J. I.~ E. OSBORr~(540) 983-V516Iosborne@woodsrogers.com

WOODS ROGERSATTORNEYS AT LAW

August 4, 2010

Roger W. Mullins, Esq.Attorney at Law106 Church StreetTazewell, VA 24651

Re: 2010 Boyd-Graves Subcommittee studying Uniform Adult Guardianship andProtective Proceedings Jurisdiction Act/Senate Bill 80

Dear Roger:

Our subeommittee consisted of the Honorable Bradley B. Cavedo, Kathleen O. Barnes,Esq., Steven M. Garver, Esq., Thomas M. Lawson, Esq., J. Gray Lawrence, Jr., Esq., and myself,as chair. We were asked to revisit the issue of jurisdiction for a non-resident guardian to sue inVirginia or for the appointment of a Virginia guardian for a non-resident adult deemed to beincapacitated. This issue was studied by a different sub-committee in 2008 which deferredfurther action pending the results of a study of the Uniform Adult Guardianship and ProtectiveProceedings Jurisdiction Act (the "UAGPPJA"). Such a study was conducted by a jointcommittee of the Virginia Bar Association composed of members of the Wills, Trusts andEstates and the Eider Law Sections (the "Joint Committee"). (See Letter Report from Steven M.Garver, Esq. dated June 25, 2008, attached).

This subcommittee considered a two page "white paper" summary of the JointCommittee prepared by Newnie Rogers, as chair, along with a marked up copy of the UAGPPJAto show the Virginia changes, a copy of Senate Bill 80 (legislation introduced in the GeneralAssembly in 2010 based on the Joint Committee’s work and carried over to next year), as well asthe UAGPPJA itself and a five page summary report by David English for the NationalConference of Commissioners on Uniform State Laws regarding the UAGPPJA as of October of2007. All of these doeurnents are attached to this report.

The Joint Committee recommended adoption of the UAGPPJA (as highlighted in the"white paper") with the following changes:

- Adding a definition of"pmtective order" and "court" since Virginia has not adopted theUniform Adult Guardianship and Prospective Proceedings Act;

- Adding language to clarify who must engage in "unjustifiable conduct" whenjurisdiction is to be declined by reason of such conduct;

- Adding language to the requirements for issuing a final order that confirms the transferof jurisdiction and terminates the Virginia guardianship to expressly require performance of such

[#1370396-1. 999999-999}P.O. Box 14125 / Roanoke, Virginia 24038-4125

10 South Jefferson Stre~ Suite 1400(540) 983-7600 / Fax (540) 983-771 i

also in Danville, Lynchburg, Richmond and Charlottesville, Virginia

Roger W. Mullins, Esq.August 4, 2010Page 2

actions and receipt by the court of all documents necessary to terminate the guardianship orconservatorship in Virginia; and

- Adding language to ensure that the determination of whether the guardianship oreonservatorship being transferred to Virginia needs to be modified to conform to Virginia law isincluded in the final order accepting transfer of a guardianship or eonservatorship, as opposed toallowing the court ninety days after entry of the final Order to do so.

It should be noted that it is not clear that the two VI3A committees that participated in the studyhave themselves endorsed the work of the Joint Committee. [ know that the Wills, Trusts andEstates Section Legislative Committee will likely review and endorse this report at its nextmeeting on September 10, 2010, in Richmond. I should be able to report on the status of theVBA Section actions in my report to the fulI conference at our meeting in Williamsburg inOctober.

As set forth in the "white paper", the UAGPPJA, with the recommended changesdescribed above, was introduced by Senator Janet Howell in 2010. This was not initiated oranticipated by the Joint Committee, and Senator Howell was requested to pull the bill to allowthe VBA and the Boyd-Graves Conference to complete their review and analysis of the JointCommittee’s work. Our subcommittee has determined that Senate Bill 80 was not pulled butwas actually carried over to the 2011 session by the Senate Courts of Justice Committee. Ourcommittee feels that adoption of the UAGPPJA, as reflected by Senate Bill 80, will be asignificant improvement to the c~t practice in this area by providing clear jurisdictional rulesand procedures by statute for foreign guardians acting in Virginia and for Virginia guardians orconservators attempting to qualify and act for non-residents in Virginia where currently the rulesare not clear.

It is the recommendation of this subcommittee that the 2010 Boyd-Graves Conferencesupport the adoption of Senate Bill 80 in the 2011 session of the General Assembly. I wouldnote that Judge Cavedo took the extra measure of consulting with Judge James Almand, who wason the 2008 subcommittee, regarding the status of our study and Judge Almand agrees with ourrecommendation to support the enactment of Senate Bill 80.

