Administrative Rule 59.1. OFFICE OF GUARDIANSHIP AND CONSERVATORSHIP

Section 1. Authority and Purpose.

This rule is adopted under the authority of N.D. Const. art. VI, § 3, and N.D.C.C. ch. 54-68. The purpose of this rule is to establish a mechanism for the office of guardianship and conservatorship to appear in guardianship and conservatorship matters, to exchange information with the court, and to provide procedures for courts to refer guardianship and conservatorship cases to the office of guardianship and conservatorship.

Section 2. Definitions.

As used in this rule:

(a) “Office” means the office of guardianship and conservatorship.

(b) “Protected person” means an adult individual for whom a conservator has been appointed.

(c) “Ward” means an adult individual for whom a guardian has been appointed.

Section 3. Authorization to File and Appear.

The office is a participant in any proceeding in which a filing is made under this rule. The office may file documents and appear in any adult guardianship or conservatorship documents and appear in any adult guardianship or conservatorship proceeding to:

(a) Notify the court of a random review under section 4;

(b) Request court records under section 5;

(c) Make disclosures under section 6;

(d) Respond to court referrals under sections 7 through 11; and

(e) Make any other filing permitted by this rule.

Section 4. Random Review by the Office.

(a) The office may file a notice that it is conducting a random review of a guardianship or conservatorship case.

(b) The notice may be accompanied by:

(1) A request for court records under section 5; and

(2) A proposed order requesting the appointment of a visitor, financial reviewer, or expert examiner, and access to financial, educational, medical, and other confidential records of the ward or protected person. A proposed order filed under this subsection must identify the scope of any requested appointment and the records or information to which access is requested.

(c) Within five days after the notice is filed, the court shall enter an order granting, denying, or modifying any requested relief.

(d) The office may file reports, recommendations, or proposed orders while conducting a random review, and the court may take any action it considers appropriate based on the information provided.

Section 5. Requests for Court Records.

(a) The court may release to the office without charge:

(1) An audio record or rough transcript of a court proceeding;

(2) Copies of confidential information statement forms, annual well-being reports, annual financial reports, and other case materials related to the investigation; and

(3) Correspondence received by the court from any interested person objecting to reports, alleging misconduct, or requesting removal of the guardian or conservator.

(b) To obtain court records, the office shall file a request into a guardianship or conservatorship case that:

(1) Identifies the documents or information sought with reasonable specificity;

(2) States the purpose of the request; and

(3) Includes a proposed order.

(c) Within five days from the date the request is filed, the court shall enter a written order granting the request, in whole or in part, denying the request, or scheduling a hearing.

(d) Information disclosed under this section must be limited to the content reasonably necessary for the office to perform its duties relating to investigation, monitoring, supervision, or review of guardianships and conservatorships.

Section 6. Disclosures by the Office of Guardianship and Conservatorship.

(a) The office may disclose:

(1) The existence of a disciplinary proceeding involving a guardian or conservator, including a summary of alleged misconduct;

(2) Any restrictions or conditions placed on a guardian or conservator;

(3) The final disposition of a disciplinary proceeding, including a summary of the findings and a statement regarding the guardian’s or conservator’s eligibility to continue serving as a guardian or conservator;

(4) A lapse, expiration, suspension, or revocation of a license or agency permit;

(5) The unwillingness or inability of a currently appointed guardian or conservator to continue serving and the identity of a proposed successor guardian or conservator; and

(6) Information indicating potential immediate harm to a ward or protected person, including emergencies.

(b) Disclosures under this section may be used as prima facie evidence for a court to:

(1) Order the temporary removal of the guardian or conservator; or

(2) Issue an order to show cause as to why the guardian or conservator should not be removed or their authority modified.

(c) If a temporary removal order is entered, a hearing must be held within 10 days of the order.

Section 7. General Referral Procedures.

(a) The court may refer a guardianship or conservatorship case to the office for:

(1) Information regarding a guardian or conservator;

(2) Identification of a successor guardian or conservator;

(3) A well-being review; or

(4) A financial review.

