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To amend sections 2111.01 and 2111.02, to enact | 1 |
sections 2111.022, 2112.01, 2112.011, 2112.02, | 2 |
2112.03, 2112.04, 2112.05, 2112.21, 2112.22, | 3 |
2112.23, 2112.24, 2112.25, 2112.26, 2112.27, | 4 |
2112.31, 2112.32, 2112.41, 2112.42, and 2112.43, | 5 |
and to repeal section 2111.41 of the Revised Code | 6 |
to adopt the Adult Guardianship and Protective | 7 |
Proceedings Jurisdiction Act. | 8 |
Section 1. That sections 2111.01 and 2111.02 be amended and | 9 |
sections 2111.022, 2112.01, 2112.011, 2112.02, 2112.03, 2112.04, | 10 |
2112.05, 2112.21, 2112.22, 2112.23, 2112.24, 2112.25, 2112.26, | 11 |
2112.27, 2112.31, 2112.32, 2112.41, 2112.42, and 2112.43 of the | 12 |
Revised Code be enacted to read as follows: | 13 |
Sec. 2111.01. As used in Chapters 2101. to 2131. of the | 14 |
Revised Code: | 15 |
(A) "Guardian," other than a guardian under sections 5905.01 | 16 |
to 5905.19 of the Revised Code, means any person, association, or | 17 |
corporation appointed by the probate court to have the care and | 18 |
management of the person, the estate, or both of an incompetent or | 19 |
minor. When applicable, "guardian" includes, but is not limited | 20 |
to, a limited guardian, an interim guardian, a standby guardian, | 21 |
and an emergency guardian appointed pursuant to division (B) of | 22 |
section 2111.02 of the Revised Code. "Guardian" also includes an | 23 |
agency under contract with the department of developmental | 24 |
disabilities for the provision of protective service under | 25 |
sections 5123.55 to 5123.59 of the Revised Code when appointed by | 26 |
the probate court to have the care and management of the person of | 27 |
an incompetent. | 28 |
(B) "Ward" means any person for whom a guardian is acting or | 29 |
for whom the probate court is acting pursuant to section 2111.50 | 30 |
of the Revised Code. | 31 |
(C) "Resident guardian" means a guardian appointed by a | 32 |
probate court to have the care and management of property in this | 33 |
state that belongs to a nonresident ward. | 34 |
(D) "Incompetent" means any person who is so mentally | 35 |
impaired as a result of a mental or physical illness or | 36 |
disability, or mental retardation, or as a result of chronic | 37 |
substance abuse, that the person is incapable of taking proper | 38 |
care of the person's self or property or fails to provide for the | 39 |
person's family or other persons for whom the person is charged by | 40 |
law to provide, or any person confined to a correctional | 41 |
institution within this state. | 42 |
(E) "Next of kin" means any person who would be entitled to | 43 |
inherit from a ward under Chapter 2105. of the Revised Code if the | 44 |
ward dies intestate. | 45 |
(F) "Conservator" means a conservator appointed by the | 46 |
probate court in an order of conservatorship issued pursuant to | 47 |
section 2111.021 of the Revised Code. | 48 |
(G) "Parent" means a natural parent or adoptive parent of a | 49 |
minor child whose parental rights and responsibilities have not | 50 |
been terminated by a juvenile court or another court. | 51 |
(H) "Financial harm" means impairment of an individual's | 52 |
financial assets by unlawfully obtaining or exerting control over | 53 |
the individual's real or personal property in any of the following | 54 |
ways: | 55 |
(1) Without the consent of the individual or the person | 56 |
authorized to give consent on the individual's behalf; | 57 |
(2) Beyond the scope of the express or implied consent of the | 58 |
individual or the person authorized to give consent on the | 59 |
individual's behalf; | 60 |
(3) By deception; | 61 |
(4) By threat; | 62 |
(5) By intimidation; | 63 |
(6) By fraud; | 64 |
(7) By undue influence. | 65 |
Sec. 2111.02. (A) If found necessary, | 66 |
its own motion or on application by any interested party shall | 67 |
appoint, subject to divisions (C) and (D) of this section and to | 68 |
section 2109.21 and division (B) of section 2111.121 of the | 69 |
Revised Code, a guardian of the person, the estate, or both, of a | 70 |
minor or incompetent, provided the person for whom the guardian is | 71 |
to be appointed is a resident of the county or has a legal | 72 |
settlement in the county | 73 |
74 | |
adult, the person must be a qualified respondent as described in | 75 |
section 2112.21 of the Revised Code and have the opportunity to | 76 |
have the assistance of counsel in the proceeding for the | 77 |
appointment of that guardian. An interested party includes, but is | 78 |
not limited to, a person nominated in a durable power of attorney | 79 |
under section 1337.24 of the Revised Code or in a writing as | 80 |
described in division (A) of section 2111.121 of the Revised Code. | 81 |
Except when the guardian of an incompetent is an agency under | 82 |
contract with the department of developmental disabilities for the | 83 |
provision of protective services under sections 5123.55 to 5123.59 | 84 |
of the Revised Code, the guardian of an incompetent, by virtue of | 85 |
the appointment as guardian, shall be the guardian of the minor | 86 |
children of the guardian's ward, unless the court appoints some | 87 |
other person as their guardian. | 88 |
When the primary purpose of the appointment of a guardian is, | 89 |
or was, the collection, disbursement, or administration of moneys | 90 |
awarded by the veterans administration to the ward, or assets | 91 |
derived from those moneys, no court costs shall be charged in the | 92 |