Enclosures

V~ry truly yours,

WOODS ROGERS PLC

I. Lee E. Osborne

(#I370396-I, 999999-999}

Roger W. Mullins, Esq.August 4, 2010Page 3

Steven M. Garver, Esq.J. Gray Lawrence, Jr., Esq.Thomas Moore Lawson, Esq.Kathleen O. Barnes, Esq.The Honorable Bradley B. Cavedo

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GARVER LAW OFFICES, P.C.11702 Bowman G-rein DriveRe~ton, virginia 20190-3501

MAILIN(~ ADDRESS:P.O. Box 2430~ Virginia 20195-0430

STEVEN M. GARVER

The Honorable Diane M. Strickland

June 25, 2008

T¢letahone: (703) 471-1090Facsimile: (703) 471-1095Toll Fre~ (g~O) 440-8605

In re:. Boyd Graves Sub-committee to study Guardians for Non-Resident Plaintiffs

Dear Judge Striekl~d:

Our sub-committee was made up of the Honorable James Almand, Tom Blair, Esq.,Cindra Dowd, Esq., Marni Bymm, Esq., the Honorable William Taylor, Jr. Lee Osborne, Esq., theHonorable J. MiehaeI Gamble, and myself. Our charge was to determine if Sere was a need forstatutory change such that a non-resident guardian could file suit in Virginia (to toll the statute oflimitations) to bring an action or the basis for appointment of an in state Guardian for a non-resident who was deemed incompetent.,

Our tab-committee examined Title 37.2.of the Virginia Code which provides for theappointment of Guardians and Conservators and also looked at §26-59 which deals withnonresident fiduciaries. Clearly an incompeteat emmet bring an action in his own name inVirginia and the Courts have generally found an action by a foreign guardima in the VirginiaCourts as a nullity. It would appear that currently ther~ is a problem with foreign incompetentsxvho wish to bring an action in Virginia Coua’ts in that though some judges have used §26-59 topermit appointment era guardian for a non-resident incompetent when his home jurisdiction hasappointed a guardian, other courts have laeld that the Title 26 remedy is not broad enough toencompass appointment as contemplated .under Title 37.2. In some instances, a guardian ad litemhas had to travel outside the Cotmtry to comply with the requirements of Title 37.2 and gettingtestimony and providing for service -¢an be a problem. Likewise, the expense can be enormous,~he delays detrimental to the tolling of the stature of limitations, and the procedure cumbersomedepending on the eotmtry or state which makes the appointment of a foreign guardian. (Thefederal courts have a procedure to remedy this problem and do not dismiss the cause for lack ofthe proper party, but permit the substitution, if necessary to relate back to the actual filing date.)

Boyd Graves Sub-committee to study Guardians for Non-Resident PlaintiffsJune 25, 2008Page Two (2)

The sub-committee learned that the recognition of foreign guardians, which may resolvethe issue, is a part of a uniform act which was adopted in 2007 by the National Conference ofCommissioners on Uniform Laws. It has been adopted by several states. Our inquiry to theVirginia Bar Association Committee for legislative matters dealing with wills and estates hasprompted that corranittee to look at the new uniform a~t known as the ’Uniform AdultGuardianship and Protective Proceedings ffurisdietion Act" which addresses many issues offoreign incompetents and issues of competing jurisdictions, but which also provides for a guardianto be appointed based upon a proceeding in a foreign jurisdiction and provides for evidence to betaken in the foreign jurisdiction if appropriate.

We also considered remedies whicah like the fedea-al system would permit the substitutionof a pasty to relate back; a provision to permit the filing by a foreign guardian provided that within90 days an in state guardian was appointed; and a provision which would permit the VirginiaCourt tO recognize the finding of incompetency by the foreign juri~.etion, but then provide forthe appointment bythe Virginia Court of a Guardian to bring the action,

Though, many of these ideas have merit, itwas the sub-committees consensus opinionthat it would not be wise to report positively on any of these proposals until an evaluation of theUniform Act (as it might be adopted in Virginia) was made and that was beyond the charge andtime of the sub-committee. Though some further action may be advisable, it would appear thatwaiting to see what may be adopted in the Uniform Act and whether it still leaves a void was therecommendation of the sub-commlttee at this time.

If the Conference deemed it appropriate, a special committee might be appointed to reviewthe Uniform Act, tlfis committee might be asked to consider the Uniform Act, we might defer toanother organization such as the VBA to evaluate the Uniform Act, or we might table the issue tosee what the legislature might do to adopt the Uniform Act. Otherwise the issue may be tableduntil Virginia takes a position on the Uniform Act. .

