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SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2249

 

The Commonwealth of Massachusetts

 

________________________________________

 

Senate, July 8, 2014.

BILL #:  S2165

BILL STATUS:  Favorable with Amendment

DISSENTERS:

None

ACCOMPANIED BILLS:

None

For the committee,

STEPHEN M. BREWER


SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2249

The committee on Ways and Means, to whom was referred the Senate Bill relative to uniform adult guardianship and protective proceedings jurisdiction (Senate, No. 2165), reports, recommending that the same ought to pass with an amendment substituting a new draft with the same title (Senate, No. 2249).

 

The Commonwealth of Massachusetts

 

_______________

In the Year Two Thousand Fourteen

_______________

 

An Act relative to uniform adult guardianship and protective proceedings jurisdiction.

 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              SECTION 1. Section 1-301 of chapter 190B of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out, in line 3, the word “decedents,” and inserting in place thereof the following words:- decedents and.

              SECTION 2. Said section 1-301 of said chapter 190B, as so appearing, is hereby further amended by striking out, in lines 3 and 4, the words “, and persons to be protected,”.

              SECTION 3. Said section 1-301 of said chapter 190B, as so appearing, is hereby further amended by inserting after the word “persons”, in line 7, the following words:-, protected persons.

              SECTION 4. Subsection (c) of section 1-302 of said chapter 190B, as so appearing, is hereby amended by adding the following sentence:- Part 2 of Article 5A provides the exclusive jurisdictional basis for a court of the commonwealth to appoint a guardian or issue a protective order for an adult.

              SECTION 5. Section 4-201 of said chapter 190B, as so appearing, is hereby amended by striking out subsections (d) and (e).

              SECTION 6. Section 4-202 of said chapter 190B, as so appearing, is hereby amended by striking out, in lines 5 and 6, the words “or local guardian or conservator”.

              SECTION 7. Section 4-203 of said chapter 190B, as so appearing, is hereby amended by striking out, in lines 3 and  4 and 5, the words “or nonresident protected person”, each time it appears.

              SECTION 8. Said section 4-203 of said chapter 190B, as so appearing, is hereby further amended by striking out, in lines 6 and 7, the words “or belonging to the nonresident protected person”.

              SECTION 9. Said section 4-203 of said chapter 190B, as so appearing, is hereby further amended by striking out, in lines 8 and 9, the words “, guardian or conservator”.

              SECTION 10. Section 4-206 of said chapter 190B, as so appearing, is hereby amended by striking out the second paragraph.

              SECTION 11. The definition of “Protected person” in section 5-101 of said chapter 190B, as so appearing, is hereby amended by striking out, in line 80, the words “and 5-408” and inserting in place thereof the following words:- , 5-408 and Article 5A.

              SECTION 12. Section 5-105 of said chapter 190B, as so appearing, is hereby amended by inserting after the word “resides”, in line 11, the following words:- or is present.

              SECTION 13. Section 5-431 of said chapter 190B, as so appearing, is hereby amended by inserting after the word “conservator”, in lines 3 and 5, the words “for a minor”, in each instance.

              SECTION 14. Said section 5-431 of said chapter 190B, as so appearing, is hereby further amended by striking out, in lines 5 and 7, the words “protected person” and inserting in place thereof, in each instance, the following word:- minor.

              SECTION 15. Said section 5-431 of said chapter 190B, as so appearing, is hereby further amended by striking out, in line 13, the words “ward, incapacitated or protected person” and inserting in place thereof the following word:- minor.

              SECTION 16. Chapter 190B of the General Laws is hereby further amended by inserting after Article V the following Article:-

                                          ARTICLE 5A

                            UNIFORM ADULT GUARDIANSHIP AND

                    PROTECTIVE PROCEEDINGS JURISDICTION ACT

              PART 1

                                          GENERAL PROVISIONS

              Section 5A-101. [Short Title.]

              Article 5A shall be known and may be cited as the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

              Section 5A-102.  [Definitions.]

              As used in this Article, the following terms shall have the following meanings unless the context clearly requires otherwise:

                            (1) “Adult”, an individual who has attained 18 years of age.

                            (2) “Conservator”, a person appointed by the court to administer the property of an adult, including a person appointed under Part 4 of Article V.

                            (3) “Guardian”, a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under Part 3 of Article V.

                            (4) “Guardianship order”, an order appointing a guardian.

