Bill Text: IN SB0077 | 2011 | Regular Session | Introduced
Bill Title: Adult guardianships and protective proceedings.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-01-05 - First reading: referred to Committee on Judiciary [SB0077 Detail]
Download: Indiana-2011-SB0077-Introduced.html
Citations Affected: IC 29-3; IC 29-3.5.
Synopsis: Adult guardianships and protective proceedings. Enacts the
uniform adult guardianship and protective proceedings jurisdiction act.
Governs issues concerning original jurisdiction, registration, transfer,
and out-of-state enforcement of guardianships and protective orders
appointed or issued for adults. Makes conforming changes, including
changing the duration of a temporary guardianship from 60 days to 90
days. (The introduced version of this bill was prepared by the probate
code study commission.)
Effective: July 1, 2011.
January 5, 2011, read first time and referred to Committee on Judiciary.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning
probate.
(1) The business affairs, physical person, and property of every incapacitated person and minor residing in Indiana.
(2) Property located in Indiana of every incapacitated person and minor residing outside Indiana.
(3) Property of every incapacitated person or minor, regardless of where the property is located, coming into the control of a fiduciary who is subject to the laws of Indiana.
(b) Except as provided in subsections (c) through (e), the court has exclusive original jurisdiction with respect to an individual who is not an adult (as defined in IC 29-3.5-1-2(1)) over all matters concerning the following:
(1) Guardians.
(2) Protective proceedings under IC 29-3-4.
In the case of an adult (as defined in IC 29-3.5-1-2(1)), a court must
establish jurisdiction concerning a guardianship or a protective
proceeding in accordance with IC 29-3.5-2.
(c) A juvenile court has exclusive original jurisdiction over matters
relating to the following:
(1) Minors described in IC 31-30-1-1.
(2) Matters related to guardians of the person and guardianships
of the person described in IC 31-30-1-1(10).
(d) Except as provided in subsection (c), courts with child custody
jurisdiction under:
(1) IC 31-14-10;
(2) IC 31-17-2-1; or
(3) IC 31-21-5 (or IC 31-17-3-3 before its repeal);
have original and continuing jurisdiction over custody matters relating
to minors.
(e) A mental health division of a superior court under IC 33-33-49
has jurisdiction concurrent with the court in mental health proceedings
under IC 12-26 relating to guardianship and protective orders.
(f) Jurisdiction under this section is not dependent on issuance or
service of summons.
(1) If the alleged incapacitated person or minor resides in Indiana, venue is:
(A) in the county where the alleged incapacitated person or minor resides; or
(B) if the proceeding is for the appointment of a temporary guardian of the person for an alleged incapacitated person or minor who is in need of medical care, in the county where a facility is located that is providing or attempting to provide medical care to the alleged incapacitated person or minor.
(2) If the alleged incapacitated person or minor does not reside in Indiana, then venue is in any county where any property of the alleged incapacitated person or minor is located. However, if the proceeding is for the appointment of a temporary guardian of the person for an alleged incapacitated person or minor who is in need of medical care, venue is in the county where the facility providing or attempting to provide medical care is located.
(3) If the alleged incapacitated person is an adult (as defined in IC 29-3.5-1-2(1)), venue is determined under the laws of the state or country having jurisdiction under IC 29-3.5-2. However, if a court in Indiana has jurisdiction under
IC 29-3.5-2, the rules for determining venue set forth in this
section apply.
(b) If proceedings are commenced in more than one (1) county, they
shall be stayed except in the county where first commenced until final
determination of the proper venue by the court in the county where first
commenced. After proper venue has been determined, all proceedings
in any county other than the county where jurisdiction has been finally
determined to exist shall be dismissed. If the proper venue is finally
determined to be in another county, the court shall transmit the original
file to the proper county. The proceedings shall be commenced by the
filing of a petition with the court, and the proceeding first commenced
extends to all of the property of the minor or the incapacitated person
unless otherwise ordered by the court.