I have attached a copy of the Uniform Act hereto for consideration.

YOLLrS, 0-

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,@,@@@@

UNIFORM ADULT GUARDIANSHIP AND PROTECTIVEPROCEEDINGS JURISDICTION ACT

Background:

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act("UAGPPJA’) was enacted by the National Conference of Commissioners on Uniform StateLaws in 1997. UAGPPJA addresses the issue of jurisdiction over adult guardianships,conservatorships and protective proceedings. Its goal is to provide a uniform law so that onlyone state has jurisdiction at a given time. UAGGPJA addresses the key issues of where a caseshould begin where there is more than one possible jurisdiction, how to have the authority of onestate recognized or enforced in another, and how to transfer a case from one state to mother.

UAGPPJA has similar concepts to the Uniform Child Custody Jurisdiction andEnforcement Act.

UAGPPJA has been endorsed by the National Guardianship Association, Nationa!College of Probate Judges, Conference of Chief Justices, National Academy of Elder LawAttorneys, and the Alzheimer’s Association. The Virginia Guardianship Association favorsadoption of the UAGPPJ’A in Virginia.

Enactment:

UAGPPJA has been enacted in the following 19 states and D.C.: Alaska, Washington,Oregon, Nevada, Utah, Colorado, Montana, Oklahoma, North Dakota, Minnesota, Illinois,Delaware, Iowa, Maryland, Arizona, Tennessee, Alabama, South Carolina, and West Virginia.

It is anticipated that UAGPPJA will be introduced in 2010 in Vermont, Connecticut,Kentucky, Nebraska, Mississippi, ond Florid~

Referral to Wills, Trusts & Estates Legislative Committee:

The Boyd-Graves Collference referred UAGPPJA to the Wills, Trusts and EstatesLegislative Committee for consideration. Senator Janet Howell sought to introduce legislation in2010 but decided to pull the bilI mad have it considered in 20I 1 after study can be made of theAct.

The subcommittee considering UAGPPJA consists of members of the Elder Law andWills, Trusts and Estates Secdons of the VBA.

Proposed Virginia Uniform Adult Guardianship and Protective Proceedings JurisdictionAct:

The Subcommittee studied UAGPPJA and recommends adoption o f UAGPPJAwith a ~’ew changes, which are set forth below.

Virginia did not adopt the Uniform Adult Guardianship and ProtectiveProceedings Act and ~hus does not have "protective proceedings" as that term is used inUAGPPJA. Rather than change the terminology throughout the proposed Virginia UAGPPJA,the Subcommittee defined "protective order" to mean "an order appointing a conservator" anddropped "or other order related to management of an adult’s property." The definition of"Court" was also added to the Virginia UAGPPJA.

With regard to the provision addressing the deelinatiort of jurisdiction by reasonof conduct, the Subcommittee added language to ctarify who must engage in the unjustifiable.conduct.

The Subcommittee also recommends adding language to the requirements forissuing a final order that confirms the transfer and terminates the guardianship by requiring"’performance of all actions by the guardian or conservator and receipt by the court of theCommonwealth ofali documents required to terminate a guardianship or conservatorship inCommonwealth."

The Uniform Act provides that in the context of moving a guardianship orconservatorship to another state, no later than 90 days after issuance ot’a final order acceptingtransfer of a guardianship or conservatorship, the court shall determine whether the guardianshipor eonservatorship needs to be modified to conform to the law of the state that is accepting thetransfer. The Subcommittee recommends the following language, "The final order acceptingtransfer of a guardianship or conservatorship shall contain a determination of whether theguardianship or cortservatorship needs to be modified to conform to the law of theCommonwealth" rather than providing for a 90 day wait.

The Committee’s proposed version is attached to this memorandum. This version is thesame version that was proposed by Senate Howell as SB 80, which is also attached.

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SIgNATE BIL~ t~O. HOUSE BILL NO.

Notes: -.iExcept for some Virginia stylisti~ changes (must to shall, state to Commonwealth,code references) and the existing Code section (§ 37.2-I 001 ) which is drafted asit would be in an introduced bill, the uniform act appears as "old language" andthe changes made by the committee appear as "new language." When the bill isintroduced, the entire Adult Guardianship and Protective Proceedings JurisdictionAct will ,show as new language.

