D
R A F T
FOR DISCUSSION ONLY
Uniform ADULT GUARDIANSHIP AND
PROTECTIVE PROCEEDINGS JURISDICTION ACT
NATIONAL CONFERENCE
OF COMMISSIONERS
ON UNIFORM STATE LAWS
March 2007 Interim
Draft
Without Prefatory Note and Comments
Copyright ©2007
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and conclusions
set forth in this draft, including the proposed statutory language and any
comments or reporter’s notes, have not been passed upon by the National
Conference of Commissioners on Uniform State Laws or the Drafting
Committee. They do not necessarily
reflect the views of the Conference and its Commissioners and the Drafting
Committee and its Members and Reporter.
Proposed statutory language may not be used to ascertain the intent or
meaning of any promulgated final statutory proposal.
March 1, 2007
DRAFTING COMMITTEE ON UNIFORM
ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT
The Committee appointed by and representing the National Conference of
Commissioners on Uniform State Laws in drafting this Act consists of the
following individuals:
DAVID G. NIXON, 2340 Green Acres
Rd., Suite
12, Fayetteville,
AR 72703,
Chair
GAIL H. HAGERTY, Burleigh County Court House,
P.O. Box 1013, 514 E. Thayer Ave., Bismarck, ND 58502-1013
LYLE W. HILLYARD, 175 E 1st St. N, Logan, UT 84321
PAUL M. KURTZ, University of Georgia
School of Law,
Athens, GA
30602-6012
SUSAN KELLY NICHOLS, North Carolina
Department of Justice, P.O. Box 629, Raleigh, NC 27602-0629
LANE SHETTERLY, Dept. of Land Conservation
& Development, 635 Capitol St. NE, Suite 150, Salem, OR 97301
SUZANNE BROWN WALSH,
29 S Main St., West Hartford, CT 06107
STEPHANIE J. WILLBANKS, Vermont Law School,
P.O. Box 96, Chelsea St., South Royalton, VT 05068
DAVID M. ENGLISH, University of
Missouri-Columbia, School of Law, Missouri & Conley Aves., Columbia, MO 65211, National Conference Reporter
EX OFFICIO
HOWARD J. SWIBEL,
120 S Riverside Plaza, Suite
1200, Chicago,
IL 60606,
President
TOM BOLT, 5600 Royal Dane Mall, St. Thomas, VI 00802-6410,
Division Chair
AMERICAN BAR ASSOCIATION
ADVISORS
LARRY CRADDOCK, 2601 N Lamar Blvd., Austin,
TX 78705-4260,
ABA
Advisor
KAREN E. BOXX, 316
William H. Gates Hall, P.O. Box
353020, Seattle, WA 98195-3020,
ABA Section Advisor
ERICA F. WOOD, 740 15th St. NW, Washington,
DC 20005,
ABA Section
Advisor
EXECUTIVE DIRECTOR
JOHN A. SEBERT, 211
E. Ontario St., Suite 1300,
Chicago, Illinois 60611
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
211 E. Ontario Street, Suite 1300
Chicago, Illinois 60611
www.nccusl.org
UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT
TABLE OF CONTENTS
[ARTICLE]
1
GENERAL
PROVISIONS
SECTION
101. SHORT TITLE. 1
SECTION
102. SCOPE. 1
SECTION
103. DEFINITIONS. 1
SECTION
104. INTERNATIONAL APPLICATION OF [ACT]. 3
SECTION
105. COMMUNICATION BETWEEN COURTS. 3
SECTION
106. COOPERATION BETWEEN COURTS. 4
SECTION
107. TAKING TESTIMONY IN ANOTHER STATE. 5
[ARTICLE]
2
INITIAL
JURISDICTION
SECTION
201. INITIAL JURISDICTION.. 6
SECTION
201B. EXCLUSIVE, CONTINUING JURISDICTION.. 7
SECTION
202. DECLINING JURISDICTION IF ANOTHER
COURT MORE APPROPRIATE FORUM 7
SECTION
203. DETERMINING APPROPRIATE FORUM... 7
SECTION
204. JURISDICTION DECLINED BY REASON OF
CONDUCT. 8
SECTION
204A. NOTICE OF PROCEEDING OTHER THAN IN
HOME STATE. 9
SECTION
205. MULTIPLE PROCEEDINGS. 10
[ARTICLE]
3
TRANSFER
OF JURISDICTION
SECTION
301. PETITION TO TRANSFER JURISDICTION
TO ANOTHER STATE. 11
SECTION
302. PETITION TO ACCEPT PROCEEDING
TRANSFERRED FROM
ANOTHER STATE. 12
[ARTICLE]
4
FILING
AND RECOGNITION OF ORDERS FROM OTHER STATES
SECTION
401. REGISTRATION OF GUARDIANSHIP ORDERS. 15
SECTION
