2007 -- S 0481
A N A C T
RELATING TO PROBATE PRACTICE AND PROCEDURE - LIMITED GUARDIANSHIP AND GUARDIANSHIP OF ADULTS
Introduced By: Senator John F. McBurney
Date Introduced: February 13, 2007
It is enacted by the General Assembly as follows:
SECTION 1. Sections 33-15-2, 33-15-4, 33-15-5, 33-15-7, 33-15-18 and 33-15-19 of the
General Laws in Chapter 33-15 entitled "Limited Guardianship and Guardianship of Adults" are
hereby amended to read as follows:
33-15-2. Petition for appointment of a limited guardian or guardian. -- Any person
may file with the probate court clerk, in the city or town where the proposed ward resides or
where an out of state proposed ward has property, a verified petition for the appointment of a
guardian. The petition shall state the following information known to the petitioner:
(1) The name, age, and post office address of the proposed ward;
(2) That, based
functional decision making assessment tool which
proposed ward's current level of
decision making ability:
(i) The proposed ward needs a limited guardian to provide assistance with decision
making in the
following areas of
financial, health care, residential and/or relationship matters; or
(ii) The proposed ward needs a full guardian to provide assistance with decision making
in all areas;
(3) The guardianship powers being requested;
(4) The steps which have been taken to utilize less restrictive alternatives to
(5) The qualifications of the individual proposed to serve as limited guardian or
33-15-4. Limited guardianship. -- (a) (1) Absent a finding, based on a decision making
assessment tool, that an individual is totally incapacitated, the court shall limit the scope of the
powers and duties of a guardian to the terms best suited to allow the individual found partially
incapacitated to participate as fully as possible in decisions affecting him or her. One such
decision making assessment tool must be completed by the respondent's primary care physician,
if one exists and is available, otherwise by a physician who has examined and treated the
respondent. The probate court may consider such additional decision making assessments tools
signed and submitted by one or more non-physicians or consulting physicians. The court shall not
appoint a guardian or limited guardian if the court finds that the needs of the proposed ward are
being met or can be met by a less restrictive alternative or alternatives. The court shall authorize
the guardian to make decisions for the individual in only those areas where the court finds, based
on one or more decision making assessment tools, that the individual lacks the capacity to make
decisions. The court must strike a delicate balance between providing the protection and support
necessary to assist the individual and preserving, to the largest degree possible, the liberty,
property and privacy interests of the individual. The certificate of appointment issued to the
limited guardian shall clearly state that it is a limited guardianship. The court order shall clearly
indicate the scope of the powers and duties of the limited guardian. The appointment of a limited
guardian shall not constitute a finding of legal incompetence. An individual for whom a limited
guardian is appointed shall retain all legal and civil rights except those which have been
specifically suspended by the order.
(2) A decision-making assessment tool, in the form as shown in section 33-15-47, must
be filed with the petition in each case, provided, that the probate court may excuse the filing of a
decision-making assessment tool only on a petition for temporary guardianship in extraordinary
or emergency circumstances and upon the provision of other competent evidence.
(3) The individual's primary care physician must complete the decision-making
assessment tool, however, if the individual's primary care physician is not available or if the
individual does not have a primary care physician the decision-making assessment tool must be
completed by a physician who has examined and treated the individual. Professionals, or other
persons acquainted with the individual being assessed, may also complete additional decision-
making assessment tools.
(4) Modification. - If, because of a change in the partially incapacitated individual's level
functioning decision making ability,
the scope and duties of the limited guardianship order no
longer meet the needs of the individual and/or fail to afford the individual as much autonomy as
possible, modification of the limited guardianship order is required.
can be accomplished by agreement of
the parties: the partially
or her counsel, if any and the limited guardian. This agreement
shall be submitted to the court and entered as an order.
(ii) Where no agreement can be reached, among these parties any or all of the parties
may request a hearing.
(b) However, provisions of this chapter shall not be construed to mean a person is in
need of a guardian or limited guardian solely because he or she is being furnished or relies upon
treatment by spiritual means through prayer alone in accordance with the tenets and practices of a
church or religious denomination recognized by the laws of this state.
33-15-5. Hearing. -- No limited guardian or guardian shall be appointed until after a
hearing on the petition. The hearing shall be before a judge of the probate court of the city or
town where the petition was filed.
(1) The respondent shall have the right to be present at the hearing and all other stages of
(2) The respondent shall be allowed to:
(i) Compel the attendance of witnesses;
(ii) Present evidence; and
(iii) Confront and cross examine witnesses.
(3) The standard of proof shall be clear and convincing evidence.
(4) The Rhode Island rules of evidence shall apply.
professional whose training and experience aid in the assessment of
capacity decision making ability and who has so
assessed the respondent may be permitted to
provide expert testimony regarding the
decision making assessment of the respondent.