proceeding for the appointment or in any subsequent proceedings | 93 |
made in pursuance of the appointment, unless the value of the | 94 |
estate, including the moneys then due under the veterans | 95 |
administration award, exceeds one thousand five hundred dollars. | 96 |
(B)(1) If the probate court finds it to be in the best | 97 |
interest of an incompetent or minor, it may appoint pursuant to | 98 |
divisions (A) and (C) of this section, on its own motion or on | 99 |
application by an interested party, a limited guardian with | 100 |
specific limited powers. The sections of the Revised Code, rules, | 101 |
and procedures governing guardianships apply to a limited | 102 |
guardian, except that the order of appointment and letters of | 103 |
authority of a limited guardian shall state the reasons for, and | 104 |
specify the limited powers of, the guardian. The court may appoint | 105 |
a limited guardian for a definite or indefinite period. An | 106 |
incompetent or minor for whom a limited guardian has been | 107 |
appointed retains all of the incompetent's or minor's rights in | 108 |
all areas not affected by the court order appointing the limited | 109 |
guardian. | 110 |
(2) If a guardian appointed pursuant to division (A) of this | 111 |
section is temporarily or permanently removed or resigns, and if | 112 |
the welfare of the ward requires immediate action, at any time | 113 |
after the removal or resignation, the probate court may appoint, | 114 |
ex parte and with or without notice to the ward or interested | 115 |
parties, an interim guardian for a maximum period of fifteen days. | 116 |
If the court appoints the interim guardian ex parte or without | 117 |
notice to the ward, the court, at its first opportunity, shall | 118 |
enter upon its journal with specificity the reason for acting ex | 119 |
parte or without notice, and, as soon as possible, shall serve | 120 |
upon the ward a copy of the order appointing the interim guardian. | 121 |
For good cause shown, after notice to the ward and interested | 122 |
parties and after hearing, the court may extend an interim | 123 |
guardianship for a specified period, but not to exceed an | 124 |
additional thirty days. | 125 |
(3) If a minor or incompetent has not been placed under a | 126 |
guardianship pursuant to division (A) of this section and if an | 127 |
emergency exists and it is reasonably certain that immediate | 128 |
action is required to prevent significant injury to the person or | 129 |
estate of the minor or incompetent, at any time after it receives | 130 |
notice of the emergency, the court, ex parte, may issue any order | 131 |
that it considers necessary to prevent injury to the person or | 132 |
estate of the minor or incompetent, or may appoint an emergency | 133 |
guardian for a maximum period of seventy-two hours. A written copy | 134 |
of any order issued by a court under this division shall be served | 135 |
upon the incompetent or minor as soon as possible after its | 136 |
issuance. Failure to serve that order after its issuance or prior | 137 |
to the taking of any action under its authority does not | 138 |
invalidate the order or the actions taken. The powers of an | 139 |
emergency guardian shall be specified in the letters of | 140 |
appointment, and shall be limited to those powers that are | 141 |
necessary to prevent injury to the person or estate of the minor | 142 |
or incompetent. If the court acts ex parte or without notice to | 143 |
the minor or incompetent, the court, at its first opportunity, | 144 |
shall enter upon its journal a record of the case and, with | 145 |
specificity, the reason for acting ex parte or without notice. For | 146 |
good cause shown, after notice to the minor or incompetent and | 147 |
interested parties, and after hearing, the court may extend an | 148 |
emergency guardianship for a specified period, but not to exceed | 149 |
an additional thirty days. | 150 |
(C) Prior to the appointment of a guardian or limited | 151 |
guardian under division (A) or (B)(1) of this section, the court | 152 |
shall conduct a hearing on the matter of the appointment. The | 153 |
hearing shall be conducted in accordance with all of the | 154 |
following: | 155 |
(1) The proposed guardian or limited guardian shall appear at | 156 |
the hearing and, if appointed, shall swear under oath that the | 157 |
proposed guardian or limited guardian has made and will continue | 158 |
to make diligent efforts to file a true inventory in accordance | 159 |
with section 2111.14 of the Revised Code and find and report all | 160 |
assets belonging to the estate of the ward and that the proposed | 161 |
guardian or limited guardian faithfully and completely will | 162 |
fulfill the other duties of guardian, including the filing of | 163 |
timely and accurate reports and accountings. | 164 |
(2) If the hearing is conducted by a magistrate, the | 165 |
procedures set forth in Civil Rule 53 shall be followed. | 166 |
(3) If the hearing concerns the appointment of a guardian or | 167 |
limited guardian for an alleged incompetent, the burden of proving | 168 |
incompetency shall be by clear and convincing evidence. | 169 |
(4) Upon request of the applicant, the alleged incompetent | 170 |
for whom the appointment is sought or the alleged incompetent's | 171 |
counsel, or any interested party, a recording or record of the | 172 |
hearing shall be made. | 173 |
(5) Evidence of a less restrictive alternative to | 174 |