402. REGISTRATION OF CONSERVATORSHIP ORDERS. 15
SECTION
403. EFFECT OF REGISTRATION.. 15
SECTION
404. RECOGNITION.. 16
[ARTICLE]
5
MISCELLANEOUS
PROVISIONS
SECTION
501. APPLICATION AND CONSTRUCTION.. 17
SECTION
502. RELATION TO ELECTRONIC SIGNATURES
IN GLOBAL AND NATIONAL COMMERCE ACT. 17
SECTION
503. TRANSITIONAL PROVISION.. 17
SECTION
504. EFFECTIVE DATE. 17
SECTION
505. REPEALS. 17
UNIFORM ADULT GUARDIANSHIP
AND PROTECTIVE PROCEEDINGS JURISDICTION ACT
SECTION 101. SHORT TITLE. This [act] may be cited as the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act.
SECTION 102. SCOPE. This [act] applies to guardianship and
protective proceedings for adults.
SECTION 103. DEFINITIONS. In this [act]:
(1) “Adult” means
an individual who has attained [18] years of age.
(2) “Commenced”
means the filing of a first pleading in a guardianship or protective
proceeding.
(3) “Conservator”
means a person appointed by the court to administer the property of an adult,
including an appointment under [insert reference to enacting state’s
conservatorship or protective proceedings statute].
(4) “Emergency
guardian” means a person appointed as guardian for a limited period because of
an emergency, including an appointment under [here insert reference to enacting
state’s emergency guardianship statute].
(5) “Guardian”
means a person appointed by the court to make decisions regarding the person of
an adult, including an appointment under [here insert reference to enacting
state’s guardianship statute].
(5A) “Guardianship order” means an order appointing a
guardian.
(6) “Guardianship
proceeding” means a proceeding in which an order for the appointment of a
guardian is sought or has been entered.
(7) “Home state”
means the state in which an individual was physically present for at least six
consecutive months immediately before the guardianship or protective proceeding
commenced. A period of temporary
absence counts as part of the six-month period.
(8) “Incapacitated
person” means an adult for whom a guardian has been appointed.
(9) “Party” means
the respondent, petitioner, guardian or conservator, or any other person
allowed by the court to participate in a guardianship or protective proceeding.
(10) “Person”
means an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, government; governmental
subdivision, agency, or instrumentality; public corporation; or any other legal
or commercial entity.
(11) “Protected
person” means an adult for whom a conservator has been appointed or another
protective order has been made.
(12) “Protective
order” means the appointment of a conservator or another court order related to
management of an adult’s property.
(13) “Protective
proceeding” means a judicial proceeding in which a protective order is sought
or has been entered.
(14) “Record”
means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
(15) “Respondent”
means an individual for whom the appointment of a guardian or conservator or
another protective order is sought.
(16) “Significant
connection state” means a state other than the home state with which a
respondent has a significant connection other than mere physical presence and
in which substantial evidence concerning the respondent is available.
(17) “State” means
a state of the United States,
the District of Columbia, Puerto Rico, the
United States Virgin Islands, a federally recognized Indian tribe, or any
territory or insular possession subject to the jurisdiction of the United States.
(a) A court of this state shall treat a foreign country
as if it were a state of the United
States for the purpose of applying
[articles] 1, 2, and 3.