33-15-7. Guardians ad litem -- Duties -- Legally incapacitated respondents right to
counsel -- Termination of appointment of guardian ad litem. -- (a) Upon filing with the
probate court clerk of a petition for the appointment of a guardian, a guardian ad litem shall be
appointed for each respondent;
(b) The guardian
ad litem need not be an attorney
; but shall have sufficient
and/or training in dealing with elderly persons and persons with incapacities and/or disabilities
and understanding of his or her role as guardian ad litem to be able to properly discharge such
duties under subsection (c) below. Each probate court shall maintain a list of persons deemed
qualified to serve as a guardian ad litem and shall appoint from that list on a rotating basis. Any
guardian ad litem appointed for a respondent shall be ineligible to serve as legal counsel,
temporary guardian or permanent guardian for that respondent.
(c) The duties of a guardian ad litem shall include all of the following:
(1) Personally visiting the respondent;
(2) Explaining to the respondent the nature, purpose, and legal effect of the appointment
of a guardian;
(3) Explaining to the respondent the hearing procedure, including, but not limited to, the
right to contest the petition, to request limits on the guardian's powers, to object to a particular
person being appointed guardian, to be present at the hearing, and to be represented by legal
(4) Informing the respondent of the name of the person known to be seeking
appointment as guardian;
(5) Reviewing the decision making assessment tool(s), petition for guardianship/limited
guardianship, and the notice;
(6) Interviewing the prospective guardian by telephone or in person; and
(7) Making determinations, and informing the court of those determinations, on all of the
(i) Whether the respondent wishes to be present at the hearing.
(ii) Whether the respondent wishes to contest the petition.
(iii) Whether the respondent wishes limits placed on the guardian's powers; and
(iv) Whether the respondent objects to a particular person being appointed guardian;
(v) Whether the respondent wishes to be represented by legal counsel.
Unless waived by the court, at least three (3) days prior to the hearing, the guardian ad
litem shall file a report substantially in the form as set forth in section 33-15-47 with the court and
shall mail or hand deliver a copy to each attorney of record.
(d) If the respondent wishes to contest the petition, to have limits placed on the
guardian's powers, or to object to a particular person being appointed guardian, and, if legal
counsel has not been secured, the court shall
appoint legal counsel.
If the respondent is indigent, the state shall bear the expense of legal
(e) If the respondent requests legal counsel, or if the guardian ad litem determines it is in
the best interest of the respondent to have legal counsel, and if legal counsel has not been secured,
the court shall appoint legal counsel.
respondent is indigent, the state shall bear the expense of legal counsel.
(f) If the respondent has legal counsel independently or appointed pursuant to subsection
(d) or (e), the appointment of a guardian ad
litem shall terminate
. except insofar as informing the
court of the respondent's wishes and objections determined pursuant to subsection (c) above.
(g) The guardian ad litem shall not interfere with interested parties and their counsel in
gathering and presenting evidence according to court orders and rules of discovery and evidence.
The guardian ad litem may be called and confronted as a witness regarding his or her conclusions
as submitted by report and the extent of his or her personal knowledge concerning the respondent.
(h) Court awarded guardian ad litem fees shall not exceed four hundred dollars ($400)
which shall be paid by the petitioner for guardianship if a permanent guardian is not appointed for
the respondent or by the guardian of the ward's estate if a permanent guardian is appointed. The
court has discretion to award guardian ad litem fees in excess of the cap if the circumstances
33-15-18. Removal of limited guardian or guardian or conservator -- Resignation. --
(a) Removal may be requested by the ward or anyone acting on behalf of the ward, including the
limited guardian, guardian or conservator. The ward may retain counsel for this purpose.
(1) The court shall remove any limited guardians, guardian or conservator appointed or
approved by it upon finding that the limited guardian, guardian or conservator has not fulfilled, or
is no longer able to fulfill, the duties of the appointment as set forth by the order itself and/or the
limited guardianship and guardianship law.
(2) The court shall remove any limited guardian or guardian or conservator upon finding
that the ward, based on a
making assessment tool, has the capacity to make
decisions regarding his or her health care, finances, residence, and/or relationships.
(b) A limited guardian or guardian or conservator may resign. The court shall accept the
resignation of any limited guardian or guardian or conservator after he or she has accounted with
the court for the estate of his or her ward in his or her possession and filed a report regarding the
status of the ward including the ward's current residence and condition.
33-15-19. Inventory and appraisement of estate. -- (a) Within thirty (30) days after his
or her appointment, or any longer time that may be allowed by the probate court, a temporary
guardian, guardian, or limited guardian shall return to the probate court, under oath, an inventory
and appraisement of all the real and personal property of his or her ward, as of the date of the
guardian's qualification to be made by either the guardian and/or a suitable, disinterested person
or persons appointed by the court
shall fix the number of appraisers at one or three (3) in its discretion. The appraisers shall be sworn to the
faithful discharge of their trust.
(b) In appraising the ward's interest in any assets held by the ward jointly or in some
other form of concurrent ownership with another party, the appraiser shall include on the
inventory an explanation for the basis for appraising the inventory, as either all, none, or a portion
of the value of the assets.
SECTION 2. This act shall take effect upon passage.