The Act is..b.eing add..ed to the Virginia Code as Chapter "t 0.1 of Title 37.2.Throughout ~e draft the new Virginia Code section is listed first and thecorrespondifig uniform act code section follows in bold and parentheses. Internalnumbering (wi(-h.,_the exception of some parentheses) was not changed to VirginiaCode sections....,~is will be done immediately before introduction of the bill tominimize the: pg. ~sibility of errors. The Uniform Law Commission (ULC) websitehas a copy of the uniform bill as adopted by the ULC with comments explainingeach section.http://www, nccusl.org/Click on Final Acts and Legislation

The committee is in the process of reviewing existing Virginia Code sections tosee if any need to be amended, added or repealed if this Act is enacted.Because this has not been completed this draft does not reflect any collateralCode changes.

A BILL to amend and reenact § 37.2-1001 ofthe Code of Virginia and to amend the Code ol"Virglaiaby adding in Title 37.2 a chapter t~umbcmd 10.1, containing articles numbereA through one throughfive, consisting of sections numbered 37-2-1031 through 37.2-1052, relating to the Adult Guardianshipand Protective Procoedings Jurisdiction Act.

30 Be it enacted by the General Assembly of Virg’mia:

31 1. That § 37.2-104}1 of the Code of Virginia is amended and the Code of Virginia is amended by

32 adding in Title 37.2 a chapter numbered t0.1, containing articles numbered one through five,

33 consisting of sections numbered 37.2-1031 through 37.2-1052, as follows:

34 § 37.2- l O01. Filing oFpetition; jurisdiction; instructions to be provided.

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A. A petition fo~:the appoin..tment of a guardian or conservator shall be filed with the circuit court

of the county or elty in. which the respondent is a resident or is located or in which the respondent

resided irrtm&fiately prior to becoming a patient, voluntarily or involuntarily: in a hospital, including a

hospitaI licensed by’.the. Department of Health pursuant to § 32. i- 123, or a resident in a nursing facility

or nursing home, conva]{~cent home, assisted living facility as defined in § 63.2-I00, or any other

similar institutign or, if the petition is for the appointment of a conservator for a nonxes~dem with

property in the state, in the city o~’ county in which the respondent’s property is located.

B. Article 2 (§ 37.2-1031 et seq.) of the. Adult Guardianship and Protective Proceedings

Jurisdiction Act ~ovides the exclusive jurisdictional basis for a court of the Commonwealth to at~laoint a

guhrdian or conservator for an adult.

C:~Where the~petition is brought by a parent or guardian of a respondent who is under the age of

18, the. petition may be filed no earlier than six months prior to the respondent’s eighteenfla birthday.

Where the petition is brought by any other person, the petition may be filed no earlier than the

respondent’s eighteenth birthday.

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GD__. Instructions regarding the duties, powers, and liabilities of guardians and conservators shall

be provided to each clerk of court by the Office oft.he Executive Seere~-y of the Supreme Court, and

the clerk shall provide that information to each guardian and conservator upon notice of appointment.

O-__E_E. The circuit court ~ which the proceeding is first commenced may order a transfer of venue

if it would be in the best interest of the respondent.

Comment: This is an existing Code sectio.n in Chapter 10 of Title 3Z2.

CHAPTER I0.1.

ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS J-U’RISDICTION ACT.

Article 1.

General Provisions.

§ 37.2-103I (101). Short title.

This act may be cited as the Uniform Adult Guardianship and Protective Proceedings

Jurisdiction Act.

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§ 37.2-1032 (10S). D~fifihions.

"Adult" means an individual who h~ attained t 8 years ol~ age.

"Conservator" means a person appointed by, the court to administer the property of an adult,

incltiding a person appoi~tted tmd~r Chapter I0 (§ ~[~.2-I000 et se, q.) of this title.

"Court" means a court Of competent jurisdiction as determined by otherwise applicable Virginia

law to es~blish, eM..b._r._ce, or m~dify a guardianship or conse~’atorship order or an entity authorized

under th.e Iaw-ofa~othe~ ~tale to est~l~|ish, enforce or modify a quardianship or eonservatorship order.

"Guardian..." means a person appointed by the court to make decisions regarding the person of an

adult,.including a perso.~, appointed under Chapter 10 (§ 3 7.2-1000 et seq.) ot~this

Guardianship order" means an order appointing a guardian.

~’Cruardianship proceeding" means a judicial proceeding in which an order for the appointment of

.a guardian is sought or has been issued.

"hleapacitated person" means an adult for whom a guardian has been appointed.

"Party" means the respondent, petitioner, guardian, conservator, or any other person allowed by

the court to participate in a guardianship or protective proceeding.

