2014 -- S 2548

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LC004890

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE -- UNIFORM ADULT

GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT

     Introduced By: Senators McCaffrey, Lombardo, and Lynch

     Date Introduced: February 27, 2014

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 33 of the General Laws entitled "PROBATE PRACTICE AND

PROCEDURE" is hereby amended by adding thereto the following chapter:

CHAPTER 15.2

UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION

ACT

ARTICLE 1 -- GENERAL PROVISIONS:

     33-15.2-101. Short title. -- This chapter shall be known and may be cited as the

"Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act."

     33-15.2-102. Definitions. – As used in this chapter:

     (1) "Adult" means an individual who has attained eighteen (18) years of age.

     (2) "Conservator" means a person appointed by the court to administer the property of an

adult, including a person appointed under chapter 33-15.

     (3) "Guardian" means a person appointed by the court to make decisions regarding the

person of an adult, including a person appointed under chapter 33-15.

     (4) "Guardianship order" means an order appointing a guardian.

     (5) "Guardianship proceeding" means a proceeding in which an order for the appointment

of a guardian is sought or has been issued.

     (6) "Home state" means the state in which the respondent was physically present for at

least six (6) consecutive months immediately before the filing of a petition for the appointment of

a guardian or protective order. A period of temporary absence counts as part of the six (6) month

period.

     (7) "Incapacitated person" means an adult for whom a guardian has been appointed.

     (8) "Party" means the respondent, petitioner, guardian, conservator, or any other person

allowed by the court to participate in a guardianship or protective proceeding.

     (9) "Person" means an individual, corporation, business trust, estate, trust, partnership,

limited liability company, association, joint venture, government or governmental subdivision,

agency, or instrumentality, public corporation, or any other legal or commercial entity.

     (10) "Protected person" means an adult for whom a protective order has been made.

     (11) "Protective order" means an order appointing a conservator or another court order

related to management of an adult's property.

     (12) "Protective proceeding" means a judicial proceeding in which a protective order is

sought or has been issued.

     (13) "Record" means information that is inscribed on a tangible medium or that is stored

in an electronic or other medium and is retrievable in perceivable form.

     (14) "Respondent" means an adult for whom a protective order or the appointment of a

guardian is sought.

     (15) "Significant-connection state" means a state, other than the home state, with which a

respondent has a significant connection other than mere physical presence and in which

substantial evidence concerning the respondent is available. Determination of whether a

respondent has a significant connection with a particular state shall include consideration of the

following factors:

     (i) The location of the respondent's family and others required to be notified of the

guardianship or protective proceeding;

     (ii) The length of time the respondent at any time was physically present in the state and

the duration of any absences;

     (iii) The location of the respondent's property; and

     (iv) The extent to which the respondent has other ties to the state such as voting

registration, filing of state or local tax returns, vehicle registration, driver's license, social

relationships, and receipt of services.

     (16) "State" means a state of the United States, the District of Columbia, Puerto Rico, the

United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular

possession subject to the jurisdiction of the United States.

     33-15.2-103. International application of chapter. -- A court of this state may treat a

foreign country as if it were a state for the purpose of applying Articles 1, 2, 3, and 5.

     33-15.2-104. Communication between courts. -- (a) A court of this state may

communicate with a court in another state concerning a proceeding arising under this chapter.

The court may allow the parties to participate in the 3 communication. Except as otherwise

provided in subsection (b), the court shall make a record of the communication. The record may

be limited to the fact that the communication occurred.

     (b) Courts may communicate concerning schedules, calendars, court records, and other

administrative matters without making a record.

