2015 -- S 0525 SUBSTITUTE A AS AMENDED

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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

     

     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:

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

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

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CHAPTER 15.2

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UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION

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ACT

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

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Adult Guardianship and Protective Proceedings Jurisdiction Act."

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

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

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

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

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

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

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

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

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

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

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

 

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of a guardian is sought or has been issued.

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     (7) "Home state" means the state in which the respondent was physically present,

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including any period of temporary absence, for at least six (6) consecutive months immediately

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before the filing of a petition for the appointment of a guardian or issuance of a protective order;

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or if none, the state in which the respondent was physically present, including any period of

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temporary absence, for at least six (6) consecutive months ending within the six (6) months prior

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to the filing of the petition.

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

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

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

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

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

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

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

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

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related to management of an adult's property.

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

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sought or has been issued.

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

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

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

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guardian is sought.

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

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

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substantial evidence concerning the respondent is available.

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

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

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possession subject to the jurisdiction of the United States.

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

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foreign country as if it were a state for the purposes of applying: §§ 33-15.2-101 through 302; and

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33-15.2-501 through 504.

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

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

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

 

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

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The record may be limited to the fact that the communication occurred and the names of the

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participants.

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

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administrative matters without making a record.

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

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

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     (1) Hold an evidentiary hearing;

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

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state;

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

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appropriate investigation of a person involved in a proceeding;

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

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

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

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

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

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

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     (6) Issue an order after a hearing if requested, authorizing the release of medical,

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financial, criminal, or other relevant information in that state, including protected health

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information as defined in 45 C.F.R. 160.103, as amended, to the extent permitted by law other

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than this chapter.

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

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

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

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with the request.

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

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

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

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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

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which the testimony is to be taken.

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

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

 

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

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appropriate location for the deposition or testimony.

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

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

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on an objection based on the means of transmission.

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     33-15.2-201. Significant connection factors. – Determination of whether a respondent

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

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factors:

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

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guardianship or protective proceeding;

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

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the duration of any absences;

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

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

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

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relationships, and receipt of services.

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     33-15.2-202. Exclusive basis. – Section 8-9-9 entitled "general probate jurisdiction",

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Chapter 15 of title 33 entitled "limited guardianship and guardianship of adults", and this chapter

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provide the jurisdictional basis for a court of this state to appoint a guardian or issue a protective

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order for an adult.

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

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§ 33-15.2-204, a court of this state has jurisdiction to appoint a guardian or issue a protective

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order for a respondent if:

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     (1) This state is the respondent's home state;

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     (2) On the date the petition is filed, this state is a significant-connection state and:

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     (i) The respondent does not have a home state or a court of the respondent's home state

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has declined to exercise jurisdiction because this state is a more appropriate forum; or

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     (ii) The respondent has a home state, a petition for the appointment of a guardian or

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protective order has not been filed in a court of that state or in another significant-connection

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state, and, before the court makes the appointment or issues the order:

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     (A) A petition for appointment or order is not filed in the respondent's home state;

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     (B) An objection to the jurisdiction of the court in this state has not been filed; and

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     (C) The court in this state concludes that it is an appropriate forum under the factors set

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forth in § 33-15.2-206; or

 

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     (3) This state does not have jurisdiction under either subsection (1) or (2) of this section,

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the respondent's home state and all significant-connection states have declined to exercise

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jurisdiction because this state is the more appropriate forum, and jurisdiction in this state is

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consistent with the constitutions of this state and the United States.

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

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

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

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respondent who is physically present in this state;

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

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this state;

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

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a provisional or temporary order to transfer the proceeding from another state has been issued as

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provided under procedures similar to § 33-15.2-301.

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

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and this state was not the respondent's home state on the date the petition was filed, the court shall

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dismiss the proceeding at the request of the court in such other state, if any, whether dismissal is

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requested before or after the emergency appointment.

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

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

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

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

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

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

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

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another state is a more appropriate forum.

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

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

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

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

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promptly filed in another state.

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

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factors, including:

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     (1) Any expressed preference of the respondent;

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

 

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

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

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this or another state;

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

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

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     (6) The nature and location of the evidence;

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

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procedures necessary to present evidence;

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

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and

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

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guardian or conservator.

