Text: HSB260            Text: HSB262


House Study Bill 261

HOUSE FILE BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON SWAIM) Passed House, Date Passed Senate, Date Vote: Ayes Nays Vote: Ayes Nays Approved A BILL FOR 1 An Act relating to the uniform adult guardianship and protective 2 proceedings Act relating to the establishment, transfer, and 3 recognition of guardianships and conservatorships in 4 multistate cases, and including effective date and 5 applicability provisions. 6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 7 TLSB 1811HC 83 8 rh/rj/8 PAG LIN 1 1 DIVISION XIX 1 2 PART 1 1 3 GENERAL PROVISIONS 1 4 Section 1. NEW SECTION. 633.800 SHORT TITLE. 1 5 This division shall be known and may be cited as the "Iowa 1 6 Uniform Adult Guardianship and Protective Proceedings 1 7 Jurisdiction Act". 1 8 Sec. 2. NEW SECTION. 633.801 DEFINITIONS. 1 9 As used in this division, unless the context otherwise 1 10 requires: 1 11 1. "Adult" means an individual who is eighteen years of 1 12 age or older. 1 13 2. "Conservator" means a person appointed by the court to 1 14 have the custody and control of the property of an adult under 1 15 the provisions of this chapter. 1 16 3. "Court" means, when referring to a court of this state, 1 17 the district court sitting in probate with jurisdiction of 1 18 conservatorships and guardianships. 1 19 4. "Foreign judgment" means a judgment, decree, or order 1 20 of a court of the United States or of any other court that 1 21 meets any of the following requirements: 1 22 a. Is entitled to full faith and credit in this state. 1 23 b. Appoints a guardian or conservator in the issuing 1 24 jurisdiction. 1 25 5. "Guardian" means a person appointed by the court to 1 26 make decisions regarding the adult under the provisions of 1 27 this chapter. 1 28 6. "Guardianship order" means an order appointing a 1 29 guardian as defined in section 633.3. 1 30 7. "Guardianship proceeding" means a judicial proceeding 1 31 in which an order for the appointment of a guardian is sought 1 32 or has been issued. 1 33 8. "Incapacitated person" means an adult who has been 1 34 adjudged incompetent by a court who meets one or both of the 1 35 following conditions: 2 1 a. Has a decision making capacity which is so impaired 2 2 that the person is unable to care for the person's personal 2 3 safety or to attend to or provide for necessities for the 2 4 person such as food, shelter, clothing, or medical care, 2 5 without which physical injury or illness may occur. 2 6 b. Has a decision making capacity which is so impaired 2 7 that the person is unable to make, communicate, or carry out 2 8 important decisions concerning the person's financial affairs. 2 9 9. "Party" means the respondent, petitioner, guardian, 2 10 conservator, or any other person allowed by the court to 2 11 participate in a guardianship or protective proceeding. 2 12 10. "Person" means an individual, corporation, business 2 13 trust, estate, trust, partnership, limited liability company, 2 14 association, joint venture, public corporation, or government; 2 15 governmental subdivision, agency, or instrumentality; or any 2 16 other legal or commercial entity. 2 17 11. "Protected person" means an adult for whom a 2 18 conservatorship has been issued. 2 19 12. "Protective order" means an order appointing a 2 20 conservator as defined in section 633.3. "Protective order" 2 21 does not include protective orders issued pursuant to chapter 2 22 664A or protective orders issued pursuant to sections 235B.18 2 23 and 235B.19. 2 24 13. "Protective proceeding" means a judicial proceeding in 2 25 which a conservatorship is sought or has been granted. 2 26 14. "Record" means information that is inscribed on a 2 27 tangible medium or that is stored in an electronic or other 2 28 medium and is retrievable in perceivable form. 2 29 15. "Respondent" means an adult for whom a conservatorship 2 30 or guardianship is sought. 2 31 16. "State" means a state of the United States, the 2 32 District of Columbia, Puerto Rico, the United States Virgin 2 33 Islands, a federally recognized Indian tribe, or any territory 2 34 or insular possession subject to the jurisdiction of the 2 35 United States. 3 1 Sec. 3. NEW SECTION. 633.802 INTERNATIONAL APPLICATION. 3 2 A court of this state shall treat a foreign country as if 3 3 it were a state of the United States for the purpose of 3 4 applying this part and parts 2, 3, and 5. 