(b) Except to the extent such order violates fundamental
principles of human rights, a court of this state shall recognize and enforce a
guardianship or protective proceedings order of a foreign country made in
substantial conformity with this [act] or if the jurisdiction of the foreign
court was based on factual circumstances meeting the jurisdictional standards
of this [act].
SECTION 105. COMMUNICATION BETWEEN COURTS.
(a) A court of
this state may communicate with a court in another state concerning a proceeding
arising under this [act].
(b) Except as
otherwise provided in subsection (c), a record must be made of a communication
under this section. The parties must be
informed promptly of the communication and granted access to the record.
(c) The court may
allow the parties to participate in a communication under subsection (a). If the parties are not allowed or able to
participate in the communication, they must be given the opportunity to present
facts and legal arguments before an order is entered under this [act].
(d) Courts may communicate concerning schedules,
calendars, court records, and similar matters without informing the parties or
making a record.
SECTION 106. COOPERATION BETWEEN COURTS.
(a) In a guardianship or protective proceeding in this
state, a court of this state may request the appropriate court of another state
to:
(1)
hold an evidentiary hearing;
(2)
order a person in that state to produce or give evidence pursuant to
procedures of that state;
(3)
order that an evaluation or assessment be made of the respondent, or
order any other investigation of a person involved in a proceeding;
(4)
forward to the court of this state a certified copy of the transcript or
other record of a hearing under paragraph (a)(1) or any other proceedings, any
evidence otherwise presented under paragraph (a)(2), and any evaluation or
assessment prepared in compliance with the request under paragraph (a)(3);
(5) issue any other order necessary to assure
the appearance of a person necessary to make a determination, including the
respondent or the incapacitated or protected person; and
(6)
issue an order authorizing the release of medical, financial, criminal
or other relevant information in that state, including protected health
information as described in 42 U.S.C. '1320d [, as amended].
(b) Upon request
for assistance of the kind provided in subsection (a) from a court of another
state in which a guardianship or protective proceeding is pending, a court of
this state has jurisdiction for the limited purpose of granting the relief
requested or otherwise making reasonable
efforts to comply with the request.
(c) Travel and
other necessary and reasonable expenses incurred under subsections (a) or (b)
may be assessed against the parties by a court of this state according to the
law of this state.
SECTION 107. TAKING TESTIMONY IN ANOTHER STATE.
(a) In a
guardianship or protective proceeding, in addition to other procedures that may
be available, testimony of witnesses who are located in another state may be
offered by deposition or other means allowable in this state for testimony
taken in another state. The court on its
own motion may order that the testimony of a person be taken in another state
and may prescribe the manner in which and the terms upon which the testimony is
taken.
(b) In a guardianship or protective proceeding, a court
in this state may permit an individual located in another state to be deposed
or to testify by telephone or audiovisual or other electronic means. A court of this state shall cooperate with
courts of other states in designating an appropriate location for the
deposition or testimony.
SECTION 201. INITIAL JURISDICTION.
(a) A court of
this state has jurisdiction to appoint a guardian or enter a protective order
for a respondent if:
(1)
this state is the respondent’s home state on the date the proceeding
commenced, or was the home state of the respondent within six months before
commencement of the proceeding;
(2)
this state is a significant connection state and :
(A)
the respondent does not have a home state, or a court of the home state
has declined to exercise jurisdiction under Sections 202 or 204 on the basis
that this state is the more appropriate forum; or
(B) no proceeding has been
commenced in the respondent’s home state or another significant connection
state, no objection to the jurisdiction of the court in this state has been
filed, and the court in this state concludes that it is an appropriate forum.
(3)
this state is neither the home state nor a significant connection state
but the home state and all significant connection states have declined to
exercise jurisdiction under Sections 202 or 204 , or the respondent has no home
state or significant connection state; or
(b) Whether or not
a court in another state has jurisdiction, a court in this state has
jurisdiction to enter a protective order with respect to property located in
this state.
(c) Whether or not
a court in another state has jurisdiction, a court in this state has
jurisdiction to appoint an emergency guardian for a respondent who is
physically present in this state.