(b) A referral must identify:

(1) The ward or protected person;

(2) The guardian or conservator; and

(3) The scope of the referral.

(c) Referrals must be:

(1) Made in accordance with procedures adopted by the office. If no procedures have been adopted, the referral must be sent to the director of the office; and

(2) Filed in the guardianship or conservatorship case to which the referral relates.

(d) Within 10 days after a referral is filed, the office shall file a notice stating whether the referral is accepted or rejected.

(1) If the office accepts the referral, the office may take any action necessary to carry out the referral, including filing reports, recommendations, or proposed orders, and shall file any report, response, recommendation, or proposed order within 30 days after the notice of acceptance is filed, unless otherwise ordered by the court.

(2) If the office rejects the referral, the notice must briefly state the reason for the rejection.

Section 8. Referrals for Information.

Upon referral by the court, the office may provide information relevant to the court’s supervision of a guardianship or conservatorship, including:

(a) The status of a guardian’s or conservator’s license or agency permit;

(b) Updated residency or mailing address information for a guardian, conservator, ward, or protected person;

(c) The existence or status of disciplinary proceedings involving a guardian or conservator; and

(d) Other information within the office’s authority relevant to court supervision.

Section 9. Referrals to Identify a Successor Guardian or Conservator.

(a) The court may refer a case to the office to identify a qualified individual or entity willing to serve as a successor guardian or conservator.

(b) Nothing in this rule limits the court’s authority to appoint a successor guardian or conservator under applicable law.

Section 10. Referrals for Well-being Reviews.

(a) If the office accepts a referral for a well-being review, the office shall file a proposed order appointing a visitor.

(b) The proposed order must:

(1) Require the visitor to meet with the ward, guardian, conservator, and other necessary persons; and

(2) Grant the visitor access to financial, educational, medical, and other confidential records of the ward as permitted under N.D.C.C. § 30.1-28-03.1.

(c) The office shall file a written report that includes findings and recommendations based on the best interests of the ward.

Section 11. Referrals for Financial Reviews.

(a) If the office accepts a referral for a financial review, the office shall file a proposed order that:

(1) Designates the person conducting the review; and

(2) Grants the reviewer access to records necessary to conduct the review.

(b) The order must grant access to:

(1) Educational and institutional records;

(2) Financial records, including bank documents and insurance records;

(3) Information regarding services and benefits; and

(4) Information from the department of health and human services necessary to conduct the review, including from the developmental disability program manager.

(c) The office may file a request for an order to show cause if a guardian or conservator fails to provide records necessary for the review.

(d) The office shall file a written report that includes findings and recommendations relating to:

(1) Sufficiency of financial documentation;

(2) Unaccounted assets;

(3) Financial irregularities; and

(4) Risk of financial exploitation.

Section 12. Extensions.

The office may request an extension of time to comply with any deadline under this rule. For good cause shown, the court may grant an extension of up to 30 days by written order.

Section 13. Court Review of Reports.

(a) The court shall review any report filed under this rule.

(b) After reviewing a report, the court may take any action it considers appropriate based on the report, including acting on any recommendation in the report.

(c) In reviewing a report filed under this rule, the court shall determine whether:

(1) The guardian or conservator is fulfilling the duties required by law or court order;

(2) Continuation of the guardianship or conservatorship is in the best interests of the ward or protected person; and

(3) Modification or termination of the guardianship or conservatorship is necessary.

(d) Any individual who prepares or contributes to a report filed under this rule shall testify regarding the contents of the report if:

(1) Subpoenaed; or

(2) Ordered by the court to appear at the hearing.

Section 14. Confidentiality.

Information received from the office that is confidential or exempt under applicable administrative rules or state or federal law must be treated by the court as exempt under N.D. Sup. Ct. Admin. R. 41, but may be released to parties and their counsel, and for good cause, to other persons as ordered by the court.