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                 DIRECTIONS OF REFORM – 2008

                         Commission on Law and Aging
                           American Bar Association

        In 2008, at least 15 states passed a total of 18 adult guardianship bills – as
compared with 14 states and 27 bills passed in 2007. Five jurisdictions – Alaska,
Colorado, Delaware, the District of Columbia and Utah – passed the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act. Vermont enacted a major bill
preserving rights of individuals under guardianship. Colorado passed an innovative
“judicial toolbox.” If you know of additional state adult guardianship legislation enacted
in 2008 but not described below, please contact Erica Wood, ABA Commission on Law
and Aging,, 202-662-8693.

   A.   Guardianship Jurisdiction – States Pass Uniform Adult Guardianship and
        Protective Proceedings Jurisdiction Act

         In our increasingly mobile society, adult guardianships often involve more than
one state, raising complex jurisdictional issues. For example, many older people own
property in different states. Family members may be scattered across the country. Frail,
at-risk individuals may need to be moved for medical or financial reasons. Thus, judges,
guardians, and lawyers frequently are faced with problems about which state should have
initial jurisdiction, how to transfer a guardianship to another state, and whether a
guardianship in one state will be recognized in another.

        Such jurisdictional quandaries can take up vast amounts of time for courts and
lawyers. They can also cause cumbersome delays and financial burdens for family
members, sometimes even barring timely medical treatment for incapacitated individuals.
Jurisdictional tangles can exacerbate family conflict, aggravating sibling rivalry as each
side must hire lawyers to battle over which state will hear a case and where a final order
will be lodged. Moreover, lack of clear jurisdictional guideposts can facilitate “granny
snatching” and other abusive actions.

       To address these challenging problems, the Uniform Law Commission in 2007
approved the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
(UAGPPJA). The UAGPPJA seeks to clarify jurisdiction and provide a procedural
roadmap for addressing dilemmas where more than one state is involved, and to enhance

communication between courts in different states.       The Uniform Law Commission
outlines key features of the Act as follows:

    “Provides procedures to resolve interstate jurisdiction controversies. The
     UAGPPJA creates a process for determining which state will have jurisdiction to
     appoint a guardian or conservator if there is a conflict by designating that the
     individual’s “home state” has primary jurisdiction, followed by a state in which the
     individual has a “significant-connection.” Under certain prescribed circumstances,
     another state may be chosen if it is the more appropriate forum.

    Facilitates transfers of guardianship cases among jurisdictions. The UAGPPJA
     specifies a procedure for transferring a guardianship or conservatorship to another
     state and for accepting a transfer, helping to reduce expenses and save time while
     protecting persons and their property from potential abuse.

    Provides for recognition and enforcement of a guardianship or protective
     proceeding order. The UAGPPJA helps to facilitate enforcement of guardianship
     and protective orders in other states by authorizing a guardian or conservator to
     register these orders in other states.

    Facilitates communication and cooperation between Courts of different
     jurisdictions. Permits communication between courts and parties of other states,
     records of the communications, and jurisdiction to respond to requests for
     assistance from courts in other states.

    Addresses emergency situations and other special cases. A court in the state where
     the individual is physically present can appoint a guardian in the case of an
     emergency. Also, if the individual has real or tangible property located in a certain
     state, the court in that jurisdiction can appoint a conservator for that property.

    The UAGPPJA will also help save time for those who are serving as guardians and
     conservators, allowing them to make important decisions for their loved ones as
     efficiently as possible – as well as conserving judicial resources.

      As it is jurisdictional in nature, the UAGPPJA cannot work as intended -- providing
uniformity and reducing conflict -- unless all or most states adopt it. See “Why States
Should Adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction
Act,” In

2008, four states plus DC have promptly adopted the Act (and according to the Uniform
Law Commission, introduction is likely in some additional 20 states in 2009):

     Alaska (SB 101);
     Colorado (SB 100);
     Delaware (SB 281);
     Utah (SB 122); and
     The District of Columbia (Law 17-270, which took effect November 25).

