ENROLLED
Senate Bill No. 515
(By Senators Jenkins, Foster, Minard, Stollings, Wells, Caruth, Sypolt and
Kessler)
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[Passed April 11, 2009; in effect ninety days from passage.]
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AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new chapter, designated §44C-1-1, §44C-1-2,
§44C-1-3, §44C-1-4, §44C-1-5, §44C-1-6, §44C-2-1, §44C-2-2,
§44C-2-3, §44C-2-4, §44C-2-5, §44C-2-6, §44C-2-7, §44C-2-8,
§44C-3-1, §44C-3-2, §44C-4-1, §44C-4-2, §44C-4-3, §44C-5-1,
§44C-5-2 and §44C-5-3, all relating to enactment of the
Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act; defining terms; authorizing a court in this
state to treat a foreign country as if it were a state;
allowing communication and cooperation between courts for
pending guardianship protective proceedings; providing for
taking testimony of a witness in another state; establishing
jurisdictional basis for guardianship and protective
proceedings; providing guidance for determination of
jurisdiction between states; providing for special jurisdiction in certain situations; providing for exclusive
and continuing jurisdiction for a court that appointed a
guardian or issued a protective order; providing criteria for
determining the appropriate forum for guardianship and
protective proceedings; authorizing a court to decline
jurisdiction because of unjustifiable conduct; providing for
additional notice of proceedings between states; determining
jurisdiction when there are proceedings in more than one
state; providing for transfer of guardianship or
conservatorship to another state; providing criteria for
accepting transfer of guardianship or conservatorship from
another state; providing for registration of guardianship and
protective orders; providing that registration of a
guardianship or protective order from another state allows the
guardian or conservator to exercise his or her powers as
allowed by law in this state; requiring consideration of the
need to promote uniformity of the law when applying and
construing this act; modifying, limiting and superceding
certain provisions of the federal Electronic Signatures in
Global and National Commerce Act; providing that this act
applies to certain guardianship and protective proceedings
begun on or after passage of the act; and providing that this
act applies to certain guardianship and protective proceedings
regardless of when they were begun.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new chapter, designated §44C-1-1, §44C-1-2,
§44C-1-3, §44C-1-4, §44C-1-5, §44C-1-6, §44C-2-1, §44C-2-2,
§44C-2-3, §44C-2-4, §44C-2-5, §44C-2-6, §44C-2-7, §44C-2-8,
§44C-3-1, §44C-3-2, §44C-4-1, §44C-4-2, §44C-4-3, §44C-5-1,
§44C-5-2 and §44C-5-3, all to read as follows:
CHAPTER 44C.
UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE
PROCEEDINGS JURISDICTION ACT.
ARTICLE 1. GENERAL PROVISIONS.
§44C-1-1. Short title.
This chapter may be cited as the Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act and is cited in this
chapter as "this act".
§44C-1-2
. Definitions.
For purposes of this chapter:
(1) "Adult" means an individual who has attained eighteen
years of age.
(2) "Conservator" means a person appointed by the court to
administer the property of an adult, including a person appointed
under section one, article one, chapter forty-four-a of this code.
(3) "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.
(4) "Guardian" means a person appointed by the court to make
decisions regarding the person of an adult, including a person
appointed under article two, chapter forty-four-a of this code.
(5) "Guardianship order" means an order appointing a guardian.
(6) "Guardianship proceeding" means a judicial proceeding in
which an order for the appointment of a guardian is sought or has
been issued.
(7) "Home state" means the state in which the respondent was
physically present, including any period of temporary absence, for
at least six 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 consecutive months ending within the six months prior to the
filing of the petition.
(8) "Incapacitated person" means an adult for whom a guardian
has been appointed.
(9) "Party" means the respondent, petitioner, guardian,
conservator or any other person allowed by the court to participate
in a guardianship or protective proceeding.
(10) "Person", except in the term "incapacitated person or
protected person", means an individual, corporation, business trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any other
legal or commercial entity.
(11) "Protected person", for purposes of this chapter only,
means an adult for whom a protective order, as defined in this
section, has been issued. "Protected person", as used in this
chapter, has the meaning ascribed to it in subsection thirteen-b,
section four, article one, chapter forty-four-a of this code.
(12) "Protective order," for purposes of this chapter only and
notwithstanding the meaning which the term may have outside of this
chapter, means an order appointing a conservator or other order
related to management of an adult's property.
(13) "Protective proceeding" means a judicial proceeding in
which a protective order, as defined in this section, is sought or
has been issued.
(14) "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.
(15) "Respondent" means an adult for whom a protective order
or the appointment of a guardian is sought.
