2015 -- S 0525 SUBSTITUTE A AS AMENDED | |
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LC001116/SUB A | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2015 | |
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A N A C T | |
RELATING TO PROBATE PRACTICE AND PROCEDURE - UNIFORM ADULT | |
GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT | |
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Introduced By: Senators Lombardi, Jabour, Conley, McCaffrey, and Lynch | |
Date Introduced: February 26, 2015 | |
Referred To: Senate Judiciary | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Title 33 of the General Laws entitled "PROBATE PRACTICE AND |
2 | PROCEDURE" is hereby amended by adding thereto the following chapter: |
3 | CHAPTER 15.2 |
4 | UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION |
5 | ACT |
6 | 33-15.2-101. Short title. – This chapter shall be known and may be cited as the "Uniform |
7 | Adult Guardianship and Protective Proceedings Jurisdiction Act." |
8 | 33-15.2-102. Definitions. – As used in this chapter: |
9 | (1) "Adult" means an individual who has attained eighteen (18) years of age. |
10 | (2) "Conservator" means a person appointed by the court to administer the property of an |
11 | adult, including a person appointed under chapter 15 of title 33. |
12 | (3) "Emergency" means circumstances that likely will result in substantial harm to a |
13 | respondent's health, safety, or welfare, and in which the appointment of a guardian is necessary |
14 | because no other person has authority to and is willing to act on the respondent's behalf. |
15 | (4) "Guardian" means a person appointed by the court to make decisions regarding the |
16 | person of an adult, including a person appointed under chapter 15 of title 33. |
17 | (5) "Guardianship order" means an order appointing a guardian. |
18 | (6) "Guardianship proceeding" means a proceeding in which an order for the appointment |
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1 | of a guardian is sought or has been issued. |
2 | (7) "Home state" means the state in which the respondent was physically present, |
3 | including any period of temporary absence, for at least six (6) consecutive months immediately |
4 | before the filing of a petition for the appointment of a guardian or issuance of a protective order; |
5 | or if none, the state in which the respondent was physically present, including any period of |
6 | temporary absence, for at least six (6) consecutive months ending within the six (6) months prior |
7 | to the filing of the petition. |
8 | (8) "Incapacitated person" means an adult for whom a guardian has been appointed. |
9 | (9) "Party" means the respondent, petitioner, guardian, conservator, or any other person |
10 | allowed by the court to participate in a guardianship or protective proceeding. |
11 | (10) "Person" means an individual, corporation, business trust, estate, trust, partnership, |
12 | limited liability company, association, joint venture, government or governmental subdivision, |
13 | agency, or instrumentality, public corporation, or any other legal or commercial entity. |
14 | (11) "Protected person" means an adult for whom a protective order has been made. |
15 | (12) "Protective order" means an order appointing a conservator or another court order |
16 | related to management of an adult's property. |
17 | (13) "Protective proceeding" means a judicial proceeding in which a protective order is |
18 | sought or has been issued. |
19 | (14) "Record" means information that is inscribed on a tangible medium or that is stored |
20 | in an electronic or other medium and is retrievable in perceivable form. |
21 | (15) "Respondent" means an adult for whom a protective order or the appointment of a |
22 | guardian is sought. |
23 | (16) "Significant-connection state" means a state, other than the home state, with which a |
24 | respondent has a significant connection other than mere physical presence and in which |
25 | substantial evidence concerning the respondent is available. |
26 | (17) "State" means a state of the United States, the District of Columbia, Puerto Rico, the |
27 | United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular |
28 | possession subject to the jurisdiction of the United States. |
29 | 33-15.2-103. International application of chapter. – A court of this state may treat a |
30 | foreign country as if it were a state for the purposes of applying: §§ 33-15.2-101 through 302; and |
31 | 33-15.2-501 through 504. |
32 | 33-15.2-104. Communication between courts. – (a) A court of this state may |
33 | communicate with a court in another state concerning a proceeding arising under this chapter. |
34 | The court may allow all the parties to participate in the communication. Except as otherwise |
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1 | provided in subsection (b) of this section, the court shall make a record of the communication. |
2 | The record may be limited to the fact that the communication occurred and the names of the |
3 | participants. |
4 | (b) Courts may communicate concerning schedules, calendars, court records, and other |
5 | administrative matters without making a record. |
6 | 33-15.2-105. Cooperation between courts. – (a) In a guardianship or protective |
7 | proceeding in this state, a court of this state may request the appropriate court of another state to: |
