Bill Text: NY S02534 | 2013-2014 | General Assembly | Introduced
Bill Title: Enacts the uniform guardianship and protective proceedings jurisdiction act.
Spectrum: Moderate Partisan Bill (Republican 5-1)
Status: (Introduced - Dead) 2013-04-30 - SUBSTITUTED BY A857 [S02534 Detail]
Download: New_York-2013-S02534-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2534
2013-2014 Regular Sessions
I N S E N A T E
January 18, 2013
___________
Introduced by Sens. HANNON, GRISANTI, LIBOUS, MAZIARZ -- read twice and
ordered printed, and when printed to be committed to the Committee on
Mental Health and Developmental Disabilities
AN ACT to amend the mental hygiene law and the surrogate's court proce-
dure act, in relation to establishing the uniform guardianship and
protective proceedings jurisdiction act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The mental hygiene law is amended by adding a new article
2 83 to read as follows:
3 ARTICLE 83
4 UNIFORM GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT
5 SECTION 83.01 SHORT TITLE.
6 83.03 DEFINITIONS.
7 83.05 INTERNATIONAL APPLICATION OF THIS ARTICLE.
8 83.07 COMMUNICATION BETWEEN COURTS.
9 83.09 COOPERATION BETWEEN COURTS.
10 83.11 TAKING TESTIMONY IN ANOTHER STATE.
11 83.13 SIGNIFICANT CONNECTION FACTORS.
12 83.15 EXCLUSIVE BASIS.
13 83.17 JURISDICTION.
14 83.19 SPECIAL JURISDICTION.
15 83.21 EXCLUSIVE AND CONTINUING JURISDICTION.
16 83.23 APPROPRIATE FORUM.
17 83.25 JURISDICTION DECLINED BY REASON OF CONDUCT.
18 83.27 NOTICE OF PROCEEDING.
19 83.29 PROCEEDINGS IN MORE THAN ONE STATE.
20 83.31 TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP TO ANOTHER
21 STATE.
22 83.33 ACCEPTING GUARDIANSHIP OR CONSERVATORSHIP TRANSFERRED FROM
23 ANOTHER STATE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02650-01-3
S. 2534 2
1 83.35 REGISTRATION OF ORDERS APPOINTING A GUARDIAN OF THE
2 PERSON.
3 83.37 REGISTRATION OF PROTECTIVE ORDERS.
4 83.39 EFFECT OF REGISTRATION.
5 83.41 UNIFORMITY OF APPLICATION AND CONSTRUCTION.
6 83.43 RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL
7 COMMERCE ACT.
8 83.45 TRANSITIONAL PROVISION.
