0001|                            HOUSE BILL 311
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0002|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003|                            INTRODUCED BY
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0004|                          R. DAVID PEDERSON
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO APPOINTMENT OF CONSERVATORS OR GUARDIANS;
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0012|     AUTHORIZING PUBLIC ACCESS TO LIMITED INFORMATION REGARDING THE
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0013|     APPOINTMENT OF A CONSERVATOR OR GUARDIAN; AMENDING SECTIONS OF
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0014|     THE NMSA 1978. 
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0015|     
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0016|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017|          Section 1.  Section 32A-6-15 NMSA 1978 (being Laws 1995,
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0018|     Chapter 207, Section 17) is amended to read:
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0019|          "32A-6-15.  DISCLOSURE OF INFORMATION.--
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0020|               A.  Except as otherwise provided in the Children's
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0021|     Mental Health and Developmental Disabilities Act, no person
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0022|     shall, without the authorization of the child, disclose or
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0023|     transmit any confidential information from which a person well
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0024|     acquainted with the child might recognize the child as the
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0025|     described person or any code, number or other means that could
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<center>- 1 -</center>

0001|     be used to match the child with confidential information
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0002|     regarding him.
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0003|               B.  When evidence exists that a child fourteen
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0004|     years of age or older, whose consent to disclosure of
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0005|     confidential information is sought, is incapable of giving or
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0006|     withholding valid consent and does not have a treatment
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0007|     guardian appointed by a court, the person seeking the
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0008|     authorization shall petition the court for the appointment of
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0009|     a treatment guardian to make a decision for the child.  When
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0010|     the child is less than fourteen years of age, the child's
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0011|     parent, guardian or legal custodian is authorized to consent
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0012|     to disclosure on behalf of the child.
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0013|               C.  Authorization from the child shall not be
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0014|     required for the disclosure or transmission of confidential
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0015|     information in the following circumstances: 
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0016|                    (1)  when the request is from a mental health
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0017|     or developmental disability professional or from an employee
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0018|     or trainee working with mentally disordered or developmentally
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0019|     disabled persons, to the extent their practice, employment or
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0020|     training on behalf of the child requires that they have access
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0021|     to the information;
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0022|                    (2)  when the disclosure is necessary to
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0023|     protect against a clear and substantial risk of imminent
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0024|     serious physical injury or death inflicted by the child on
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0025|     himself or another;
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<center>- 2 -</center>

0001|                    (3)  when the disclosure of the information to
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0002|     the parent, guardian or legal custodian is essential for the
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0003|     treatment of the child;
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0004|                    (4)  when the disclosure of the information is
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0005|     to the primary caregiver of the child and the disclosure is
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0006|     only of information necessary for the continuity of the
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0007|     child's treatment in the judgment of the treating clinician
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0008|     who discloses the information; 
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0009|                    (5)  when the disclosure is to an insurer
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0010|     contractually obligated to pay part or all of the expenses
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0011|     relating to the treatment of the child at the residential
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0012|     facility.  The information disclosed shall be limited to data
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0013|     identifying the child, facility and treating or supervising
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0014|     physician and the dates and duration of the residential
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0015|     treatment.  It shall not be a defense to an insurer's
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0016|     obligation to pay that the information relating to the
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0017|     residential treatment of the child, apart from information
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0018|     disclosed pursuant to this section, has not been disclosed to
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0019|     the insurer; or 
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0020|                    (6)  when the disclosure is to a protection
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0021|     and advocacy representative pursuant to the federal
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0022|     Developmental Disabilities Assistance and Bill of Rights Act
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0023|     and the federal Protection and Advocacy for Mentally Ill
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0024|     Individuals Amendments Act of 1991. 
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0025|               D.  No authorization given for the transmission or
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<center>- 3 -</center>