(d) A court in this state has jurisdiction to appoint a
guardian or conservator for an incapacitated or protected person for whom a
proceeding has been transferred as provided in [article] 3.
(e) This section provides the exclusive jurisdictional
basis for a court of this state to appoint a guardian or enter protective order
for an adult.
SECTION 201B. EXCLUSIVE, CONTINUING JURISDICTION. Except as provided in Section 205, a court
that has appointed a guardian or entered a protective order consistent with
this [act] has exclusive, continuing jurisdiction over the proceeding until it
is terminated by the court or transferred as provided in [article 3].
SECTION 202. DECLINING JURISDICTION IF ANOTHER COURT MORE
APPROPRIATE FORUM.
(a) A court having
jurisdiction under Section 201 to appoint a guardian or enter a protective
order may decline to exercise its jurisdiction if it at any time determines
that a court of another state is a more appropriate forum.
(b) If a court of this state declines jurisdiction over a
guardianship or protective proceeding under subsection (a), it shall either
dismiss the proceeding or stay the proceeding upon condition that a
guardianship or protective proceeding be promptly commenced in another
state. The court may impose any other
condition the court considers just and proper.
SECTION 203. DETERMINING APPROPRIATE FORUM. In determining whether it is or is not an appropriate
forum, the court shall consider all relevant factors, including:
(1) any expressed
wishes of the respondent;
(2) whether abuse,
neglect, or exploitation of the respondent has occurred or is likely to occur
in the future and which state could best protect the respondent from the abuse,
neglect, or exploitation;
(3) the length of
time the respondent was physically located in or was a legal resident of
another state;
(4) the distance
of respondent from the court;
(5) the financial
circumstances of the respondent’s estate;
(6) the nature and
location of the evidence required to resolve the proceeding, including
testimony of the respondent;
(7) the ability of
the courts in this or other states to decide the issue expeditiously and the
procedures necessary to present the evidence;
(8) the
familiarity of the courts of this and other states with the facts and issues in
the proceeding; and
(9) if an appointment is made, the court’s ability to
monitor the guardian’s or conservator’s conduct; and
(10) whether the respondent’s nomination of a guardian or
conservator indicated a preference for the jurisdiction to make the
appointment.
SECTION 204. JURISDICTION DECLINED BY REASON OF CONDUCT.
(a) If at any time
a court of this state determines that it acquired jurisdiction to appoint a
guardian or enter a protective order because a person seeking to invoke its
jurisdiction engaged in unjustifiable conduct, it may;
(1)
decline to exercise jurisdiction;
(2)
exercise jurisdiction for the limited purpose of fashioning an
appropriate remedy to ensure the safety of the respondent or the respondent’s
property and prevent a repetition of the unjustifiable conduct, including
staying the proceeding until a guardianship or protective proceeding is
commenced in a court of another state having jurisdiction; or
(3)
continue to exercise jurisdiction after considering:
(A) the extent to which the respondent and all
persons required to be notified of the proceedings have acquiesced in the
exercise of the court’s jurisdiction;
(B) whether this state is a more appropriate
forum than any other state under Section 203; and
(C) whether the court of any other state would
have jurisdiction in substantial conformity with Section 201.
(b) If a court of
this state determines that it acquired jurisdiction to appoint a guardian or
enter a protective order because a person seeking to invoke its jurisdiction
engaged in unjustifiable conduct, it may assess against that party necessary
and reasonable expenses including costs, communication expenses, attorney’s
fees, investigative fees, expenses for witnesses, and travel expenses during
the course of the proceedings, unless the person from whom fees are sought establishes
that the assessment would be inappropriate.
The court may not assess fees, costs, or expenses against this state or
a governmental subdivision, agency, or instrumentality of this state unless
authorized by law other than this [act].
SECTION 204A. NOTICE OF PROCEEDING OTHER THAN IN HOME STATE. If a petition for the
appointment of a guardian or entry of a protective order is brought in a state
other than the respondent’s home state, in addition to complying with notice
requirements of local law, notice of the proceeding shall be mailed to those
persons who would be entitled to notice of the petition were the proceeding
brought in the respondent’s home state.