"Person," except in the term incapacitated person or protected person, means an individual,

corporation, business trust, estate, trust, partnership, limited liability compar~y, association, joint venture,

public corporation, government or governmental subdivision, agency, or instrumentality, or any other

legal or commercial ~ntity.

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

"Protective order" means an order appointing a conservator

"Protective proceeding" means a judicial proceeding in which a protective order is sought or has

been issued.

"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.

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"Respondent"’mbans ~n hdult for whom a protective order or the appointment of a guardian is

"S .tgte" means a state of the United. States, the District of Colurabia, Puerto Rico, the United

States Virgin Islands,,a fedelmlIy, recognized Kn~iian tribe, or any territory or insular possession subject to. , . . o,;.fi

:[37.9_-I033. (103) Iri .tcrnational application of Act.

A ~ourt ofthe Commonweal. th..may treat a foreign country as if it were a state for the purpose of:::

applying thi.s"article a~d Articles 2, 3, and 5.

§ 37.2-~_34. (104) Communication between courts.

[(a)] A couFt qf....the Commonwealth may ¢ommmficate with a court in another state concerning a

proceedia~ atlsing..~ufltter this Act. The court may allow the parties to participate in the communication.

[Exe~ept as otherwise provided in subsection (b), the court shall make a record of the commtmication.

The record may be limited to the fact that the communication occurred.

(b.) Courts may communicate concemh~g schedules, calendars, court records, and other

admlnistmtive matters without making a record.]

Comment: Check with Executive SecretarF’s Of~ce and ~he. BoFd Graves Conference regarding

this section_ Look. at ~17.1-124 .regarding records, thai the circuit court must keep regarding,

~uardianshil~s and conservators.

§ 37.2-1035. (105) Cooperation between cottrts.

(a) In a guardianship or protective proceeding in the Commonwealth, a court in the

Commonwealth may request the appropriate court of another state to do any of the following:

1. Hold an evidentiary hearing;

2. Order a person in flint state to produce evidence or give testimony p~suant to procedures of

that state;

3. Order that an eva~uation or assessment be made of the respondent;

4. Order any appropriate investigation of a person involved in a proceeding;

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5. Forward to the court of.the Commonwealth a certified copy of the transcript or other record of

a hearing undo,, subdivision 1 or any other proceeding, any evidence otherwise produced under

subdivision 2,"and any ev~.uation or asse~sartent prepared in cmmpliance with an order under subdivision

6. Issue any orddr necessary to assure the appearance in the proceeding of a person whose

I140 I objection based on the best evidence rule.}

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120 I presenc’~ ig necessary for ~ "either court to make a determination, including the respondent or the

incapaeita*ed or prorated person;

7. Isaac.. ari order authoriz{ng the release of medical, financial, criminal, or other relevant

information in that state, ineludlng protected health information as defined in 45 C.F.1L Section 164.504

¯ ~as a~ended.

(b) If a eottrt of another slate in which a guardianship or protective proceeding is pending

re~tuegts assistance of the kind provided in subsection (a), a cottrt of the Commonwealth has jurisdiction

for the limited purpose of granting the request or making reasonable efforts to comply with the request.

§ 37.2-!036. (106) Taking testimony in another state.

(a) In a guardianship or protective proceeding, in addition to other procedures that may be

available, testimony of a witness who is located in another state may be offered by deposition or other

means a!lowable in the Commonwealth for testimony taken in another state. The court on its own

motion may order that the testimony of a witness be taken in another state and may prescribe the manner

in which and the terms upon which the testimony is to be taken.

(b) In a guardianship or protective proceeding, a court in the Commonwealth may permit a

w~tness located in another state to be deposed or to testify by telephone or audiovisual or other

electronic means. A court in the Commonwealth shall cooperate with the court of the other state in

designating an appropriate location for the deposition or testimony.

{-(e) Documentary evidence transmitted from mother state to a court of the Commonwealth by

technological means that do not produce an origioal writing may not be excluded from evidence on an

Article 2.

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Jurisdiction.

§ 37.2- 1037"(201). Definiti~nn; significant connection factors.

health,

person

period

French, Jescey

(a) In this article: ’

I. "Emergent:y:’ means a circumstance that Ilk.ely will result in substantial harm to a respondent’s

safety, or wellhre, and for which the appointment of a guardian is necessary because no other

lads authority and is wi!ling to act on the respondent’s behalf;

2. ~’Hom¢ .s~ate’" means the state in which the respondent was physicalIy present, including any

of temporary absence., for at least six eormecutive month~ immediately before the filing of a

petition for a pi’gt.ective order or the appointment of a guardian; or if none, the state in which the

re.spoadent was p~ysic,0.11y preseat, including any period of temporary absence, for at least six

consecutive m0nths.ending within the six months prior to the filing of the petition.