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

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

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because of unjustifiable conduct, the court may:

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     (1) Decline to exercise jurisdiction;

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

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

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

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

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court of another state having jurisdiction; or

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     (3) Continue to exercise jurisdiction after considering:

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

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

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

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

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

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

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

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

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

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

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

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

 

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other than this chapter.

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     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

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state on the date the petition was filed, in addition to complying with the notice requirements of

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this state, notice of the proceeding must be given by the petitioner to those persons who would be

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entitled to notice of the petition if the proceeding were brought in such other state, if any. The

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notice must be given in the manner as required by chapters 15 of title 33 and 22 of title 33.

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

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

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this state as provided in §§ 33-l 5.2-204(a)(1) or (a)(2), if a petition for the appointment of a

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

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dismissed or withdrawn, the following rules apply:

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

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case unless a court in another state acquires jurisdiction under provisions similar to § 33-15.2-

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203 before the appointment or issuance of the order.

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

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

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

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other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the

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other state determines that the court of this state is a more appropriate forum.

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

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

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transfer the guardianship or conservatorship to another state.

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

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

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

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     (c) The court shall hold a hearing on a petition filed pursuant to subsection (a) of this

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section.

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

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and shall direct the guardian to petition for guardianship in the other state if the court finds that:

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

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permanently to the other state;

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     (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

 

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incapacitated person;

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

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the other state are reasonable and sufficient; and

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

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proceeding will be transferred.

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

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conservatorship and shall direct the conservator to file a petition for conservatorship in the other

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state if the court finds that:

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

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

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state considering the factors set forth in § 33-15.2-201;

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     (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 protected

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person;

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

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protected person's property; and

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

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the proceeding will be transferred.

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     (f) The court shall issue a final order confirming the transfer and terminating the

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guardianship or conservatorship upon its receipt of:

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     (1) A provisional or temporary order accepting the proceeding from the court to which

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the proceeding is to be transferred which is issued under provisions similar to § 33-15.2-302; and

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     (2) The documents required to terminate a guardianship or conservatorship in this state.

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

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

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conservatorship to this state under provisions similar to those in § 33-15.2-301, the guardian or

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

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petition must include a certified copy of the other state's provisional or temporary order and

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relevant file documents.

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

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

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

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

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manner required by chapters 15 of title 33 and 22 of title 33.

 

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     (c) The court shall hold a hearing on a petition filed pursuant to subsection (a) of this

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section to accept a guardianship or conservatorship from another state.

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     (d) If the court is satisfied with the documentation and evidence presented, the petition

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filed under subsection (a) of this section shall be granted, unless an objection is made and the

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objector establishes that transfer of the proceeding would be contrary to the interests of the

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incapacitated or protected person.

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     (e) No later than ninety (90) days after issuance of a permanent order accepting transfer

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of a guardianship or conservatorship, the court shall determine whether the guardianship or

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conservatorship needs to be modified to conform to the law of this state.

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

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

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

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or conservator is eligible to act in this state, and the determination of the need for a guardian or

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conservator conforms to the law of this state.

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

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

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

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

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     33-15.2-401. Registration of guardianship orders. – If a guardian has been appointed

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

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

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

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

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office.

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     33-15.2-402. Registration of protective orders. – If a conservator has been appointed in

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another state and a petition for a protective order is not pending in this state, the conservator

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

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

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any city or town in which property belonging to the protected person is located, certified copies

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of the order and letters of office and of any bond.

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

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

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

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

 

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

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

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of this state to enforce a registered order.

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

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

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respect to its subject matter among states that enact it.

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

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

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National Commerce Act, 15 U.S.C. § 7001, et seq., but does not modify, limit, or supersede

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section 101(c) of that act, 15 U.S.C. § 700l(c), or authorize electronic delivery of any of the

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notices described in section 103(b) of that act, 15 U.S.C. § 7003(b).

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     33-15.2-503. Reserved. –

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

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protective proceedings begun on or after January 1, 2016.

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     (b) For proceedings begun before January 1, 2016, whether or not a guardianship or

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protective order has been issued, §§ 33-15.2-101 through 106 and 33-15.2-301 through 502

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apply.

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     SECTION 2. This act shall take effect on January 1, 2016, except insofar as § 33-15.2-

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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

***

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     This act would adopt the "Uniform Adult Guardianship and Protective Proceedings

2

Jurisdiction Act" in Rhode Island.

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     This act would take effect on January 1, 2016, except insofar as § 33-15.2-504(b) may

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apply.

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