9 S 83.01 SHORT TITLE.
10 THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS THE "UNIFORM ADULT
11 GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT".
12 S 83.03 DEFINITIONS.
13 FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING DEFINITIONS SHALL APPLY:
14 (A) "ADULT" MEANS AN INDIVIDUAL WHO HAS ATTAINED EIGHTEEN YEARS OF
15 AGE.
16 (B) "EMERGENCY" MEANS A CIRCUMSTANCE THAT LIKELY WILL RESULT IN
17 SUBSTANTIAL HARM TO A RESPONDENT'S HEALTH, SAFETY OR WELFARE, AND FOR
18 WHICH THE APPOINTMENT OF A GUARDIAN IS NECESSARY BECAUSE NO OTHER PERSON
19 HAS AUTHORITY AND IS WILLING TO ACT ON THE RESPONDENT'S BEHALF.
20 (C) "GUARDIAN OF THE PROPERTY" MEANS A PERSON APPOINTED BY THE COURT
21 TO ADMINISTER THE PROPERTY OF AN ADULT, INCLUDING A PERSON APPOINTED
22 UNDER ARTICLE EIGHTY-ONE OF THIS TITLE AND ARTICLE SEVENTEEN-A OF THE
23 SURROGATE'S COURT PROCEDURE ACT, AND INCLUDING A CONSERVATOR APPOINTED
24 BY A COURT IN ANOTHER STATE.
25 (D) "GUARDIAN OF THE PERSON" MEANS A PERSON APPOINTED BY THE COURT TO
26 MAKE DECISIONS REGARDING THE PERSON OF AN ADULT, INCLUDING A PERSON
27 APPOINTED UNDER ARTICLE EIGHTY-ONE OF THIS TITLE AND ARTICLE SEVENTEEN-A
28 OF THE SURROGATE'S COURT PROCEDURE ACT.
29 (E) "HOME STATE" MEANS THE STATE IN WHICH THE RESPONDENT WAS PHYS-
30 ICALLY PRESENT, INCLUDING ANY PERIOD OF TEMPORARY ABSENCE, FOR AT LEAST
31 SIX CONSECUTIVE MONTHS IMMEDIATELY BEFORE THE FILING OF A PETITION FOR A
32 PROTECTIVE ORDER OR THE APPOINTMENT OF A GUARDIAN OF THE PERSON; OR IF
33 NONE, THE STATE IN WHICH THE RESPONDENT WAS PHYSICALLY PRESENT, INCLUD-
34 ING ANY PERIOD OF TEMPORARY ABSENCE, FOR AT LEAST SIX CONSECUTIVE MONTHS
35 ENDING WITHIN THE SIX MONTHS PRIOR TO THE FILING OF THE PETITION.
36 (F) "PARTY" MEANS THE RESPONDENT, PETITIONER, GUARDIAN OF THE PERSON,
37 CONSERVATOR GUARDIAN OF THE PROPERTY, OR ANY OTHER PERSON ALLOWED BY THE
38 COURT TO PARTICIPATE IN A GUARDIANSHIP PROCEEDING FOR THE APPOINTMENT OF
39 A GUARDIAN OF THE PERSON OR A PROTECTIVE PROCEEDING.
40 (G) "PERSON", EXCEPT IN THE TERM INCAPACITATED PERSON FOR WHOM A GUAR-
41 DIAN OF THE PERSON HAS BEEN APPOINTED OR PROTECTED PERSON, MEANS AN
42 INDIVIDUAL, CORPORATION, BUSINESS TRUST, ESTATE, TRUST, PARTNERSHIP,
43 LIMITED LIABILITY COMPANY, ASSOCIATION, JOINT VENTURE, PUBLIC CORPO-
44 RATION, GOVERNMENT OR GOVERNMENTAL SUBDIVISION, AGENCY OR INSTRUMENTALI-
45 TY, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY.
46 (H) "PROTECTED PERSON" MEANS AN ADULT FOR WHOM A PROTECTIVE ORDER HAS
47 BEEN ISSUED.
48 (I) "PROTECTIVE ORDER" MEANS AN ORDER APPOINTING A CONSERVATOR GUARDI-
49 AN OF THE PROPERTY OR OTHER ORDER RELATED TO MANAGEMENT OF AN ADULT'S
50 PROPERTY.
51 (J) "PROTECTIVE PROCEEDING" MEANS A JUDICIAL PROCEEDING IN WHICH A
52 PROTECTIVE ORDER IS SOUGHT OR HAS BEEN ISSUED.
53 (K) "RECORD" MEANS INFORMATION THAT IS INSCRIBED ON A TANGIBLE MEDIUM
54 OR THAT IS STORED IN AN ELECTRONIC OR OTHER MEDIUM AND IS RETRIEVABLE IN
55 PERCEIVABLE FORM.
S. 2534 3
1 (L) "RESPONDENT" MEANS AN ADULT FOR WHOM A PROTECTIVE ORDER OR THE
2 APPOINTMENT OF A GUARDIAN OF THE PERSON IS SOUGHT.
3 (M) "SIGNIFICANT-CONNECTION STATE" MEANS A STATE, OTHER THAN THE HOME
4 STATE, WITH WHICH A RESPONDENT HAS A SIGNIFICANT CONNECTION OTHER THAN
5 MERE PHYSICAL PRESENCE AND IN WHICH SUBSTANTIAL EVIDENCE CONCERNING THE
6 RESPONDENT IS AVAILABLE.
7 (N) "STATE" MEANS A STATE OF THE UNITED STATES, THE DISTRICT OF COLUM-
8 BIA, PUERTO RICO, THE UNITED STATES VIRGIN ISLANDS, A FEDERALLY RECOG-
9 NIZED INDIAN TRIBE, OR ANY TERRITORY OR INSULAR POSSESSION SUBJECT TO
10 THE JURISDICTION OF THE UNITED STATES.
11 S 83.05 INTERNATIONAL APPLICATION OF THIS ARTICLE.
12 A COURT OF THIS STATE MAY TREAT A FOREIGN COUNTRY AS IF IT WERE A
13 STATE FOR THE PURPOSE OF APPLYING SECTIONS 83.01 THROUGH 83.37 OF THIS
14 ARTICLE.
15 S 83.07 COMMUNICATION BETWEEN COURTS.
16 (A) A COURT OF THIS STATE MAY COMMUNICATE WITH A COURT IN ANOTHER
17 STATE CONCERNING A PROCEEDING ARISING UNDER THIS ARTICLE. THE COURT MAY
18 ALLOW THE PARTIES TO PARTICIPATE IN THE COMMUNICATION.
19 (B) IF THE PARTIES ARE NOT ALLOWED TO PARTICIPATE IN THE COMMUNI-
20 CATION, THE COURT SHALL GIVE ALL PARTIES THE OPPORTUNITY TO PRESENT
21 FACTS AND LEGAL ARGUMENTS BEFORE THE COURT ISSUES AN ORDER ESTABLISHING
22 JURISDICTION.
23 (C) EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION (D) OF THIS SECTION,
24 THE COURT SHALL MAKE A RECORD OF ANY COMMUNICATION UNDER THIS SECTION
25 AND PROMPTLY INFORM THE PARTIES OF THE COMMUNICATION AND GRANT THEM
26 ACCESS TO THE RECORD.
27 (D) COURTS MAY COMMUNICATE CONCERNING SCHEDULES, CALENDARS, COURT
28 RECORDS AND OTHER ADMINISTRATIVE MATTERS WITHOUT MAKING A RECORD.
29 S 83.09 COOPERATION BETWEEN COURTS.
30 (A) IN A PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OR
31 PROTECTIVE PROCEEDING IN THIS STATE, A COURT OF THIS STATE MAY REQUEST
32 THE APPROPRIATE COURT OF ANOTHER STATE TO DO ANY OF THE FOLLOWING:
33 1. HOLD AN EVIDENTIARY HEARING;
34 2. ORDER A PERSON IN THAT STATE TO PRODUCE EVIDENCE OR GIVE TESTIMONY
35 PURSUANT TO PROCEDURES OF THAT STATE;
36 3. ORDER THAT AN EVALUATION OR ASSESSMENT BE MADE OF THE RESPONDENT;