     33-15.2-105. Cooperation between courts. -- (a) In a guardianship or protective

proceeding in this state, a court of this state may request the appropriate court of another state to:

     (1) Hold an evidentiary hearing;

     (2) Order a person in that state to produce or give evidence pursuant to procedures of that

state;

     (3) Order that an evaluation or assessment be made of the respondent, or order any

appropriate investigation of a person involved in a proceeding;

     (4) Forward to the court of this state a certified copy of the transcript or other record of a

hearing under subsection (1) of this section or any other proceeding, any evidence otherwise

presented under subsection (2) of this section, and any evaluation or assessment prepared in

compliance with the request under subsection (3) of this section;

     (5) Issue any other order necessary to assure the appearance of a person necessary to

make a determination, including the respondent or the incapacitated or protected person; and

     (6) Issue an order authorizing the release of medical, financial, criminal, or other relevant

information in that state, including protected health information as defined in 45 C.F.R. 164-504,

as amended.

     (b) If a court of another state in which a guardianship or protective proceeding is pending

requests assistance of the kind provided in subsection (a) of this section, a court of this state has

jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply

with the request.

     33-15.2-106. Taking testimony in another state. -- (a) In a guardianship or protective

proceeding, in addition to other procedures that may be available, testimony of witnesses who are

located in another state may be offered by deposition or other means allowable in this state for

testimony taken in another state. The court on its own motion may order that the testimony of a

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witness be taken in another state and may prescribe the manner in which and the terms upon

which the testimony is to be taken.

     (b) In a guardianship or protective proceeding, a court in this state may permit a witness

located in another state to be deposed or to testify by telephone or audiovisual or other electronic

means. A court of this state shall cooperate with courts of other states in designating an

appropriate location for the deposition or testimony.

     (c) Documentary evidence transmitted from another state to a court of this state by

technological means that do not produce an original writing may not be excluded from evidence

on an objection based on the means of transmission.

ARTICLE 2 -- JURISDICTION:

     33-15.2-201. Definition. – As used in this chapter:

     (1) "Emergency" means circumstances that likely will result in substantial harm to a

respondent's health, safety, or welfare, and in which the appointment of a guardian is necessary

because no other person has authority to and is willing to act on the respondent's behalf.

     33-15.2-202. Exclusive basis. -- This chapter provides the exclusive jurisdictional basis

for a court of this state to appoint a guardian or issue a protective order for an adult.

     33-15.2-203. Initial jurisdiction. -- In addition to the limited or special jurisdiction

under § 35-15.2-204, a court of this state has jurisdiction to appoint a guardian or issue a

protective order for a respondent if:

     (1) This state was the respondent's home state on the date a petition for the appointment

of a guardian or protective order was filed, or was the home state of the respondent within six (6)

months before the date the petition was filed;

     (2) This state is a significant-connection state and:

     (i) The respondent did not have a home state on the date the petition was filed or within

six (6) months before the petition was filed, or a court of that state has declined to exercise

jurisdiction under section § 35-15.2-206 because this state is a more appropriate forum; or

     (ii) A petition for the appointment of a guardian or protective order has not been filed in a

court having jurisdiction under subsection (1) of this section or in another significant-connection

state, an objection to the jurisdiction of the court in this state has not been filed, and the court in

this state concludes that it is an appropriate forum under the factors set forth in § 35-15.2-206; or

     (3) This state was not the home state on the date the petition was filed or within six (6)

months before the petition was filed, nor was this state a significant-connection state, and all such

states have declined to exercise jurisdiction under § 35-15.2-206 because this state is the more

appropriate forum or no court has jurisdiction under subsection (1) or (2) of this section, and

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jurisdiction in this state is consistent with the constitutions of this state and the United States.

     33-15.2-204. Special cases. -- (a) A court of this state lacking jurisdiction under § 33-

15.2-203 has jurisdiction to do any of the following:

     (1) Appoint a guardian in an emergency for a term not exceeding ninety (90) days for a

respondent who is physically located in this state;

     (2) Issue a protective order with respect to real or tangible personal property located in

this state;

     (3) Appoint a guardian or conservator for an incapacitated or protected person for whom

a provisional order to transfer the proceeding from another state has been issued as provided in §

33-15.2-301.