(c) If it appears to the court at any time that:
(1) the proceeding was commenced in the wrong county;
(2) the residence of the incapacitated person or the minor has
been changed to another county;
(3) the proper venue is determined to be otherwise under the
Indiana Rules of Trial Procedure; or
(4) it would be in the best interest of the incapacitated person or
the minor and the property of the minor or the incapacitated
person;
the court may order the proceeding, together with all papers, files, and
a certified copy of all orders, transferred to another court in Indiana.
That court shall complete the proceeding as if originally commenced
in that court. The court may in like manner transfer a guardianship or
protective proceeding in Indiana to a court outside Indiana if the other
court assumes jurisdiction to complete the proceeding as if originally
commenced in that court. Before any transfer is made under this
subsection, a hearing pursuant to notice shall be held in the same
manner as provided with respect to the appointment of a guardian.
(d) Where a guardian has been appointed by a court that does not
have probate jurisdiction, the matter shall be transferred in accordance
with the proper venue to a court having probate jurisdiction for
qualification of the guardian and for further proceedings in the
guardianship.
(e) Nothing in this section shall be construed as a requirement of
jurisdiction.
(1) a guardian has not been appointed for an incapacitated person or minor;
(2) an emergency exists;
(3) the welfare of the incapacitated person or minor requires immediate action; and
(4) no other person appears to have authority to act in the circumstances;
the court, on petition by any person or on its own motion, may appoint a temporary guardian for the incapacitated person or minor for a specified period not to exceed
(b) If the court finds that a previously appointed guardian is not effectively performing fiduciary duties and that the welfare of the protected person requires immediate action, the court may suspend the authority of the previously appointed guardian and appoint a temporary guardian for the protected person for any period fixed by the court. The authority of the previously appointed guardian is suspended as long as a temporary guardian appointed under this subsection has authority to act.
(c) A temporary guardian appointed under this section has only the responsibilities and powers that are ordered by the court. The court shall order only the powers that are necessary to prevent immediate and substantial injury or loss to the person or property of the alleged incapacitated person or minor in an appointment made under this section.
(d) Proceedings under this section are not subject to the provisions of IC 29-3-4.
(e) A proceeding under this section may be joined with a proceeding under IC 29-3-4 or IC 29-3-5.
an affidavit made by the foreign guardian stating the following:
(1) That the foreign guardian does not know of any other
guardianship proceeding, relating to the incapacitated person or
minor, pending in Indiana.
(2) That the letters of the foreign guardian were duly issued.
(3) In the case of an incapacitated person who is an adult (as
defined in IC 29-3.5-1-2(1)), that the foreign guardian does
not know of a court in a jurisdiction other than Indiana that
has exercised jurisdiction regarding the incapacitated person
under a law similar to IC 29-3.5-2.
(3) (4) That the foreign guardian is entitled to receive the payment
or delivery.
(b) If the person to whom the affidavit is presented does not know
of any other guardianship proceeding pending in Indiana, payment or
delivery in response to the demand and affidavit discharges the debtor
or possessor from any further liability.
(b) In the case of an incapacitated person who is an adult (as defined in IC 29-3.5-1-2(1)), a foreign guardian for that adult may register certified copies of the guardian's letters of office and order of appointment under IC 29-3.5-4.
(1) complying with section 2 of this chapter;
(2) receiving payment of money or taking delivery of property
belonging to the incapacitated person or a minor in Indiana; or
(3) doing any act as a guardian in Indiana that would give Indiana
jurisdiction over the guardian as an individual.
ARTICLE 3.5. UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT
Chapter 1. General Provisions
Sec. 1. This article may be cited as the uniform adult guardianship and protective proceedings jurisdiction act.
Sec. 2. The following definitions apply throughout this article:
(1) "Adult" means either of the following:
(A) An individual who has attained eighteen (18) years of age.
(B) An emancipated minor who has not attained eighteen (18) years of age.
(2) "Conservator" means a guardian (as defined in IC 29-3-1-6).
(3) "Guardian" has the meaning set forth in IC 29-3-1-6.
(4) "Guardianship order" means an order appointing a guardian.
(5) "Guardianship proceeding" means a proceeding in which an order for the appointment of a guardian is sought or has been issued.
(6) "Home state" means either of the following:
(A) The state in which the respondent was physically present, including any period of temporary absence, for at least six (6) consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian.