3 5 Sec. 4. NEW SECTION. 633.803 COMMUNICATION BETWEEN 3 6 COURTS. 3 7 1. A court of this state may communicate with a court in 3 8 another state concerning a proceeding arising under this 3 9 division. The court may allow the parties to participate in 3 10 the communication. Except as otherwise provided in subsection 3 11 2, the court shall make a record of the communication. The 3 12 record may be limited to the fact that the communication 3 13 occurred. 3 14 2. Communication between courts concerning schedules, 3 15 calendars, court records, and other administrative matters may 3 16 occur without making a record. 3 17 Sec. 5. NEW SECTION. 633.804 COOPERATION BETWEEN COURTS. 3 18 1. In a guardianship or protective proceeding in this 3 19 state, a court of this state may request the appropriate court 3 20 of another state to do any of the following: 3 21 a. Hold an evidentiary hearing. 3 22 b. Order a person in the other state to produce evidence 3 23 or give testimony pursuant to procedures of that state. 3 24 c. Order that an evaluation or assessment be made of the 3 25 respondent. 3 26 d. Order any appropriate investigation of a person 3 27 involved in a proceeding. 3 28 e. Forward to the court of this state a certified copy of 3 29 the transcript or other record of the hearing pursuant to 3 30 paragraph "a" or any other proceeding, the evidence otherwise 3 31 produced pursuant to paragraph "b", and any evaluation or 3 32 assessment prepared in compliance with an order pursuant to 3 33 paragraph "c" or "d". 3 34 f. Issue any order necessary to assure the appearance in 3 35 the proceeding of a person whose presence is necessary for the 4 1 court to make a determination, including the respondent. 4 2 g. Issue an order authorizing the release of medical, 4 3 financial, criminal, or other relevant information in that 4 4 state, including protected health information as defined in 45 4 5 C.F.R. } 164.504, as amended. 4 6 2. If a court of another state in which a guardianship or 4 7 protective proceeding is pending requests assistance pursuant 4 8 to subsection 1, a court of this state has jurisdiction for 4 9 the limited purpose of granting the request or making 4 10 reasonable efforts to comply with the request. 4 11 Sec. 6. NEW SECTION. 633.805 TAKING TESTIMONY IN ANOTHER 4 12 STATE. 4 13 1. In addition to other procedures that may be available 4 14 in a guardianship or protective proceeding, the testimony of a 4 15 witness who is located in another state may be offered by 4 16 deposition or other means allowable in this state for 4 17 testimony taken in another state. The court on its own motion 4 18 may order that the testimony of a witness be taken in another 4 19 state and may prescribe the manner in which and the terms upon 4 20 which the testimony is to be taken. 4 21 2. In a guardianship or protective proceeding, a court in 4 22 this state may permit a witness located in another state to be 4 23 deposed or to testify by telephone, audiovisual means, or 4 24 other electronic means. A court of this state shall cooperate 4 25 with courts of other states in designating an appropriate 4 26 location for the deposition or testimony. 4 27 3. Documentary evidence transmitted from another state to 4 28 a court of this state by technological means that do not 4 29 produce an original writing shall not be excluded from 4 30 evidence on an objection based on the best evidence rule. 4 31 PART 2 4 32 JURISDICTION 4 33 Sec. 7. NEW SECTION. 633.806 DEFINITIONS. 4 34 As used in this part, unless the context otherwise requires 4 35 otherwise: 5 1 1. "Emergency" means a circumstance that likely will 5 2 result in substantial harm to a respondent's health, safety, 5 3 or welfare, and for which the appointment of a guardian is 5 4 necessary because no other person has authority and is willing 5 5 to act on the respondent's behalf. 5 6 2. "Home state" means either of the following: 5 7 a. The state in which the respondent was physically 5 8 present, including any period of temporary absence, for at 5 9 least six consecutive months immediately before the filing of 5 10 a petition for a protective order or the appointment of a 5 11 guardian. 5 12 b. The state in which the respondent was physically 5 13 present, including any period of temporary absence, for at 5 14 least six consecutive months ending within the six months 5 15 prior to the filing of a petition for a protective order or 5 16 the appointment of a guardian. 