SF 412

1st Engrossment - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:12am

A bill for an act
relating to probate; enacting the Uniform Adult Guardianship and Protective
Proceedings Jurisdiction Act; changing certain jurisdiction transfer provisions;
amending Minnesota Statutes 2008, section 524.5-107; proposing coding for new
law in Minnesota Statutes, chapter 524.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 524.5-107, is amended to read:

524.5-107 TRANSFER OF JURISDICTION.

(a) Following the appointment of a guardian or conservator or entry of another
protective order, the court making the appointment or entering the order may transfer
the proceeding to a court deleted text begin in deleted text end new text begin or new text end another county in this state or new text begin in the case of a minor new text end to
another state if the court is satisfied that a transfer will serve the best interest of the ward
or protected person.

(b) A guardian new text begin of a minor new text end , conservator new text begin of a minor new text end , or like fiduciary new text begin for a minor new text end
appointed in another state may petition the court for appointment as a guardian or
conservator in this state if the state has jurisdiction. The appointment may be made upon
proof of appointment in the other state and presentation of a certified copy of the portion
of the court record in the other state specified by the court in this state. Notice of hearing
on the petition, together with a copy of the petition, must be given to the ward or protected
person, if the ward or protected person has attained 14 years of age, and to the persons
who would be entitled to notice if the regular procedures for appointment of a guardian
or conservator under this article were applicable. The court shall make the appointment
in this state unless it concludes that the appointment would not be in the best interest of
the ward or protected person. Upon the filing of an acceptance of office and any required
bond, the court shall issue appropriate letters of guardianship or conservatorship. Within
14 days after an appointment, the guardian or conservator shall send or deliver a copy of
the order of appointment to the ward or protected person, if the ward or protected person
has attained 14 years of age, and to all persons given notice of the hearing on the petition.

Sec. 2.

new text begin [524.5-601] SHORT TITLE.
new text end

new text begin Sections 524.5-601 to 524.5-903 may be cited as the "Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act."
new text end

Sec. 3.

new text begin [524.5-602] DEFINITIONS.
new text end

new text begin (a) The definitions in this section apply to sections 524.5-602 to 524.5-903.
new text end

new text begin (b) "Adult" means an individual who has attained 18 years of age.
new text end

new text begin (c) "Conservator" means a person appointed by the court to administer the property
of an adult, including a person appointed under sections 524.5-101 to 524.5-502.
new text end

new text begin (d) "Guardian" means a person appointed by the court to make decisions regarding
the person of an adult, including a person appointed under sections 524.5-101 to 524.5-502.
new text end

new text begin (e) "Guardianship order" means an order appointing a guardian.
new text end

new text begin (f) "Guardianship proceeding" means a judicial proceeding in which an order for the
appointment of a guardian is sought or has been issued.
new text end

new text begin (g) "Incapacitated person" means an adult for whom a guardian has been appointed.
new text end

new text begin (h) "Party" means the respondent, petitioner, guardian, conservator, or any other
person allowed by the court to participate in a guardianship or protective proceeding.
new text end

new text begin (i) "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.
new text end

new text begin (j) "Protected person" means an adult for whom a protective order has been issued.
new text end

new text begin (k) "Protective order" means an order appointing a conservator or any other order
related to management of an adult's property.
new text end

new text begin (l) "Protective proceeding" means a judicial proceeding in which an protective
order is sought or has been issued.
new text end

new text begin (m) "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.
new text end

new text begin (n) "Respondent" means an adult for whom a protective order or the appointment
of a guardian is sought.
new text end

new text begin (o) "State" means a state of the United States, the District of Columbia, the
commonwealth of 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.
new text end

Sec. 4.

new text begin [524.5-603] INTERNATIONAL APPLICATION.
new text end

new text begin A court of this state may treat a foreign country as if it were a state for the purpose
of applying sections 524.5-601 to 524.5-903.
new text end

Sec. 5.

new text begin [524.5-604] COMMUNICATION BETWEEN COURTS.
new text end

new text begin (a) A court of this state may communicate with a court in another state concerning
a proceeding arising under sections 524.5-601 to 524.5-903. The court may allow the
parties to participate in the communication. Except as otherwise provided in paragraph
(b), the court shall make a record of the communication. The record may be limited to
the fact that the communication occurred.
new text end

new text begin (b) Courts may communicate concerning schedules, calendars, court records, and
other administrative matters without making a record.
new text end

Sec. 6.

new text begin [524.5-605] COOPERATION BETWEEN COURTS.
new text end

new text begin (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 one or more of the following:
new text end

new text begin (1) hold an evidentiary hearing;
new text end

new text begin (2) order a person in that state to produce evidence or give testimony pursuant to
procedures of that state;
new text end

new text begin (3) order that an evaluation or assessment be made of the respondent;
new text end

new text begin (4) order any appropriate investigation of a person involved in a proceeding;
new text end

new text begin (5) forward to the court of this state a certified copy of the transcript or other record
of a hearing under clause (1) or any other proceeding, any evidence otherwise produced
under clause (2), and any evaluation or assessment prepared in compliance with an order
under clause (3) or (4);
new text end

new text begin (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; and
new text end

new text begin (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
Code of Federal Regulations, title 45, section 164.504.
new text end