guardianship may be introduced, and when introduced, shall be | 175 |
considered by the court. | 176 |
(6) The court may deny a guardianship based upon a finding | 177 |
that a less restrictive alternative to guardianship exists. | 178 |
(7) If the hearing concerns the appointment of a guardian or | 179 |
limited guardian for an alleged incompetent, the alleged | 180 |
incompetent has all of the following rights: | 181 |
(a) The right to be represented by independent counsel of the | 182 |
alleged incompetent's choice; | 183 |
(b) The right to have a friend or family member of the | 184 |
alleged incompetent's choice present; | 185 |
(c) The right to have evidence of an independent expert | 186 |
evaluation introduced; | 187 |
(d) If the alleged incompetent is indigent, upon the alleged | 188 |
incompetent's request: | 189 |
(i) The right to have counsel and an independent expert | 190 |
evaluator appointed at court expense; | 191 |
(ii) If the guardianship, limited guardianship, or standby | 192 |
guardianship decision is appealed, the right to have counsel | 193 |
appointed and necessary transcripts for appeal prepared at court | 194 |
expense. | 195 |
(D)(1) If a person has been nominated to be a guardian of the | 196 |
estate of a minor in or pursuant to a durable power of attorney | 197 |
under section 1337.24 of the Revised Code or a writing as | 198 |
described in division (A) of section 2111.121 of the Revised Code, | 199 |
the person nominated has preference in appointment over a person | 200 |
selected by the minor. A person who has been nominated to be a | 201 |
guardian of the person of a minor in or pursuant to a durable | 202 |
power of attorney or writing of that nature does not have | 203 |
preference in appointment over a person selected by the minor, but | 204 |
the probate court may appoint the person named in the durable | 205 |
power of attorney or the writing, the person selected by the | 206 |
minor, or another person as guardian of the person of the minor. | 207 |
(2) A person nominated as a guardian of an incompetent adult | 208 |
child pursuant to a durable power of attorney under section | 209 |
1337.24 or pursuant to section 2111.121 of the Revised Code shall | 210 |
have preference in appointment over a person applying to be | 211 |
guardian if the person nominated is competent, suitable, and | 212 |
willing to accept the appointment, and if the incompetent adult | 213 |
child does not have a spouse or an adult child and has not | 214 |
designated a guardian prior to the court finding the adult child | 215 |
incompetent. | 216 |
Sec. 2111.022. (A) A probate court, on its own motion or on | 217 |
application of an interested party, may issue an emergency ex | 218 |
parte order freezing the financial assets of an individual whom | 219 |
the court or applicant has reason to believe is missing or has | 220 |
gone or been taken to another state if it is reasonably certain | 221 |
that immediate action is required to prevent significant financial | 222 |
harm to the individual. The order may freeze the individual's | 223 |
assets for a period not exceeding seventy-two hours. If the | 224 |
individual is located, a written copy of the order shall be served | 225 |
upon the individual as soon as possible after its issuance. The | 226 |
court, at its first opportunity, shall enter upon its journal a | 227 |
record of the case and, with specificity, the reason for the | 228 |
action. For good cause shown, after notice to the individual and | 229 |
after a hearing, the court may extend the emergency order for a | 230 |
specified period of not more than thirty additional days. | 231 |
(B) The powers of the probate court under this section are in | 232 |
addition to and not in derogation of any powers the court has | 233 |
under division (B)(3) of section 2111.02 of the Revised Code. | 234 |
Sec. 2112.01. As used in this chapter: | 235 |
(A) "Adult" means an individual who is eighteen years of age | 236 |
or older. | 237 |
(B) "Guardian" has the same meaning as in section 2111.01 of | 238 |
the Revised Code. | 239 |
(C) "Guardian of the person" means a person appointed by the | 240 |
court to make decisions regarding the support, care, education, | 241 |
health, and welfare of a ward. "Guardian of the person" does not | 242 |
include a guardian ad litem. | 243 |
(D) "Guardian of the estate" means a person appointed by the | 244 |
court to administer the estate of a ward. | 245 |
(E) "Ward" means any adult who has been adjudicated | 246 |
incompetent and for whom a guardian is acting or for whom the | 247 |
probate court is acting pursuant to section 2111.50 of the Revised | 248 |
Code. | 249 |
(F) "Emergency" means a circumstance that makes it reasonably | 250 |
certain that immediate action is required to prevent significant | 251 |
injury to a respondent's health, safety, welfare, or property and | 252 |
for which the appointment of a guardian or issuance of a | 253 |
protective order is necessary because no other person has | 254 |
authority and is willing to act on the respondent's behalf. | 255 |
(G) "Guardianship order" means an order appointing a | 256 |
guardian. | 257 |
(H) "Guardianship proceeding" means a judicial proceeding in | 258 |
which an order for the appointment of a guardian is sought or has | 259 |
been issued. | 260 |
(I) "Home state" means the state in which the respondent was | 261 |
physically present, including any period of temporary absence, for | 262 |