0001|     disclosure of confidential information shall be effective
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0002|     unless it: 
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0003|                    (1)  is in writing and signed; and 
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0004|                    (2)  contains a statement of the child's right
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0005|     to examine and copy the information to be disclosed, the name
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0006|     or title of the proposed recipient of the information and a
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0007|     description of the use that may be made of the information. 
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0008|               E.  The child has a right of access to confidential
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0009|     information about himself and has the right to make copies of
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0010|     any information about himself and submit clarifying or
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0011|     correcting statements and other documentation of reasonable
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0012|     length for inclusion with the confidential information.  The
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0013|     statements and other documentation shall be kept with the
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0014|     relevant confidential information, shall accompany it in the
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0015|     event of disclosure and shall be governed by the provisions of
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0016|     this section to the extent the statements or other
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0017|     documentation contain confidential information.  Nothing in
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0018|     this subsection shall prohibit the denial of access to the
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0019|     records when a physician or other mental health or
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0020|     developmental disabilities professional believes and notes in
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0021|     the child's medical records that the disclosure would not be
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0022|     in the best interests of the child.  In all cases, the child
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0023|     has the right to petition the court for an order granting
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0024|     access. 
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0025|               F.  Information concerning a child disclosed under
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<center>- 4 -</center>

0001|     this section shall not be released to any other person, agency
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0002|     or governmental entity or placed in files or computerized data
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0003|     banks accessible to any persons not otherwise authorized to
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0004|     obtain information under this section. 
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0005|               G.  Nothing in the Children's Mental Health and
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0006|     Developmental Disabilities Act shall limit the confidentiality
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0007|     rights afforded by federal statute or regulation. 
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0008|               <s>[H.  Nothing in this section shall prohibit a
</s>    |
<s></s>0009| <s>    clerk of a district court from providing to any person
</s>    |
<s></s>0010| <s>    authorized under Sections 47-4-1 through 47-4-8 NMSA 1978 to
</s>    |
<s></s>0011| <s>    conduct abstracter's business or any person authorized
</s>    |
<s></s>0012| <s>    pursuant to Chapter 59A NMSA 1978 to conduct business as a
</s>    |
<s></s>0013| <s>    title insurer or title insurance agent within New Mexico
</s>    |
<s></s>0014| <s>    information concerning the appointment of a guardian or
</s>    |
<s></s>0015| <s>    conservator pursuant to Sections 45-5-201 through 45-5-432
</s>    |
<s></s>0016| <s>    NMSA 1978; provided that the information shall be limited to: 
</s>    |
<s></s>0017| <s>                   (1)  docket entries; 
</s>    |
<s></s>0018| <s>                   (2)  date of the proceeding, appointment and
</s>    |
<s></s>0019| <s>    termination; 
</s>    |
<s></s>0020| <s>                   (3)  duration and type of the guardianship or
</s>    |
<s></s>0021| <s>    conservatorship; 
</s>    |
<s></s>0022| <s>                   (4)  limitations, if any, on the powers of the
</s>    |
<s></s>0023| <s>    guardian or conservator; and 
</s>    |
<s></s>0024| <s>                   (5)  the name and other information necessary
</s>    |
<s></s>0025| <s>    to identify the ward; provided, however, the disclosure shall
</s>    |
<center>- 5 -</center>

<s></s>0001| <s>    not include any diagnostic treatment or other medical
</s>    |
<s></s>0002| <s>    information.]</s>"
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0003|          Section 2.  Section 43-1-19 NMSA 1978 (being Laws 1977,
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0004|     Chapter 279, Section 18, as amended) is amended to read:
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0005|          "43-1-19.  DISCLOSURE OF INFORMATION.--
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0006|               A.  Except as otherwise provided in the code, no
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0007|     person shall, without the authorization of the client,
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0008|     disclose or transmit any confidential information from which a
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0009|     person well acquainted with the client might recognize the
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0010|     client as the described person, or any code, number or other
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0011|     means <s>[which]</s> <u>that</u> can be used to match the client with
    |
0012|     confidential information regarding him.
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0013|               B.  Authorization from the client shall not be
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0014|     required for the disclosure or transmission of confidential
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0015|     information in the following circumstances:
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0016|                    (1)  when the request is from a mental health
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0017|     or developmental disability professional or from an employee
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0018|     or trainee working with mentally disordered or developmentally
    |
0019|     disabled persons, to the extent their practice, employment or
    |
0020|     training on behalf of the client requires that they have
    |
0021|     access to such information;
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0022|                    (2)  when such disclosure is necessary to
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0023|     protect against a clear and substantial risk of imminent
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0024|     serious physical injury or death inflicted by the client on
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0025|     himself or another;
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<center>- 6 -</center>