5 17 3. "Significant=connection state" means a state, other 5 18 than the home state, with which a respondent has a significant 5 19 connection other than mere physical presence and in which 5 20 substantial evidence concerning the respondent is available. 5 21 Sec. 8. NEW SECTION. 633.807 SIGNIFICANT CONNECTION 5 22 FACTORS. 5 23 1. In determining whether a respondent has a significant 5 24 connection with a particular state, the court shall consider 5 25 all of the following: 5 26 a. The location of the respondent's family and other 5 27 persons required to be notified of the guardianship or 5 28 protective proceeding. 5 29 b. The length of time the respondent at any time was 5 30 physically present in the state and the duration of any 5 31 absence. 5 32 c. The location of the respondent's property. 5 33 d. The extent to which the respondent has ties to the 5 34 state such as voting registration, state or local tax return 5 35 filing, vehicle registration, driver's license, social 6 1 relationship, and receipt of services. 6 2 Sec. 9. NEW SECTION. 633.808 EXCLUSIVE BASIS. 6 3 This part provides the exclusive jurisdictional basis for a 6 4 court of this state to appoint a guardian or issue a 6 5 protective order for an adult. 6 6 Sec. 10. NEW SECTION. 633.809 JURISDICTION. 6 7 A court of this state has jurisdiction to appoint a 6 8 guardian or issue a protective order for a respondent if any 6 9 of the following apply: 6 10 1. This state is the respondent's home state. 6 11 2. This state is a significant=connection state and on the 6 12 date the petition is filed, any of the following apply: 6 13 a. The respondent does not have a home state or a court of 6 14 the respondent's home state has declined to exercise 6 15 jurisdiction because this state is a more appropriate forum. 6 16 b. The respondent has a home state, a petition for an 6 17 appointment or order is not pending in a court of that state 6 18 or another significant=connection state, and, before the court 6 19 makes the appointment or issues the order all of the following 6 20 apply: 6 21 (1) A petition for an appointment or order is not filed in 6 22 the respondent's home state. 6 23 (2) An objection to the court's jurisdiction is not filed 6 24 by a person required to be notified of the proceeding. 6 25 (3) The court in this state concludes that it is an 6 26 appropriate forum under the factors set forth in section 6 27 633.812. 6 28 3. Either of the following apply: 6 29 a. This state does not have jurisdiction under either 6 30 subsection 1 or 2, the respondent's home state and all 6 31 significant=connection states have declined to exercise 6 32 jurisdiction because this state is the more appropriate forum, 6 33 and jurisdiction in this state is consistent with the 6 34 Constitution of the State of Iowa and the Constitution of the 6 35 United States. 7 1 b. The requirements for special jurisdiction under section 7 2 633.810 are met. 7 3 Sec. 11. NEW SECTION. 633.810 SPECIAL JURISDICTION. 7 4 1. A court of this state lacking jurisdiction under 7 5 section 633.809 has special jurisdiction to do any of the 7 6 following: 7 7 a. Appoint a guardian in an emergency for a period not to 7 8 exceed ninety days for a respondent who is physically present 7 9 in this state. 7 10 b. Issue a protective order with respect to real or 7 11 tangible personal property located in this state. 7 12 c. Appoint a guardian or conservator for an incapacitated 7 13 or protected person for whom a provisional order to transfer 7 14 the proceeding from another state has been issued under 7 15 procedures similar to section 633.816. 7 16 2. If a petition for the appointment of a guardian in an 7 17 emergency is brought in this state and this state was not the 7 18 respondent's home state on the date the petition was filed, 7 19 the court shall dismiss the proceeding at the request of the 7 20 court of the home state, if any, whether dismissal is 7 21 requested before or after the emergency appointment. 7 22 Sec. 12. NEW SECTION. 633.811 EXCLUSIVE AND CONTINUING 7 23 JURISDICTION. 7 24 Except as otherwise provided in section 633.810, a court 7 25 that has appointed a guardian or issued a protective order 7 26 consistent with this chapter has exclusive and continuing 7 27 jurisdiction over the proceeding until terminated by the court 7 28 or the appointment or order expires by its own terms. 