3. "Significant-connection state" means a state, other than the home state, with which a

154 - respondent has a significant cormection other than mere physical presence and in which substantial

155 evidence concerning the respondent is available.

156 (b) In determining under Sections 203 and Section 301 (e) whether a respondent has a significant

157 connection with a particular state, the court shall consider:

158 1. The location of the respondent’s family and other persons required to be notified of the

159 gu~dianship or protective proceeding;

160 2. The length of time the respondent at any time was physically present in the state and the

I61 duration of any absence;

162 3. The location of the respondent’s property; and

163 4. The extent to which the respondent has ties to the state such as voting registration, state or

164 local tax retttra filing, vehicle registration, driver’s license, social relationship, and receipt of services.

165 § 37.2-1038 (202). Exclusive basis.

166 ]’his article provides the exclusive jurisdictional basis for a court of the Commonwealth to

167 appoim a guardian or issue a protective order for an adult.

168 Comment: Cross reference added to existing Code § 3 7. 2-I001.

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§ 37.2-I039 (20.t). Jurisdiction.

A court of the Co£monwealth.has jurisdiction to appoint a guardian or issue a pcoteetive order

for a respondent if:

I. The Commonwealth is the responde~t’~ home state;

2. On the date th#:petition is filed,, the Commonwealth is a significant-connection state and:

(A) .T~ae respondent does not have a home state or a court of the respondent’s home state has

declined to exerci~ jufi’sdiction because the Commonwealth is a more appropriate forum; or

(B) The respondbnt has.a home state, a petition for an appointment or order is not pending in a

caart of that star, or another significant-connection state, and, before the court makes the appointment or

issues the order:.

(i) A ix~d~on for an appointment or order is not flied in the respondent’s home state;

(ii) An objection to the court’s jurisdlction is not filed by a person required to be notified of the

proceeding; and;

(iii) The court in the Commonwealth concludes thal it is an appropriate forum under the factors

set forth in Section 206;

3. The Commonwealth does not have jurisdiction under either subdivision 1 or 2, the

respondent’s home state and all significant-connection states have declined to exercise jurisdiction

because the Commonwealth is the more appropriate forum, and jurisdiction in the Commonwealth is

consistent with the constitutions of the Commonwealth and the United States; or

4. The requirements for special jurisdiction under Section 204 are met.

§ 37.2- ! 040 (204). Special jurisdiction.

(a) A court of the Commonwealth lacking jurisdic~’ion under Section1 203(t) ~a’ough (3) has

special jurisdiction to do any of the following:

1. Appoint a guardian in an emergency for a term not exceeding [90] days for a respondent who

is physically present in the Commonwealth;

2. Issue a protective order with respect to reaI or tangible personal property located in the

Commonwealth;

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3. Appoint ...a"".g~..dian Or,conservator for an incapacitated or protected person for whom a

provisional order ~o transfer the pmceedipg from another state has been issued under procedures similar

to Section301..,

(b)’ If a t~.ition for,~the appointmetit. o.f a guardian in an emergency is brought in the

Commonwealth and ffid"..~.,’mmonwealth was no.t the respondent’s home state on the date the petition

was filed., the court shall di~s the proceeding at the request of the court of the home state, if any,

whether dis,missat.i~..req.uested be~0re o3.after the emergency appointment.

Comthera: Sbo~id" ft be clarified that the up to 90 day emergency._ appointment ends when the

home state at~p~tnt~ a guardian?

¯ ..- e§ 37.2-10ai~(2..05,). Zxclusive and continuing jurisdiction.

ExeZ’pt ~ ...~erwise provided in Section 204, a court that has appointed a guardian or issued a

pmfeetiv.e order consistent with this Act has exclusive and continuing jurisdiction over the proceeding

until it is tefilairtated by the court or the appointment or order expires by its own terms.

§ 37.2-1042 (206). Appropriate forum.

(a) A court of the Commonwealth having jurisdiction under Section 203 to appoint a guardian or

issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of

another state is a more appropriate forum.

(b) If a court of the Commonwealth declines to exercise its jurisdiction under subsection A, it

shall eitherdismiss or stay the proceeding. The court may impose any condition the court considers just

and proper, including the condition that a petition for the appohitment of a guardian or issuance of a

protective order be filed promptly in another state.