0001|                    (3)  when the disclosure of such information
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0002|     is to the primary caregiver of the client and the disclosure
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0003|     is only of information necessary for the continuity of the
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0004|     client's treatment in the judgment of the treating physician
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0005|     or certified psychologist who discloses the information; or
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0006|                    (4)  when such disclosure is to an insurer
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0007|     contractually obligated to pay part or all of the expenses
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0008|     relating to the treatment of the client at the residential
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0009|     facility.  The information disclosed shall be limited to data
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0010|     identifying the client, facility and treating or supervising
    |
0011|     physician and the dates and duration of the residential
    |
0012|     treatment.  It shall not be a defense to an insurer's
    |
0013|     obligation to pay that the information relating to the
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0014|     residential treatment of the client, apart from information
    |
0015|     disclosed pursuant to this section, has not been disclosed to
    |
0016|     the insurer.
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0017|               C.  No authorization given for the transmission or
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0018|     disclosure of confidential information shall be effective
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0019|     unless it:
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0020|                    (1)  is in writing and signed; and
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0021|                    (2)  contains a statement of the client's
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0022|     right to examine and copy the information to be disclosed, the
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0023|     name or title of the proposed recipient of the information and
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0024|     a description of the use <s>[which]</s> <u>that</u> may be made of the
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0025|     information.
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<center>- 7 -</center>

0001|               D.  The client has a right of access to
    |
0002|     confidential information about himself and has the right to
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0003|     make copies of any information and to submit clarifying or
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0004|     correcting statements and other documentation of reasonable
    |
0005|     length for inclusion with the confidential information.  The
    |
0006|     statements and other documentation shall be kept with the
    |
0007|     relevant confidential information, shall accompany it in the
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0008|     event of disclosure and shall be governed by the provisions of
    |
0009|     this section to the extent they contain confidential
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0010|     information.  Nothing in this subsection shall prohibit the
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0011|     denial of access to such records when a physician or other
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0012|     mental health or developmental disabilities professional
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0013|     believes and notes in the client's medical records that such
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0014|     disclosure would not be in the best interests of the client. 
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0015|     In any such case, the client has the right to petition the
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0016|     court for an order granting such access.
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0017|               E.  Where there exists evidence that the client
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0018|     whose consent to disclosure of confidential information is
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0019|     sought is incapable of giving or withholding valid consent and
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0020|     the client does not have a guardian or treatment guardian
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0021|     appointed by a court, the person seeking such authorization
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0022|     shall petition the court for the appointment of a treatment
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0023|     guardian to make a substitute decision for the client, except
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0024|     that if the client is less than fourteen years of age, the
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0025|     client's parent or guardian is authorized to consent to
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<center>- 8 -</center>

0001|     disclosure on behalf of the client.
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0002|               F.  Information concerning a client disclosed under
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0003|     this section shall not be released to any other person, agency
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0004|     or governmental entity or placed in files or computerized data
    |
0005|     banks accessible to any persons not otherwise authorized to
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0006|     obtain information under this section.
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0007|               G.  Nothing in the code shall limit the
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0008|     confidentiality rights afforded by federal statute or
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0009|     regulation.
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0010|               <s>[H.  Nothing in this section shall prohibit a
</s>    |
<s></s>0011| <s>    clerk of a district court from providing, to any person
</s>    |
<s></s>0012| <s>    authorized under Sections 47-4-1 through 47-4-8 NMSA 1978 to
</s>    |
<s></s>0013| <s>    conduct abstracter's business or any person authorized
</s>    |
<s></s>0014| <s>    pursuant to Chapter 59A NMSA 1978 to conduct business as a
</s>    |
<s></s>0015| <s>    title insurer or title insurance agent within New Mexico,
</s>    |
<s></s>0016| <s>    information concerning the appointment of a guardian or
</s>    |
<s></s>0017| <s>    conservator pursuant to Sections 45-5-201 through 45-5-432
</s>    |
<s></s>0018| <s>    NMSA 1978; provided that such information shall be limited to:
</s>    |
<s></s>0019| <s>                   (1)  docket entries;
</s>    |
<s></s>0020| <s>                   (2)  date of the proceeding, appointment and
</s>    |
<s></s>0021| <s>    termination;
</s>    |
<s></s>0022| <s>                   (3)  duration and type of the guardianship or
</s>    |
<s></s>0023| <s>    conservatorship;
</s>    |
<s></s>0024| <s>                   (4)  limitations, if any, on the powers of the
</s>    |
<s></s>0025| <s>    guardian or conservator; and
</s>    |
<center>- 9 -</center>