37 4. ORDER ANY APPROPRIATE INVESTIGATION OF A PERSON INVOLVED IN A
38 PROCEEDING;
39 5. FORWARD TO THE COURT OF THIS STATE A CERTIFIED COPY OF THE TRAN-
40 SCRIPT OR OTHER RECORD OF A HEARING UNDER PARAGRAPH ONE OF THIS SUBDIVI-
41 SION OR ANY OTHER PROCEEDING, ANY EVIDENCE OTHERWISE PRODUCED UNDER
42 PARAGRAPH TWO OF THIS SUBDIVISION, AND ANY EVALUATION OR ASSESSMENT
43 PREPARED IN COMPLIANCE WITH AN ORDER UNDER PARAGRAPH THREE OR FOUR OF
44 THIS SUBDIVISION;
45 6. ISSUE ANY ORDER NECESSARY TO ASSURE THE APPEARANCE IN THE PROCEED-
46 ING OF A PERSON WHOSE PRESENCE IS NECESSARY FOR THE COURT TO MAKE A
47 DETERMINATION, INCLUDING THE RESPONDENT OR THE PERSON SUBJECT TO A GUAR-
48 DIANSHIP OF THE PERSON OR PROTECTED PERSON; AND
49 7. ISSUE AN ORDER AUTHORIZING THE RELEASE OF MEDICAL, FINANCIAL, CRIM-
50 INAL, OR OTHER RELEVANT INFORMATION IN THAT STATE, INCLUDING PROTECTED
51 HEALTH INFORMATION.
52 (B) THE COURT MAY RECEIVE ANY EVIDENCE PRODUCED PURSUANT TO SUBDIVI-
53 SION (A) OF THIS SECTION IN THE SAME MANNER THAT IT WOULD ADMIT INTO
54 EVIDENCE THE REPORT OF A COURT EVALUATOR AFTER THE COURT EVALUATOR HAD
55 BEEN SUBJECT TO CROSS EXAMINATION;
S. 2534 4
1 (C) IF A COURT OF ANOTHER STATE IN WHICH A GUARDIANSHIP OR PROTECTIVE
2 PROCEEDING IS PENDING REQUESTS ASSISTANCE OF THE KIND PROVIDED IN SUBDI-
3 VISION (A) OF THIS SECTION, A COURT OF THIS STATE HAS JURISDICTION FOR
4 THE LIMITED PURPOSE OF GRANTING THE REQUEST OR MAKING REASONABLE EFFORTS
5 TO COMPLY WITH THE REQUEST.
6 S 83.11 TAKING TESTIMONY IN ANOTHER STATE.
7 (A) IN A PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OR
8 PROTECTIVE PROCEEDING, IN ADDITION TO OTHER PROCEDURES THAT MAY BE
9 AVAILABLE, TESTIMONY OF A WITNESS WHO IS LOCATED IN ANOTHER STATE MAY BE
10 OFFERED BY DEPOSITION OR OTHER MEANS ALLOWABLE IN THIS STATE FOR TESTI-
11 MONY TAKEN IN ANOTHER STATE. THE COURT ON ITS OWN MOTION MAY ORDER THAT
12 THE TESTIMONY OF A WITNESS BE TAKEN IN ANOTHER STATE AND MAY PRESCRIBE
13 THE MANNER IN WHICH AND THE TERMS UPON WHICH THE TESTIMONY IS TO BE
14 TAKEN.
15 (B) IN A PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OR
16 PROTECTIVE PROCEEDING, A COURT IN THIS STATE MAY PERMIT A WITNESS
17 LOCATED IN ANOTHER STATE TO BE DEPOSED OR TO TESTIFY BY TELEPHONE OR
18 AUDIOVISUAL OR OTHER ELECTRONIC MEANS. A COURT OF THIS STATE SHALL COOP-
19 ERATE WITH THE COURT OF THE OTHER STATE IN DESIGNATING AN APPROPRIATE
20 LOCATION FOR THE DEPOSITION OR TESTIMONY.
21 (C) DOCUMENTARY EVIDENCE TRANSMITTED FROM ANOTHER STATE TO A COURT OF
22 THIS STATE BY TECHNOLOGICAL MEANS THAT DO NOT PRODUCE AN ORIGINAL WRIT-
23 ING MAY NOT BE EXCLUDED FROM EVIDENCE ON AN OBJECTION BASED ON THE BEST
24 EVIDENCE RULE.
25 S 83.13 SIGNIFICANT CONNECTION FACTORS.
26 IN DETERMINING UNDER SECTION 83.17 AND SUBDIVISION (E) OF SECTION
27 83.31 OF THIS ARTICLE WHETHER A RESPONDENT HAS A SIGNIFICANT CONNECTION
28 WITH A PARTICULAR STATE, THE COURT SHALL CONSIDER:
29 (A) THE LOCATION OF THE RESPONDENT'S FAMILY AND OTHER PERSONS REQUIRED
30 TO BE NOTIFIED OF THE PROCEEDING;
31 (B) THE LENGTH OF TIME THE RESPONDENT AT ANY TIME WAS PHYSICALLY PRES-
32 ENT IN THE STATE AND THE DURATION OF ANY ABSENCE;
33 (C) THE LOCATION OF THE RESPONDENT'S PROPERTY; AND
34 (D) THE EXTENT TO WHICH THE RESPONDENT HAS TIES TO THE STATE SUCH AS
35 VOTING REGISTRATION, STATE OR LOCAL TAX RETURN FILING, VEHICLE REGISTRA-
36 TION, DRIVER'S LICENSE, SOCIAL RELATIONSHIP, AND RECEIPT OF SERVICES.
37 S 83.15 EXCLUSIVE BASIS.
38 SUBJECT TO SECTION 81.18 OF THIS TITLE, THIS ARTICLE PROVIDES THE
39 EXCLUSIVE JURISDICTIONAL BASIS FOR A COURT OF THIS STATE TO APPOINT A
40 GUARDIAN OF THE PERSON OR ISSUE A PROTECTIVE ORDER FOR AN ADULT.
41 S 83.17 JURISDICTION.
42 A COURT OF THIS STATE HAS JURISDICTION TO APPOINT A GUARDIAN OF THE
43 PERSON OR ISSUE A PROTECTIVE ORDER FOR A RESPONDENT IF:
44 (A) THE STATE IS THE RESPONDENT'S HOME STATE;
45 (B) ON THE DATE THE PETITION IS FILED, THIS STATE IS A
46 SIGNIFICANT-CONNECTION STATE AND:
47 1. THE RESPONDENT DOES NOT HAVE A HOME STATE OR A COURT OF THE
48 RESPONDENT'S HOME STATE HAS DECLINED TO EXERCISE JURISDICTION BECAUSE
49 THIS STATE IS A MORE APPROPRIATE FORUM; OR
50 2. THE RESPONDENT HAS A HOME STATE, A PETITION FOR AN APPOINTMENT OR
51 ORDER IS NOT PENDING IN A COURT OF THAT STATE OR ANOTHER SIGNIFICANT
52 CONNECTION STATE, AND BEFORE THE COURT MAKES THE APPOINTMENT OR ISSUES
53 THE ORDER:
54 (I) A PETITION FOR AN APPOINTMENT OR ORDER IS NOT FILED IN THE
55 RESPONDENT'S HOME STATE;
S. 2534 5
1 (II) AN OBJECTION TO THE COURT'S JURISDICTION IS NOT FILED BY A PERSON
2 REQUIRED TO BE NOTIFIED OF THE PROCEEDING; AND
3 (III) THE COURT IN THIS STATE CONCLUDES THAT IT IS AN APPROPRIATE
4 FORUM UNDER THE FACTORS SET FORTH IN SECTION 83.23 OF THIS ARTICLE;
5 (C) THIS STATE DOES NOT HAVE JURISDICTION UNDER EITHER SUBDIVISION (A)