at least six consecutive months immediately before the filing of | 263 |
an application for appointment of a guardian or the issuance of a | 264 |
protective order or, if none, the state in which the respondent | 265 |
was physically present, including any period of temporary absence, | 266 |
for at least six consecutive months ending within the six months | 267 |
prior to the filing of the application. | 268 |
(J) "Party" means the respondent, applicant, guardian, or | 269 |
other person allowed by the court to participate in a guardianship | 270 |
or protective proceeding. | 271 |
(K) "Person," except in the terms guardian of the person and | 272 |
protected person, means an individual, parent, corporation, | 273 |
business trust, estate, trust, partnership, limited liability | 274 |
company, association, joint venture, government, governmental | 275 |
agency or instrumentality, public corporation, or other legal or | 276 |
commercial entity. | 277 |
(L) "Protected person" means an adult for whom a protective | 278 |
order has been issued. | 279 |
(M) "Protective order" means an order appointing a guardian | 280 |
or other order under division (B)(3) of section 2111.02 of the | 281 |
Revised Code related to the management of an adult's person, | 282 |
property, or both or an order under section 2111.022 of the | 283 |
Revised Code related to the management of an individual's | 284 |
property. | 285 |
(N) "Protective proceeding" means a judicial proceeding in | 286 |
which a protective order is sought or has been issued. | 287 |
(O) "Record" means information that is inscribed on a | 288 |
tangible medium or that is stored in an electronic or other medium | 289 |
and is retrievable in perceivable form. | 290 |
(P) "Respondent" means an adult for whom a protective order | 291 |
or the appointment of a guardian is sought. | 292 |
(Q) "Significant-connection state" means a state, other than | 293 |
the home state, with which a respondent has a significant | 294 |
connection other than mere physical presence and in which | 295 |
substantial evidence concerning the respondent is available. | 296 |
(R) "Incompetent" has the same meaning as in section 2111.01 | 297 |
of the Revised Code. | 298 |
(S) "State" means a state of the United States, the District | 299 |
of Columbia, Puerto Rico, the United States Virgin Islands, or any | 300 |
territory or insular possession subject to the jurisdiction of the | 301 |
United States. "State" includes an Indian tribe or band that is | 302 |
recognized by federal law or formally acknowledged by a state. | 303 |
Sec. 2112.011. Chapter 2112. of the Revised Code may be | 304 |
cited as the Adult Guardianship and Protective Proceedings | 305 |
Jurisdiction Act. | 306 |
Sec. 2112.02. A probate court of this state may treat a | 307 |
foreign country as if it were a state for the purpose of applying | 308 |
this chapter. | 309 |
Sec. 2112.03. (A) A probate court of this state may | 310 |
communicate with a court in another state concerning a proceeding | 311 |
arising under this chapter. The probate court may allow the | 312 |
parties to participate in the communication. Except as otherwise | 313 |
provided in division (B) of this section, the probate court shall | 314 |
make a record of the communication. The record may be limited to | 315 |
the fact that the communication occurred. | 316 |
(B) Probate courts may communicate concerning schedules, | 317 |
calendars, court records, and other administrative matters without | 318 |
making a record. | 319 |
Sec. 2112.04. (A) In a guardianship or protective proceeding | 320 |
in this state, a probate court of this state may request the | 321 |
appropriate court of another state to do any of the following: | 322 |
(1) Hold an evidentiary hearing; | 323 |
(2) Order a person in that state to produce evidence or give | 324 |
testimony pursuant to the procedures of that state; | 325 |
(3) Order that an evaluation or assessment be made of the | 326 |
respondent; | 327 |
(4) Order any appropriate investigation of a person involved | 328 |
in the proceeding; | 329 |
(5) Forward to the probate court of this state a certified | 330 |
copy of the transcript or other record of a hearing under division | 331 |
(A)(1) of this section or any other proceeding, any evidence | 332 |
otherwise produced under division (A)(2) of this section, and any | 333 |
evaluation or assessment prepared in compliance with an order | 334 |
under division (A)(3) or (4) of this section; | 335 |
(6) Issue any order necessary to assure the appearance in the | 336 |
proceeding of a person whose presence is necessary for the probate | 337 |
court to make a determination, including the respondent, ward, or | 338 |
a protected person; | 339 |
(7) Issue an order authorizing the release of medical, | 340 |
financial, criminal, or other relevant information in that state, | 341 |
including protected health information as authorized in 45 C.F.R. | 342 |
164.504, as amended. | 343 |
(B) If a court of another state in which a guardianship or | 344 |
protective proceeding is pending requests assistance of the kind | 345 |
provided in division (A) of this section, a probate court of this | 346 |
state has jurisdiction for the limited purpose of granting the | 347 |
request or making reasonable efforts to comply with the request. A | 348 |
probate court of this state may require an advance deposit for | 349 |
costs in an amount sufficient to obtain or provide the requested | 350 |
assistance. | 351 |
