Uniform Adult Guardianship Jurisdiction Act.

WORKING DRAFT

ORIGINAL SENATE
FILE

NO.
0039

ENROLLED ACT NO. 15, SENATE

SIXTY-SECOND LEGISLATURE OF THE STATE OF WYOMING
2013 GENERAL SESSION

AN ACT relating to
guardianship and conservators; creating
the Uniform Adult Guardianship and Protective Proceedings
Jurisdiction
Act;
providing definitions;
amending related provisions; providing for applicability;
and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.

W.S. 3
‑
8
‑
101
through 3
‑
8
‑
106, 3
‑
8
‑
201 through 3
‑
8
‑
209, 3
‑
8
‑
301 and 3
‑
8
‑
302, 3
‑
8
‑
401 through 3
‑
8
‑
403 and 3
‑
8
‑
501 and
3
‑
8
‑
502
are created to read:

CHAPTER 8
UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS
JURISDICTION
ACT

ARTICLE 1
GENERAL PROVISIONS

3
‑
8
‑
101.

Short title.

This act may be cited as the
"
Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
"
.

3
‑
8
‑
102.

Definitions.

(a)

As used i
n this act:

(
i
)

"
Adult
"
means an individual who has attained
eighteen (
18
)
years of age
;

(
ii
)

"
Conservator
"
means a person appointed by the court to administer the property of an adult, including a person appointed under
W.S. 3
‑
3
‑
101 through 3
‑
3
‑
1106;

(
iii
)

"
Guardian
"
means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under
W.S. 3
‑
2
‑
101 through 3
‑
2
‑
303;

(
iv
)

"
Guardianship order
"
means an order appointing a guardian
;

(
v
)

"
Guardianship proceeding
"
means a judicial proceeding in which an order for the appointment of a guardia
n is sought or has been issued;

(
vi
)

"
Incompetent
person
"
means an adult for whom
a guardian has been appointed;

(
vii
)

"
Party
"
means the respondent, petitioner, guardian, conservator or any other person allowed by the court to participate in a guardia
nship or protective proceeding;

(
viii
)

"
Protected person
"
means an adult for whom a protective order has been issued
;

(
ix
)

"
Protective order
"
means an order appointing a conservator or other order related to management of an adult
'
s property
;

(
x
)

"
Protective proceeding
"
means a judicial proceeding in which a protective order is sought or has b
een issued;

(
xi
)

"
Record
"
means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is r
etrievable in perceivable form;

(
xii
)

"
Respondent
"
means an adult for whom a protective order or the appointment of a guardian is sought
;

(
xiii
)

"
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
;

(xiv)

"This act" m
eans W.S. 3
‑
8
‑
101 through 3
‑
8
‑
502
.

3
‑
8
‑
103.

International application of act
.

A court of this state may treat a foreign country as if it were a state for the purpose of applying this article and
a
rticles 2, 3 and 5
of this act
.

3
‑
8
‑
104.

Communication between courts.

(a)

A court of this state may communicate with a court in another state concerning a proceeding arising under this act. The court may allow the parties to participate in the communication. Except as otherwise provided in subsection (b)
of this section
, 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.

3
‑
8
‑
105.

Cooperation between courts.

(a)

In a guardianship or protective proceeding in this state, a court of this state may request the appropriate court of another st
ate to do any of the following:

(
i)

H
old an evidentiary hearing;

(
ii
)

O
rder a person in that state to produce evidence or give testimony pursuant to procedures of that state;

(
iii
)

O
rder that an evaluation or assessment be made of the respondent;

(
iv
)

O
rder any appropriate investigation of a person involved in a proceeding;

(
v
)

F
orward to the court of this state a certified copy of the transcript or other record of a hearing under paragraph (
i
)
of this subsection
or any other proceeding, any evidence otherwise produced under paragraph (
ii
)
of this subsection
, and any evaluation or assessment prepared in compliance with an order under paragraph (
iii
) or (
iv
)
of this subsection
;

(
vi
)

I
ssue any order necessary to

assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the
incompetent

or protected person;

(
vii
)

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

(b)

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

3
‑
8
‑
106.

Taking testimony in another state.

(a)

In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in 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 the court of the other state in designating an appropriate location for the deposition or testimony.

(c)

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

ARTICLE 2
JURISDICTION

3
‑
8
‑
201.

Definitions; significant connection factors.