6 OR (B) OF THIS SECTION, THE RESPONDENT'S HOME STATE AND ALL SIGNIFI-
7 CANT-CONNECTION STATES HAVE DECLINED TO EXERCISE JURISDICTION BECAUSE
8 THIS STATE IS THE MORE APPROPRIATE FORUM, AND JURISDICTION IN THIS STATE
9 IS CONSISTENT WITH THE CONSTITUTIONS OF THIS STATE AND THE UNITED
10 STATES; OR
11 (D) THE REQUIREMENTS FOR SPECIAL JURISDICTION UNDER SECTION 83.19 OF
12 THIS ARTICLE ARE MET.
13 S 83.19 SPECIAL JURISDICTION.
14 (A) A COURT OF THIS STATE LACKING JURISDICTION UNDER SECTION 83.17 OF
15 THIS ARTICLE HAS SPECIAL JURISDICTION TO DO ANY OF THE FOLLOWING:
16 1. APPOINT A GUARDIAN OF THE PERSON IN AN EMERGENCY FOR A TERM NOT
17 EXCEEDING NINETY DAYS FOR A RESPONDENT WHO IS PHYSICALLY PRESENT IN THIS
18 STATE;
19 2. ISSUE A PROTECTIVE ORDER WITH RESPECT TO A REAL OR TANGIBLE
20 PERSONAL PROPERTY LOCATED IN THIS STATE; AND
21 3. APPOINT A GUARDIAN OF THE PERSON OR A GUARDIAN OF THE PROPERTY FOR
22 A PERSON SUBJECT TO A GUARDIANSHIP OF THE PERSON OR PROTECTED PERSON FOR
23 WHOM A PROVISION ORDER TO TRANSFER THE PROCEEDING FROM ANOTHER STATE HAS
24 BEEN ISSUED UNDER PROCEDURES SIMILAR TO SECTION 83.31 OF THIS ARTICLE.
25 (B) IF A PETITION FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON IN
26 AN EMERGENCY IS BROUGHT IN THIS STATE AND THIS STATE WAS NOT THE
27 RESPONDENT'S HOME STATE ON THE DATE THE PETITION WAS FILED, THE COURT
28 SHALL DISMISS THE PROCEEDING AT THE REQUEST OF THE COURT OF THE HOME
29 STATE, IF ANY, WHETHER DISMISSAL IS REQUESTED BEFORE OR AFTER THE EMER-
30 GENCY APPOINTMENT.
31 S 83.21 EXCLUSIVE AND CONTINUING JURISDICTION.
32 EXCEPT AS OTHERWISE PROVIDED IN SECTION 83.19 OF THIS ARTICLE, A COURT
33 THAT HAS APPOINTED A GUARDIAN OF THE PERSON OR ISSUED A PROTECTIVE ORDER
34 CONSISTENT WITH THIS ARTICLE HAS EXCLUSIVE AND CONTINUING JURISDICTION
35 OVER THE PROCEEDINGS UNTIL IT IS TERMINATED BY THE COURT OR THE APPOINT-
36 MENT OR ORDER EXPIRES BY ITS OWN TERMS.
37 S 83.23 APPROPRIATE FORUM.
38 (A) A COURT OF THIS STATE HAVING JURISDICTION UNDER SECTION 83.17 OF
39 THIS ARTICLE TO APPOINT A GUARDIAN OF THE PERSON OR ISSUE A PROTECTIVE
40 ORDER MAY DECLINE TO EXERCISE ITS JURISDICTION IF IT DETERMINES AT ANY
41 TIME THAT A COURT OF ANOTHER STATE IS A MORE APPROPRIATE FORUM.
42 (B) IF A COURT OF THIS STATE DECLINES TO EXERCISE ITS JURISDICTION
43 UNDER SUBDIVISION (A) OF THIS SECTION, IT SHALL EITHER DISMISS OR STAY
44 THE PROCEEDING. THE COURT MAY IMPOSE ANY CONDITION THE COURT CONSIDERS
45 JUST AND PROPER, INCLUDING THE CONDITION THAT A PETITION FOR THE
46 APPOINTMENT OF A GUARDIAN OF THE PERSON OR ISSUANCE OF A PROTECTIVE
47 ORDER BE FILED PROMPTLY IN ANOTHER STATE.
48 (C) IN DETERMINING WHETHER IT IS AN APPROPRIATE FORUM, THE COURT SHALL
49 CONSIDER ALL RELEVANT FACTORS, INCLUDING:
50 1. ANY EXPRESSED PREFERENCE OF THE RESPONDENT;
51 2. WHETHER ABUSE, NEGLECT OR EXPLOITATION OF THE RESPONDENT HAS
52 OCCURRED OR IS LIKELY TO OCCUR, AND WHICH STATE COULD BEST PROTECT THE
53 RESPONDENT FROM THE ABUSE, NEGLECT OR EXPLOITATION;
54 3. THE LENGTH OF TIME THE RESPONDENT WAS PHYSICALLY PRESENT IN OR WAS
55 A LEGAL RESIDENT OF THIS OR ANOTHER STATE;
56 4. THE DISTANCE OF THE RESPONDENT FROM THE COURT IN EACH STATE;
S. 2534 6
1 5. THE FINANCIAL CIRCUMSTANCES OF THE RESPONDENT'S ESTATE;
2 6. THE NATURE AND LOCATION OF THE EVIDENCE;