     (b) If a petition for the appointment of a guardian in an emergency is brought in this state

and this state was not the respondent's home state on the date the petition was filed or within six

(6) months before the petition was filed, the court shall dismiss the proceeding at the direction of

the court in such other state, if any, whether dismissal is requested before or after the emergency

appointment.

     33-15.2-205. Exclusive and continuing jurisdiction. -- Except as otherwise provided in

§ 33-15.2-204, a court that has appointed a guardian or issued a protective order consistent with

this chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by

the court or the appointment or order expires by its own terms.

     33-15.2-206. Declining jurisdiction if another court is a more appropriate forum. --

(a) A court of this state having jurisdiction under § 33-15.2-203 to appoint a guardian or issue a

protective order may decline to exercise its jurisdiction if it determines at any time that a court of

another state is a more appropriate forum.

     (b) If a court of this state declines jurisdiction over a guardianship or protective

proceeding under subsection (a) of this section, it shall either dismiss the proceeding or stay the

proceeding. The court may impose any other condition the court considers just and proper,

including the condition that a petition for the appointment of a guardian or protective order be

promptly filed in another state.

     (c) In determining whether it is an appropriate forum, the court shall consider all relevant

factors, including:

     (1) Any expressed preference of the respondent;

     (2) Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to

occur and which state could best protect the respondent from the abuse, neglect, or exploitation;

     (3) The length of time the respondent was physically located in or was a legal resident of

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this or another state;

     (4) The distance of the respondent from the court in each state;

     (5) The financial circumstances of the respondent's estate;

     (6) The nature and location of the evidence;

     (7) The ability of the court in each state to decide the issue expeditiously and the

procedures necessary to present evidence;

     (8) The familiarity of the court of each state with the facts and issues in the proceeding;

and

     (9) If an appointment were made, the court's ability to monitor the conduct of the

guardian or conservator.

     33-15.2-207. Jurisdiction declined by reason of conduct. -- (a) If at any time a court of

this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order

because of unjustifiable conduct, the court may:

     (1) Decline to exercise jurisdiction;

     (2) Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to

ensure the health, safety, and welfare of the respondent or the protection of the respondent's

property or prevent a repetition of the unjustifiable conduct, including staying the proceeding

until a petition for the appointment of a guardian or protective order is filed in a court of another

state having jurisdiction; or

     (3) Continue to exercise jurisdiction after considering:

     (i) The extent to which the respondent and all persons required to be notified of the

proceedings has acquiesced in the exercise of the court's jurisdiction;

     (ii) Whether it is a more appropriate forum than the court of any other state under the

factors set forth in § 33-15.2-206(c); and

     (iii) Whether the court of any other state would have jurisdiction under factual

circumstances in substantial conformity with the jurisdictional standards of § 33-15.2-203.

     (b) If a court of this state determines that it acquired jurisdiction to appoint a guardian or

issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable

conduct, it may assess against that party necessary and reasonable expenses, including attorney's

fees, investigative fees, court costs, communication expenses, witness fees and expenses, and

travel expenses. The court may not assess fees, costs, or expenses of any kind against this state or

a governmental subdivision, agency, or instrumentality of this state unless authorized by law

other than this chapter.

     33-15.2-208. Notice of proceeding. -- If a petition for the appointment of a guardian or

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issuance of a protective order is brought in this state and this state was not the respondent's home

state on the date a petition for the appointment of a guardian or protective order was filed, or

within six (6) months before the date the petition was filed, in addition to complying with the

notice requirements of this state, notice of the proceeding must be given by the petitioner to those

persons who would be entitled to notice of the petition if the proceeding were brought in such

other state, if any. The notice must be given in the same manner as notice is given in this state.