SECTION 205. MULTIPLE PROCEEDINGS.
(a) Except for
petition for the appointment of an emergency guardian or a protective order
limited to property located in this state,
if a petition to appoint a guardian or enter a protective order is
pending in more than one state, the following rules shall apply:
(1) if the court in this state has jurisdiction
under Section 201(a), it may proceed with the case unless a court in another
state acquires jurisdiction under Section 201(a) prior to the appointment or
entry of the order;
(2) if the court in this state does not have
jurisdiction under Section 201(a), whether at the time the petition is filed or
at anytime prior to the appointment or entry of the order, the court shall stay
the proceeding and communicate with the court in the other state, and shall
dismiss the proceeding if the court in the other state does not determine that
the court in this state is a more appropriate forum.
(b) If a petition for the appointment of an emergency
guardian is brought in a state other than the respondent’s home state, the
court in which the proceeding was brought shall dismiss the proceeding at the
direction of the court in the respondent’s home state, whether dismissal is
requested prior to or after the emergency appointment.
SECTION 301. PETITION TO TRANSFER JURISDICTION TO ANOTHER
STATE.
(a) Following the appointment of a guardian or entry of a
protective order, the guardian or conservator may petition the court to
transfer the proceeding to another state on the basis that the incapacitated or
protected person will move permanently to the other state.;
(b) Notice of the petition to transfer a guardianship or
protective proceeding under subsection (a) must be served personally on the
incapacitated or protected person, filed with the court in the jurisdiction to
which the proceeding is to be transferred, and mailed to those persons who
would be entitled to notice of a petition in the transferring state for the
appointment of a guardian or entry of a protective order.
(c) On the court’s own motion or on request of the
incapacitated, protected, or other interested person, the court shall hold a
hearing on a petition filed pursuant to subsection (a).
(d) The court shall enter an order provisionally granting
a petition filed pursuant to subsection (a) if the court finds that:
(1) the incapacitated or protected person
will move permanently to the other state;
(2) no objection to the transfer has been
made, or if an objection has been made, the objector has not established that
transfer of the proceeding would be contrary to the interests of the
incapacitated or protected person;
(3) the court is satisfied that the plans for
the incapacitated person in the new state are reasonable and sufficient or, in
the case of a conservatorship, adequate arrangements will be made for
management of the protected person’s property; and
(4) the court is satisfied that the
guardianship or protective proceeding will be accepted by the court to which
the guardian or conservator has indicated the proceeding will be transferred.
(e) To facilitate
the orderly transfer of the guardianship or protective proceeding under this
section, the court in this state shall coordinate efforts with the court in the
state to which the proceeding will be transferred.
(f) Upon receipt from the court of the other state of the
order accepting the guardianship or protective proceeding and the filing of the
documents required in this state to terminate a guardianship or protective
proceeding, the court shall enter an order terminating the guardianship or protective
proceeding in this state and confirming the transfer of the proceeding to the
other state.
SECTION 302. PETITION TO ACCEPT PROCEEDING TRANSFERRED
FROM ANOTHER STATE.
(a) Upon entry of a provisional order in another state to
transfer a guardianship or protective proceeding to this state under procedures
similar to those in Section 301, the guardian or conservator shall petition the
court in this state to accept the guardianship or protective proceeding.
(b) Notice of a
petition under subsection (a) to accept a guardianship or protective proceeding
from another state must be served personally on the incapacitated or protected
person, filed with the court in this state that is being requested to accept
transfer of the guardianship or protective proceeding, and mailed to those
persons who would be entitled to notice were the petition a petition for the
appointment of a guardian or entry of a protective order in the transferring
state or in this state.
(c) The court on its own motion may, or on request of the
incapacitated, protected, or other interested person, shall, hold a hearing on
a petition filed under subsection (a) to accept a guardianship or protective
proceeding from another state.