7 29 Sec. 13. NEW SECTION. 633.812 APPROPRIATE FORUM. 7 30 1. A court of this state with jurisdiction under section 7 31 633.809 to appoint a guardian or issue a protective order may 7 32 decline to exercise its jurisdiction if it determines at any 7 33 time that a court of another state is a more appropriate 7 34 forum. 7 35 2. If a court of this state declines to exercise its 8 1 jurisdiction under subsection 1, the court shall either 8 2 dismiss or stay the proceeding. The court may impose any 8 3 condition the court considers just and proper, including the 8 4 condition that a petition for the appointment of a guardian or 8 5 issuance of a protective order be filed promptly in another 8 6 state. 8 7 3. In determining whether it is an appropriate forum, the 8 8 court shall consider all of the following: 8 9 a. Any expressed preference of the respondent. 8 10 b. Whether abuse, neglect, or exploitation of the 8 11 respondent has occurred or is likely to occur and which state 8 12 could best protect the respondent from the abuse, neglect, or 8 13 exploitation. 8 14 c. The length of time the respondent was physically 8 15 present in or was a legal resident of this state or another 8 16 state. 8 17 d. The distance of the respondent from the court in each 8 18 state. 8 19 e. The financial circumstances of the respondent's estate. 8 20 f. The nature and location of the evidence. 8 21 g. The ability of the court in each state to decide the 8 22 issue expeditiously and the procedures necessary to present 8 23 evidence. 8 24 h. The familiarity of the court of each state with the 8 25 facts and issues in the proceeding. 8 26 i. If an appointment were to be made, the court's ability 8 27 to monitor the conduct of the guardian or conservator. 8 28 Sec. 14. NEW SECTION. 633.813 JURISDICTION DECLINED BY 8 29 REASON OF CONDUCT. 8 30 1. If at any time a court of this state determines that 8 31 the court acquired jurisdiction to appoint a guardian or issue 8 32 a protective order because of unjustifiable conduct, the court 8 33 may do any of the following: 8 34 a. Decline to exercise jurisdiction. 8 35 b. Exercise jurisdiction for the limited purpose of 9 1 fashioning an appropriate remedy to ensure the health, safety, 9 2 and welfare of the respondent or the protection of the 9 3 respondent's property or prevent a repetition of the 9 4 unjustifiable conduct, including staying the proceeding until 9 5 a petition for the appointment of a guardian or issuance of a 9 6 protective order is filed in a court of another state having 9 7 jurisdiction. 9 8 c. Continue to exercise jurisdiction after considering all 9 9 of the following: 9 10 (1) The extent to which the respondent and all persons 9 11 required to be notified of the proceedings have acquiesced in 9 12 the exercise of the court's jurisdiction. 9 13 (2) Whether it is a more appropriate forum than the court 9 14 of any other state under the factors set forth in section 9 15 633.812. 9 16 (3) Whether the court of any other state would have 9 17 jurisdiction under factual circumstances in substantial 9 18 conformity with the jurisdictional standards of section 9 19 633.809. 9 20 d. If a court of this state determines that the court 9 21 acquired jurisdiction to appoint a guardian or issue a 9 22 protective order because a party seeking to invoke its 9 23 jurisdiction engaged in unjustifiable conduct, the court may 9 24 assess necessary and reasonable expenses against that party, 9 25 including attorney fees, investigative fees, court costs, 9 26 communication expenses, witness fees and expenses, and travel 9 27 expenses. The court shall not assess fees, costs, or expenses 9 28 of any kind against this state or a governmental subdivision, 9 29 agency, or instrumentality of this state unless authorized by 9 30 law other than this division. 9 31 Sec. 15. NEW SECTION. 633.814 NOTICE OF PROCEEDING. 9 32 If a petition for the appointment of a guardian or issuance 9 33 of a protective order is brought in this state and this state 9 34 was not the respondent's home state on the date the petition 9 35 was filed, in addition to complying with the notice 10 1 requirements of this state, notice of the petition must be 10 2 given to those persons who would be entitled to notice of the 10 3 petition if a proceeding were brought in the respondent's home 10 4 state. The notice must be given in the same manner as notice 10 5 is required to be given in this state. 