B. Two Additional Jurisdictional Enactments

        Two additional states passed more limited bills concerning adult guardianship
jurisdiction. First, California AB 2014 concerns the property of a ward or conservatee
located in another state. It requires a guardian or conservator to determine whether the
individual owns property in a foreign jurisdiction and to preserve and protect that
property. It also requires a guardian or conservator to include in an accounting a
schedule that identifies the real property, provides a good faith estimate of the property’s
value, and states actions taken or needed to preserve and protect the property, including
whether an ancillary proceeding is necessary. (Note that the Uniform Act’s recognition
procedure would address such authority needed for protection of property in another

       Second, the Idaho Code included existing provisions on the transfer of a
guardianship to and from a foreign state, as well as recognition of the authority of a
guardian appointed in a foreign state. Idaho SB 1326 amends the law to include
guardians of developmentally disabled persons. (Note that the provisions are similar in
concept to those of the UAGPPJA, but differ in procedural specifics, making it difficult
to match with the law of foreign jurisdictions that may have enacted the Uniform Act.)

C. Vermont – Preserving Rights and Updating Law

       In June 2008, the Vermont legislature approved an extensive bill (HB 617) that
substantially revises and updates adult guardianship law. The following summary of the
Act (No. 186) by Gail Falk, Director of the Vermont Office of Public Guardian,
highlights changes to current law.

    The Act applies only to Probate Court guardianships –
     o All private guardians;
     o Public guardians for people 60 or over; but

    o Not to Family Court guardianships for people with developmental disabilities.

   Terminology.
    o The term “ward” is removed. The new terms are “person with a guardian,”
      “person under guardianship” or just “person.” During the petition process, say
    o The terms “mentally retarded,” “developmentally delayed,” and “mentally ill” are
      removed. Presumably the petitioner will no longer have to categorize the person
      as one or the other. Functional definitions for who can have an involuntary
      guardian are the same.

   The relationship between advance directives and guardianship is spelled out:
    o An agent can file a petition for guardianship.
    o Any guardianship petition must identify the agent for the person named in the
      advance directive.
    o The authority of the agency and the instructions of an advance directive remain in
      effect if a guardian is appointed.
    o The only way to change the powers of the agent or the controlling authority of the
      advance directive is through a separate petition to the probate court (18 V.S.A.
      Section 9718).

   The term “total guardianship” is removed, but the term “limited guardianship” is
    still used to describe a guardian with some but not all powers. The categories of
    guardianship (medical, contracts, etc.) remain the same. The court is still required
    to specify the powers (or parts of powers) granted to the guardian, and limit those
    powers granted to ones that are necessary for this individual.

   Any “interested person” may ask the court to review a guardian’s decision. (This is
    not a change in practice, but now the statue makes it clear.)

   Alternatives to guardianship are promoted. The petition must spell out alternatives
    to guardianship that have been considered and why they won’t work.

   The Act includes several changes relative to evaluations:
    o The court must order an evaluation if there is a motion for modification or
      termination (not just at the beginning of a case).
    o The court has the option to order someone other than the respondent to pay for the
      evaluation, even if the respondent has the money to pay.
    o The requirement that evaluations for indigents must be provided through a
      community mental health center is removed.
    o The term “qualified mental health professional” is removed. Now evaluations
      must be done by “qualified evaluators.” This means people with specific training
      and demonstrated competence to perform an evaluation.
    o The court can extend the time period for filing the evaluation “for cause.”
    o The court must give a copy of the evaluation to the respondent, respondent’s
      attorney, the petitioner, and the guardian, once appointed. The court may give a

     copy to any other person, including the proposed guardian. The evaluation is
     confidential and may not be re-disclosed. (To re-disclose, guardian should seek
     court permission.)

   Courts will do Vermont background checks (VCIC, child abuse, adult abuse, sex
    offender) on proposed guardians.
    o If the proposed guardian has lived in Vermont less than five years, the court may
      order background checks from the FBI or states where the person has lived in the
      past five years.
    o The court can go ahead with appointment before receiving background checks
      and then remove the guardian if warranted when the check is received.
    o A hit on the background check isn’t an automatic exclusion; it’s evidence the
      court “shall consider.”
    o The court may waive background checks “if appropriate under the

   In appointing a guardian, a court should consider the willingness and ability of the
    proposed guardian to communicate with the respondent and to respect the
    respondent’s choices and preferences.

   An employee of a boarding home, residential care home, hospital, etc. is now
    permitted to serve as a guardian, but the court must consider any potential conflicts
    of interests. Operators of developmental homes are not permitted to be appointed
    or serve as guardians (likewise, operators of nursing homes, boarding homes, group
    homes, etc.)