(a)

As used i
n this article:

(
i
)

"
Emergency
"
means a circumstance that likely will result in substantial harm to a respondent
'
s health, safety or welfare and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent
'
s behalf;

(
ii
)

"
Home state
"
means 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; or if none, 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
;

(
iii
)

"
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
.

(b)

In determining under
W.
S
.

3
‑
8
‑
203 and
3
‑
8
‑
301(e) whether a respondent has a significant connection with a particular s
tate, the court shall consider:

(
i
)

T
he location of the respondent
'
s family and other persons required to be notified of the guardianship or protective proceeding;

(
ii
)

T
he length of time the respondent at any time was physically present in the state and the duration of any absence;

(
iii
)

T
he location of the respondent
'
s property; and

(
iv
)

T
he extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver
'
s license, social relationship and receipt of services.

3
‑
8
‑
202.

Exclusive basis
.

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

3
‑
8
‑
203.

Jurisdiction.

(a)

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

(
i
)

T
his state is the respondent
'
s home state;

(
ii
)

O
n the date the petition is filed, this state is a significant-connection state and:

(A)

T
he 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)

T
he 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
)

A
n objection to the court
'
s jurisdiction is not filed by a person required to be notified of the proceeding; and

(
III
)

T
he court in this state concludes that it is an appropriate forum under the factors set forth in
W.
S
. 3
‑
8
‑
206
.

(
iii
)

T
his state does not have jurisdiction under either paragraph (
i
) or (
ii
)
of this subsection
, 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

(
iv
)

T
he requirements for special jurisdiction under
W.
S
. 3
‑
8
‑
204 are met.

3
‑
8
‑
204.

Special jurisdiction.

(a)

A court of this state lacking jurisdiction under
W.
S
.
3
‑
8
‑
203
(a)
(
i
) through (
iii
) has special jurisdiction to do any of the following:

(
i
)

A
ppoint a guardian in an emergency for a term not exceeding
ninety (
90
)
days for a respondent who is physically present in this state;

(
ii
)

I
ssue a protective order with respect to real or tangible personal property located in this state;

(
iii
)

A
ppoint a guardian or conservator for an
incompetent

or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to
W.
S
. 3
‑
8
‑
301.

(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, if any, whether dismissal is requested before or after the emergency appointment.

3
‑
8
‑
205.

Exclusive and continuing jurisdiction.

Except as otherwise provided in
W.
S
. 3
‑
8
‑
204, a court that has appointed a guardian or issued a protective order consistent with this act has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.

3
‑
8
‑
2
06.

A
ppropriate forum.

(a)

A court of this state having jurisdiction under
W.
S
. 3
‑
8
‑
203 to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.

(b)

If a court of this state declines to exercise its jurisdiction under subsection (a)
of this section
, 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:

(
i
)

A
ny expressed preference of the respondent;

(
ii)

W
hether 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;

(
iii
)

T
he length of time the respondent was physically present in or was a legal resident of this or another state;

(
iv)

T
he distance of the respondent from the court in each state;

(
v
)

T
he financial circumstances of the respondent
'
s estate;

(
vi
)

T
he nature and location of the evidence;

(
vii
)

T
he ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;

(
viii
)

T
he familiarity of the court of each state with the facts and issues in the proceeding; and

(
ix
)

I
f an appointment were made, the court
'
s ability to monitor the conduct of the guardian or conservator.

3
‑
8
‑
207.

Jurisdiction declined by reason of conduct.

(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:

(
i
)

D
ecline to exercise jurisdiction;

(
ii
)

E
xercise jurisdiction for the limited purpose of fashioning an appropriate reme
dy 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

(
iii
)

C
ontinue to exercise jurisdiction after considering:

(A)

T
he 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)

W
hether it is a more appropriate forum than the court of any other state under the factors set forth in
W.
S
.

3
‑
8
‑
206(c); and

(C)

W
hether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of
W.
S
.

3
‑
8
‑
203.

(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 act.

3
‑
8
‑
208.

Notice of proceeding.

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

3
‑
8
‑
209.

Proceedings in more than one state.

(a)

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
W.
S
.

3
‑
8
‑
204(a)(
i
) or (
ii
), 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
shall
apply:

(
i
)

If the court in this state has jurisdiction under
W.
S
.

3
‑
8
‑
203, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to
that s
ection before the appoi
ntment or issuance of the order;

(
ii
)

If the court in this state does not have jurisdiction under
W.
S
.

3
‑
8
‑
203, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the other state determines that the court in this state is a more appropriate forum.

ARTICLE 3
TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP

3
‑
8
‑
301.

Transfer of guardianship or conservatorship to another state.