10 6 Sec. 16. NEW SECTION. 633.815 PROCEEDINGS IN MORE THAN 10 7 ONE STATE. 10 8 Except for a petition for the appointment of a guardian in 10 9 an emergency or issuance of a protective order limited to 10 10 property located in this state under section 633.810, if a 10 11 petition for the appointment of a guardian or issuance of a 10 12 protective order is filed in this state and in another state 10 13 and neither petition has been dismissed or withdrawn, the 10 14 following rules apply: 10 15 1. If the court in this state has jurisdiction under 10 16 section 633.809, it may proceed with the case unless a court 10 17 in another state acquires jurisdiction under provisions 10 18 similar to section 633.809 before the appointment or issuance 10 19 of the order. 10 20 2. If the court in this state does not have jurisdiction 10 21 under section 633.809, whether at the time the petition is 10 22 filed or at any time before the appointment or issuance of the 10 23 order, the court shall stay the proceeding and communicate 10 24 with the court in the other state. If the court in the other 10 25 state has jurisdiction, the court in this state shall dismiss 10 26 the petition unless the court in the other state determines 10 27 that the court in this state is a more appropriate forum. 10 28 PART 3 10 29 TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP 10 30 Sec. 17. NEW SECTION. 633.816 TRANSFER OF GUARDIANSHIP 10 31 OR CONSERVATORSHIP TO ANOTHER STATE. 10 32 1. A guardian or conservator appointed in this state may 10 33 petition the court to transfer the guardianship or 10 34 conservatorship to another state. 10 35 2. Notice of a petition under subsection 1 shall be given 11 1 to the persons that would be entitled to notice of a petition 11 2 in this state for the appointment of a guardian or 11 3 conservator. 11 4 3. On the court's own motion or on request of the guardian 11 5 or conservator, the incapacitated or protected person, or 11 6 other person required to be notified of the petition, the 11 7 court shall hold a hearing on a petition filed pursuant to 11 8 subsection 1. 11 9 4. The court shall issue an order provisionally granting a 11 10 petition to transfer a guardianship and shall direct the 11 11 guardian to petition for guardianship in the other state if 11 12 the court is satisfied that the guardianship will be accepted 11 13 by the court in the other state and the court finds all of the 11 14 following: 11 15 a. The incapacitated person is physically present in or is 11 16 reasonably expected to move permanently to the other state. 11 17 b. An objection to the transfer has not been made or, if 11 18 an objection has been made, the objector has not established 11 19 that the transfer would be contrary to the interests of the 11 20 incapacitated person. 11 21 c. Plans for care and services for the incapacitated 11 22 person in the other state are reasonable and sufficient. 11 23 5. The court shall issue a provisional order granting a 11 24 petition to transfer a conservatorship and shall direct the 11 25 conservator to petition for conservatorship in the other state 11 26 if the court is satisfied that the conservatorship will be 11 27 accepted by the court of the other state and the court finds 11 28 all of the following: 11 29 a. The protected person is physically present in or is 11 30 reasonably expected to move permanently to the other state, or 11 31 the protected person has a significant connection to the other 11 32 state considering the factors in section 633.807. 11 33 b. An objection to the transfer has not been made or, if 11 34 an objection has been made, the objector has not established 11 35 that the transfer would be contrary to the interests of the 12 1 protected person. 12 2 c. Adequate arrangements will be made for management of 12 3 the protected person's property. 12 4 6. The court shall issue a final order confirming the 12 5 transfer and terminating the guardianship or conservatorship 12 6 upon its receipt of all of the following: 12 7 a. A provisional order accepting the proceeding from the 12 8 court to which the proceeding is to be transferred which is 12 9 issued under provisions similar to section 633.817. 12 10 b. The documents required to terminate a guardianship or 12 11 conservatorship in this state. 12 12 Sec. 18. NEW SECTION. 633.817 ACCEPTING GUARDIANSHIP OR 12 13 CONSERVATORSHIP TRANSFERRED FROM ANOTHER STATE. 