Sec. 2112.05. (A) In a guardianship proceeding or protective | 352 |
proceeding, in addition to other procedures that may be available, | 353 |
the testimony of a witness who is located in another state may be | 354 |
offered by deposition or other means allowable in this state for | 355 |
testimony taken in another state. The probate court on the court's | 356 |
own motion may order that the testimony of a witness be taken in | 357 |
another state and may prescribe the manner in which and the terms | 358 |
upon which the testimony is to be taken. | 359 |
(B) In a guardianship or protective proceeding, a probate | 360 |
court in this state may permit a witness located in another state | 361 |
to be deposed or to testify by telephone, audiovisual, or other | 362 |
electronic means. A probate court of this state shall cooperate | 363 |
with the court of the other state in designating an appropriate | 364 |
location for the deposition or testimony. | 365 |
(C) Documentary evidence transmitted from another state to a | 366 |
probate court of this state by technological means that do not | 367 |
produce an original writing may not be excluded from evidence on | 368 |
an objection based on the best evidence rule. | 369 |
(D) A probate court of this state may adopt local rules of | 370 |
practice that promote the use of any device or procedure to | 371 |
facilitate the expeditious disposition of the cases. | 372 |
Sec. 2112.21. (A) A probate court of this state has | 373 |
jurisdiction to appoint a guardian or issue a protective order for | 374 |
a respondent if any of the following applies: | 375 |
(1) This state is the respondent's home state. | 376 |
(2) On the date that the application is filed, this state is | 377 |
a significant-connection state, and either of the following | 378 |
applies: | 379 |
(a) The respondent does not have a home state, or a court of | 380 |
the respondent's home state has declined to exercise jurisdiction | 381 |
because this state is a more appropriate forum. | 382 |
(b) The respondent has a home state, a petition for an | 383 |
appointment or order is not pending in a court of that state or | 384 |
another significant-connection state, and before the probate court | 385 |
makes the appointment or issues the order all of the following | 386 |
apply: | 387 |
(i) An application for an appointment or order is not filed | 388 |
in the respondent's home state. | 389 |
(ii) An objection to the probate court's jurisdiction is not | 390 |
filed by a person required to be notified of the proceeding. | 391 |
(iii) The probate court in this state concludes that the | 392 |
probate court is an appropriate forum under the factors set forth | 393 |
in section 2112.24 of the Revised Code. | 394 |
(3) This state does not have jurisdiction under division (A) | 395 |
or (B) of this section, the respondent's home state and all | 396 |
significant-connection states have declined to exercise | 397 |
jurisdiction because this state is the more appropriate forum, and | 398 |
jurisdiction in this state is consistent with the constitutions of | 399 |
this state and the United States. | 400 |
(4) The requirements for special jurisdiction under section | 401 |
2112.22 of the Revised Code are met. | 402 |
(B) In determining whether a respondent has a significant | 403 |
connection with a particular state for purposes of this section, | 404 |
the probate court may consider any of the following: | 405 |
(1) The location of the respondent's family and other persons | 406 |
required to be notified of the guardianship or protective | 407 |
proceeding; | 408 |
(2) The length of time the respondent at any time was | 409 |
physically present in the state and the duration of any absence; | 410 |
(3) The location of the respondent's property; | 411 |
(4) The extent to which the respondent has ties to the state, | 412 |
including, but not limited to, voting registration, state or local | 413 |
tax return filing, vehicle registration, driver's license, social | 414 |
relationships, and receipt of services. | 415 |
Sec. 2112.22. (A) A probate court of this state lacking | 416 |
jurisdiction under section 2112.21 of the Revised Code has special | 417 |
jurisdiction to do any of the following: | 418 |
(1) Appoint a guardian in an emergency for a respondent who | 419 |
is physically present in this state; | 420 |
(2) Issue a protective order in an emergency with respect to | 421 |
the adult or to the real or tangible personal property located in | 422 |
this state; | 423 |
(3) Appoint a guardian for a ward or protected person for | 424 |
whom a provisional order to transfer the proceeding from another | 425 |
state has been issued under procedures similar to section 2112.31 | 426 |
of the Revised Code. | 427 |
(B) If an application for the appointment of a guardian in an | 428 |
emergency is brought in this state and this state was not the | 429 |
respondent's home state on the date that the application was | 430 |
filed, the probate court shall dismiss the proceeding at the | 431 |
request of the court of the home state, if any, whether dismissal | 432 |
is requested before or after the emergency appointment. | 433 |
Sec. 2112.23. Except as otherwise provided in section | 434 |
2112.22 of the Revised Code, a probate court that has appointed a | 435 |
guardian or issued a protective order consistent with this chapter | 436 |
has exclusive and continuing jurisdiction over the proceeding | 437 |
until it is terminated by the probate court or the appointment or | 438 |