<s></s>0001| <s>                   (5)  the name and other information necessary
</s>    |
<s></s>0002| <s>    to identify the ward; provided, however, such disclosure shall
</s>    |
<s></s>0003| <s>    not include any diagnostic treatment or other medical
</s>    |
<s></s>0004| <s>    information.]</s>"
    |
0005|          Section 3.  Section 45-5-303 NMSA 1978 (being Laws 1989,
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0006|     Chapter 252, Section 5, as amended) is amended to read:
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0007|          "45-5-303.  PROCEDURE FOR COURT APPOINTMENT OF A GUARDIAN
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0008|     OF AN INCAPACITATED PERSON.--
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0009|               A.  Any interested person may file a petition for
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0010|     the appointment of a person to serve as guardian for an
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0011|     alleged incapacitated person under the <u>Uniform</u> Probate Code. 
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0012|     The petition shall state the following:
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0013|                    (1)  the name, age <u>and</u> address of the
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0014|     alleged incapacitated person for whom the guardian is sought
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0015|     to be appointed;
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0016|                    (2)  the nature of the alleged incapacity as
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0017|     it relates to the functional limitations and physical and
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0018|     mental condition of the alleged incapacitated person and the
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0019|     reasons why guardianship is being requested;
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0020|                    (3)  if a limited guardianship is sought, the
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0021|     particular limitations requested;
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0022|                    (4)  whether a guardian has been appointed or
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0023|     is acting in any state for the alleged incapacitated person;
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0024|                    (5)  the name and address of the proposed
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0025|     guardian;
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<center>- 10 -</center>

0001|                    (6)  the names and addresses, as far as known
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0002|     or as can reasonably be ascertained, of the persons most
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0003|     closely related by blood or marriage to the alleged
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0004|     incapacitated person;
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0005|                    (7)  the name and address of the person or
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0006|     institution having the care and custody of the alleged
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0007|     incapacitated person;
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0008|                    (8)  the names and addresses of any other
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0009|     incapacitated persons for whom the proposed guardian is acting
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0010|     if the proposed guardian is an individual;
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0011|                    (9)  the reasons the appointment of a guardian
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0012|     is sought and the interest of the petitioner in the
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0013|     appointment;
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0014|                    (10)  the steps taken to find less restrictive
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0015|     alternatives to the proposed guardianship; and
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0016|                    (11)  the qualifications of the proposed
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0017|     guardian.
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0018|               B.  Notice of a petition under this section for the
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0019|     appointment of a guardian and the hearing on the petition
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0020|     shall be given as provided in Section 45-5-309 NMSA 1978.
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0021|               C.  After the filing of a petition, the court shall
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0022|     set a date for hearing on the issues raised by the petition. 
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0023|     Unless an alleged incapacitated person already has an attorney
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0024|     of his own choice, the court shall appoint an attorney to
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0025|     represent him.  The court-appointed attorney in the proceeding
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<center>- 11 -</center>

0001|     shall have the duties of a guardian ad litem, as set forth in
    |
0002|     Section 45-5-303.1 NMSA 1978.
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0003|               D.  The person alleged to be incapacitated shall be
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0004|     examined by a qualified health care professional appointed by
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0005|     the court who shall submit a report in writing to the court. 
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0006|     The report shall:
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0007|                    (1)  describe the nature and degree of the
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0008|     alleged incapacitated person's incapacity, if any, and the
    |
0009|     level of the respondent's intellectual, developmental and
    |
0010|     social functioning; and
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0011|                    (2)  contain observations, with supporting
    |
0012|     data, regarding the alleged incapacitated person's ability to
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0013|     make health care decisions and manage the activities of daily
    |
0014|     living.
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0015|               E.  The court shall also appoint a visitor who
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0016|     shall interview the person seeking appointment as guardian and
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0017|     the person alleged to be incapacitated.  The visitor shall
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0018|     also visit the present place of abode of the person alleged to
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0019|     be incapacitated and the place where it is proposed he will be
    |
0020|     detained or reside if the requested appointment is made.  The
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0021|     visitor shall evaluate the needs of the person alleged to be
    |
0022|     incapacitated and shall submit a written report to the court. 
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0023|     The report shall include a recommendation regarding the
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0024|     appropriateness of the appointment of the proposed guardian. 
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0025|     The report to the court shall also include recommendations
    |
<center>- 12 -</center>