8 | (1) Hold an evidentiary hearing; |
9 | (2) Order a person in that state to produce or give evidence pursuant to procedures of that |
10 | state; |
11 | (3) Order that an evaluation or assessment be made of the respondent, or order any |
12 | appropriate investigation of a person involved in a proceeding; |
13 | (4) Forward to the court of this state a certified copy of the transcript or other record of a |
14 | hearing under subsection (1) of this section or any other proceeding, any evidence otherwise |
15 | presented under subsection (2) of this section, and any evaluation or assessment prepared in |
16 | compliance with the request under subsection (3) of this section; |
17 | (5) Issue any other order necessary to assure the appearance of a person necessary to |
18 | make a determination, including the respondent or the incapacitated or protected person; and |
19 | (6) Issue an order after a hearing if requested, authorizing the release of medical, |
20 | financial, criminal, or other relevant information in that state, including protected health |
21 | information as defined in 45 C.F.R. 160.103, as amended, to the extent permitted by law other |
22 | than this chapter. |
23 | (b) If a court of another state in which a guardianship or protective proceeding is pending |
24 | requests assistance of the kind provided in subsection (a) of this section, a court of this state has |
25 | jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply |
26 | with the request. |
27 | 33-15.2-106. Taking testimony in another state. – (a) In a guardianship or protective |
28 | proceeding, in addition to other procedures that may be available, testimony of witnesses who are |
29 | located in another state may be offered by deposition or other means allowable in this state for |
30 | testimony taken in another state. The court on its own motion may order that the testimony of a |
31 | witness be taken in another state and may prescribe the manner in which and the terms upon |
32 | which the testimony is to be taken. |
33 | (b) In a guardianship or protective proceeding, a court in this state may permit a witness |
34 | located in another state to be deposed or to testify by telephone or audiovisual or other electronic |
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1 | means. A court of this state shall cooperate with courts of other states in designating an |
2 | appropriate location for the deposition or testimony. |
3 | (c) Documentary evidence transmitted from another state to a court of this state by |
4 | technological means that do not produce an original writing may not be excluded from evidence |
5 | on an objection based on the means of transmission. |
6 | 33-15.2-201. Significant connection factors. – Determination of whether a respondent |
7 | has a significant connection with a particular state shall include consideration of the following |
8 | factors: |
9 | (1) The location of the respondent's family and others required to be notified of the |
10 | guardianship or protective proceeding; |
11 | (2) The length of time the respondent at any time was physically present in the state and |
12 | the duration of any absences; |
13 | (3) The location of the respondent's property; and |
14 | (4) The extent to which the respondent has other ties to the state such as voting |
15 | registration, filing of state or local tax returns, vehicle registration, driver's license, social |
16 | relationships, and receipt of services. |
17 | 33-15.2-202. Exclusive basis. – Section 8-9-9 entitled "general probate jurisdiction", |
18 | Chapter 15 of title 33 entitled "limited guardianship and guardianship of adults", and this chapter |
19 | provide the jurisdictional basis for a court of this state to appoint a guardian or issue a protective |
20 | order for an adult. |
21 | 33-15.2-203. Initial jurisdiction. – In addition to the limited or special jurisdiction under |
22 | § 33-15.2-204, a court of this state has jurisdiction to appoint a guardian or issue a protective |
23 | order for a respondent if: |
24 | (1) This state is the respondent's home state; |
25 | (2) On the date the petition is filed, this state is a significant-connection state and: |
26 | (i) The respondent does not have a home state or a court of the respondent's home state |
27 | has declined to exercise jurisdiction because this state is a more appropriate forum; or |
28 | (ii) The respondent has a home state, a petition for the appointment of a guardian or |
29 | protective order has not been filed in a court of that state or in another significant-connection |
30 | state, and, before the court makes the appointment or issues the order: |
31 | (A) A petition for appointment or order is not filed in the respondent's home state; |
32 | (B) An objection to the jurisdiction of the court in this state has not been filed; and |
33 | (C) The court in this state concludes that it is an appropriate forum under the factors set |
34 | forth in § 33-15.2-206; or |
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1 | (3) This state does not have jurisdiction under either subsection (1) or (2) of this section, |
2 | the respondent's home state and all significant-connection states have declined to exercise |
3 | jurisdiction because this state is the more appropriate forum, and jurisdiction in this state is |
4 | consistent with the constitutions of this state and the United States. |