3 7. THE ABILITY OF THE COURT IN EACH STATE TO DECIDE THE ISSUE EXPE-
4 DITIOUSLY AND THE PROCEDURES NECESSARY TO PRESENT EVIDENCE;
5 8. THE FAMILIARITY OF THE COURT OF EACH STATE WITH THE FACTS AND
6 ISSUES IN THE PROCEEDING; AND
7 9. IF AN APPOINTMENT WERE MADE, THE COURT'S ABILITY TO MONITOR THE
8 CONDUCT OF THE GUARDIAN OR CONSERVATOR.
9 S 83.25 JURISDICTION DECLINED BY REASON OF CONDUCT.
10 (A) IF AT ANY TIME A COURT OF THIS STATE DETERMINES THAT IT ACQUIRED
11 JURISDICTION TO APPOINT A GUARDIAN OF THE PERSON OR ISSUE A PROTECTIVE
12 ORDER BECAUSE OF UNJUSTIFIABLE CONDUCT, THE COURT MAY:
13 1. DECLINE TO EXERCISE JURISDICTION;
14 2. EXERCISE JURISDICTION FOR THE LIMITED PURPOSE OF FASHIONING AN
15 APPROPRIATE REMEDY TO ENSURE THE HEALTH, SAFETY AND WELFARE OF THE
16 RESPONDENT, OR THE PROTECTION OF THE RESPONDENT'S PROPERTY OR PREVENT A
17 REPETITION OF THE UNJUSTIFIABLE CONDUCT, INCLUDING STAYING THE PROCEED-
18 ING UNTIL A PETITION FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OR
19 ISSUANCE OF A PROTECTIVE ORDER IS FILED IN A COURT OF ANOTHER STATE
20 HAVING JURISDICTION; OR
21 3. CONTINUE TO EXERCISE JURISDICTION AFTER CONSIDERING:
22 (I) THE EXTENT TO WHICH THE RESPONDENT AND ALL PERSONS REQUIRED TO BE
23 NOTIFIED OF THE PROCEEDINGS HAVE ACQUIESCED IN THE EXERCISE OF THE
24 COURT'S JURISDICTION;
25 (II) WHETHER IT IS A MORE APPROPRIATE FORUM THAN THE COURT OF ANY
26 OTHER STATE UNDER THE FACTORS SET FORTH IN SUBDIVISION (C) OF SECTION
27 83.23 OF THIS ARTICLE; AND
28 (III) WHETHER THE COURT OF ANY OTHER STATE WOULD HAVE JURISDICTION
29 UNDER FACTUAL CIRCUMSTANCES IN SUBSTANTIAL CONFORMITY WITH THE JURISDIC-
30 TIONAL STANDARDS OF SECTION 83.17 OF THIS ARTICLE.
31 (B) IF A COURT OF THIS STATE DETERMINES THAT IT ACQUIRED JURISDICTION
32 TO APPOINT A GUARDIAN OF THE PERSON OR ISSUE A PROTECTIVE ORDER BECAUSE
33 A PARTY SEEKING TO INVOKE ITS JURISDICTION ENGAGED IN UNJUSTIFIABLE
34 CONDUCT, IT MAY ASSESS AGAINST THAT PARTY NECESSARY AND REASONABLE
35 EXPENSES, INCLUDING ATTORNEY'S FEES, INVESTIGATIVE FEES, COURT COSTS,
36 COMMUNICATION EXPENSES, WITNESS FEES AND EXPENSES, AND TRAVEL EXPENSES.
37 THE COURT MAY NOT ASSESS FEES, COSTS OR EXPENSES OF ANY KIND AGAINST
38 THIS STATE OR A GOVERNMENTAL SUBDIVISION, AGENCY OR INSTRUMENTALITY OF
39 THIS STATE UNLESS AUTHORIZED BY LAW OTHER THAN THIS ARTICLE.
40 S 83.27 NOTICE OF PROCEEDING.
41 IF A PETITION FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OR ISSU-
42 ANCE OF A PROTECTIVE ORDER IS BROUGHT IN THIS STATE AND THIS STATE WAS
43 NOT THE RESPONDENT'S HOME STATE ON THE DATE THE PETITION WAS FILED, IN
44 ADDITION TO COMPLYING WITH THE NOTICE REQUIREMENTS OF THIS STATE, NOTICE
45 OF THE PETITION MUST BE GIVEN TO THOSE PERSONS WHO WOULD BE ENTITLED TO
46 NOTICE OF THE PETITION IF A PROCEEDING WERE BROUGHT IN THE RESPONDENT'S
47 HOME STATE. THE NOTICE MUST BE GIVEN IN THE SAME MANNER AS NOTICE IS
48 REQUIRED TO BE GIVEN IN THIS STATE.
49 S 83.29 PROCEEDINGS IN MORE THAN ONE STATE.
50 EXCEPT FOR A PETITION FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON
51 IN AN EMERGENCY OR ISSUANCE OF A PROTECTIVE ORDER LIMITED TO PROPERTY
52 LOCATED IN THIS STATE UNDER PARAGRAPH ONE OR TWO OF SUBDIVISION (A) OF
53 SECTION 83.19 OF THIS ARTICLE, IF A PETITION FOR THE APPOINTMENT OF A
54 GUARDIAN OF THE PERSON OR ISSUANCE OF A PROTECTIVE ORDER IS FILED IN
55 THIS STATE AND IN ANOTHER STATE AND NEITHER PETITION HAS BEEN DISMISSED
56 OR WITHDRAWN, THE FOLLOWING RULES APPLY:
S. 2534 7
1 (A) IF THE COURT IN THIS STATE HAS JURISDICTION UNDER SECTION 83.17 OF
2 THIS ARTICLE, IT MAY PROCEED WITH THE CASE UNLESS A COURT IN ANOTHER
3 STATE ACQUIRES JURISDICTION UNDER PROVISIONS SIMILAR TO SUCH SECTION
4 BEFORE THE APPOINTMENT OR ISSUANCE OF THE ORDER.
5 (B) IF THE COURT IN THIS STATE DOES NOT HAVE JURISDICTION UNDER
6 SECTION 83.17 OF THIS ARTICLE, WHETHER AT THE TIME THE PETITION IS FILED
7 OR AT ANY TIME BEFORE THE APPOINTMENT OR ISSUANCE OF THE ORDER, THE
8 COURT SHALL STAY THE PROCEEDING AND COMMUNICATE WITH THE COURT IN THE
9 OTHER STATE. IF THE COURT IN THE OTHER STATE HAS JURISDICTION, THE COURT
10 IN THIS STATE SHALL DISMISS THE PETITION UNLESS THE COURT IN THE OTHER
11 STATE DETERMINES THAT THE COURT IN THIS STATE IS A MORE APPROPRIATE
12 FORUM.
13 S 83.31 TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP TO ANOTHER STATE.
14 (A) A GUARDIAN OF THE PERSON OR A GUARDIAN OF THE PROPERTY APPOINTED
15 IN THIS STATE MAY PETITION THE COURT TO TRANSFER THE GUARDIANSHIP TO
16 ANOTHER STATE.
17 (B) NOTICE OF A PETITION UNDER SUBDIVISION (A) OF THIS SECTION MUST BE
18 GIVEN TO THE PERSONS THAT WOULD BE ENTITLED TO NOTICE OF A PETITION IN
19 THIS STATE FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OR A GUARDIAN
20 OF THE PROPERTY.
21 (C) ON THE COURT'S OWN MOTION OR ON REQUEST OF THE GUARDIAN OF THE
22 PERSON, THE GUARDIAN OF THE PROPERTY, THE PERSON SUBJECT TO THE GUARDI-
23 ANSHIP OF THE PERSON, OR THE PROTECTED PERSON, OR OTHER PERSON REQUIRED
24 TO BE NOTIFIED OF THE PETITION, THE COURT SHALL HOLD A HEARING ON A
25 PETITION FILED PURSUANT TO SUBDIVISION (A) OF THIS SECTION.
26 (D) THE COURT SHALL ISSUE AN ORDER PROVISIONALLY GRANTING A PETITION
27 TO TRANSFER A GUARDIANSHIP OF THE PERSON AND SHALL DIRECT THE GUARDIAN
28 OF THE PERSON TO PETITION FOR GUARDIANSHIP OF THE PERSON IN THE OTHER
29 STATE IF THE COURT IS SATISFIED THAT THE GUARDIANSHIP OF THE PERSON WILL
30 BE ACCEPTED BY THE COURT IN THE OTHER STATE AND THE COURT FINDS THAT:
31 1. THE PERSON SUBJECT TO THE GUARDIANSHIP OF THE PERSON IS PHYSICALLY
32 PRESENT IN OR IS REASONABLY EXPECTED TO MOVE PERMANENTLY TO THE OTHER
33 STATE;
34 2. AN OBJECTION TO THE TRANSFER HAS NOT BEEN MADE OR, IF AN OBJECTION
35 HAS BEEN MADE, THE OBJECTOR HAS NOT ESTABLISHED THAT THE TRANSFER WOULD
36 BE CONTRARY TO THE INTERESTS OF THE PERSON SUBJECT TO THE GUARDIANSHIP
37 OF THE PERSON; AND
38 3. PLANS FOR CARE AND SERVICES FOR THE PERSON SUBJECT TO THE GUARDIAN-
39 SHIP OF THE PERSON IN THE OTHER STATE ARE REASONABLE AND SUFFICIENT.
40 (E) THE COURT SHALL ISSUE A PROVISIONAL ORDER GRANTING A PETITION TO