0001|     regarding:
    |
0002|                    (1)  those aspects of his personal care that
    |
0003|     the alleged incapacitated person can manage without
    |
0004|     supervision or assistance;
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0005|                    (2)  those aspects of his personal care that
    |
0006|     the alleged incapacitated person could manage with the
    |
0007|     supervision or assistance of support services and benefits;
    |
0008|     and
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0009|                    (3)  those aspects of his personal care that
    |

0010|     the alleged incapacitated person is unable to manage without
    |
0011|     the supervision of a guardian.
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0012|          Unless otherwise ordered by the court, the appointment of
    |
0013|     the visitor terminates and the visitor is discharged from his
    |
0014|     duties upon entry of the order appointing the guardian and
    |
0015|     acceptance of the appointment by the guardian.
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0016|               F.  A person alleged to be incapacitated shall be
    |
0017|     present at the hearing on the issues raised by the petition
    |
0018|     and any response to the petition unless the court determines
    |
0019|     by evidence that it is not in the alleged incapacitated
    |
0020|     person's best interest to be present because of a threat to
    |
0021|     the health or safety of the alleged incapacitated person or
    |
0022|     others as determined by the court.
    |
0023|               G.  The court upon request or its own motion may
    |
0024|     conduct hearings at the location of the alleged incapacitated
    |
0025|     person who is unable to be present in court.
    |
<center>- 13 -</center>

0001|               H.  The rules of evidence shall apply and no
    |
0002|     hearsay evidence that is not otherwise admissible in a court
    |
0003|     shall be admitted into evidence except as otherwise provided
    |
0004|     in this article.  There is a legal presumption of capacity,
    |
0005|     and the burden of proof shall be on the petitioner to prove
    |
0006|     the allegations set forth in the petition.  Such proof
    |
0007|     <s>[must]</s> <u>shall</u> be established by clear and convincing
    |
0008|     evidence.
    |
0009|               I.  A record of the proceedings shall be made if
    |
0010|     requested by the alleged incapacitated person or his attorney
    |
0011|     or when ordered by the court.  Records, reports and evidence
    |
0012|     submitted to the court or recorded by the court shall be
    |
0013|     confidential, <u>except that the public shall be granted access
</u>    |
<u></u>0014| <u>    to the following information:</u>
    |
0015|                    <u>(1)  docket entries;</u>
    |
0016|                    <u>(2)  date of the proceeding, appointment and
</u>    |
<u></u>0017| <u>    termination;</u>
    |
0018|                    <u>(3)  duration of the guardianship; and</u>
    |
0019|                    <u>(4)  the name and other information necessary
</u>    |
<u></u>0020| <u>    to identify the alleged incapacitated person.
</u>    |
<u></u>0021| <u>              J.  Notwithstanding the provisions of Subsection I
</u>    |
<u></u>0022| <u>    of this section, any disclosure of information shall not
</u>    |
<u></u>0023| <u>    include any diagnostic information, treatment information or
</u>    |
<u></u>0024| <u>    other medical or psychological information</u>.
    |
0025|               <s>[J.]</s> <u>K.</u>  The issue of whether a guardian shall
    |
<center>- 14 -</center>

0001|     be appointed for the alleged incapacitated person shall be
    |
0002|     determined by the court at a closed hearing unless the alleged
    |
0003|     incapacitated person requests otherwise.
    |
0004|               K.  Upon request of the petitioner or alleged
    |
0005|     incapacitated person, the court shall schedule a jury trial."
    |
0006|          Section 4.  Section 45-5-407 NMSA 1978 (being Laws 1975,
    |
0007|     Chapter 257, Section 5-407, as amended) is amended to read:
    |
0008|          "45-5-407.  PROCEDURE FOR COURT APPOINTMENT OF A
    |
0009|     CONSERVATOR.--
    |
0010|               A.  Upon receipt of a petition for appointment of a
    |
0011|     conservator or other protective order because of minority, the
    |
0012|     court shall set a date for hearing on the matters alleged in
    |
0013|     the petition.  If at any time in the proceeding the court
    |
0014|     finds the minor is or may be inadequately represented, it may
    |
0015|     appoint an attorney to represent the minor, giving
    |
0016|     consideration to the choice of the minor if fourteen years of
    |
0017|     age or older.  An attorney appointed by the court to represent
    |
0018|     a minor shall represent and protect the interests of the
    |
0019|     minor.
    |
0020|               B.  Upon receipt of a petition for appointment of a
    |
0021|     conservator for reasons other than minority, the court shall
    |
0022|     set a date for hearing.  Unless the person to be protected is
    |
0023|     already represented by an attorney of his own choice, the
    |
0024|     court shall appoint an attorney to represent him in the
    |
0025|     proceeding.  The court-appointed attorney shall have the
    |
<center>- 15 -</center>