5 | 33-15.2-204. Special cases. – (a) A court of this state lacking jurisdiction under §§ 33- |
6 | 15.2-203 has special jurisdiction to do any of the following: |
7 | (1) Appoint a guardian in an emergency for a term not exceeding ninety (90) days for a |
8 | respondent who is physically present in this state; |
9 | (2) Issue a protective order with respect to real or tangible personal property located in |
10 | this state; |
11 | (3) Appoint a guardian or conservator for an incapacitated or protected person for whom |
12 | a provisional or temporary order to transfer the proceeding from another state has been issued as |
13 | provided under procedures similar to § 33-15.2-301. |
14 | (b) If a petition for the appointment of a guardian in an emergency is brought in this state |
15 | and this state was not the respondent's home state on the date the petition was filed, the court shall |
16 | dismiss the proceeding at the request of the court in such other state, if any, whether dismissal is |
17 | requested before or after the emergency appointment. |
18 | 33-15.2-205. Exclusive and continuing jurisdiction. – Except as otherwise provided in |
19 | § 33-15.2-204, a court that has appointed a guardian or issued a protective order consistent with |
20 | this chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by |
21 | the court or the appointment or order expires by its own terms. |
22 | 33-15.2-206. Declining jurisdiction if another court is a more appropriate forum. – |
23 | (a) A court of this state having jurisdiction under § 33-15.2-203 to appoint a guardian or issue a |
24 | protective order may decline to exercise its jurisdiction if it determines at any time that a court of |
25 | another state is a more appropriate forum. |
26 | (b) If a court of this state declines jurisdiction over a guardianship or protective |
27 | proceeding under subsection (a) of this section, it shall either dismiss the proceeding or stay the |
28 | proceeding. The court may impose any other condition the court considers just and proper, |
29 | including the condition that a petition for the appointment of a guardian or protective order be |
30 | promptly filed in another state. |
31 | (c) In determining whether it is an appropriate forum, the court shall consider all relevant |
32 | factors, including: |
33 | (1) Any expressed preference of the respondent; |
34 | (2) Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to |
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1 | occur and which state could best protect the respondent from the abuse, neglect, or exploitation; |
2 | (3) The length of time the respondent was physically present in or was a legal resident of |
3 | this or another state; |
4 | (4) The distance of the respondent from the court in each state; |
5 | (5) The financial circumstances of the respondent's estate; |
6 | (6) The nature and location of the evidence; |
7 | (7) The ability of the court in each state to decide the issue expeditiously and the |
8 | procedures necessary to present evidence; |
9 | (8) The familiarity of the court of each state with the facts and issues in the proceeding; |
10 | and |
11 | (9) If an appointment were made, the court's ability to monitor the conduct of the |
12 | guardian or conservator. |
13 | 33-15.2-207. Jurisdiction declined by reason of conduct. – (a) If at any time a court of |
14 | this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order |
15 | because of unjustifiable conduct, the court may: |
16 | (1) Decline to exercise jurisdiction; |
17 | (2) Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to |
18 | ensure the health, safety, and welfare of the respondent or the protection of the respondent's |
19 | property or prevent a repetition of the unjustifiable conduct, including staying the proceeding |
20 | until a petition for the appointment of a guardian or issuance of a protective order is filed in a |
21 | court of another state having jurisdiction; or |
22 | (3) Continue to exercise jurisdiction after considering: |
23 | (i) The extent to which the respondent and all persons required to be notified of the |
24 | proceedings has acquiesced in the exercise of the court's jurisdiction; |
25 | (ii) Whether it is a more appropriate forum than the court of any other state under the |
26 | factors set forth in § 33-15.2-206(c); and |
27 | (iii) Whether the court of any other state would have jurisdiction under factual |
28 | circumstances in substantial conformity with the jurisdictional standards of § 33-15.2-203. |
29 | (b) If a court of this state determines that it acquired jurisdiction to appoint a guardian or |
30 | issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable |
31 | conduct, it may assess against that party necessary and reasonable expenses, including attorneys' |
32 | fees, investigative fees, court costs, communication expenses, witness fees and expenses, and |
33 | travel expenses. The court may not assess fees, costs, or expenses of any kind against this state or |
34 | a governmental subdivision, agency, or instrumentality of this state unless authorized by law |
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1 | other than this chapter. |
2 | 33-15.2-208. Notice of proceeding. – If a petition for the appointment of a guardian or |
3 | issuance of a protective order is brought in this state and this state was not the respondent's home |