41 TRANSFER A GUARDIANSHIP OF THE PROPERTY AND SHALL DIRECT THE GUARDIAN OF
42 THE PROPERTY TO PETITION FOR GUARDIANSHIP OF THE PROPERTY IN THE OTHER
43 STATE IF THE COURT IS SATISFIED THAT THE GUARDIANSHIP OF THE PROPERTY
44 WILL BE ACCEPTED BY THE COURT OF THE OTHER STATE AND THE COURT FINDS
45 THAT:
46 1. THE PROTECTED PERSON IS PHYSICALLY PRESENT IN OR IS REASONABLY
47 EXPECTED TO MOVE PERMANENTLY TO THE OTHER STATE, OR THE PROTECTED PERSON
48 HAS A SIGNIFICANT CONNECTION TO THE OTHER STATE CONSIDERING THE FACTORS
49 IN SECTION 83.13 OF THIS ARTICLE;
50 2. AN OBJECTION TO THE TRANSFER HAS NOT BEEN MADE OR, IF AN OBJECTION
51 HAS BEEN MADE, THE OBJECTOR HAS NOT ESTABLISHED THAT THE TRANSFER WOULD
52 BE CONTRARY TO THE INTERESTS OF THE PROTECTED PERSON; AND
53 3. ADEQUATE ARRANGEMENTS WILL BE MADE FOR MANAGEMENT OF THE PROTECTED
54 PERSON'S PROPERTY.
S. 2534 8
1 (F) THE COURT SHALL ISSUE A FINAL ORDER CONFIRMING THE TRANSFER AND
2 TERMINATING THE GUARDIANSHIP OF THE PERSON OR PROPERTY UPON ITS RECEIPT
3 OF:
4 1. A PROVISIONAL ORDER ACCEPTING THE PROCEEDING FROM THE COURT TO
5 WHICH THE PROCEEDING IS TO BE TRANSFERRED WHICH IS ISSUED UNDER
6 PROVISIONS SIMILAR TO SECTION 83.33 OF THIS ARTICLE; AND
7 2. THE DOCUMENTS REQUIRED TO TERMINATE A GUARDIANSHIP OF THE PERSON OR
8 PROPERTY IN THIS STATE.
9 S 83.33 ACCEPTING GUARDIANSHIP OR CONSERVATORSHIP TRANSFERRED FROM
10 ANOTHER STATE.
11 (A) TO CONFIRM TRANSFER OF A GUARDIANSHIP OF THE PERSON OR GUARDIAN-
12 SHIP OF THE PROPERTY TRANSFERRED TO THIS STATE UNDER PROVISIONS SIMILAR
13 TO SECTION 83.31 OF THIS ARTICLE, THE GUARDIAN OF THE PERSON OR GUARDIAN
14 OF THE PROPERTY MUST PETITION THE COURT IN THIS STATE PURSUANT TO ARTI-
15 CLE EIGHTY-ONE OF THIS TITLE OR ARTICLE SEVENTEEN-A OF THE SURROGATE'S
16 COURT PROCEDURE ACT TO ACCEPT THE GUARDIANSHIP OF THE PERSON OR GUARDI-
17 ANSHIP OF THE PROPERTY. THE PETITION MUST INCLUDE A CERTIFIED COPY OF
18 THE OTHER STATE'S PROVISIONAL ORDER OF TRANSFER.
19 (B) NOTICE OF A PETITION UNDER SUBDIVISION (A) OF THIS SECTION MUST BE
20 GIVEN TO THOSE PERSONS THAT WOULD BE ENTITLED TO NOTICE IF THE PETITION
21 WERE A PETITION FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OR ISSU-
22 ANCE OF A PROTECTIVE ORDER IN BOTH THE TRANSFERRING STATE AND THIS
23 STATE. THE NOTICE MUST BE GIVEN IN THE SAME MANNER AS NOTICE IS REQUIRED
24 TO BE GIVEN IN THIS STATE.
25 (C) ON THE COURT'S OWN MOTION OR ON REQUEST OF THE GUARDIAN OF THE
26 PERSON OR GUARDIAN OF THE PROPERTY, THE PERSON SUBJECT TO THE GUARDIAN-
27 SHIP OF THE PERSON OR PROTECTED PERSON, OR OTHER PERSON REQUIRED TO BE
28 NOTIFIED OF THE PROCEEDING, THE COURT SHALL HOLD A HEARING ON A PETITION
29 FILED PURSUANT TO SUBDIVISION (A) OF THIS SECTION.
30 (D) THE COURT SHALL ISSUE AN ORDER PROVISIONALLY GRANTING A PETITION
31 FILED UNDER SUBDIVISION (A) OF THIS SECTION UNLESS:
32 1. AN OBJECTION IS MADE AND THE OBJECTOR ESTABLISHES THAT TRANSFER OF
33 THE PROCEEDING WOULD BE CONTRARY TO THE INTERESTS OF THE INCAPACITATED
34 OR PROTECTED PERSON; OR
35 2. THE GUARDIAN OF THE PERSON OR GUARDIAN OF THE PROPERTY IS INELIGI-
36 BLE FOR APPOINTMENT IN THIS STATE.
37 (E) THE COURT SHALL ISSUE A FINAL ORDER ACCEPTING THE PROCEEDING AND
38 APPOINTING THE GUARDIAN OF THE PERSON OR GUARDIAN OF THE PROPERTY AS
39 GUARDIAN OF THE PERSON OR GUARDIAN OF THE PROPERTY IN THIS STATE UPON
40 ITS RECEIPT FROM THE COURT FROM WHICH THE PROCEEDING IS BEING TRANS-
41 FERRED OF A FINAL ORDER ISSUED UNDER PROVISIONS SIMILAR TO SECTION 83.31
42 OF THIS ARTICLE TRANSFERRING THE PROCEEDING TO THIS STATE.
43 (F) NOT LATER THAN NINETY DAYS AFTER ISSUANCE OF A FINAL ORDER ACCEPT-
44 ING TRANSFER OF A GUARDIANSHIP OF THE PERSON OR GUARDIANSHIP OF THE
45 PROPERTY, THE COURT SHALL DETERMINE WHETHER THE GUARDIANSHIP OF THE
46 PERSON OR GUARDIANSHIP OF THE PROPERTY NEEDS TO BE MODIFIED TO CONFORM
47 TO THE LAW OF THIS STATE.
48 (G) IN GRANTING A PETITION UNDER THIS SECTION, THE COURT SHALL RECOG-
49 NIZE A GUARDIANSHIP ORDER FROM THE OTHER STATE, INCLUDING THE DETERMI-
50 NATION OF INCAPACITY AND THE APPOINTMENT OF THE GUARDIAN OF THE PERSON
51 OR GUARDIAN OF THE PROPERTY.
52 (H) THE DENIAL BY A COURT OF THIS STATE OF A PETITION TO ACCEPT A
53 GUARDIANSHIP OF THE PERSON OR GUARDIANSHIP OF THE PROPERTY TRANSFERRED
54 FROM ANOTHER STATE DOES NOT AFFECT THE ABILITY OF THE GUARDIAN OF THE
55 PERSON OR GUARDIAN OF THE PROPERTY TO SEEK APPOINTMENT AS GUARDIAN OF
56 THE PERSON OR GUARDIAN OF THE PROPERTY IN THIS STATE UNDER ARTICLE
S. 2534 9
1 EIGHTY-ONE OF THIS TITLE OR ARTICLE SEVENTEEN-A OF THE SURROGATE'S COURT
2 PROCEDURE ACT IF THE COURT HAS JURISDICTION TO MAKE AN APPOINTMENT OTHER
3 THAN BY REASON OF THE PROVISIONAL ORDER OF TRANSFER.
4 S 83.35 REGISTRATION OF ORDERS APPOINTING A GUARDIAN OF THE PERSON.
5 IF A GUARDIAN OF THE PERSON BY WHATEVER NAME DESIGNATED HAS BEEN
6 APPOINTED IN ANOTHER STATE AND A PETITION FOR THE APPOINTMENT OF A GUAR-