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

Sec. 7.

new text begin [524.5-606] TAKING TESTIMONY IN ANOTHER STATE.
new text end

new text begin (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.
new text end

new text begin (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.
new text end

new text begin (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.
new text end

Sec. 8.

new text begin [524.5-701] DEFINITIONS; SIGNIFICANT CONNECTION FACTORS.
new text end

new text begin (a) In sections 524.5-701 to 524.5-709:
new text end

new text begin (1) "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;
new text end

new text begin (2) "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; and
new text end

new text begin (3) "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.
new text end

new text begin (b) In determining under sections 534.5-703 and 524.5-801, paragraph (e), whether a
respondent has a significant connection with a particular state, the court shall consider:
new text end

new text begin (1) the location of the respondent's family and other persons required to be notified
of the guardianship or protective proceeding;
new text end

new text begin (2) the length of time the respondent at any time was physically present in the state
and the duration of any absence;
new text end

new text begin (3) the location of the respondent's property; and
new text end

new text begin (4) the extent to which the respondent has ties to the state such as voting registration,
state or local tax return filling, vehicle registration, driver's license, social relationship,
and receipt of services.
new text end

Sec. 9.

new text begin [524.5-702] EXCLUSIVE BASIS.
new text end

new text begin Sections 524.5-701 to 524.5-709 provide the exclusive jurisdictional basis for a
court of this state to appoint a guardian or issue a protective order for an adult.
new text end

Sec. 10.

new text begin [524.5-703] JURISDICTION.
new text end

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

new text begin (1) this state is the respondent's home state;
new text end

new text begin (2) on the date the petition is filed, this state is a significant-connection state and:
new text end

new text begin (i) 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
new text end

new text begin (ii) 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:
new text end

new text begin (A) a petition for an appointment or order is not filed in the respondent's home state;
new text end

new text begin (B) an objection to the court's jurisdiction is not filed by a person required to be
notified of the proceeding; and
new text end

new text begin (C) the court in this state concludes that it is an appropriate forum under the factors
set forth in section 524.5-706;
new text end

new text begin (3) this state does not have jurisdiction under either clause (1) or (2), the respondent's
home state and all significant-connection states have declined to exercise jurisdiction
because this state is the more appropriate forum, and jurisdiction in this state is consistent
with the constitutions of this state and the United States; or
new text end

new text begin (4) the requirements for special jurisdiction under section 524.5-704 are met.
new text end

Sec. 11.

new text begin [524.5-704] SPECIAL JURISDICTION.
new text end

new text begin (a) A court of this state lacking jurisdiction under section 524.5-703 has special
jurisdiction to do any of the following:
new text end

new text begin (1) appoint a guardian in an emergency for a term not exceeding 90 days for a
respondent who is physically present in this state;
new text end

new text begin (2) issue a protective order with respect to real or tangible personal property located
in this state; and
new text end

new text begin (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 section 524.5-801.
new text end

new text begin (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.
new text end

Sec. 12.

new text begin [524.5-705] EXCLUSIVE AND CONTINUING JURISDICTION.
new text end

new text begin Except as otherwise provided in section 524.5-704, a court that has appointed a
guardian or issued a protective order consistent with sections 524.5-601 to 524.5-903 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.
new text end

Sec. 13.

new text begin [524.5-706] APPROPRIATE FORUM.
new text end

new text begin (a) A court of this state having jurisdiction under section 524.5-703 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.
new text end

new text begin (b) If a court of this state declines to exercise its jurisdiction under paragraph (a), it
shall either dismiss or stay the proceeding. The court may impose any condition the court
considers just and proper, including the condition that a petition for the appointment of a
guardian or issuance of a protective order be filed promptly in another state.
new text end

new text begin (c) In determining whether it is an appropriate forum, the court shall consider all
relevant factors, including:
new text end

new text begin (1) any expressed preference of the respondent;
new text end

new text begin (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;
new text end

new text begin (3) the length of time the respondent was physically present in or was a legal
resident of this or another state;
new text end

new text begin (4) the distance of the respondent from the court in each state;
new text end

new text begin (5) the financial circumstances of the respondent's estate;
new text end

new text begin (6) the nature and location of the evidence;
new text end

new text begin (7) the ability of the court in each state to decide the issue expeditiously and the
procedures necessary to present evidence;
new text end

new text begin (8) the familiarity of the court of each state with the facts and issues in the
proceeding; and
new text end

new text begin (9) if an appointment were made, the court's ability to monitor the conduct of the
guardian or conservator.
new text end

Sec. 14.

