September 10, 2013, Introduced by Senator SCHUITMAKER and referred to the Committee on Judiciary.
A bill to enact the uniform adult guardianship and protective
proceedings jurisdiction act; and to provide procedures to resolve
interstate controversies relating to multiple jurisdiction and the
transfer and out-of-state recognition of adult guardianships,
conservatorships, and other protective proceedings.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
ARTICLE 1
GENERAL PROVISIONS
Sec. 101. This act shall be known and may be cited as the
"uniform adult guardianship and protective proceedings jurisdiction
act".
Sec. 102. As used in this act:
(a) "Adult" means an individual who has attained 18 years of
age.
(b) "Conservator" means a person appointed by the court to
administer the property of an adult, including a person appointed
under article V of the estates and protected individuals code, 1998
PA 386, MCL 700.5101 to 700.5520.
(c) "Guardian" means a person appointed by the court to make
decisions regarding the person of an adult, including a person
appointed under article V of the estates and protected individuals
code, 1998 PA 386, MCL 700.5101 to 700.5520.
(d) "Guardianship order" means an order appointing a guardian.
(e) "Guardianship proceeding" means a judicial proceeding in
which an order for the appointment of a guardian is sought or has
been issued.
(f) "Incapacitated person" means an adult for whom a guardian
has been appointed.
(g) "Party" means the respondent, petitioner, guardian,
conservator, or any other person allowed by the court to
participate in a guardianship or protective proceeding.
(h) "Person", except in the term incapacitated person or
protected person, means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, public corporation, government or governmental
subdivision, agency, or instrumentality, or any other legal or
commercial entity.
(i) "Protected person" means an adult for whom a protective
order has been issued.
(j) "Protective order" means an order appointing a conservator
or other order related to management of an adult's property.
(k) "Protective proceeding" means a judicial proceeding in
which a protective order is sought or has been issued.
(l) "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.
(m) "Respondent" means an adult for whom a protective order or
the appointment of a guardian is sought.
(n) "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.
Sec. 103. A court of this state may treat a foreign country as
if it were a state for the purpose of applying this article and
articles 2, 3, and 4.
Sec. 104. (1) A court of this state may communicate with a
court in another state concerning a proceeding arising under this
act. The court may allow the parties to participate in the
communication. Except as otherwise provided in subsection (2), the
court shall make a record of the communication. The record may be
limited to the fact that the communication occurred.
(2) Courts may communicate concerning schedules, calendars,
court records, and other administrative matters without making a
record.
Sec. 105. (1) In a guardianship or protective proceeding in
this state, a court of this state may request the appropriate court
of another state to do any of the following:
(a) Hold an evidentiary hearing.
(b) Order a person in that state to produce evidence or give
testimony pursuant to procedures of that state.
(c) Order that an evaluation or assessment be made of the
respondent.
(d) Order any appropriate investigation of a person involved
in a proceeding.
(e) Forward to the court of this state a certified copy of the
transcript or other record of a hearing under subdivision (a) or
any other proceeding, any evidence otherwise produced under
subdivision (b), or any evaluation or assessment prepared in
compliance with an order under subdivision (c) or (d).
(f) Issue any 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.
(g) 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 CFR
164.504.
(2) If a court of another state in which a guardianship or
protective proceeding is pending requests assistance of the kind
provided in subsection (1), a court of this state has jurisdiction
for the limited purpose of granting the request or making
reasonable efforts to comply with the request.
Sec. 106. (1) 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 this state 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 which and the terms upon which the
testimony is to be taken.
(2) In a guardianship or protective proceeding, a court in
this state 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.
ARTICLE 2
JURISDICTION
Sec. 201. (1) As used in this article:
(a) "Emergency" means a circumstance that likely will 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.
(b) "Home state" means 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;
or if none, 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.
(c) "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.
(2) In determining under sections 203 and 301(5) whether a
respondent has a significant connection with a particular state,
the court shall consider all of the following:
(a) The location of the respondent's family and other persons
required to be notified of the guardianship or protective
proceeding.
(b) The length of time the respondent at any time was
physically present in the state and the duration of any absence.