12 14 1. To confirm transfer of a guardianship or 12 15 conservatorship transferred to this state under provisions 12 16 similar to section 633.816, the guardian or conservator must 12 17 petition the court in this state to accept the guardianship or 12 18 conservatorship. The petition must include a certified copy 12 19 of the other state's provisional order of transfer. 12 20 2. Notice of a petition under subsection 1 must be given 12 21 to those persons that would be entitled to notice if the 12 22 petition were to petition for the appointment of a guardian or 12 23 issuance of a protective order in both the transferring state 12 24 and this state. The notice must be given in the same manner 12 25 as notice is required to be given in this state. 12 26 3. On the court's own motion or on request of the guardian 12 27 or conservator, the incapacitated or protected person, or 12 28 other person required to be notified of the proceeding, the 12 29 court shall hold a hearing on a petition filed pursuant to 12 30 subsection 1. 12 31 4. The court shall issue an order provisionally granting a 12 32 petition filed under subsection 1 unless any of the following 12 33 applies: 12 34 a. An objection is made and the objector establishes that 12 35 transfer of the proceeding would be contrary to the interests 13 1 of the incapacitated or protected person. 13 2 b. The guardian or conservator is ineligible for 13 3 appointment in this state. 13 4 5. The court shall issue a final order accepting the 13 5 proceeding and appointing the guardian or conservator as 13 6 guardian or conservator in this state upon its receipt from 13 7 the court from which the proceeding is being transferred of a 13 8 final order issued under provisions similar to section 633.816 13 9 transferring the proceeding to this state. 13 10 6. Not later than ninety days after issuance of a final 13 11 order accepting transfer of a guardianship or conservatorship, 13 12 the court shall determine whether the guardianship or 13 13 conservatorship needs to be modified to conform to the laws of 13 14 this state. 13 15 7. Subject to subsections 4 and 6, in granting a petition 13 16 under this section, the court shall recognize a guardianship 13 17 or conservatorship order from the other state, including the 13 18 determination of the incapacitated or protected person's 13 19 incapacity and the appointment of the guardian or conservator. 13 20 8. The denial by a court of this state of a petition to 13 21 accept a guardianship or conservatorship transferred from 13 22 another state does not affect the ability of the guardian or 13 23 conservator to seek appointment as guardian or conservator in 13 24 this state under section 633.551 or 633.552, if the court has 13 25 jurisdiction to make an appointment other than by reason of 13 26 the provisional order of transfer. 13 27 PART 4 13 28 REGISTRATION AND RECOGNITION OF 13 29 ORDERS FROM OTHER STATES 13 30 Sec. 19. NEW SECTION. 633.818 REGISTRATION OF 13 31 GUARDIANSHIP ORDERS. 13 32 If a guardian has been appointed in another state and a 13 33 petition for the appointment of a guardian is not pending in 13 34 this state, the guardian appointed in the other state, after 13 35 giving notice to the appointing court of an intent to 14 1 register, may register the guardianship order in this state by 14 2 filing as a foreign judgment in a court, in any appropriate 14 3 county of this state, certified copies of the order and 14 4 letters of office. 14 5 Sec. 20. NEW SECTION. 633.819 REGISTRATION OF PROTECTIVE 14 6 ORDERS. 14 7 If a conservator has been appointed in another state and a 14 8 petition for a protective order is not pending in this state, 14 9 the conservator appointed in the other state, after giving 14 10 notice to the appointing court of an intent to register, may 14 11 register the protective order in this state by filing as a 14 12 foreign judgment in a court of this state, in any county in 14 13 which property belonging to the protected person is located, 14 14 certified copies of the order and letters of office and of any 14 15 bond. 14 16 Sec. 21. NEW SECTION. 633.820 EFFECT OF REGISTRATION. 14 17 1. Upon registration of a guardianship or protective order 14 18 from another state, the guardian or conservator may exercise 14 19 in this state all powers authorized in the order of 14 20 appointment except as prohibited under the laws of this state, 14 21 including maintaining actions and proceedings in this state 14 22 and, if the guardian or conservator is not a resident of this 14 23 state, subject to any conditions imposed upon nonresident 14 24 parties. 