Chapter 08-299

Chapter 299

2008 -- H 7985 SUBSTITUTE A

Enacted 07/05/08

A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE - GUARDIANSHIP OF MINORS

Introduced By: Representatives Jackson, Lewiss, and Scott

Date Introduced: February 26, 2008

It is enacted by the General Assembly as follows:

SECTION 1. Section 33-15.1-4.1 of the General Laws in Chapter 33-15.1 entitled

"Guardianship of Minors" is hereby repealed.

~~33-15.1-4.1. Waiver of guardian ad litem report -- Parent as petitioner. --~~ ~~Pursuant to~~

~~a petition by a parent for guardianship of a minor or adult child, the requirement that a guardian~~

~~ad litem file a report shall be waived unless specifically ordered by the probate court.~~

SECTION 2. Section 33-15.1-27 of the General Laws in Chapter 33-15.1 entitled

"Guardianship of Minors" is hereby amended to read as follows:

33-15.1-27. Investment of surplus funds -- Relief from bond requirements. --

Guardians may be authorized to invest any money in their hands, not needed for the payment of

debts, or for the support or education of their wards, in notes secured by mortgage upon

~~unincumbered~~ unencumbered, improved real estate situated in this state, or in the bonds or other

indebtedness of the United States, or of this state, or in the bonds or notes of any city or town in

this state, or in the stock of any domestic building and loan association or federal savings and

loan association doing business in this state approved by the probate court, or to make deposits of

money in any savings bank or trust company in this state approved by the probate court, as he or

she shall deem best for the interest of his or her ward; and may also, under the direction of the

probate court, invest any money in real estate or bank stocks in this state or in other safe income

producing securities as the probate court may approve; and if a guardian has so deposited any

money in any savings bank or trust company or invested the money in stock of any association

and deposited with the clerk of the probate court the savings bankbook, share certificate or other

evidence of the deposit or investment, to be held subject to the order of the court, the probate

court in its discretion may relieve the guardian of the requirement of surety on his or her bond. if

~~the deposit or investment is not in excess of ten thousand dollars ($10,000) and constitutes all of~~

~~the property of his or her ward, or if there be other property, reduce the amount of his or her bond~~

~~by the amount of the deposit or investment, but by not in excess of ten thousand dollars~~

~~($10,000).~~

SECTION 3. Sections 33-15-4.1, 33-15-7 and 33-15-17.1 of the General Laws in Chapter

33-15 entitled "Limited Guardianship and Guardianship of Adults" are hereby amended to read as

follows:

33-15-4.1. Good Samaritan guardians. -- (a) Any person who files a petition for a

guardianship of the person pursuant to the provisions of this chapter may also file to be qualified

as a good Samaritan guardian. A good Samaritan guardian may be appointed by the probate court

in those instances where the court determines that the estate of a proposed ward is insufficient to

pay for the services of a guardian and that such an appointment would otherwise be in the best

interests of the individual for whom the guardianship is proposed.

(b) A person filing for appointment of a good Samaritan guardianship shall file all the

forms required by this chapter to initiate a guardianship petition and shall file an additional form

setting forth the qualifications of the proposed guardian to serve as a good Samaritan guardian.

Such forms ~~shall be prepared by the probate court and~~ shall include, but not be limited to, the

following information:

(1) The experience, if applicable, of the proposed guardian;

(2) The willingness of the proposed guardian to serve as said good Samaritan guardian;

and

(3) A statement that if appointed as a good Samaritan guardian, such person shall not

seek any fees and/or monetary compensation for their services as a good Samaritan; provided,

that this shall not be construed to prohibit the good Samaritan guardian from soliciting and/or

utilizing charitable donations for and on behalf of the individual under guardianship.

probate court.

(d) Except as otherwise provided for herein, hearings on and notice of the application for

and appointment of a good Samaritan guardianship shall proceed in the same manner as any other

petition for guardianship pursuant to the provisions of this chapter.

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; only in the proceeding for guardianship of an adult.

(b) The guardian ad litem need not be an attorney but shall have sufficient experience

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.

(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

counsel;

(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

following:

(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.

(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.

(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

warrant.

33-15-17.1. Notice. -- (a) Except for the appointment of a temporary guardian, no

petition for limited guardian or guardian shall be heard and no person shall be appointed limited

guardian or guardian of an individual unless notice of the petition for appointment of a limited

guardian or guardian and a copy of the petition itself shall be served upon the respondent in

person at least fourteen (14) days prior to any hearing on the petition. If the hearing date is

continued by the probate court for any reason after service on the respondent and no objection to

the petition is filed by or on behalf of the respondent, no further service on the respondent shall

be required. The probate court, in its discretion, may require further notice to the respondent in

such manner as prescribed by the court.

In the case of a petition for the appointment of a temporary guardian, such fourteen (14)

day notice period shall be reduced to five (5) days, unless a shorter period is ordered by the court.

(b) This notice shall be in plain language, large type and shall include the time and place

of the hearing, the possible loss of liberty if the petition is granted, and shall inform the

respondent of his or her rights including: the court appointment of a guardian ad litem, the right to

a hearing and to be present at the hearing to confront witnesses, present evidence, contest the

petition, object to the appointment of a particular individual as guardian, request that limits be

placed on the guardian's powers, and the right to counsel. Notice shall be served upon the

respondent by a process server duly authorized and licensed under Rhode Island law, except for

"Good Samaritan" guardianships under section 33-15-4.1 in which case notice may be served

upon the respondent by the guardian ad litem appointed by the court (hereinafter referred to as

"court officer").

shall have experience dealing with individuals who may lack decision making ability.

(d) The court officer shall present the written notice and shall also read the notice to the

respondent.

(e) Except for a petition for the appointment of a temporary guardian, notice shall be

given by the petitioner, or his or her attorney, at least ten (10) days before the date set for hearing

on the petition by regular mail, postage prepaid, addressed to (1) the respondent's spouse and

heirs at law (under the rules of descent) as set forth in section 33-1-1 only at their last known

addresses; and (2) the administrator of any care and treatment facility where the respondent

resides or receives primary services; and (3) any individual or entity known or reasonably known

to the petitioner to be regularly providing protective services to the respondent. In the case of a

petition for the appointment of a temporary guardian, such ten (10) day notice period is reduced

to five (5) days, unless a shorter period is ordered by the court, with the petitioner required to use

reasonable efforts in identifying and noticing those individuals described in the immediately

preceding sentence within the limitations of investigation of identity of addresses of such

individuals inherent in a temporary guardianship proceeding. The petitioner or his or her attorney,

shall at or prior to the hearing file or leave to be filed an affidavit that notice was given setting

forth the names and post office addresses of the persons to whom the notice was sent and the date

of mailing, together with a copy of the notice.

(f) Should the petitioner have no knowledge of the existence or whereabouts of any of

the persons required to be notified pursuant to subparagraph (e) above, an affidavit to that effect

filed with the court shall satisfy this notice requirement.

(g) Notwithstanding any notice requirement of the petitioner, and except for a petition

for appointment of a temporary guardian the court shall give notice of the petition by

advertisement.

SECTION 4. This act shall take effect upon passage.

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LC02297/SUB A

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