new text begin [524.5-707] JURISDICTION DECLINED BY REASON OF CONDUCT.
new text end

new text begin (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:
new text end

new text begin (1) decline to exercise jurisdiction;
new text end

new text begin (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
new text end

new text begin (3) continue to exercise jurisdiction after considering:
new text end

new text begin (i) 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;
new text end

new text begin (ii) whether it is a more appropriate forum than the court of any other state under the
factors set forth in section 524.5-706, paragraph (c); and
new text end

new text begin (iii) whether the court of any other state would have jurisdiction under factual
circumstances in substantial conformity with the jurisdictional standards of section
524.5-703.
new text end

new text begin (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 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 sections 524.5-601 to 524.5-903.
new text end

Sec. 15.

new text begin [524.5-708] NOTICE OF PROCEEDING.
new text end

new text begin 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.
new text end

Sec. 16.

new text begin [524.5-709] PROCEEDINGS IN MORE THAN ONE STATE.
new text end

new text begin 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 524.5-704,
paragraph (a), clause (1) or (2), 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:
new text end

new text begin (1) If the court in this state has jurisdiction under section 524.5-703, it may proceed
with the case unless a court in another state acquires jurisdiction under provisions similar
to section 524.5-703 before the appointment or issuance of the order.
new text end

new text begin (2) If the court in this state does not have jurisdiction under section 524.5-703,
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.
new text end

Sec. 17.

new text begin [524.5-801] TRANSFER OF GUARDIANSHIP OR
CONSERVATORSHIP TO ANOTHER STATE.
new text end

new text begin (a) A guardian or conservator appointed in this state may petition the court to
transfer the guardianship or conservatorship to another state.
new text end

new text begin (b) Notice of a petition under paragraph (a) must be given to the persons that
would be entitled to notice of a petition in this state for the appointment of a guardian
or conservator.
new text end

new text begin (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 paragraph (a).
new text end

new text begin (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:
new text end

new text begin (1) the incapacitated person is physically present in or is reasonably expected to
move permanently to the other state;
new text end

new text begin (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
new text end

new text begin (3) plans for care and services for the incapacitated person in the other state are
reasonable and sufficient.
new text end

new text begin (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:
new text end

new text begin (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 considering the factors in section 524.5-701, paragraph (b);
new text end

new text begin (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
new text end

new text begin (3) adequate arrangements will be made for management of the protected person's
property.
new text end

new text begin (f) The court shall issue a final order confirming the transfer and terminating the
guardianship or conservatorship upon its receipt of:
new text end

new text begin (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
524.5-802; and
new text end

new text begin (2) the documents required to terminate a guardianship or conservatorship in this
state.
new text end

Sec. 18.

new text begin [524.5-802] ACCEPTING GUARDIANSHIP OR CONSERVATORSHIP
TRANSFERRED FROM ANOTHER STATE.
new text end

new text begin (a) To confirm transfer of a guardianship or conservatorship transferred to this state
under provisions similar to section 524.5-801, 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.
new text end

new text begin (b) Notice of a petition under paragraph (a) must be given to those persons that
would be entitled to notice if the petition were a petition for the appointment of a guardian
or issuance of a protective order in both the transferring state and this state. The notice
must be given in the same manner as notice is required to be given in this state.
new text end

new text begin (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 paragraph (a).
new text end

new text begin (d) The court shall issue an order provisionally granting a petition filed under
paragraph (a) unless:
new text end

new text begin (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
new text end

new text begin (2) the guardian or conservator is ineligible for appointment in this state.
new text end

new text begin (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 524.5-801 transferring the proceeding to this state.
new text end

new text begin (f) Not later than 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.
new text end

new text begin (g) In granting a petition under this section, the court shall recognize a guardianship
or conservatorship order from the other state, including the determination of the
incapacitated or protected person's incapacity and the appointment of the guardian or
conservator.
new text end

new text begin (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 sections
524.5-101 to 524.5-502 if the court has jurisdiction to make an appointment other than by
reason of the provisional order of transfer.
new text end

Sec. 19.

new text begin [524.5-901] REGISTRATION OF GUARDIANSHIP ORDERS.
new text end

new text begin 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.
new text end

Sec. 20.

new text begin [524.5-902] REGISTRATION OF PROTECTIVE ORDERS.
new text end

new text begin 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.
new text end

Sec. 21.

new text begin [524.5-903] EFFECT OF REGISTRATION.
new text end

new text begin (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.
new text end

new text begin (b) A court of this state may grant relief available under sections 524.5-601 to
524.5-903 and other law of this state to enforce a registered order.
new text end

Sec. 22. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 21 are effective January 1, 2010, and apply to guardianship and
protective proceedings begun on or after that date, except that Minnesota Statutes, sections
524.5-601 to 524.5-606 and 524.5-801 to 524.5-903, apply to proceedings begun before
that date, regardless of whether a guardianship or protective order has been issued.
new text end