(c) In determining whether it is an appropriate forum, the court shall consider all relevant

factors, including:

1. Any expressed preference of the respondent;

2. Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur

and which state could best protect the respondent from the abuse, neglect, or exploitation;

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3. The length ’Of.. time the:.- ~spondent was physically present in or was a Iegal resident of the

Commonwealth o~" ~n~flae~ state; -..

4. ,The distance of the respondent from the court in each state;

5. The finatmial ciredmstances of the r~,’pondent’s estate;

-.6. The nature and’ hacatior~ of the evidence,;:

¯ :7:. The ability of the c,.ourt in each state to decide the issue expeditiously and the procedures

necessary ~ presen~:¢~:i..denee;

8, Tfi~..~a~ifliafi@.of~e cota’t of each state with the facts and issues in the proceeding; and

9. It" an ~pointment:we~ made, the court’s ability to moNtor the conduct of the guardian or

conservator. ";:’-

§ 37 2-1043 ~b7). Jurisdiction declined by mason of conduct.

(a) If at ~y time a court of the Commonwealth determines tl~t it aeXl~-~l j~isdi~tioa to

appoint a.:g~ardian or issue a proteetive order because a person...seeking to inyoke its iurisdiction has

~o¢-unjustifiable conduct, the court may:

1. Decline to exercise jurisdiction;

2. Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure

the health, safety, and welfare of the respondent or the protection of the respondent’s property or prevent

a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the

appointment of a guardian or issuance of a protective order is filed in a court of another state having

jurisdiction; or

3. Continue to exercise jurisdiction after considering:

(A) The extent to which the respondent and all persons required to be notified of the

proceedings have acquiesced in the exercise of the court’s jurisdiction;

(B) Whether it is a more appropriate forum than the court of any other slate under the factors set

forth in Section 206(c); and

(C) Whether the court of any other state would have jurisdiction under factual circumstances in

substantial conformity with the jurisdictional standards of Section 203,

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(b) If a court O~’,~e Commonwealth determines that it acquired jurisdiction to appoint a gamrdian

or issue a protee.tive order becaus~ a party seeking to invoke its jurisdiction ertgaged in uttjustifiable

conduct, it ma~, assess against that party n’~cessary and reasonable expenses, including attorney’s fees,

investigative fees~-eourt costs, communicatiqn expenses, witness fees and expenses, and traveI

expemes. The court may not assess fees, costs, or- expenses of any kind against the Commonwealth or a

governmental subdivision, agency, or instrumentality of the Commonwealth unless authorized by law

other than this Act. ’

§ 37.2-1~ (20g’), :Notice of proceeding.

If a petiiJ~ for the ap.pohatment of a guardian or issuance of a protective order is brought in the

Commonwealth an~ the Commonwealth was not the respondent’s home state on the date the petition

,~was flied, in addifioi;i to complying with the notice requirements of the Commonwealth, notice of the

petition shall be given to those persons who would be entitled to notice of the petition if a proceeding

were brougl~t in the respondem’s home state. The notice shall be given in the same manner as notice is

required to be given in the Commonwealth.

§ 37.2-1045 (209). Proceedings in more than one state.

Except for a petition for the appointment of a guardian in an emergency or issuance of a

protective order limited to property located in the Commonwealth under Section 204(a)(1) or (a)(2), ira

petition for the appointment era guardian or issuance of a protective order is filed in the Cornmonwealth

and in another state and neither petition has been dismissed or withdrawn, the following rules apply:

1. If the court in the Commonwealth hag jurisdiction under’ Section 203, it may proceed with the

case unless a court in another state acquires jurisdiction under provisions similar to Section 203 before

the appointment or issuance of the order.

2. If the court in the Commonwealfl~ does not have jurisdiction under Section 203, whether at

the time the petition is filed or at any time before the appointment or issuance of the order, the court

shall stay the proceeding and communicate with the court in the other state, if the court in the other

state has jurisdiction, the court in the Commonwealth shall dismiss the petition unless the court in the

other state determines that the court in the Commonwealth is a more appropriate forum.

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Article 3.

Transf~ of Guardianship or Conservatorship,

§ 37.2-I046 (301). Transfer of guai, dJanship or conservatorship to another state.

(a) A guardian, or co..mce, rvator appointed .in the Commonwealth may petition the court to transfer

the guardianship or co6r, L’rv,,atorship to another state.

(b) Notice of a petitioti under subsection (a) shall be given to the persons that would be entitled

to notice bfa pefiti~in, in the Comm.~mw~ealth for the appointment of a guardian or conservator.

(c) On tdae Court’s own motion or on request t~f the guardian or conservator, the incapacitated or

protected person~ or other person required to be notified of the petition, the court shall hold a heating on

a petition filed pursiaant to subsection (a).