(d) The court shall issue an order provisionally
approving a petition filed under subsection (a) to accept a guardianship or
protective proceeding from another state unless an objection is made and the
objector establishes that transfer of the proceeding would be contrary to the
interests of the incapacitated or protected person.
(e) In approving a petition under this section, the court
shall give full faith and credit to the guardianship or protective order from
the other state, including the determination of the incapacitated or protected
person’s incapacity and the appointment of the guardian or conservator, if
eligible to act in this state.
(f) Upon receipt of the order from the transferring state
terminating the guardianship or protective proceeding and confirming the
transfer of the proceeding to this state, the court shall enter a final order
appointing the guardian or conservator as guardian or conservator in this state
and issuing appropriate letters of office.
Following the appointment, the court has exclusive, continuing
jurisdiction over the proceeding until it is terminated by the court or
transferred as provided in this article.
(g) To facilitate the orderly transfer of a guardianship
or protective proceeding under this section, the court shall coordinate efforts
with the court in the transferring state.
(h) The denial of a petition under this section to
accept a guardianship or protective
proceeding from another state does not affect the ability of a guardian or
conservator appointed by a court in another state to maintain a proceeding to
be appointed guardian of the incapacitated person or conservator of the
protected person under [insert statutory references for the regular appointment
of guardian or conservator].
(i) Within [90] days after entry of a final order
accepting a guardianship or protective proceeding transferred from another
state, the court must hold a hearing for the limited purpose of determining
whether the guardianship or conservatorship must be modified to conform to the
law of this state.
SECTION 401. REGISTRATION OF GUARDIANSHIP ORDERS. If a guardian has not been appointed in this
state and a petition for the appointment of a guardian is not pending in this
state, a guardian appointed for the individual in another state may register
the guardianship proceeding in this state by filing in a court in any
[appropriate county] of this state certified, authenticated, or exemplified
copies of the order and letters of appointment.
On receipt of these documents, the registering court shall cause the
order to be filed as a foreign judgment, together with one copy of any
accompanying documents and information.
SECTION 402. REGISTRATION OF CONSERVATORSHIP ORDERS. If a conservator has not been
appointed in this state and a petition for a protective order is not pending in
this state, a conservator appointed for the individual in another state may
register the protective proceeding in this state by filing in a court of this
state, in a [county] in which property belonging to the protected person is
located, certified, exemplified, or authenticated copies of letters of the
order and letters of appointment and of any bond. On receipt of these documents, the registering
court shall cause the order to be filed as a foreign judgment, together with
one copy of any accompanying documents and information.
SECTION 403. EFFECT OF REGISTRATION. Upon registration of a guardianship or
protective proceeding from another state, the guardian or conservator may exercise
all powers authorized in the order of appointment except as prohibited under
the laws of this state, including maintaining actions and proceedings in this
state subject to any conditions otherwise imposed upon nonresident parties.
SECTION 404. RECOGNITION. A court of this state shall recognize a
guardianship or protective order issued by a court of another state which has
been registered in this state and otherwise grant any relief normally available
under the law of this state to enforce the order in the same manner as an order
issued in this state.
SECTION 501. APPLICATION AND CONSTRUCTION. In applying and construing this uniform act,
consideration must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
SECTION 502. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This [act] modifies,
limits, and supersedes the federal Electronic Signatures in Global and National
Commerce Act, 15 U.S.C. Section 7001, et. seq., but does not modify, limit, or
supersede Section 101(c) of that act, 15 U.S.C. Section 7001 (c) , or authorize
electronic delivery of any of the notices described in Section 103(b) of that
act, 15 U.S.C. Section 7003(b).
SECTION 503. TRANSITIONAL PROVISION. A motion or other request for relief made in
a guardianship or protective proceeding or to enforce a guardianship or
protective order which was commenced before the effective date of this [act] is
governed by the law in effect at the time the motion or other request was made.
SECTION 504. EFFECTIVE DATE. This [act] takes effect ...............
SECTION 505. REPEALS. The following acts and parts of acts are
hereby repealed:
(1)
........................................
(2)
........................................
(3)
........................................