4 | state on the date the petition was filed, in addition to complying with the notice requirements of |
5 | this state, notice of the proceeding must be given by the petitioner to those persons who would be |
6 | entitled to notice of the petition if the proceeding were brought in such other state, if any. The |
7 | notice must be given in the manner as required by chapters 15 of title 33 and 22 of title 33. |
8 | 33-15.2-209. Proceedings in more than one state. – Except for a petition for the |
9 | appointment of a guardian in an emergency or a protective order limited to property located in |
10 | this state as provided in §§ 33-l 5.2-204(a)(1) or (a)(2), if a petition for the appointment of a |
11 | guardian or protective order is filed in this and another state and neither petition has been |
12 | dismissed or withdrawn, the following rules apply: |
13 | (1) If the court in this state has jurisdiction under § 33-15.2-203, it may proceed with the |
14 | case unless a court in another state acquires jurisdiction under provisions similar to § 33-15.2- |
15 | 203 before the appointment or issuance of the order. |
16 | (2) If the court in this state does not have jurisdiction under § 33-15.2-203, whether at the |
17 | time the petition is filed or at any time before the appointment or issuance of the order, the court |
18 | shall stay the proceeding and communicate with the court in the other state. If the court in the |
19 | other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the |
20 | other state determines that the court of this state is a more appropriate forum. |
21 | 33-15.2-301. Petition to transfer jurisdiction to another state. – (a) Following the |
22 | appointment of a guardian or conservator, the guardian or conservator may petition the court to |
23 | transfer the guardianship or conservatorship to another state. |
24 | (b) Notice of the petition to transfer a guardianship or conservatorship under subsection |
25 | (a) of this section must be given by the petitioner to those persons that would be entitled to notice |
26 | of a petition in this state for the appointment of a guardian or conservator. |
27 | (c) The court shall hold a hearing on a petition filed pursuant to subsection (a) of this |
28 | section. |
29 | (d) The court shall issue a temporary order granting a petition to transfer a guardianship |
30 | and shall direct the guardian to petition for guardianship in the other state if the court finds that: |
31 | (1) The incapacitated person is physically present in or is reasonably expected to move |
32 | permanently to the other state; |
33 | (2) An objection to the transfer has not been made or, if an objection has been made, the |
34 | objector has not established that the transfer would be contrary to the interests of the |
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1 | incapacitated person; |
2 | (3) The court is satisfied that plans for care and services for the incapacitated person in |
3 | the other state are reasonable and sufficient; and |
4 | (4) The court is satisfied that the guardianship will be accepted by the court to which the |
5 | proceeding will be transferred. |
6 | (e) The court shall issue a temporary order granting a petition to transfer a |
7 | conservatorship and shall direct the conservator to file a petition for conservatorship in the other |
8 | state if the court finds that: |
9 | (1) The protected person is physically present in or is reasonably expected to move |
10 | permanently to the other state, or the protected person has a significant connection to the other |
11 | state considering the factors set forth in § 33-15.2-201; |
12 | (2) An objection to the transfer has not been made or, if an objection has been made, the |
13 | objector has not established that the transfer would be contrary to the interests of the protected |
14 | person; |
15 | (3) The court is satisfied that adequate arrangements will be made for management of the |
16 | protected person's property; and |
17 | (4) The court is satisfied that the conservatorship will be accepted by the court to which |
18 | the proceeding will be transferred. |
19 | (f) The court shall issue a final order confirming the transfer and terminating the |
20 | guardianship or conservatorship upon its receipt of: |
21 | (1) A provisional or temporary order accepting the proceeding from the court to which |
22 | the proceeding is to be transferred which is issued under provisions similar to § 33-15.2-302; and |
23 | (2) The documents required to terminate a guardianship or conservatorship in this state. |
24 | 33-15.2-302. Petition to accept proceeding transferred from another state. – (a) Upon |
25 | issuance of a provisional or temporary order in another state to transfer a guardianship or |
26 | conservatorship to this state under provisions similar to those in § 33-15.2-301, the guardian or |
27 | conservator shall petition the court in this state to accept the guardianship or conservatorship. The |
28 | petition must include a certified copy of the other state's provisional or temporary order and |
29 | relevant file documents. |
30 | (b) Notice of a petition under subsection (a) of this section to accept a guardianship or |
31 | conservatorship from another state must be given by the petitioner to those persons that would be |
32 | entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a |