14 25 2. A court of this state may grant any relief available 14 26 under this division and other law of this state to enforce a 14 27 registered order. 14 28 PART 5 14 29 MISCELLANEOUS PROVISIONS 14 30 Sec. 22. NEW SECTION. 633.821 UNIFORMITY OF APPLICATION 14 31 AND CONSTRUCTION. 14 32 In applying and construing this uniform Act, consideration 14 33 must be given to the need to promote uniformity of the law 14 34 with respect to its subject matter among states that enact it. 14 35 Sec. 23. NEW SECTION. 633.822 RELATION TO ELECTRONIC 15 1 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. 15 2 This division modifies, limits, and supersedes the federal 15 3 Electronic Signatures in Global and National Commerce Act, 15 15 4 U.S.C. } 7001, et seq., but does not modify, limit, or 15 5 supersede section 101(c) of that Act, 15 U.S.C. } 7001(c), or 15 6 authorize electronic delivery of any of the notices described 15 7 in section 103(b) of that Act, 15 U.S.C. } 7003(b). 15 8 Sec. 24. EFFECTIVE AND APPLICABILITY DATES. 15 9 1. Except as provided in subsection 2, this Act takes 15 10 effect July 1, 2010, and applies to guardianship and 15 11 protective proceedings in existence on or after that date. 15 12 2. Parts 1, 3, and 4 and sections 633.821 and 633.822 15 13 apply to proceedings begun before the effective date, 15 14 regardless of whether a guardianship or protective order has 15 15 been issued. 15 16 Sec. 25. CODE EDITOR DIRECTIVE. The Code editor is 15 17 directed to transfer division XIX of chapter 633, as enacted 15 18 in this Act, to division XV of chapter 633 and to transfer 15 19 division XV of chapter 633 to division XVI of chapter 633. 15 20 EXPLANATION 15 21 This bill creates the uniform adult guardianship and 15 22 protective proceedings Act relating to the establishment, 15 23 transfer, and recognition of guardianships and 15 24 conservatorships in multistate cases, and includes effective 15 25 date and applicability provisions. 15 26 PART 1. Part 1 of the bill contains definitions and 15 27 provisions relating to communications and cooperation between 15 28 courts in different states and the taking of testimony in 15 29 another state. The bill also provides that a court of this 15 30 state shall treat a foreign country as if it were a state of 15 31 the United States for purposes of the bill. The bill defines 15 32 "protective order" as an order appointing a conservator as 15 33 defined in Code section 633.3 of the Iowa probate Code and 15 34 defines "guardianship order" as an order appointing a guardian 15 35 as defined in Code section 633.3 of the Iowa probate Code. 16 1 PART 2. Part 2 of the bill provides a framework of 16 2 priority for determining when a particular court has 16 3 jurisdiction over adult guardianships and conservatorships for 16 4 an incapacitated or protected adult (respondent); the home 16 5 state, followed by a significant=connection state, followed by 16 6 other jurisdictions. 16 7 Part 2 of the bill defines "home state" as either the state 16 8 in which the adult has lived for at least six consecutive 16 9 months immediately before the beginning of the adult 16 10 guardianship or protective proceeding or the state in which 16 11 the adult was physically present for at least six consecutive 16 12 months ending within the six months prior to the filing of the 16 13 petition for a protective order or the appointment of a 16 14 guardian. A period of temporary absence in either situation 16 15 is counted as part of the six=month or other period. If there 16 16 is no home state or the court in the home state declines to 16 17 exercise jurisdiction, the bill provides that jurisdiction is 16 18 appropriate in a state in which the respondent has a 16 19 significant connection. In determining whether a respondent 16 20 has a significant connection with a particular state, the 16 21 court must consider the location of the respondent's family, 16 22 the length of time the respondent was physically present in 16 23 the state and the duration of any absence, the location of the 16 24 respondent's property, and the extent to which the respondent 16 25 has ties to the state (voting, filing tax returns, driver's 16 26 license, receipt of services). Another state may have 16 27 jurisdiction if the respondent does not have a home state or a 16 28 significant=connection state or the respondent's home state 16 29 and all significant=connection states have refused to exercise 16 30 jurisdiction because another state is more appropriate. 