order expires by the appointment's or order's own terms. | 439 |
Sec. 2112.24. (A) A probate court of this state having | 440 |
jurisdiction under section 2112.21 of the Revised Code to appoint | 441 |
a guardian or issue a protective order may decline to exercise the | 442 |
court's jurisdiction if the probate court determines at any time | 443 |
that a court of another state is a more appropriate forum. | 444 |
(B) If a probate court of this state declines to exercise the | 445 |
court's jurisdiction under division (A) of this section, the | 446 |
probate court shall either dismiss or stay the proceeding. The | 447 |
probate court may impose any condition that the probate court | 448 |
considers just and proper, including the condition that an | 449 |
application for the appointment of a guardian or issuance of a | 450 |
protective order be filed promptly in another state. | 451 |
(C) In determining whether it is an appropriate forum, the | 452 |
probate court shall consider all relevant factors, including, but | 453 |
not limited to, the following: | 454 |
(1) Any expressed preference of the respondent; | 455 |
(2) Whether abuse, neglect, or exploitation of the respondent | 456 |
has occurred or is likely to occur and which state could best | 457 |
protect the respondent from the abuse, neglect, or exploitation; | 458 |
(3) The length of time the respondent was physically present | 459 |
in or was a legal resident of this or another state; | 460 |
(4) The distance of the respondent from the court in each | 461 |
state; | 462 |
(5) The financial circumstances of the respondent's estate; | 463 |
(6) The nature and location of the evidence; | 464 |
(7) The ability of the court in each state to decide the | 465 |
issue expeditiously and the procedures necessary to present | 466 |
evidence; | 467 |
(8) The familiarity of the court of each state with the facts | 468 |
and issues in the proceeding; | 469 |
(9) The probate court's ability, if an appointment were made, | 470 |
to monitor the conduct of the guardian; | 471 |
(10) Any other factors that the probate court considers | 472 |
relevant. | 473 |
Sec. 2112.25. (A) If at any time a probate court of this | 474 |
state determines that the probate court has acquired jurisdiction | 475 |
to appoint a guardian or issue a protective order because of | 476 |
unjustifiable conduct, the probate court may do any of the | 477 |
following: | 478 |
(1) Decline to exercise jurisdiction; | 479 |
(2) Exercise jurisdiction for the limited purpose of | 480 |
fashioning an appropriate remedy to ensure the health, safety, and | 481 |
welfare of the respondent or the protection of the respondent's | 482 |
property or to prevent a repetition of the unjustifiable conduct, | 483 |
including staying the proceeding until an application for the | 484 |
appointment of a guardian or issuance of a protective order is | 485 |
filed in a court of another state having jurisdiction; | 486 |
(3) Continue to exercise jurisdiction after considering all | 487 |
of the following: | 488 |
(a) The extent to which the respondent and all persons | 489 |
required to be notified of the proceedings have acquiesced in the | 490 |
exercise of the probate court's jurisdiction; | 491 |
(b) Whether the probate court is a more appropriate forum | 492 |
than the court of any other state under the factors set forth in | 493 |
division (C) of section 2112.24 of the Revised Code; | 494 |
(c) Whether the court of any other state would have | 495 |
jurisdiction under factual circumstances in substantial conformity | 496 |
with the jurisdictional standards of section 2112.21 of the | 497 |
Revised Code. | 498 |
(B) If a probate court of this state determines that the | 499 |
probate court has acquired jurisdiction to appoint a guardian or | 500 |
issue a protective order because a party seeking to invoke the | 501 |
court's jurisdiction engaged in unjustifiable conduct, the probate | 502 |
court may assess against that party necessary and reasonable | 503 |
expenses, including, but not limited to, attorney's fees, | 504 |
investigative fees, court costs, communication expenses, witness | 505 |
fees and expenses, and travel expenses. Except as otherwise | 506 |
provided by any provision of the Revised Code, the probate court | 507 |
may not assess fees, costs, or expenses of any kind against this | 508 |
state or a governmental subdivision, agency, or instrumentality of | 509 |
this state. | 510 |
(C) As used in this section, "unjustifiable conduct" | 511 |
includes, but is not limited to, conduct by a person that attempts | 512 |
to create jurisdiction in this state by removing the adult from | 513 |
the adult's home state, secreting the adult, retaining the adult, | 514 |
or restraining or otherwise preventing the adult from returning to | 515 |
the adult's home state in order to prevent or deprive a court of | 516 |
the adult's home state from taking jurisdiction. | 517 |
Sec. 2112.26. If an application for the appointment of a | 518 |
guardian or issuance of a protective order is brought in this | 519 |
state and this state was not the respondent's home state on the | 520 |
date that the application was filed, in addition to complying with | 521 |
the notice requirements of this state, the applicant shall give | 522 |
notice of the application to those persons who would be entitled | 523 |
to notice of the application if a proceeding were brought in the | 524 |
respondent's home state. The notice must be given in the same | 525 |