     33-15.2-209. Proceedings in more than one state. -- Except for a petition for the

appointment of a guardian in an emergency or a protective order limited to property located in

this state as provided in § 33-15.2-204, if a petition for the appointment of a guardian or

protective order is filed in this and another state and neither petition has been dismissed or

withdrawn, the following rules apply:

     (1) If the court in this state has jurisdiction under § 33-15.2-203, it may proceed with the

case unless a court in another state acquires jurisdiction under § 33-15.2-203 before the

appointment or issuance of the order.

     (2) If the court in this state does not have jurisdiction under § 33-15.2-203, whether at the

time the petition is filed or at any time before the appointment or issuance of the order, the court

shall stay the proceeding and communicate with the court in the other state. If the court in the

other state does not determine that the court in this state is a more appropriate forum, the court in

this state shall dismiss the petition.

ARTICLE 3 – TRANSFER OF JURISDICTION:

     33-15.2-301. Petition to transfer jurisdiction to another state. -- (a) Following the

appointment of a guardian or conservator, the guardian or conservator may petition the court to

transfer the guardianship or conservatorship to another state.

     (b) Notice of the petition to transfer a guardianship or conservatorship under subsection

(a) of this section must be given by the petitioner to those persons that would be entitled to notice

of a petition in this state for the appointment of a guardian or conservator.

     (c) On the court's own motion or on request of the incapacitated or protected person, or

another interested person, the court shall hold a hearing on a petition filed pursuant to subsection

(a) of this section.

     (d) The court shall issue a provisional order granting a petition to transfer a guardianship

if the court finds that:

     (1) The incapacitated person is physically located in or is reasonably expected to move

permanently to the other state;

     (2) An objection to the transfer has not been made or, if an objection has been made, the

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objector has not established that the transfer would be contrary to the interests of the

incapacitated person;

     (3) The court is satisfied that plans for care and services for the incapacitated person in

the other state are reasonable and sufficient; and

     (4) The court is satisfied that the guardianship will be accepted by the court to which the

proceeding will be transferred.

     (e) The court shall issue a provisional order granting a petition to transfer a

conservatorship if the court finds that:

     (1) The protected person is physically located in or is reasonably expected to move

permanently to the other state, or the protected person has a significant connection to the other

state considering the factors set forth in § 33-15.2-102(15);

     (2) An objection to the transfer has not been made or, if an objection has been made, the

objector has not established that the transfer would be contrary to the interests of the protected

person;

     (3) The court is satisfied that adequate arrangements will be made for management of the

protected person's property; and

     (4) The court is satisfied that the conservatorship will be accepted by the court to which

the proceeding will be transferred.

     33-15.2-302. Petition to accept proceeding transferred from another state. -- (a)

Upon issuance of a provisional order in another state to transfer a guardianship or conservatorship

to this state under procedures similar to those in § 33-15.2-301, the guardian or conservator shall

petition the court in this state to accept the guardianship or conservatorship. The petition must

include a certified copy of the other state's provisional order.

     (b) Notice of a petition under subsection (a) of this section to accept a guardianship or

conservatorship from another state must be given by the petitioner to those persons that would be

entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a

protective order in both the transferring state and this state. The notice must be given in the same

manner as notice is given in this state.

     (c) On the court's own motion or on request of the incapacitated or protected person, or

another interested person, the court shall hold a hearing on a petition filed pursuant to subsection

(a) of this section to accept a guardianship or conservatorship from another state.

     (d) The court shall issue a provisional order approving a petition filed under subsection

(a) of this section unless an objection is made and the objector establishes that transfer of the

proceeding would be contrary to the interests of the incapacitated or protected person.

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     (e) In approving a petition under this section, the court shall recognize a guardianship or

conservatorship order from the other state, including the determination of the incapacitated or

protected person's incapacity and the appointment of the guardian or conservator, if the guardian

or conservator is eligible to act in this state.

     (f) The denial of a petition filed under subsection (a) of this section to accept a

guardianship or conservatorship from another state does not affect the ability of a guardian or

conservator appointed by a court in another state to seek appointment as guardian of the

incapacitated person or conservator of the protected person under chapter 33-15.