0001|     duties of a guardian ad litem as set forth in Section
    |
0002|     45-5-404.1 NMSA 1978.
    |
0003|               C.  If the petition is for the appointment of a
    |
0004|     conservator for an incapacitated person, the person to be
    |
0005|     protected shall be examined by a qualified health care
    |
0006|     professional appointed by the court who shall submit a report
    |
0007|     in writing to the court.  The report shall:
    |
0008|                    (1)  describe the nature and degree of the
    |
0009|     person's incapacity, if any, and the level of the
    |
0010|     intellectual, developmental and social functioning of the
    |
0011|     person to be protected; and
    |
0012|                    (2)  contain observations, with supporting
    |
0013|     data, regarding the ability of the person to be protected to
    |
0014|     manage his estate or financial affairs.
    |
0015|               D.  The court shall also appoint a visitor who
    |
0016|     shall interview the person seeking appointment as conservator
    |
0017|     and the person to be protected.  The visitor shall also visit
    |
0018|     the present place of residence of the person to be protected. 
    |
0019|     The visitor shall evaluate the needs of the person to be
    |
0020|     protected and shall submit a written report to the court.  The
    |
0021|     report shall include a recommendation regarding the
    |
0022|     appropriateness of the appointment of the proposed
    |
0023|     conservator.  The report shall also include recommendations
    |
0024|     regarding:
    |
0025|                    (1)  those aspects of his financial affairs
    |
<center>- 16 -</center>

0001|     that the person to be protected can manage without supervision
    |
0002|     or assistance;
    |
0003|                    (2)  those aspects of his financial affairs
    |
0004|     that the person to be protected could manage with the
    |
0005|     supervision or assistance of support services and benefits;
    |
0006|     and
    |
0007|                    (3)  those aspects of his financial affairs
    |
0008|     that the person to be protected is unable to manage even with
    |
0009|     the supervision or assistance of support services and
    |
0010|     benefits.
    |
0011|          Unless otherwise ordered by the court, the appointment of
    |
0012|     the visitor terminates and the visitor is discharged from his
    |
0013|     duties upon entry of the order appointing the conservator and
    |
0014|     acceptance of the appointment by the conservator.
    |
0015|               E.  The person to be protected shall be present at
    |
0016|     the hearing on the issues raised by the petition and any
    |
0017|     response to the petition, unless the court determines it is
    |
0018|     not in the best interest of the person for whom a conservator
    |
0019|     is sought to be present because of a threat to the health or
    |
0020|     safety of the person for whom a conservator is sought or
    |
0021|     others as determined by the court.  The court upon request or
    |
0022|     its own motion may conduct hearings at the location of the
    |
0023|     person to be protected if he is unable to be present in court.
    |
0024|               F.  The person to be protected shall not be
    |
0025|     permitted by the court to consent to the appointment of a
    |
<center>- 17 -</center>

0001|     conservator.
    |
0002|               G.  The court, at the hearing on the petition for
    |
0003|     appointment of conservator, shall:
    |
0004|                    (1)  inquire into the nature and extent of the
    |
0005|     functional limitations of the person to be protected; and
    |
0006|                    (2)  ascertain his capacity to manage his
    |
0007|     financial affairs.
    |
0008|               H.  If it is determined that the person to be
    |
0009|     protected possesses the capacity to manage his estate or
    |
0010|     financial affairs, or both, the court shall dismiss the
    |
0011|     petition.
    |
0012|               I.  Alternatively, the court may appoint a full
    |
0013|     conservator, as requested in the petition, or a limited
    |
0014|     conservator and confer specific powers of conservatorship
    |
0015|     after finding in the record based on clear and convincing
    |
0016|     evidence that:
    |
0017|                    (1)  the person to be protected is totally
    |
0018|     incapacitated or is incapacitated only in specific areas as
    |
0019|     alleged in the petition;
    |
0020|                    (2)  the conservatorship is necessary as a
    |
0021|     means of effectively managing the estate or financial affairs,
    |
0022|     or both, of the person to be protected;
    |
0023|                    (3)  there are not available alternative
    |
0024|     resources that enable the effective management of the estate
    |
0025|     and financial affairs of the person to be protected;
    |
<center>- 18 -</center>