16 31 Part 2 of the bill provides that regardless of whether a 16 32 court in the state where the respondent is currently 16 33 physically present has jurisdiction, the court has special 16 34 jurisdiction to appoint a guardian in an emergency and a court 16 35 in a state where a respondent's real or tangible personal 17 1 property is located has jurisdiction to appoint a conservator 17 2 or issue another type of protective order with respect to that 17 3 property. A court also has special jurisdiction to consider a 17 4 petition to accept the transfer of an already existing 17 5 guardianship or conservatorship from another state under the 17 6 transfer provisions of part 3 of the bill. 17 7 Part 2 of the bill provides that once a guardian or 17 8 conservator is appointed or other protective order is issued, 17 9 the court's jurisdiction continues until the proceeding is 17 10 terminated by the court or the appointment or order expires by 17 11 its own terms. 17 12 Part 2 of the bill authorizes a court to decline to 17 13 exercise jurisdiction if it determines that the court of 17 14 another state is a more appropriate forum, and specifies the 17 15 factors to be taken into account in making this determination. 17 16 Part 2 of the bill authorizes a court that obtained 17 17 jurisdiction as a result of unjustifiable conduct by a party 17 18 to assess that party necessary and reasonable expenses, 17 19 including attorney fees, investigative fees, court costs, 17 20 communication expenses, witness fees and expenses, and travel 17 21 expenses. 17 22 Part 2 of the bill provides additional notice requirements 17 23 if a proceeding is brought in a state other than the 17 24 respondent's home state. 17 25 Part 2 of the bill provides a procedure for resolving 17 26 jurisdictional issues if petitions are pending in more than 17 27 one state. 17 28 PART 3. Part 3 of the bill provides a procedure for 17 29 transferring an existing guardianship or conservatorship from 17 30 one state to another state. The bill requires that the 17 31 guardian or conservator seeking the transfer must notify the 17 32 appropriate persons that would be entitled to notice. The 17 33 court hearing the petition for transfer must find that the 17 34 incapacitated or protected person is physically present in or 17 35 is reasonably expected to move permanently to the other state, 18 1 an objection to the transfer either has not been made or has 18 2 not established that the transfer would be contrary to the 18 3 interests of the incapacitated or protected person, and plans 18 4 for care and services for the incapacitated person in the 18 5 other state are reasonable and sufficient or adequate 18 6 arrangements will be made for management of the protected 18 7 person's property. 18 8 PART 4. Part 4 of the bill relates to the enforcement of 18 9 guardianship and conservatorship orders in different states 18 10 and establishes a procedure for registering an existing 18 11 guardianship or conservatorship in another state allowing a 18 12 guardian or conservator to act on behalf of the incapacitated 18 13 or protected person in the second state. The bill requires 18 14 the guardian or conservator to notify the original appointing 18 15 court about the guardian or conservator's intent to register 18 16 in another state. The bill allows the court receiving such 18 17 notice to question the rationale for the transfer and 18 18 communicate and coordinate with the court in the other state. 18 19 PART 5. Part 5 of the bill provides miscellaneous 18 20 provisions relating to the uniformity of application, the 18 21 federal electronic signatures Act, and applicability and 18 22 effective date provisions. 18 23 The bill takes effect July 1, 2010, and applies to 18 24 guardianship and protective proceedings in existence on or 18 25 after that date except a guardian or conservator appointed 18 26 prior to July 1, 2010, may petition to transfer the proceeding 18 27 to another state under part 3 of the bill and register and 18 28 enforce the order in other states pursuant to part 4 of the 18 29 bill. 18 30 LSB 1811HC 83 18 31 rh/rj/8
Text: HSB260            Text: HSB262