(a)

A guardian or conservator appointed in this state may petition the court to transfer the guardianship or conservatorship to another state.

(b)

Notice of a petition under subsection (a)
of this section

shall
be given to
any
person that would be entitled to notice of a petition in this state for the appointment of a guardian or conservator.

(c)

On the court
'
s own motion or on request of the guardian or conservator, the
incompetent

or protected person or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection (a)
of this section
.

(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:

(
i)

T
he
incompetent

person is physically present in or is reasonably expected to move permanently to the other state;

(
ii
)

A
n 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
incompetent

person; and

(
iii
)

P
lans for care and services for the
incompetent

person in the other state are reasonable and sufficient.

(e)

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

(
i
)

T
he protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors in
W.
S
.

3
‑
8
‑
201(b);

(
ii
)

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

(
iii
)

A
dequate arrangements will be made for management of the protected person
'
s property.

(f)

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

(
i
)

A
provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to
W.
S
.

3
‑
8
‑
302; and

(
ii
)

T
he documents required to terminate a guardianship or conservatorship in this state.

3
‑
8
‑
302.

Accepting guardianship or conservatorship transferred from another state.

(a)

To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to
W.
S
.

3
‑
8
‑
301, the guardian or conservator
shall
petition the court in this state to accept the guardianship or conservatorship. The petition
shall
include a certified copy of the other state
'
s provisional order of transfer.

(b)

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

(c)

On the court
'
s own motion or on request of the guardian or conservator, the
incompetent

or protected person or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (a)
of this section
.

(d)

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

(
i
)

A
n objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the
incompetent

or protected person; or

(
ii
)

T
he 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
W.
S
.

3
‑
8
‑
301 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
incompetent

or protected person
'
s
incompetency
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
shall
not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this state under
W.S. 3
‑
2
‑
101 through 3
‑
3
‑
1106
if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.

(j)

In granting a petition under this section, the court may require any report or impose any duty under W.S. 3
‑
2
‑
109, 3
‑
2
‑
201, 3
‑
2
‑
202, 3
‑
3
‑
601 through 3
‑
3
‑
611 or 3
‑
3
‑
901 and 3
‑
3
‑
902.

ARTICLE 4
REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER STATES

3
‑
8
‑
401.

Registration of guardianship orders.

If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this state, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this state by filing as a foreign judgment in a court, in any appropriate county of this state, certified copies of the order and letters of office.

3
‑
8
‑
402.

Registration of protective orders.

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

3
‑
8
‑
403.

Effect of registration.

(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 act and other law of this state to enforce a registered order.

(c)

Any court in this state issuing a guardianship or protective order pursuant to this act may require the guardian or conservator to file a certified copy of any report or accounting the guardian or conservator files with the court.

ARTICLE 5
MISCELLANEOUS PROVISIONS

3
‑
8
‑
501
.

A
pplication
.

(a)

This act
shall
appl
y
to
any
guardia
nship and protective proceeding
begun on or after the effective date
of this act
.

(b)

Articles 1, 3 and 4

of this act
shall
apply to
any
proceeding begun before the effective date
of this act
, regardless of whether a guardianship or prot
ective order has been issued.

3
‑
8
‑
502.

Relation to electronic signatures in global and national commerce act
.

This act modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. section 7001, et seq., but does not modify, limit or supersede section 101(c) of that act, 15 U.S.C. section 7001(c) or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).

Section 2.

W.S. 3
‑
1
‑
102 and 3
‑
2
‑
101
by creating a new subsection (c)
are amended to read:

3
‑
1
‑
102.

Consent to jurisdiction.

(a)

Except as provided by subsection (b) of this section, b
y accepting appointment, a guardian or conservator submits personally to the jurisdiction of the court in any proceeding relating to the guardianship or conservatorship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or conservator or mailed to him by certified mail at his address listed in the court records and to his address as then known to the petitioner.

(b)

In any matter concerning an adult, the provisions of chapter 8 of this title shall apply and shall
supersede
the terms of subsection (a) of this section.

3
‑
2
‑
101.

Petition for appointment of guardian.

(c)

In any matter concerning an adult, the provisions of chapter 8 of this title shall apply for the purposes of establishing jurisdiction over the matter.

Section
3
.

This act is effective July 1, 2013.

(END)

Speaker of the House

President of the Senate

Governor

TIME APPROVED: _________

DATE APPROVED: _________

I hereby certify that this act originated in the Senate.

Chief Clerk

1