(c) The location of the respondent's property.
(d) The extent to which the respondent has ties to the state,
such as voting registration, state or local tax return filing,
vehicle registration, driver license, social relationship, and
receipt of services.
Sec. 202. This article provides the exclusive jurisdictional
basis for a court of this state to appoint a guardian or issue a
protective order for an adult.
Sec. 203. A court of this state has jurisdiction to appoint a
guardian or issue a protective order for a respondent if 1 or more
of the following apply:
(a) This state is the respondent's home state.
(b) On the date the petition is filed, this state is a
significant-connection state and either of the following apply:
(i) The respondent does not have a home state or a court of the
respondent's home state has declined to exercise jurisdiction
because this state is a more appropriate forum.
(ii) 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, all of the following apply:
(A) A petition for an appointment or order is not filed in the
respondent's home state.
(B) An objection to the court's jurisdiction is not filed by a
person required to be notified of the proceeding.
(C) The court in this state concludes that it is an
appropriate forum under the factors set forth in section 206.
(c) This state does not have jurisdiction under either
subdivision (a) or (b), the respondent's home state and all
significant-connection states have declined to exercise
jurisdiction because this state is the more appropriate forum, and
jurisdiction in this state is consistent with the constitutions of
this state and the United States.
(d) The requirements for special jurisdiction under section
204 are met.
Sec. 204. (1) A court of this state lacking jurisdiction under
section 203 has special jurisdiction to do any of the following:
(a) Appoint a guardian in an emergency for a term not
exceeding 90 days for a respondent who is physically present in
this state.
(b) Issue a protective order with respect to real or tangible
personal property located in this state.
(c) 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 301.
(2) If a petition for the appointment of a guardian in an
emergency is brought in this state and this state 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.
Sec. 205. Except as otherwise provided in section 204, a court
that has appointed a guardian or issued a protective order
consistent with this act has exclusive and continuing jurisdiction
over the proceeding until it is terminated by the court or the
appointment or order expires by its own terms.
Sec. 206. (1) A court of this state having jurisdiction under
section 203 to appoint a guardian or issue a protective order may
decline to exercise its jurisdiction if it determines at any time
that a court of another state is a more appropriate forum.
(2) If a court of this state declines to exercise its
jurisdiction under subsection (1), 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.
(3) In determining whether it is an appropriate forum, the
court shall consider all relevant factors, including all of the
following:
(a) Any expressed preference of the respondent.
(b) 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.
(c) The length of time the respondent was physically present
in or was a legal resident of this or another state.
(d) The distance of the respondent from the court in each
state.
(e) The financial circumstances of the respondent's estate.
(f) The nature and location of the evidence.
(g) The ability of the court in each state to decide the issue
expeditiously and the procedures necessary to present evidence.
(h) The familiarity of the court of each state with the facts
and issues in the proceeding.
(i) If an appointment were made, the court's ability to
monitor the conduct of the guardian or conservator.
Sec. 207. (1) If at any time a court of this state determines
that it acquired jurisdiction to appoint a guardian or issue a
protective order because of unjustifiable conduct, the court may do
any of the following:
(a) Decline to exercise jurisdiction.
(b) 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.
(c) Continue to exercise jurisdiction after considering all of
the following:
(i) 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.
(ii) Whether it is a more appropriate forum than the court of
any other state under the factors set forth in section 206(3).
(iii) Whether the court of any other state would have
jurisdiction under factual circumstances in substantial conformity
with the jurisdictional standards of section 203.
(2) If a court of this state 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 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 this state or a governmental
subdivision, agency, or instrumentality of this state unless
authorized by law other than this act.
Sec. 208. If a petition for the appointment of a guardian or
issuance of a protective order is brought in this state and this
state was not the respondent's home state on the date the petition
was filed, in addition to complying with the notice requirements of
this state, notice of the petition shall be given to those persons
who would be 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 this
state.