(B) In the case of a respondent for whom no state satisfies clause (A), the state in which the respondent was physically present, including any period of temporary absence, for at least six (6) consecutive months ending within the six (6) months prior to the filing of the petition.
(7) "Incapacitated person" has the meaning set forth in IC 29-3-1-7.5 with respect to an adult.
(8) "Party" means the respondent, petitioner, guardian, conservator, or any other person allowed by the court to participate in a guardianship or protective proceeding.
(9) "Person" has the meaning set forth in IC 29-3-1-12.
(10) "Protected person" has the meaning set forth in IC 29-3-1-13 with respect to an adult.
(11) "Protective order" refers to an order issued under IC 29-3-4.
(12) "Protective proceeding" has the meaning set forth in IC 29-3-1-14.
(13) "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.
(14) "Respondent" means an adult for whom a protective order or the appointment of a guardian is sought.
(15) "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.
(16) "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. 3. A court of this state may treat a foreign country as if it were a state for the purpose of applying this article.
Sec. 4. (a) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter. 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.
Sec. 5. (a) 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:
(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 appropriate investigation of a person involved in a proceeding.
(4) Forward to the court of this state a certified copy of any of the following:
(A) The transcript or other record of a hearing under
subdivision (1) or any other proceeding.
(B) Any evidence otherwise presented under subdivision
(2).
(C) Any evaluation or assessment prepared in compliance
with the request under subdivision (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.
(6) Issue an order authorizing the release of medical,
financial, criminal, or other relevant information in that state,
including health information otherwise protected by state or
federal law.
(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 this state has jurisdiction for
the limited purpose of granting the request or making reasonable
efforts to comply with the request.
Sec. 6. (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 witness be taken in another state and may
prescribe the manner in which and the terms upon which the
testimony is to be taken.
(b) 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 courts of other states in
designating an appropriate location for the deposition or
testimony.
(c) Documentary evidence transmitted from another state to a
court of this state by technological means that do not produce a
record simultaneously with the transmission may not be excluded
from evidence on an objection based on the means of transmission.
Chapter 2. Jurisdiction
Sec. 1. In determining under section 3 of this chapter and
IC 29-3.5-3-1(d) whether 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 at any time was
physically present in the state 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 registering to vote, filing a state or local tax return,
registering a vehicle, possessing a driver's license, having
social relationships, and receiving services in the state.
Sec. 2. This chapter provides the exclusive jurisdictional basis
for a court of this state to appoint a guardian or issue a protective
order for an adult.
Sec. 3. A court of this state has jurisdiction to appoint a
guardian or issue a protective order for a respondent if:
(1) this state is the respondent's home state;
(2) on the date the petition is filed, this state 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 this state 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 set forth in section
6 of this chapter;
(3) this state does not have jurisdiction under either
subdivision (1) or (2), 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; or
(4) the requirements for special jurisdiction under section 4 of
this chapter are met.
Sec. 4. (a) A court of this state lacking jurisdiction under section
3(1) through 3(3) of this chapter has special jurisdiction to do any
of the following:
(1) Appoint a temporary guardian in an emergency as
permitted by IC 29-3-3-4 for a term not exceeding ninety (90)
days for a respondent who is physically present in this state.
(2) Issue a protective order with respect to real or tangible
personal property located in this state.
(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 IC 29-3.5-3-1.
(b) 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 whether dismissal is requested before or after the emergency
appointment.
Sec. 5. Except as otherwise provided in section 4 of this chapter,
a court that has appointed a guardian or issued a protective order
consistent with this chapter 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. 6. (a) A court of this state having jurisdiction under section
3 of this chapter 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.
(b) If a court of this state 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 this 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 were made, the court's ability to
monitor the conduct of the guardian.
Sec. 7. (a) 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:
(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 any other state under the factors set forth in section 6(c)
of this chapter; and
(C) whether the court of any other state would have
jurisdiction under factual circumstances in substantial
conformity with the jurisdictional standards of section 3 of
this chapter.
(b) 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'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 this state or a governmental
subdivision, agency, or instrumentality of this state unless
authorized by law other than this chapter.
Sec. 8. 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 must 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 must be given
in the same manner as notice is required to be given in this state.