   A person under guardianship has a right to retain an attorney without guardian
    consent (but legal fees not approved by the guardian must be authorized by the

   The powers of guardianship are slightly reorganized. Legal powers are more
    simply described as the “power to obtain legal advice and to commence or defend
    against court actions.”

   The guardian “shall exercise supervisory powers in a manner which is least
    restrictive of the personal freedom of the person under guardianship consistent with
    the need for supervision. The guardian shall encourage the person to participate in
    decisions, to act on his or her own behalf, and to develop or regain the capacity to
    manage his or her own affairs. “The wishes, values, beliefs, and preferences of the
    person under guardianship shall be respected to the greatest possible extent ….” If
    the guardian runs into an unexpected conflict of interest, the guardian must bring
    any potential conflict to the attention of the court.

   Medical consent is now described as “power to seek, obtain, and give or withhold
    consent to the initiation or continuation of medical or dental treatment.” Consent
    shall be given using the substituted judgment standard, if there is sufficient

     information about the person’s wishes. This can include information about the
     person’s general wishes values, beliefs and preferences, even if the person hasn’t
     previous said what he or she would want for medical treatment.

    In general, a guardian with medical power now has the authority to make all
     medical decisions without having to go back to court for permission. There are
     four situations where the guardian must go back to court for permission before
     making a medical decisions:
       1. The court’s order described circumstances when the guardian must return to
          court for permission;
       2. The person under guardianship objects to the guardian’s decision.
       3. The guardian wants to withdraw or withhold life-sustaining treatment, except
          antibiotics (unless it is impractical to get court approval in advance. In that
          case, the guardian shall immediately notify the court by telephone of the need
          for a decision, and then notify the court what decision has been made).
       4. The guardian wants to authorize a do-not-resuscitate order. (if there is not
          time to go back to court, the guardian can consent to DNR after getting a
          written statement from a clinician that the person is likely to experience
          cardiopulmonary arrest before there is time to get court approval.
          Immediately upon making the decision, the guardian must notify the court
          immediately (including nights and weekends).

    A person with a medical guardian can make a specific medical decision for
     himself/herself if s/he has a basic understanding of the risks, benefits, and

    Involuntary psychiatric medication must be approved through specialized
     procedures in Family Court.

    The guardianship powers remain in effect for up to two years after a person dies
     (but end if an executor or administrator is appointed.) so that the guardian can, if
     o Arrange and pay for a funeral;
     o Request financial or medical records;
     o Request an autopsy and the results; and
     o Make a financial accounting and close up the guardianship accounts.

D. Colorado – Bolstering Fiduciary Accountability

    Colorado has enacted a new statute, termed the “judicial toolbox,” to expand and
standardize judicial rules concerning court supervised fiduciaries, including guardians
and conservators. HB 1153 (Col. Rev. Stat. 15-10-501 et seq.) was developed by the
Statutory Revisions Subcommittee of the Trusts and Estates Section of the Colorado Bar
Association, with the assistance of members of the Bar Association’s Elder Law Section.

The bill’s development was part of a series of initiatives following a Colorado Judicial
Branch Performance Audit in 2006 – although it was not directly intended as a response
to the concerns raised by the audit. The below summary of the bill’s key sections is
based on an overview by R. L. Steenrod, Public Administrator for the City and County of
Denver (Colorado’s “Judicial Toolbox,” in Colorado Judicial Officer Training,
September 2008).        Mr. Steenrod notes that the new provisions to strengthen
accountability of guardians, conservators and other fiduciaries will make the job of a
probate (or district) court judge easier and offer mechanisms for active oversight.

      The “judicial toolbox” consolidates into one central place in the Colorado Probate
       Code the authority for a district or probate judge to require a fiduciary to provide
       estate information, to suspend a fiduciary, to appoint a temporary fiduciary, and to
       remove and replace a fiduciary.

      It sets out procedures for the court to surcharge a fiduciary for damage or loss to
       the estate, beneficiaries or interested persons. It provides for a court to hold a
       fiduciary in contempt. It also provides that if the court determines that a breach of
       fiduciary duty has occurred or the fiduciary’s exercise of power has been
       improper, the court may order other sanctions as it deems appropriate.