Sec. 209. Except for a petition for the appointment of a
guardian in an emergency or issuance of a protective order limited
to property located in this state under section 204(1)(a) or (b),
if a petition for the appointment of a guardian or issuance of a
protective order is filed in this state and in another state and
neither petition has been dismissed or withdrawn, the following
rules apply:
(a) If the court in this state has jurisdiction under section
203, it may proceed with the case unless a court in another state
acquires jurisdiction under provisions similar to section 203
before the appointment or issuance of the order.
(b) If the court in this state does not have jurisdiction
under section 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 this state shall dismiss the petition unless the court in
the other state determines that the court in this state is a more
appropriate forum.
ARTICLE 3
TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP
Sec. 301. (1) A guardian or conservator appointed in this
state may petition the court to transfer the guardianship or
conservatorship to another state.
(2) Notice of a petition under subsection (1) shall be given
to the persons that would be entitled to notice of a petition in
this state for the appointment of a guardian or conservator.
(3) On the court's own motion or on request of the guardian or
conservator, the incapacitated or protected person, or other person
required to be notified of the petition, the court shall hold a
hearing on a petition filed under subsection (1).
(4) 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 all of the following
apply:
(a) The incapacitated person is physically present in or is
reasonably expected to move permanently to the other state.
(b) 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.
(c) Plans for care and services for the incapacitated person
in the other state are reasonable and sufficient.
(5) 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 conservatorship will be accepted by
the court of the other state and the court finds that all of the
following apply:
(a) 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 section 201(2).
(b) 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.
(c) Adequate arrangements will be made for management of the
protected person's property.
(6) The court shall issue a final order confirming the
transfer and terminating the guardianship or conservatorship upon
its receipt of all of the following:
(a) A provisional order accepting the proceeding from the
court to which the proceeding is to be transferred that is issued
under provisions similar to section 302.
(b) The documents required to terminate a guardianship or
conservatorship in this state.
Sec. 302. (1) To confirm transfer of a guardianship or
conservatorship transferred to this state under provisions similar
to section 301, the guardian or conservator shall petition the
court in this state to accept the guardianship or conservatorship.
The petition shall include a certified copy of the other state's
provisional order of transfer.
(2) Notice of a petition under subsection (1) shall be given
to those persons that would be entitled to notice if the petition
were a petition for the appointment of a guardian or issuance of a
protective order in both the transferring state and this state. The
notice shall be given in the same manner as notice is required to
be given in this state.
(3) On the court's own motion or on 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 under subsection (1).
(4) The court shall issue an order provisionally granting a
petition filed under subsection (1) unless either of the following
apply:
(a) 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.
(b) The guardian or conservator is ineligible for appointment
in this state.
(5) The court shall issue a final order accepting the
proceeding and appointing the guardian or conservator as guardian
or conservator in this state upon its receipt from the court from
which the proceeding is being transferred of a final order issued
under provisions similar to section 301 transferring the proceeding
to this state.
(6) Not later than 90 days after issuance of a final order
accepting transfer of a guardianship or conservatorship, the court
shall determine whether the guardianship or conservatorship needs
to be modified to conform to the law of this state.
(7) 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.
(8) The denial by a court of this state 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 this state under
article V of the estates and protected individuals code, 1998 PA
386, MCL 700.5101 to 700.5520, if the court has jurisdiction to
make an appointment other than by reason of the provisional order
of transfer.
ARTICLE 4
MISCELLANEOUS PROVISIONS
Sec. 401. In applying and construing this uniform act,
consideration shall be given to the need to promote uniformity of
the law with respect to its subject matter among states that enact
it.
Sec. 402. This act modifies, limits, and supersedes the
federal electronic signatures in global and national commerce act,
15 USC 7001 to 7031, but does not modify, limit, or supersede 15
USC 7001(c), or authorize electronic delivery of any of the notices
described in 15 USC 7003(b).
Sec. 403. (1) This act applies to guardianship and protective
proceedings begun on or after the effective date of this act.
(2) Articles 1 and 3 and sections 401 and 402 apply to
proceedings begun before the effective date of this act, regardless
of whether a guardianship or protective order has been issued.
Enacting section 1. This act does not take effect unless
Senate Bill No.465
of the 97th Legislature is enacted into law.