0001|                    (4)  the conservatorship is appropriate as the
    |
0002|     least restrictive form of intervention consistent with the
    |
0003|     preservation of the property of the <u>person</u> to be protected;
    |
0004|     and
    |
0005|                    (5)  the proposed conservator is both
    |
0006|     qualified and suitable and is willing to serve.
    |
0007|               J.  After hearing, upon finding that a basis for
    |
0008|     the appointment of a conservator has been established, the
    |
0009|     court shall make an appointment of a conservator.  The court
    |
0010|     shall appoint a limited conservator if it determines that the
    |
0011|     incapacitated person is able to manage some but not all
    |
0012|     aspects of his estate and financial affairs.  The court shall
    |
0013|     specify those powers that the limited conservator shall have
    |
0014|     and may further restrict each power so as to permit the
    |
0015|     incapacitated person to care for his estate and financial
    |
0016|     affairs commensurate with his ability to do so.
    |
0017|               K.  A person for whom a conservator has been
    |
0018|     appointed retains all legal and civil rights except those that
    |
0019|     have been specifically granted to the conservator by the
    |
0020|     court.  The conservator shall exercise his supervisory powers
    |
0021|     over the estate and financial affairs of the incapacitated
    |
0022|     person in a manner that is the least restrictive form of
    |
0023|     intervention consistent with the order of the court.
    |
0024|               L.  The rules of evidence shall apply and no
    |
0025|     hearsay evidence that is not otherwise admissible in a court
    |
<center>- 19 -</center>

0001|     shall be admitted into evidence except as otherwise provided
    |
0002|     in the <u>Uniform</u> Probate Code.
    |
0003|               M.  A record of the proceedings shall be made if
    |
0004|     requested by the person to be protected, his attorney or when
    |
0005|     ordered by the court.  Records, reports and evidence submitted
    |
0006|     to the court or recorded by the court shall be confidential,
    |
0007|     <u>except that the public shall be granted access to the
</u>    |
<u></u>0008| <u>    following information:
</u>    |
<u></u>0009| <u>                   (1)  docket entries;
</u>    |
<u></u>0010| <u>                   (2)  date of the proceeding, appointment and
</u>    |
<u></u>0011| <u>    termination;
</u>    |
<u></u>0012| <u>                   (3)  duration of the conservatorship and
</u>    |
<u></u>0013| <u>    whether limited or unlimited;
</u>    |
<u></u>0014| <u>                   (4)  for a limited conservatorship, the nature
</u>    |
<u></u>0015| <u>    of the limitation; and
</u>    |
<u></u>0016| <u>                   (5)  the name and other information necessary
</u>    |
<u></u>0017| <u>    to identify the alleged incapacitated person.
</u>    |
<u></u>0018| <u>              N.  Notwithstanding the provisions of Subsection M
</u>    |
<u></u>0019| <u>    of this section, any disclosure of information shall not
</u>    |
<u></u>0020| <u>    include any diagnostic information, treatment information or
</u>    |
<u></u>0021| <u>    other medical or psychological information</u>.
    |
0022|               <s>[N.]</s> <u>O.</u>  The issue of whether a conservator
    |
0023|     shall be appointed shall be determined by the court at a
    |
0024|     closed hearing unless the person to be protected requests
    |
0025|     otherwise.
    |
<center>- 20 -</center>

0001|               <s>[O.]</s> <u>P.</u>  Upon request of the petitioner or
    |
0002|     person to be protected, the court shall schedule a jury trial.
    |
0003|               <s>[P.]</s> <u>Q.</u>  Upon entry of an order appointing a
    |
0004|     conservator, a copy of the order shall be furnished to the
    |
0005|     person for whom the conservator was appointed and that
    |
0006|     person's counsel.  The order shall contain the name and
    |
0007|     address of the conservator as well as notice to the person for
    |
0008|     whom the conservator was appointed of that person's right to
    |
0009|     appeal the appointment and of that person's right to seek
    |
0010|     alteration or termination of the conservatorship at any time."
    |
0011|                                  
    |
0012|     
    |
0013|     
    |
0014|     
    |
0015|     
    |
0016|     
    |
0017|     
    |
0018|     
    |
0019|     
    |
0020|     
    |
0021|     
    |
0022|     
    |
0023|     
    |
0024|     
    |
0025|               
    |
<center>- 21 -</center>