Senate Judiciary Committee hears broad revisions to guardianship and conservatorship law in SB 2291

Madam Chair Larson and members of the Senate Judiciary Committee heard testimony on Senate Bill 2291, a package of statutory changes to North Dakota guardianship and conservatorship law, on the record during a committee hearing. The bill was introduced by Senator Mike Dwyer on behalf of the State Court Administrator’s Office and was presented in detail by Sarah Behrens, staff attorney with the State Court Administrator’s Office and staff to the guardianship standards work group.

The bill reorganizes and clarifies multiple provisions across chapter 30.1-26 and related sections. “The proposed amendments are intended to clarify procedures in guardianships and conservatorships,” Behrens told the committee, saying the measure is largely tidy, procedural “clean up” rather than the other, larger guardianship bill currently under separate consideration.

SB 2291 would move definitions into a single location in chapter 30.1-26 to avoid cross-referencing multiple chapters and would (among other changes) do the following: allow limited 90‑day extensions of letters of guardianship in juvenile matters when hearings cannot be scheduled on time and require new letters to reflect the extended expiration; consolidate and standardize notice provisions that apply after appointment; make guardian, conservator and related reports (expert examiner, visitor, annual, final and financial reports) confidential; require hearings on petitions for emergency guardians or emergency conservators within 10 days of filing or appointment; and create a new, consolidated procedure for removal, resignation, death and appointment of successor guardians, including a requirement that a final accounting and report be filed when a guardian dies, resigns or is removed and that a hearing on those filings occur no later than 60 days following the petition filing unless good cause is shown.

The bill also addresses liability for guardians. Behrens said the work group reached consensus to limit guardian liability for acts of the protected person to cases where the guardian was grossly negligent. “The work group then decided on the language that is found in the bill stating that a guardian is only liable if the guardian was grossly negligent,” she said, and explained that case law defines gross negligence as a want of slight care or essentially willful lack of care. Behrens added the language was intended to protect willing guardians from broad liability while preserving accountability in egregious cases.

Jonathan Ulm, an attorney with the Department of Health and Human Services, testified specifically on sections 1 and 2. He said the bill would add psychiatrists and psychologists, alongside physicians, to the list of professionals who can determine incapacity for purposes of providing informed consent, making the statute consistent with civil‑commitment provisions; and would allow the state hospital to seek a court order to prescribe medication for some voluntarily admitted patients when a court order is otherwise necessary.

Scott Bernstein, executive director of Guardian and Protective Services and a member of the task force, appeared in support and offered a drafting amendment to broaden a recommended immunity provision. Bernstein argued the amendment — modeled on recent Minnesota statutory language — would protect guardians from lawsuits arising from third‑party conduct when the guardian exercised reasonable care in choosing providers.

Michael Olson, an attorney with North Dakota Protection and Advocacy, said his organization supports the bill overall but urged that the definition of “limited guardian” remain and that the code use person‑first language (for example, “individual under guardianship” rather than “ward”) where practicable. Behrens said the work group considered person‑first language but found it to be a much larger rewrite of code and suggested legislative council could undertake that broader project.

Committee members asked several questions focused on liability and recruitment of guardians. Senator Merdahl said she shared concerns about deterring potential guardians; Behrens responded that the gross‑negligence standard was a deliberate compromise reached after multiple work‑group meetings.

The hearing concluded without a committee vote on SB 2291. Chair Larson closed the hearing and committee members indicated the guardianship standards work group would continue to refine language; some members asked staff or interns to research existing liability protections in the North Dakota Century Code before taking action.

Quotes in this report are taken from the hearing record: “This bill was drafted as a collaborative effort by the members of the work group,” Sarah Behrens said. On liability, Behrens said, “The work group then decided on the language that is found in the bill stating that a guardian is only liable if the guardian was grossly negligent.” Jonathan Ulm said the changes “add psychiatrists and psychologists along with currently what the physician is” for incapacity determinations to align the statute with civil‑commitment law.

The work group and witnesses emphasized the bill is primarily procedural and intended to reduce confusion, centralize notice rules, and protect confidential information routinely contained in guardian and conservator reports. The committee did not adopt amendments on the record; members indicated they would review suggested drafting changes and reconvene for further consideration.

Ending: The committee closed the hearing on SB 2291 and did not take a committee vote; sponsors and the work group signaled they expect continued drafting and potential amendments before the bill moves forward.