33 | protective order in both the transferring state and this state. The notice must be given in the |
34 | manner required by chapters 15 of title 33 and 22 of title 33. |
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1 | (c) The court shall hold a hearing on a petition filed pursuant to subsection (a) of this |
2 | section to accept a guardianship or conservatorship from another state. |
3 | (d) If the court is satisfied with the documentation and evidence presented, the petition |
4 | filed under subsection (a) of this section shall be granted, unless an objection is made and the |
5 | objector establishes that transfer of the proceeding would be contrary to the interests of the |
6 | incapacitated or protected person. |
7 | (e) No later than ninety (90) days after issuance of a permanent order accepting transfer |
8 | of a guardianship or conservatorship, the court shall determine whether the guardianship or |
9 | conservatorship needs to be modified to conform to the law of this state. |
10 | (f) In approving a petition under this section, the court shall recognize a guardianship or |
11 | conservatorship order from the other state, including the determination of the incapacitated or |
12 | protected person's incapacity and the appointment of the guardian or conservator, if the guardian |
13 | or conservator is eligible to act in this state, and the determination of the need for a guardian or |
14 | conservator conforms to the law of this state. |
15 | (g) The denial of a petition filed under subsection (a) of this section to accept a |
16 | guardianship or conservatorship from another state does not affect the ability of a guardian or |
17 | conservator appointed by a court in another state to seek appointment as guardian of the |
18 | incapacitated person or conservator of the protected person under chapter 15 of title 33. |
19 | 33-15.2-401. Registration of guardianship orders. – If a guardian has been appointed |
20 | in another state and a petition for the appointment of a guardian is not pending in this state, a |
21 | guardian appointed in another state, after giving notice to the appointing court of an intent to |
22 | register, may register the guardianship order in this state by filing as a foreign judgment in a court |
23 | of this state in any appropriate city or town of this state certified copies of the order and letters of |
24 | office. |
25 | 33-15.2-402. Registration of protective orders. – If a conservator has been appointed in |
26 | another state and a petition for a protective order is not pending in this state, the conservator |
27 | appointed in another state, after giving notice to the appointing court of an intent to register, may |
28 | register the protective order in this state by filing as a foreign judgment in a court of this state, in |
29 | any city or town in which property belonging to the protected person is located, certified copies |
30 | of the order and letters of office and of any bond. |
31 | 33-15.2-403. Effect of registration. – (a) Upon registration of a guardianship or |
32 | protective order from another state, the guardian or conservator may exercise in this state all |
33 | powers authorized in the order of appointment except as prohibited under the laws of this state, |
34 | including maintaining actions and proceedings in this state and, if the guardian or conservator is |
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1 | not a resident of this state, subject to any conditions imposed upon nonresident parties. |
2 | (b) A court of this state may grant any relief available under this chapter and other laws |
3 | of this state to enforce a registered order. |
4 | 33-15.2-501. Uniformity of application and construction. – In applying and construing |
5 | this uniform act, consideration must be given to the need to promote uniformity of the law with |
6 | respect to its subject matter among states that enact it. |
7 | 33-15.2-502. Relation to electronic signatures in global and national commerce act. – |
8 | This chapter modifies, limits, and supersedes the Federal Electronic Signatures in Global and |
9 | National Commerce Act, 15 U.S.C. § 7001, et seq., but does not modify, limit, or supersede |
10 | section 101(c) of that act, 15 U.S.C. § 700l(c), or authorize electronic delivery of any of the |
11 | notices described in section 103(b) of that act, 15 U.S.C. § 7003(b). |
12 | 33-15.2-503. Reserved. – |
13 | 33-15.2-504. Transitional provision. – (a) This chapter applies to guardianship and |
14 | protective proceedings begun on or after January 1, 2016. |
15 | (b) For proceedings begun before January 1, 2016, whether or not a guardianship or |
16 | protective order has been issued, §§ 33-15.2-101 through 106 and 33-15.2-301 through 502 |
17 | apply. |
18 | SECTION 2. This act shall take effect on January 1, 2016, except insofar as § 33-15.2- |
19 | 504(b) may apply. |
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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 | |
*** | |
1 | This act would adopt the "Uniform Adult Guardianship and Protective Proceedings |
2 | Jurisdiction Act" in Rhode Island. |
3 | This act would take effect on January 1, 2016, except insofar as § 33-15.2-504(b) may |
4 | apply. |
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LC001116/SUB A | |
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