      The new measure simplifies and standardizes the notice provisions related to
       activities concerning fiduciaries in emergency, non-emergency and contempt and
       other situations. It specifies that fiduciaries must keep their current address and
       telephone number on file with the court and promptly notify the court of any

E. Preventing Abusive Actions

       Incapacitated individuals are particularly vulnerable to adult abuse. Three states
passed measures seeking to safeguard incapacitated persons from abuse:

  Idaho SB 1327 focuses on preventing contact of incapacitated persons with a
   convicted felon by:

           o Requiring the visitor’s report to include a statement as to whether a
             convicted felon “resides in or frequents” the incapacitated person’s
             proposed residence;

           o Giving the visitor and the guardian ad litem authority to conduct a
             criminal background check on a proposed guardian, as well as on a person
             who resides in or frequents such residence;

          o Prohibiting a “convicted felon, or person whose              residence is the
            incapacitated person’s proposed residence or will be        frequented by the
            incapacitated person and is frequented by a convicted       felon” from being
            appointed as guardian (unless the court finds it in         the person’s best
            interest); and

          o Requiring that the guardian take measures to ensure that a convicted felon
            “does not reside with, care for or visit the ward without court approval.”

             Also, the bill adds to the priority list for appointment of a guardian a health
      care agent appointed in a health care power of attorney – after the individual
      preferred by the incapacitated person and before the spouse.

  The thrust of Kansas HB 2644 is preventing appointment of a guardian or
   conservator with a conflict of interest. The petitions (for each kind of appointment
   specified in the Code) must include the name, age, date of birth, address, place of
   employment and relationship to the petitioner of the proposed guardian or
   conservator and “any personal or agency interest” of the proposed guardian or
   conservator that “may be perceived as self-serving or adverse to the position or best
   interest” of the respondent. Further, it prohibits appointment of a guardian or
   conservator who provides care or other services (or who is an employee of an
   agency providing such services) to persons with a disability condition similar to that
   of the respondent, except under certain circumstances. Moreover, the guardian or
   conservator must file a special report or accounting with the court if there is a
   change in circumstances of the guardian, conservator, ward or conservatee “that
   may constitute a conflict of interest.”

      Additionally, the bill requires guardians and conservator training on duties and
    responsibilities prior to issuance of letters of appointment. The training materials
    are to be prepared by the judicial council.

  Oklahoma SB 2028 makes it a felony to “take or entice away” any incapacitated
   person or any adult for whom a guardian has been appointed with intent to detain
   and conceal such person from the guardian, or to transport such a person across state
   or national lines without consent of the guardian or court.”

F. States on the Move – Additional Legislation

      Six more states passed measures concerning guardian compensation, powers, and
monitoring, as well as procedural due process and guardianship of last resort.

 Arizona HB 2836 makes amendments as to: (1) compensation; (2) the conservator’s
  final account and closing statement; and (3) the role of the conservator on the death
  of the protected person.

     (1) The bill addresses compensation of an investigator, accountant, lawyer,
   physician, registered nurse, psychologist, and guardian, including an independent
   lawyer representing the alleged incapacitated person. It specifies that these
   individuals are entitled to reasonable compensation from the estate if the petition is
   granted or from the petitioner if the petition is denied. If the petitioner withdraws or
   fails to prosecute a petition for appointment of a guardian or conservator, the court
   may order the compensation to be paid either from the ward’s estate or by the
   petitioner, depending on the facts and circumstances.

      (2) The new provisions allow that upon the death of the protected person, the
   conservator may submit a closing statement in lieu of a final accounting, if the
   protected person’s successors waive the right to a final accounting. The bill sets out
   the content of the closing statement, and the requirement for delivery of the
   statement to the successors.

     (3) The new law sets out circumstances under which the conservator may apply to
   exercise the powers and duties of a personal representative following the death of
   the protected person.

 Florida HB 739 refines existing procedures concerning appointment of a guardian
  advocate for an individual with developmental disabilities who lacks decision-
  making ability in some but not all of the tasks necessary to care for person or
  property. It amends procedures for the petition, notice, appointment of counsel,
  hearing and court order in the appointment of a guardian advocate. Additionally, it
  addresses situations in which the person with a development disability has executed
  a health care and durable financial power of attorney, requiring the court to consider
  whether the documents will sufficiently address the person’s needs such that a
  guardian advocate is not needed. Finally, the bill sets out a procedure for restoration
  of rights that were delegated to the guardian advocate.