(16) "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. In
determining whether a respondent has a significant connection with
a particular state, the court shall consider:
(A) The location of the respondent's family and other persons
required to be notified of the guardianship or protective
proceeding;
(B) The length of time the respondent at any time was
physically present in the state and the duration of any absence;
(C) The location of the respondent's property; and
(D) The extent to which the respondent has ties to the state
such as voting registration, state or local tax return filing,
vehicle registration, driver's license, social relationship and
receipt of services.
(17) "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.
§44C-1-3. International application.
A court of this state may treat a foreign country as if it
were a state for the purpose of applying this act.
§44C-1-4. 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.
§44C-1-5. 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
state to do any of the following:
(1) Hold an evidentiary hearing;
(2) Order a person in that state to produce evidence or give
testimony pursuant to procedures of that state;
(3) Order that an evaluation or assessment be made of the
respondent;
(4) Order any appropriate investigation of a person involved
in a proceeding;
(5) Forward to the court of this state a certified copy of the
transcript or other record of a hearing under subdivision (1) of
this subsection or any other proceeding, any evidence otherwise
produced under subdivision (2) of this subsection and any
evaluation or assessment prepared in compliance with an order under
subdivision (3) or (4) of this subsection;
(6) Issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to
make a determination, including the respondent or the incapacitated
or protected person;
(7) Issue an order authorizing the release of medical,
financial, criminal or other relevant information in that state,
including protected health information as defined in 45 C. F. R.
Section 164.504, 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.
§44C-1-6. 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.
§44C-2-1. Exclusive basis.
Other provisions of this code notwithstanding, this article
provides the exclusive jurisdictional basis for a court of this
state to appoint a guardian or issue a protective order for an
adult.
§44C-2-2. Determination of jurisdiction.
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 five of
this article;
(3) This state does not have jurisdiction under either
subdivision (1) or (2) of this section, 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
three of this article are met.
§44C-2-3. Special jurisdiction.
(a) A court of this state lacking jurisdiction under section
two of this article has special jurisdiction to do any of the
following:
(1) Appoint a guardian in an emergency for a term not
exceeding ninety 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 those provided in section one, article three of this
chapter.
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.
§44C-2-4. Exclusive and continuing jurisdiction.
Except as otherwise provided in section three of this article,
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.
§44C-2-5. Appropriate forum.
(a) A court of this state having jurisdiction under section
one, article one, chapter forty-four-a of this code or section two
of this article 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:
(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 or conservator.
§44C-2-6. 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:
(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 subsection (c),
section five of this article; and
(C) Whether the court of any other state would have
jurisdiction under factual circumstances in substantial conformity
with the jurisdictional standards of section two of this article.
(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.
§44C-2-7. 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 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.
§44C-2-8. Proceedings in more than one state.
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 three of this article, 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
two of this article, it may proceed with the case unless a court in
another state acquires jurisdiction under provisions similar to
said section before the appointment or issuance of the order.
(2) If the court in this state does not have jurisdiction
under section two of this article, 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.
§44C-3-1. Transfer 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
must be given to the persons who 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 incapacitated 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:
(1) The incapacitated person is physically present in or is
reasonably expected to move permanently to the other state;
(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 incapacitated
person; and
(3) Plans for care and services for the incapacitated 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 or a protective order
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:
(1) The protected person is physically present in or is
reasonably expected to move permanently to the other state or the protected person has a significant connection to the other state;
(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; and
(3) Adequate 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:
(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 two of this article; and
(2) The documents required to terminate a guardianship or
conservatorship in this state.
§44C-3-2. 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 section one
of this article, 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) of this section 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 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:
(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 one of this article
transferring the proceeding to this state.
(f) Not later than ninety 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 or protective 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 or conservator in this state under
article two, chapter forty-four-a of this code if the court has
jurisdiction to make an appointment other than by reason of the
provisional order of transfer.
ARTICLE 4. REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER
STATES.
§44C-4-1. 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.
§44C-4-2. 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.
§44C-4-3. 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.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§44C-5-1. Uniformity of application and construction.
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.
§44C-5-2. 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 said act, 15 U. S. C. Section 7001(c), or
authorize electronic delivery of any of the notices described in
Section 103(b) of said act, 15 U. S. C. Section 7003(b).
§44C-5-3. Transitional provision.
(a) This act applies to guardianship and protective
proceedings begun on or after the effective date of this chapter as
enacted by the seventy-ninth Legislature of West Virginia in 2009.
(b) Articles one, three and four and sections five hundred one
and five hundred two of this article apply to proceedings begun
before the effective date, regardless of whether a guardianship or
protective order has been issued.