                            (5) “Guardianship proceeding”, a judicial proceeding seeking or issuing the appointment of a guardian.

                            (6) “Incapacitated person”, an adult for whom a guardian has been appointed.

                            (7) “Party”, the respondent, petitioner, guardian, conservator or another person allowed by the court to participate in a guardianship or protective proceeding.

                            (8) “Person”, except in the term “incapacitated person” or “protected person”, an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or another legal or commercial entity.

                            (9) “Protected person”, an adult for whom a protective order has been issued.

                            (10) “Protective order”, an order appointing a conservator or other order related to management of an adult’s property.

                            (11) “Protective proceeding”, a judicial proceeding seeking or issuing a protective order.

                            (12) “Record”, information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

                            (13) “Respondent”, an adult for whom a protective order or the appointment of a guardian is sought.

                            (14) “State”, a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe or a territory or insular possession subject to the jurisdiction of the United States.

              Section 5A-103. [International Application of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.]

              A court of the commonwealth may treat a foreign country as if it were a state for the purpose of applying Parts 1, 2, 3 and 5 of the uniform adult guardianship and protective proceedings jurisdiction act.

              Section 5A-104. [Communication Between Courts.]

              (a) A court of the commonwealth may communicate with a court in another state concerning a proceeding arising under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.  The court may allow the parties to participate in the communication. Except as otherwise provided in subsection (b), the court shall make a record of the communication.  The record may be limited to the fact that the communication occurred.

              (b) Courts may communicate concerning schedules, calendars, court records and other administrative matters without making a record.

              Section 5A-105. [Cooperation Between Courts.]

              (a) In a guardianship or protective proceeding in the commonwealth, a court of the commonwealth may request the appropriate court of another state to do any of the following:

                            (1) hold an evidentiary hearing;

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

                            (3) order that an evaluation or assessment be made of the respondent;

                            (4) order an appropriate investigation of a person involved in a proceeding;

                            (5) forward to the court of the commonwealth a certified copy of the transcript or other record of a hearing under paragraph (1) or another proceeding, the evidence otherwise produced under paragraph (2) and the evaluation or assessment prepared in compliance with an order under paragraph (3) or (4);

                            (6) issue an order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person;

                            (7) issue an order authorizing the release of medical, financial, criminal or other relevant information in that state, including protected health information as defined in 45 C.F.R. 160.103, as amended.

              (b) If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (a), a court of the commonwealth has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.

              Section 5A-106. [Taking Testimony In Another State.]

              (a) In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in the commonwealth for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in and the terms upon which the testimony is to be taken.

              (b) In a guardianship or protective proceeding, a court in the commonwealth may permit a witness 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 the court of the other state in designating an appropriate location for the deposition or testimony.

              (c) Documentary evidence transmitted from another state to a court of the commonwealth by technological means that do not produce an original writing shall not be excluded from evidence on an objection based on the best evidence rule.

              PART 2

                                          JURISDICTION

              Section 5A-201. [Definitions; Significant Connection Factors.]

              (a) As used in this part, the following terms shall have the following meaning unless the context clearly requires otherwise:

                            (1) “Emergency”, a circumstance that will likely result in substantial harm to a respondent’s health, safety or welfare and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent’s behalf.

                            (2) “Home state”, the state in which the respondent was physically present, including any period of temporary absence, for at least 6 consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian; provided, however, that if there is no such state then the state in which the respondent was physically present, including any period of temporary absence, for at least 6 consecutive months ending within the 6 months prior to the filing of the petition.

                            (3) “Significant-connection state”, 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.

              (b) In determining under section 5A-203 and subsection (e) of section 5A-301 if a respondent has a significant connection with a particular state, the court shall consider:

                            (1) the location of the respondent’s family and other persons required to be notified of the guardianship or protective proceeding;

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

                            (3) the location of the respondent’s property; and

                            (4) the extent to which the respondent has ties to the state, such as voting registration, state or local tax return filing, vehicle registration, driver’s license, social relationship and receipt of services.

              Section 5A-202. [Exclusive Basis.] 

              This part provides the exclusive jurisdictional basis for a court of the commonwealth to appoint a guardian or issue a protective order for an adult.

              Section 5A-203. [Jurisdiction.]