     33-15.2-303. Final order in transferring state. -- Upon receipt from the court of the

other state of a provisional order issued under § 33-15.2-302 to accept a guardianship or

conservatorship transferred under § 33-15.2-301 and the filing of the documents required in this

state to terminate a guardianship or conservatorship, the court shall issue an order confirming the

transfer of the proceeding to the other state and terminating the guardianship or conservatorship

in this state.

     33-15.2-304. Final order in accepting state judicial review. -- (a) Upon receipt of an

order issued under § 33-15.2-303 confirming the transfer of a guardianship or conservatorship

proceeding to this state and terminating the guardianship or conservatorship in the transferring

state, the court shall issue a final order appointing the guardian or conservator as guardian or

conservator in this state.

     (b) Within ninety (90) days after issuance of a final order accepting a guardianship or

conservatorship transferred from another state, the court shall determine whether the guardianship

or conservatorship need be modified to conform to the law of this state.

     ARTICLE 4 – REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER

STATES:

     33-15.2-401. Registration of guardianship orders. -- If a guardian has not been

appointed in this state and a petition for the appointment of a guardian is not pending in this state,

a guardian appointed in another state, after giving notice to the appointing court of an intent to

register, may register the guardianship order in this state by filing as a foreign judgment in a court

in any appropriate county, city or town of this state certified copies of the order and letters of

office.

     33-15.2-402. Registration of protective orders. -- If a conservator has not been

appointed in this state and a petition for a protective order is not pending in this state, a

conservator appointed in another state, after giving notice to the appointing court of an intent to

register, may register the protective order in this state by filing as a foreign judgment in a court of

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this state, in any county, city or town in which property belonging to the protected person is

located, certified copies of the order and letters of office and of any bond.

     33-15.2-403. Effect of registration. -- (a) Upon registration of a guardianship or

protective order from another state, the guardian or conservator may exercise in this state all

powers authorized in the order of appointment except as prohibited under the laws of this state,

including maintaining actions and proceedings in this state and, if the guardian or conservator is

not a resident of this state, subject to any conditions imposed upon nonresident parties.

     (b) A court of this state may grant any relief available under this chapter and other laws

of this state to enforce a registered order.

ARTICLE 5 – MISCELLANEOUS PROVISIONS:

     33-15.2-501. Uniformity of application and construction. – In applying and construing

this uniform act, consideration must be given to the need to promote uniformity of the law with

respect to its subject matter among states that enact it.

     33-15.2-502. Relation to electronic signatures in global and national commerce act. -

- This chapter modifies, limits, and supersedes the Federal Electronic Signatures in Global and

National Commerce Act, 15 U.S.C. 7001, et seq., but does not modify, limit, or supersede 101(c)

of that act, 15 U.S.C. 700l(c), or authorize electronic delivery of any of the notices described in

Section 103(b) of that act, 15 U.S.C. 7003(b).

     33-15.2-503. Repeals. -- The following acts and parts of acts are hereby repealed:

     (1)……………………………………….

     (2)……………………………………….

     (3)……………………………………….

     33-15.2-504. Transitional provision. -- (a) This chapter applies to guardianship and

protective proceedings begun on or after January 1, 2015.

     (b) For proceedings begun before January 1, 2015, whether or not a guardianship or

protective order has been issued, Articles 1, 3, 4 and §§ 33-15.2-501 and 33-15.2-502 of this

chapter apply.

     SECTION 2. This act shall take effect on January 1, 2015.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE -- UNIFORM ADULT

GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT

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     This act would address the issue of jurisdiction over adult guardianships,

conservatorships and other protective proceedings, providing a mechanism for resolving multi-

state jurisdictional disputes with the goal that only one state will have jurisdiction at any one

time. This act has already been adopted by thirty-nine (39) states, and/or territories including

Connecticut, Maine and Vermont.

     This act would take effect on January 1, 2015.

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