceeding, the rights
to which the person is entitled, and the legal options available, including the right
to retain an attorney to represent the person;
b. Advocating for the best interests of the person to be protected. The appointed
attorney serving as guardian ad litem may not represent the person in a legal
capacity;

c. Ascertaining the views of the person to be protected concerning the proposed
conservator, the powers and duties of the proposed conservator, the proposed
conservatorship, and the scope and duration of the conservatorship;
d. Interviewing the person seeking appointment as conservator;
e. Obtaining any other relevant information;
f. Submitting a written report to the court containing the guardian ad litem's
response to the petition and an assessment of the protected person's ability to
attend the hearing either in person or by remote means; and
g. Attending the hearing unless excused by the court for good cause.
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. The proposed
conservator, if any, shall attend the hearing unless excused by the court for good
cause. 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, the court shall appoint
an attorney to serve as guardian ad litem for the person to be protected. The duties of
a guardian ad litem include:
a. Meeting, interviewing, and consulting with the person to be protected regarding
the conservatorship proceeding, including explaining the purpose for the interview
in the language, mode of communication, and terms the person is most likely to
understand, the nature and possible consequences of the proceeding, the rights
to which the person is entitled, and the legal options available, including the right
to retain an attorney to represent the person;
b. Advocating for the best interests of the person to be protected. The appointed
attorney serving as guardian ad litem may not represent the person in a legal
capacity;
c. Ascertaining the views of the person to be protected concerning the proposed
conservator, the powers and duties of the proposed conservator, the proposed
conservatorship, and the scope and duration of the conservatorship;
d. Interviewing the person seeking appointment as conservator;
e. Obtaining any other relevant information;
f. Submitting a written report to the court containing the guardian ad litem's
response to the petition and an assessment of the protected person's ability to
attend the hearing either in person or by remote means; and
g. Attending the hearing unless excused by the court for good cause.
3. If the petition seeks appointment of a conservator or other protective order for reasons
other than minority and the alleged disability is mental illness, mental deficiency,
physical illness or disability, chronic use of drugs, or chronic intoxication, the court
shall direct the person to be protected be examined by an expert examiner designated
by the court. The expert examiner preferably should be someone who is not connected
with any institution in which the person is a patient or is detained.
a. An expert examiner appointed under this subsection shall examine the person to
be protected and submit a written report to the court. The report must contain:
(1) A description of the nature and degree of any current disability, including the
medical or psychological history, if reasonably available;
(2) A medical prognosis or psychological evaluation specifying the estimated
severity and duration of any current disability;
(3) A statement about how or in what manner any underlying condition of
physical or mental health affects the ability of the person to be protected to
provide for personal needs; and
(4) A statement about whether any current medication or physical or mental
conditions affect the demeanor of the person to be protected or the ability of
the person to attend and participate fully in any court proceeding or in any
other procedure required by the court or by court rule.
b. The court, guardian ad litem, petitioner, or person to be protected may subpoena
the expert examiner who prepared and submitted the report to appear, testify, and
be cross-examined.

4. The person to be protected 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 of
the physical difficulty of the person to be protected to attend the hearing. The court
shall take all necessary steps to make the courts and court proceedings accessible
and understandable to impaired persons. The court may convene temporarily, or for
the entire proceeding, at any other location if it is in the best interest of the person to
be protected.
5. In determining whether appointment of a conservator is appropriate, the court shall
consider the reports ordered by the court under this section from a guardian ad litem
and an expert examiner. 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 their benefits
payable on examination in accordance with the laws and regulations governing the
veterans' administration is prima facie evidence of the necessity for a conservator or
other protective order.
6. After hearing, upon finding that the appointment of a conservator or other protective
order is appropriate, the court shall make an appointment or other appropriate
protective order. The court, guardian ad litem, petitioner, or person to be protected
may subpoena the individual who prepared and submitted the report to appear, testify,
and be cross-examined. After the hearing, the guardian ad litem and expert examiner
must be discharged of the duties as guardian ad litem and expert examiner.
7. If the court approves a conservator, that person may receive reasonable compensation
and reimbursement from the protected person's estate if the compensation and
reimbursement will not unreasonably jeopardize the protected person'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 protected person's estate;
b. The benefit to the protected person, or the protected person's estate, of the
conservator's services;
c. The necessity for the services performed;
d. The protected person's anticipated future needs and income;
e. The time spent by the conservator 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 conservator'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 protected person;
k. The experience, reputation, diligence, and ability of the person performing the
service;
l. Any conflict of interest the conservator may have; and
m. Whether the appointment as conservator precluded the conservator from other
employment.
8. The court may determine the weight to be given to each factor under subsection 7, if
any, 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.
9. The court shall approve compensation and reimbursement before payment to the
conservator is made.