              A court of the commonwealth has jurisdiction to appoint a guardian or issue a protective order for a respondent if:

                            (1) the commonwealth is the respondent’s home state;

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

                                          (A) the respondent does not have a home state or a court of the respondent’s home state has declined to exercise jurisdiction because the commonwealth is a more appropriate forum; or

                                          (B) the respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state and, before the court makes the appointment or issues the order:

                                                        (i) a petition for an appointment or order is not filed in the respondent’s home state;

                                                        (ii) an objection to the court’s jurisdiction is not filed by a person required to be notified of the proceeding; and

                                                        (iii) the court in this state concludes that it is an appropriate forum under the factors in section 5A-206;

                            (3) the commonwealth does not have jurisdiction under either paragraph (1) or (2), the respondent’s home state and all significant-connection states have declined to exercise jurisdiction because the commonwealth is the more appropriate forum and jurisdiction in the commonwealth is consistent with the constitutions of the commonwealth and the United States; or

                            (4) the requirements for special jurisdiction under section 5A-204 are met.

              Section 5A-204. [Special Jurisdiction.]

              (a) A court of the commonwealth lacking jurisdiction under paragraphs (1) to (3), inclusive, of section 5A-203 has special jurisdiction to:

                            (1) appoint a guardian in an emergency for a respondent who is physically present in the commonwealth for a term not exceeding 90 days; provided, however, that upon a finding of extraordinary circumstances set forth in its order, the court may order an appointment for a longer period to a date certain; and provided further, that the court may for good cause shown extend the appointment for additional 90 day periods;

                            (2) issue a protective order with respect to real or tangible personal property located in the commonwealth;

                            (3) appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to section 5A-301.

              (b) If a petition for the appointment of a guardian in an emergency is brought in the commonwealth and the commonwealth was not the respondent’s home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.

              Section 5A-205. [Exclusive and Continuing Jurisdiction.]

              Except as otherwise provided in section 5A-204, a court that has appointed a guardian or issued a protective order consistent with this Article shall have exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.

              Section 5A-206. [Appropriate Forum.]

              (a) A court of the commonwealth that has jurisdiction under section 5A-203  to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if the court determines, at any time, that a court of another state is a more appropriate forum.

              (b) If a court of the commonwealth declines to exercise its jurisdiction under subsection (a), it shall either dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.

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

                            (1) any expressed preference of the respondent;

                            (2) whether abuse, neglect or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect or exploitation;

                            (3) the length of time the respondent was physically present in or was a legal resident of the commonwealth or another state;

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

                            (5) the financial circumstances of the respondent’s estate;

                            (6) the nature and location of the evidence;

                            (7) the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;

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

                            (9) if an appointment was made, the court’s ability to monitor the conduct of the guardian or conservator.

              Section 5A-207. [Jurisdiction Declined by Reason of Conduct.]

              (a) If at any time a court of the commonwealth determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:

                            (1) decline to exercise jurisdiction;

                            (2) exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety and welfare of the respondent or the protection of the respondent’s property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed 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 it is a more appropriate forum than the court of another state under the factors in subsection (c) of section 5A-206; and

                                          (C) whether the court of another state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of section 5A-203.

              (b) If a court of the commonwealth determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney’s fees, investigative fees, court costs, communication expenses, witness fees and expenses and travel expenses. The court may not assess fees, costs or expenses of any kind against the commonwealth or a governmental subdivision, agency or instrumentality of the commonwealth unless authorized by law .

              Section 5A-208. [Notice of Proceeding.]

              If a petition for the appointment of a guardian or issuance of a protective order is brought in the commonwealth and the commonwealth was not the respondent’s home state on the date the petition was filed, in addition to complying with the notice requirements of the commonwealth, notice of the petition shall be given to those persons who are entitled to notice of the petition if a proceeding were brought in the respondent’s home state. The notice shall be given in the same manner as notice is required to be given in the commonwealth.

              Section 5A-209. [Proceedings in More than One State.]

              Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in the commonwealth under paragraph (1) or (2) of subsection (a) of section 5A-204,  if a petition for the appointment of a guardian or issuance of a protective order is filed in the commonwealth and in another state and neither petition has been dismissed or withdrawn, the following rules apply:

                            (1) If the court in the commonwealth has jurisdiction under section 5A-203, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to section 5A-203 before the appointment or issuance of the order.

                            (2) If the court in the commonwealth does not have jurisdiction under section 5A-203, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in the commonwealth shall dismiss the petition unless the court in the other state determines that the court in the commonwealth is a more appropriate forum.