manner as notice is required to be given in this state. | 526 |
Sec. 2112.27. Except for an application for the appointment | 527 |
of a guardian in an emergency or issuance of a protective order in | 528 |
an emergency, if an application for the appointment of a guardian | 529 |
or issuance of a protective order is filed in this state and in | 530 |
another state and neither application has been dismissed or | 531 |
withdrawn, the following rules apply: | 532 |
(A) If the probate court in this state has jurisdiction under | 533 |
section 2112.21 of the Revised Code, the probate court may proceed | 534 |
with the case unless a court in another state acquires | 535 |
jurisdiction under provisions similar to section 2112.21 of the | 536 |
Revised Code before the appointment or issuance of the order. | 537 |
(B) If the probate court in this state does not have | 538 |
jurisdiction under section 2112.21 of the Revised Code, whether at | 539 |
the time the application is filed or at any time before the | 540 |
appointment or issuance of the order, the probate court shall stay | 541 |
the proceeding and communicate with the court in the other state. | 542 |
If the court in the other state has jurisdiction, the probate | 543 |
court in this state shall dismiss the application unless the court | 544 |
in the other state determines that the probate court in this state | 545 |
is a more appropriate forum. | 546 |
Sec. 2112.31. (A) A guardian appointed in this state may | 547 |
petition the probate court to transfer the guardianship to another | 548 |
state. | 549 |
(B) Notice of a petition under division (A) of this section | 550 |
must be given by the guardian to the persons that would be | 551 |
entitled to notice of an application in this state for the | 552 |
appointment of a guardian. | 553 |
(C) On the probate court's own motion or on request of the | 554 |
guardian, ward, protected person, or other person required to be | 555 |
notified of the petition, the probate court shall hold a hearing | 556 |
on a petition filed pursuant to division (A) of this section. | 557 |
(D) The probate court shall issue a provisional order | 558 |
granting a petition to transfer a guardianship of the person and | 559 |
shall direct the guardian to petition for guardianship in the | 560 |
other state if the probate court is satisfied that the | 561 |
guardianship will be accepted by the court in the other state, and | 562 |
the probate court finds all of the following: | 563 |
(1) The ward is physically present in or is reasonably | 564 |
expected to move permanently to the other state. | 565 |
(2) An objection to the transfer has not been made, or, if an | 566 |
objection has been made, the objector has not established that the | 567 |
transfer would be contrary to the interests of the ward. | 568 |
(3) Plans for care and services for the ward in the other | 569 |
state are reasonable and sufficient. | 570 |
(E) The probate court shall issue a provisional order | 571 |
granting a petition to transfer a guardianship of the estate and | 572 |
shall direct the guardian to petition for a guardianship of the | 573 |
estate in the other state if the probate court is satisfied that | 574 |
the guardianship of the estate will be accepted by the court of | 575 |
the other state, and the probate court finds all of the following: | 576 |
(1) The ward is physically present in or is reasonably | 577 |
expected to move permanently to the other state, or the ward has a | 578 |
significant connection to the other state and meets the | 579 |
requirements of division (A)(2) of section 2112.21 of the Revised | 580 |
Code. | 581 |
(2) An objection to the transfer has not been made, or, if an | 582 |
objection has been made, the objector has not established that the | 583 |
transfer would be contrary to the interests of the protected | 584 |
person. | 585 |
(3) Adequate arrangements will be made for management of the | 586 |
ward's property. | 587 |
(F) The probate court shall issue a final order confirming | 588 |
the transfer and terminating the guardianship upon the probate | 589 |
court's receipt of both of the following: | 590 |
(1) A provisional order accepting the proceeding from the | 591 |
court to which the proceeding is to be transferred and that is | 592 |
issued under provisions similar to section 2112.32 of the Revised | 593 |
Code; | 594 |
(2) The documents required to terminate a guardianship in | 595 |
this state. | 596 |
(G) In determining whether a respondent has a significant | 597 |
connection with a particular state for purposes of this section, | 598 |
the probate court may consider any of the following: | 599 |
(1) The location of the respondent's family and other persons | 600 |
required to be notified of the guardianship or protective | 601 |
proceeding; | 602 |
(2) The length of time the respondent at any time was | 603 |
physically present in the state and the duration of any absence; | 604 |
(3) The location of the respondent's property; | 605 |
(4) The extent to which the respondent has ties to the state, | 606 |
including, but not limited to, voting registration, state or local | 607 |
tax return filing, vehicle registration, driver's license, social | 608 |
relationships, and receipt of services. | 609 |
Sec. 2112.32. (A) To confirm transfer of a guardianship | 610 |
transferred to this state under provisions similar to section | 611 |
2112.31 of the Revised Code, the guardian shall petition the | 612 |