Sec. 9. 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 4(a)(1) or 4(a)(2) of this
chapter, 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:
(1) If the court in this state has jurisdiction under section 3 of
this chapter, it may proceed with the case unless a court in
another state acquires jurisdiction under provisions similar to
section 3 of this chapter before the appointment or issuance
of the order.
(2) If the court in this state does not have jurisdiction under
section 3 of this chapter, 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.
Chapter 3. Transfer of Guardianship or Conservatorship
Sec. 1. (a) A guardian appointed in this state may petition the
court to transfer the guardianship to another state.
(b) Notice of a petition under subsection (a) must be given to the
persons that would be entitled to notice of a petition in this state for
the appointment of a guardian.
(c) On the court's own motion or on request of the guardian, the
protected person, or other person required to be notified of the
petition, the court shall hold a hearing on a petition filed under
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 protected person:
(A) is physically present in the other state;
(B) is reasonably expected to move permanently to the other state; or
(C) has a significant connection to the other state as determined under IC 29-3.5-2-1;
(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;
(3) plans for care and services for the protected person in the other state are reasonable and sufficient; and
(4) adequate arrangements will be made for management of the protected person's property.
(e) The court shall issue a final order confirming the transfer and terminating the guardianship 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 2 of this chapter; and
(2) the documents required to terminate a guardianship in this state.
Sec. 2. (a) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to section 1 of this chapter, the guardian or conservator must petition the court in this state to accept the guardianship or conservatorship. The petition must include a certified copy of the other state's provisional order of transfer.
(b) Notice of a petition under subsection (a) must 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 must be given in the same manner as notice is required to be given in this state.
(c) 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 (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 this state.
(e) 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 1 of this chapter transferring the proceeding to this state.
(f) Not later than ninety (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.
(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 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 in this state under IC 29-3 if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.
Chapter 4. Registration and Recognition of Order From Other States
Sec. 1. If:
(1) a guardian has been appointed in another state;
(2) a petition for the appointment of a guardian is not pending in this state; and
(3) the guardian appointed in the other state gives notice to the appointing court of an intent to register the guardianship order;
the guardian appointed in the other state may register the guardianship order in this state by filing certified copies of the guardian's order and letters of office as a foreign judgment in the court of this state having probate jurisdiction and venue of the registered guardianship.
Sec. 2. If:
(1) a conservator has been appointed in another state;
(2) a petition for a guardianship or protective order is not pending in this state; and
(3) the conservator appointed in the other state gives notice to
the appointing court of an intent to register the protective
order;
the conservator appointed in the other state may register the
protective order in this state by filing as a foreign judgment
certified copies of the conservator's order, letters of office, and
bond, if any, in the court of this state having probate jurisdiction
in any county in which property belonging to the protected person
is located.
Sec. 3. (a) Upon registration of a guardianship or protective
order from another state, the guardian or conservator may
exercise in this state 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 and, if
the guardian or conservator is not a resident of this state, subject
to any conditions imposed upon nonresident parties.
(b) A court of this state may grant any relief available under this
chapter and other laws of this state to enforce a registered order.
Chapter 5. Miscellaneous Provisions
Sec. 1. 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.
Sec. 2. This article modifies, limits, and supersedes the federal
Electronic Signatures in Global and National Commerce Act, 15
U.S.C. 7001, et seq., but does not modify, limit, or supersede
Section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic
delivery of any of the notices described in Section 103(b) of that
act, 15 U.S.C. 7003(b).
Sec. 3. (a) This article applies as follows:
(1) To guardianships and protective orders in existence on
July 1, 2011.
(2) To guardianship and protective proceedings begun after
June 30, 2011.
(b) In the case of a guardianship or protective proceeding begun
in Indiana before July 1, 2011, jurisdiction is established under
IC 29-3.
(c) After June 30, 2011, a guardianship appointed or a
protective order issued by a court exercising jurisdiction
established under subsection (b) may be transferred to another
court in accordance with IC 29-3.5-3.
(d) After June 30, 2011, a guardianship or protective proceeding
begun in another state before July 1, 2011, may be registered in
Indiana in accordance with IC 29-3.5-4.