                                          PART 3

                            TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP

              Section 5A-301. [Transfer of Guardianship or Conservatorship to Another State.] 

              (a) A guardian or conservator appointed in the commonwealth may petition the court to transfer the guardianship or conservatorship to another state.

              (b) Notice of a petition under subsection (a) shall be given to the persons entitled to notice of a petition in the commonwealth for the appointment of a guardian or conservator.

              (c) On the court’s own motion or at the request of the guardian or conservator, the incapacitated or protected person or another person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection (a).

              (d) The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that:

                            (1) the incapacitated person is physically present in or is reasonably expected to move permanently to the other state;

                            (2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person; and

                            (3) plans for care and services for the incapacitated person in the other state are reasonable and sufficient.

              (e) The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the court of the other state will accept the conservatorship and the court finds that:

                            (1) the protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors in subsection (b) of section 5A-201;

                            (2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and

                            (3) adequate arrangements shall be made for management of the protected person’s property.

              (f) The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:

                            (1) a provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to section 5A-302; and

                            (2) the documents required to terminate a guardianship or conservatorship in the commonwealth.

              Section 5A-302. [Accepting Guardianship or Conservatorship Transferred from Another State.] 

              (a) To confirm the transfer of a guardianship or conservatorship to the commonwealth under provisions similar to section 5A-301, the guardian or conservator shall petition the court in the commonwealth to accept the guardianship or conservatorship. The petition shall include a certified copy of the other state’s provisional order of transfer.

              (b) Notice of a petition under subsection (a) shall be given to those persons entitled to notice of the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and the commonwealth. The notice shall be given in the same manner as notice is required to be given in the commonwealth.

              (c) On the court’s own motion or at the request of the guardian or conservator, the incapacitated or protected person or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (a).

              (d) The court shall issue an order provisionally granting a petition filed under subsection (a) unless:

                            (1) 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; or

                            (2) the guardian or conservator is ineligible for appointment in the commonwealth.

              (e) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in the commonwealth upon the court’s receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to section 5A-301 transferring the proceeding to the commonwealth.

              (f) Not later than 90 days after the issuance of a final order accepting the transfer of a guardianship or conservatorship, unless otherwise ordered, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the laws of the commonwealth.

              (g) In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person’s incapacity and the appointment of the guardian or conservator.

              (h) The denial by a court of the commonwealth of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in the commonwealth under Parts 3 and 4 of Article V.

                                          PART 4

              REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER STATES

              Section 5A-401. [Registration of Guardianship Orders.] 

              If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in the commonwealth, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in the commonwealth by filing, as a foreign judgment, in an appropriate division of the probate and family court where an original proceeding could be filed, certified copies of the order and letters of office and of any bond.

              Section 5A-402. [Registration of Protective Orders.]

              If a conservator has been appointed in another state and a petition for a protective order is not pending in the commonwealth, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in the commonwealth by filing, as a foreign judgment in a court of the commonwealth, in a division of the probate and family court in which property belonging to the protected person is located, certified copies of the order and letters of office and of any bond.

              Section 5A-403. [Effect of Registration.] 

              (a) Upon registration of a guardianship or protective order from another state, the guardian or conservator may exercise in the commonwealth all powers authorized in the order of appointment except those powers prohibited under the laws of the commonwealth, including maintaining actions and proceedings in the commonwealth and, if the guardian or conservator is not a resident of the commonwealth, subject to any conditions imposed upon nonresident parties.

              (b) A court of the commonwealth may grant relief available under this Article and other laws of of the commonwealth to enforce a registered order.

              PART 5

                                          MISCELLANEOUS PROVISIONS

              Section 5A-501. [Uniformity of Application and Construction.] 

              In applying and construing this Article, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

              Section 5A-502. [Relation to Electronic Signatures in Global and National Commerce Act.] 

              This Article modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, et seq., but shall 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 5A-503. [Transitional Provision.] 

              (a) This Article shall apply to guardianship and protective proceedings begun on or after January 1, 2015.  

              (b) Parts 1, 3 and 4 and section 5A-501 and section 5A-502 shall apply to proceedings begun before January 1, 2015 regardless of whether a guardianship or protective order has been issued.

              SECTION 17. This act shall take effect on January 1, 2015.

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