probate court in this state to accept the guardianship of the | 613 |
person, guardianship of the estate, or both. The petition must | 614 |
include a certified copy of the other state's provisional order of | 615 |
transfer. | 616 |
(B) Notice of a petition under division (A) of this section | 617 |
must be given by the guardian to those persons that would be | 618 |
entitled to notice if the petition were an application for the | 619 |
appointment of a guardian or issuance of a protective order in | 620 |
both the transferring state and this state. The notice must be | 621 |
given in the same manner as notice is required to be given in this | 622 |
state. | 623 |
(C) On the probate court's own motion or on the request of | 624 |
the guardian, ward, protected person, or other person required to | 625 |
be notified of the proceeding, the probate court shall hold a | 626 |
hearing on a petition filed pursuant to division (A) of this | 627 |
section. | 628 |
(D) The probate court shall issue a provisional order | 629 |
granting a petition filed under division (A) of this section | 630 |
unless either of the following applies: | 631 |
(1) An objection is made, and the objector establishes that | 632 |
transfer of the proceeding would be contrary to the interests of | 633 |
the ward or protected person. | 634 |
(2) The guardian is ineligible for appointment in this state. | 635 |
(E) The probate court shall issue a final order accepting the | 636 |
proceeding and appointing the guardian as a guardian in this state | 637 |
upon the probate court's receipt from the court from which the | 638 |
proceeding is being transferred of a final order transferring the | 639 |
proceedings to this state issued under provisions similar to | 640 |
section 2112.31 of the Revised Code. | 641 |
(F) In granting a petition under this section, the probate | 642 |
court shall recognize a guardianship order from the other state, | 643 |
including the determination of the incompetence of the ward and | 644 |
the appointment of the guardian. Nothing in this section shall | 645 |
limit the probate court's authority under Chapter 2111. of the | 646 |
Revised Code. | 647 |
(G) The denial by a probate court of this state of a petition | 648 |
to accept a guardianship transferred from another state does not | 649 |
affect the ability of the guardian to seek appointment as a | 650 |
guardian in this state under section 2111.02 of the Revised Code | 651 |
if the probate court has jurisdiction to make an appointment other | 652 |
than by reason of the provisional order of transfer. | 653 |
Sec. 2112.41. If a guardian has been appointed in another | 654 |
state and an application for the appointment of a guardian of the | 655 |
person is not pending in this state, the guardian appointed in the | 656 |
other state, after giving notice to the appointing court of an | 657 |
intent to register, may register the guardianship order in this | 658 |
state by filing as a foreign judgment in a probate court, in any | 659 |
appropriate county of this state, certified copies of the order | 660 |
and letters of office. | 661 |
Sec. 2112.42. If a guardian of the estate has been appointed | 662 |
in another state and an application for the appointment of a | 663 |
guardian of the estate is not pending in this state, the guardian | 664 |
of the estate appointed in the other state, after giving notice to | 665 |
the appointing court of an intent to register, may register a | 666 |
protective order or guardianship in this state by filing as a | 667 |
foreign judgment in a probate court of this state, in any county | 668 |
in which property belonging to the ward or protected person is | 669 |
located, certified copies of the order and letters of office and | 670 |
of any bond. | 671 |
Sec. 2112.43. (A) Upon the registration of a guardianship or | 672 |
protective order from another state, the guardian may exercise in | 673 |
this state all powers authorized in the order of appointment | 674 |
except as prohibited under the laws of this state, including | 675 |
maintaining actions and proceedings in this state and, if the | 676 |
guardian is not a resident of this state, subject to any | 677 |
conditions imposed upon nonresident parties. | 678 |
(B) A probate court of this state may grant any relief | 679 |
available under the Revised Code to enforce a registered order. | 680 |
Section 2. That existing sections 2111.01 and 2111.02 and | 681 |
section 2111.41 of the Revised Code are hereby repealed. | 682 |
Section 3. Sections 2112.01, 2112.011, 2112.02, 2112.03, | 683 |
2112.04, 2112.05, 2112.31, 2112.32, 2112.41, 2112.42, and 2112.43 | 684 |
of the Revised Code, as enacted by this act, apply to guardianship | 685 |
and protective proceedings begun before the effective date of this | 686 |
act, regardless of whether a guardianship or protective order has | 687 |
been issued pursuant to those proceedings. | 688 |
Section 4. Section 2111.02 of the Revised Code is presented | 689 |
in this act as a composite of the section as amended by both Sub. | 690 |
S.B. 117 and Am. Sub. S.B. 124 of the 129th General Assembly. The | 691 |
General Assembly, applying the principle stated in division (B) of | 692 |
section 1.52 of the Revised Code that amendments are to be | 693 |
harmonized if reasonably capable of simultaneous operation, finds | 694 |
that the composite is the resulting version of the section in | 695 |
effect prior to the effective date of the section as presented in | 696 |
this act. | 697 |