7 DIAN OF THE PERSON IS NOT PENDING IN THIS STATE, THE GUARDIAN OF THE
8 PERSON APPOINTED IN THE OTHER STATE, AFTER GIVING NOTICE TO THE APPOINT-
9 ING COURT OF AN INTENT TO REGISTER, MAY REGISTER THE GUARDIANSHIP OF THE
10 PERSON ORDER IN THIS STATE BY FILING AS A FOREIGN JUDGMENT IN A COURT,
11 IN ANY APPROPRIATE COUNTY OF THIS STATE, CERTIFIED COPIES OF THE ORDER
12 AND LETTERS OF OFFICE.
13 S 83.37 REGISTRATION OF PROTECTIVE ORDERS.
14 IF A GUARDIAN OF THE PROPERTY HAS BEEN APPOINTED IN ANOTHER STATE AND
15 A PETITION FOR A PROTECTIVE ORDER IS NOT PENDING IN THIS STATE, THE
16 GUARDIAN OF THE PROPERTY APPOINTED IN THE OTHER STATE, AFTER GIVING
17 NOTICE TO THE APPOINTING COURT OF AN INTENT TO REGISTER, MAY REGISTER
18 THE PROTECTIVE ORDER IN THIS STATE BY FILING AS A FOREIGN JUDGMENT IN A
19 COURT OF THIS STATE, IN ANY COUNTY IN WHICH PROPERTY BELONGING TO THE
20 PROTECTED PERSON IS LOCATED, CERTIFIED COPIES OF THE ORDER AND LETTERS
21 OF OFFICE AND OF ANY BOND. THEREAFTER, SAID GUARDIAN OF THE PROPERTY
22 SHALL COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPH (VI) OF PARAGRAPH SIX
23 OF SUBDIVISION (A) OF SECTION 81.20 OF THIS TITLE WITH REGARD TO ANY
24 REAL PROPERTY OF THE PROTECTED PERSON IN THIS STATE.
25 S 83.39 EFFECT OF REGISTRATION.
26 (A) UPON REGISTRATION OF AN ORDER APPOINTING A GUARDIAN OF THE PERSON
27 OR PROTECTIVE ORDER FROM ANOTHER STATE, THE GUARDIAN OF THE PERSON OR
28 GUARDIAN OF THE PROPERTY MAY EXERCISE IN THIS STATE ALL POWERS AUTHOR-
29 IZED IN THE ORDER OF APPOINTMENT EXCEPT AS PROHIBITED UNDER THE LAWS OF
30 THIS STATE, INCLUDING MAINTAINING ACTIONS AND PROCEEDINGS IN THIS STATE
31 AND SELLING REAL PROPERTY AND, IF THE GUARDIAN OF THE PERSON OR GUARDIAN
32 OF THE PROPERTY IS NOT A RESIDENT OF THIS STATE, SUBJECT TO ANY CONDI-
33 TIONS IMPOSED UPON NONRESIDENT PARTIES.
34 (B) A COURT OF THIS STATE MAY GRANT ANY RELIEF AVAILABLE UNDER THIS
35 ARTICLE AND OTHER LAW OF THIS STATE TO ENFORCE A REGISTERED ORDER.
36 S 83.41 UNIFORMITY OF APPLICATION AND CONSTRUCTION.
37 IN APPLYING AND CONSTRUING THIS ARTICLE, CONSIDERATION MUST BE GIVEN
38 TO THE NEED TO PROMOTE UNIFORMITY OF THE LAW WITH RESPECT TO ITS SUBJECT
39 MATTER AMONG STATES THAT ENACT IT.
40 S 83.43 RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL
41 COMMERCE ACT.
42 THIS ARTICLE MODIFIES, LIMITS AND SUPERSEDES THE FEDERAL ELECTRONIC
43 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, 15 U.S.C. SECTION 7001,
44 ET SEQ., BUT DOES NOT MODIFY, LIMIT OR SUPERSEDE SECTION 101(C) OF SUCH
45 ACT, 15 U.S.C. SECTION 7001 (C), OR AUTHORIZE ELECTRONIC DELIVERY OF
46 ANY OF THE NOTICES DESCRIBED IN SECTION 103(B) OF SUCH ACT, 15 U.S.C.
47 SECTION 7003(B).
48 S 83.45 TRANSITIONAL PROVISION.
49 (A) THIS ARTICLE APPLIES TO PROCEEDINGS BEGUN ON OR AFTER THIS ARTI-
50 CLE'S EFFECTIVE DATE.
51 (B) SECTIONS 83.01 THROUGH 83.05 AND SECTIONS 83.31 THROUGH 83.43 OF
52 THIS ARTICLE APPLY TO PROCEEDINGS BEGUN BEFORE THIS ARTICLE'S EFFECTIVE
53 DATE, REGARDLESS OF WHETHER A GUARDIANSHIP OR PROTECTIVE ORDER HAS BEEN
54 ISSUED.
55 S 2. Section 1758 of the surrogate's court procedure act, as added by
56 chapter 675 of the laws of 1989, is amended to read as follows:
S. 2534 10
1 S 1758. Court jurisdiction
2 1. THE JURISDICTION OF THE COURT TO HEAR PROCEEDINGS PURSUANT TO THIS
3 ARTICLE SHALL BE SUBJECT TO ARTICLE EIGHTY-THREE OF THE MENTAL HYGIENE
4 LAW.
5 2. After the appointment of a guardian, standby guardian or alternate
6 guardians, the court shall have and retain general jurisdiction over the
7 mentally retarded or developmentally disabled person for whom such guar-
8 dian shall have been appointed, to take of its own motion or to enter-
9 tain and adjudicate such steps and proceedings relating to such guardi-
10 an, standby, or alternate guardianship as may be deemed necessary or
11 proper for the welfare of such mentally retarded or developmentally
12 disabled person.
13 S 3. Section 81.18 of the mental hygiene law, as amended by chapter
14 438 of the laws of 2004, is amended to read as follows:
15 S 81.18 Foreign guardian for a person not present in the state.
16 Where the person alleged to be incapacitated is not present in the
17 state and a guardian, by whatever name designated, has been duly
18 appointed pursuant to the laws of any other [state, territory, or] coun-
19 try where the person alleged to be incapacitated resides to assist such
20 person in property management, the court in its discretion, may make an
21 order appointing the foreign guardian as a guardian under this article
22 with powers with respect to property management within this state on the
23 foreign guardian's giving such security as the court deems proper. IN
24 ITS DISCRETION, THE COURT MAY UTILIZE THE PROVISIONS OF ARTICLE EIGHTY-
25 THREE OF THIS TITLE.
26 S 4. This act shall take effect on the one hundred eightieth day after
27 it shall have become a law.