 West Virginia SB 736 amends and clarifies provisions concerning who is qualified
  to serve as guardian or conservator. If there is no one willing and qualified to serve
  as guardian of the person, adult protective services must serve. If there is no one
  willing and qualified to serve as conservator, the sheriff must serve. The bill

   specifies that a conservator shall not be appointed if the total assets are less than
   $2,000, if the income is Social Security and a representative payee has been
   appointed, if the income is from Medicaid and the only income is the personal
   account allotment or is the income is less than $50 per month. In such cases, the
   guardian, representative payee or health care facility is to manage the personal care
   account or assets.

     In addition, the bill limits the authority for sale or mortgage or real estate. It
   prohibits a conservator from selling or mortgaging any real estate without approval
   of the court; and sets out a procedure including a petition, appointment of a guardian
   ad litem, notice to the protected person and others, and a hearing.

 California AB 1340. Two years ago, the California legislature passed the Omnibus
  Conservatorship and Guardianship Reform Act of 2006, in response to a series of
  stories profiling deficiencies in the system by The Los Angeles Times. AB 1340 is a
  non-controversial bill making technical corrections to the Omnibus Act -- a
  “wrinkle bill” to shake out the wrinkles after a major enactment. It also implements
  additional recommendations of the Probate Conservatorship Task Force. The eight
  minor changes include clarifications in : (1) the first accounting by a non-
  professional conservator or guardian; (2) the notice period for temporary
  conservatorship; (3) the requirement for a bond; (4) the requirement for licensure;
  (5) petition information regarding the conservator; and (6) the procedure for
  permission to establish the residence of a ward or conservatee outside the state. The
  bill also: (1) establishes a process for deeming an individual who harasses or annoys
  by filing unmeritorious petitions as a “vexatious litigant;” and (2) allows the courts,
  where an incapacitated spouse’s community property is sought to be transferred, to
  appoint an investigator or counsel if warranted.

 North Carolina HB 2390 raises the ceiling on the total amount of personal property
  a guardian may sell without court approval from a total of $1,500 to $5,000 per
  accounting period.

 Wisconsin AB 279 is a “clean-up bill” that makes technical corrections in cross
  references and clarifies inconsistencies caused by conflicting components of related
  statutes with differing effective dates, following the comprehensive adult
  guardianship enactment that became effective in December 2006.

              State Adult Guardianship Legislation at a Glance: 2008

         State              Bill                         Provisions
Alaska                SB 101          Enacts Uniform Adult Guardianship and
                                      Protective Proceedings Jurisdiction Act
Arizona               HB 2836         Amends provisions concerning compensation,
                                      final accounting and role of conservator on
California            AB 2014         Concerns property of a ward or conservatee
                                      located in another state
California            AB 1340         Makes clarifications and technical corrections
                                      to earlier Omnibus Act
Colorado              SB 100          Enacts Uniform Adult Guardianship and
                                      Protective Proceedings Jurisdiction Act
Colorado              HB 1153         Enacts judicial toolbox to expand &
                                      standardize judicial rules on court supervised
Delaware              SB 281          Enacts Uniform Adult Guardianship and
                                      Protective Proceedings Jurisdiction Act
District of                           Enacts Uniform Adult Guardianship and
Columbia                              Protective Proceedings Jurisdiction Act
Florida               HB 739          Refines procedures concerning appointment of
                                      a guardian advocate
Idaho                 SB 1326         Amends law concerning transfer and
                                      recognition of a guardianship in multi-state
                                      guardianship cases
Idaho                 SB 1327         Addresses contact of incapacitated person with
                                      convicted felons; and amends priority list for
                                      appointment of a guardian
Kansas                HB 2644         Addresses appointment of guardian or
                                      conservator with conflict of interest
North Carolina        HB 2390         Addresses sale of real property by guardian
Oklahoma              SB 2028         Makes it a felony to kidnap, conceal or entice
                                      away an incapacitated person
Utah                  SB 122          Enacts Uniform Adult Guardianship and
                                      Protective Proceedings Jurisdiction Act
Vermont               HB 617          Substantially revises and updates state adult
                                      guardianship law
West Virginia         SB 736          Clarifies provisions concerning guardianship
                                      of last resort
Wisconsin             AB 279          Makes technical corrections


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