(d) -The court, shall issue an order provisionally granting a petition to transfer a guardianship and

shall dixect the guardian to petition for guardianship in the other state if the court is satisfied that the

guardianship will be accepted by the court in the other state and the court finds that:

(1) The incapacitated person is physically present in or is reasonably expected to move

permanently to the other state;

(2) An objection to the transfer has not been made or, if an objection has been made, the objector

has not established that the transfer would be contrary to the interests of the incapacitated person; and

(3) Plans for care and services for the incapacitated person in the other state are reasonable and

sufficient.

(e) The coun shalI issue a provisional order granting a petition to transfer a cor~servatorship and

shall direct the conservator to petition for eonservatorship in the other state if the court is satisfied tha~

the conservatorship will be accepted by the court of the other state and the court finds that:

(1) The protected person is physieaIiy 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 201(b);

(2) An objection to the transfer has not been made or, if an objection has been made, the objector

has not established that the la’ansfer would be coriwary to the interests of the protected person; and

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(3) Adequate armngerfi~, ts will be.made for management of the protected person’s property.

(f) The court of the Comm6nwealth shall issue a final order confirming the transfer and

terminating ~e guardianship or conserv~~6.rsh~.."p ~ subject to its receipt of:

1. A provisional order accepting the prOb,,ceding from the court to which the proceeding is to be

tran’sfen’ed which is issued under provisions similar to Section 302; and

2. The performance 6f all actions by the ~uazdian or conservator mad receipt bv _the court of the

Commort,~veallh ofl all documents required to terminate a guardianship or conservatorship in the

CommonweaI"th.. ’

§ 37.2-IIM.7 (302). A~epting guardianship or conservatorship transferred ~om another state.

(a) To conf-m~ transfer of a guardianship or conservatorship transferred to the Commonwealth

.under provisions sigiilar to Section 301, the guardian or conservator shall petition the court in the

Commonwealth to accept the guardianship or conservatorship. The petition shall include a certified

copy of the other state’s provisional order of wansfer.

(b) Notice of a petition under subsection (a) shalt be given to those persons Ihat 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 the Commonwealth. The notice shall be given in the

same manner as notice is required to be given in the Commonwealth.

(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 shalI hold a hearing

on a petition filed pursuant to subsection (a).

(d) The court shall issue an order provisionally granting a petition filed under subsection (a)

unless:

(l) An objection is made and the objector establishes that transfer or" the proceeding would be

contrary to the interests of the incapacitated or proteeted person; or

(2) The guardian or conservator is ineligible for appointmea~t in the Commonwealth.

(e) The court shall issue a final order accepting the proceeding and appointing the guardian or

conservator as guardian or conservator in the Commonwealth upon its receipt from the court from which

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the proceeding is beifigtrans’ferre.d of a final order issued under provisions similar to Section 301

transferring the proceeding to the C£i~umnwv.alth.

~L, ............L’oJ "~"~ ................a The final order accept transfer of a

guardianship or conservatorship, tke c~ ~1~ d~’az.~’mlne shall contain a determination of whether the

guardianship or conser~’atorship needs to be modified to conform to the law of the Commonwealth.

~,L_~/n granting a petition under this section, the court shall recognize a guardianship or

cortservatorship order from the other state, including the determination of the incapacitated or protected

person’s incapacity and the app.ointment of the guardian or conservator.

1338 @t-)_(g)_ The denial by’-a court of the Commonwealth of a petition to accept a guardianship or

339~

340

341

.e2mservatorship trai~sferred from mother sta~ does not affect the ability of the guardian or conservator

¯ to seek app".okttmont.~ guardian or conservator in the Commonwealth under Chapter 10 (§ 37.2-1000 et

seq. Of. this title) if the court has jurisdiction to make an appointment other than by reason of the

342 provisional order 0f transfer.

343 Article 4.

344 Registration and Recognition of Orders From Other States.

345 § 37.2-1048 (401). Registration of guardianship orders.

346 If a guardian has been appointed in another state and a petition for the appointment of a guardian

347 is not pending in the Commonwealth, the guardian appointed in the other state, after giving notice to the

348 appointing court of an intent to register, may register the guardianship order in the Commonwealth byI

349 } fi}ing as a foreign judgment in a court, in any appropriate county or city..ofthe Commonwealth, certified

350 copies of the order and letters of office.

351 § 37.2-1049 (402), Registration of protective orders.

352 If a conservator has been appointed in another state and a petition for a protective order is not

353 pending in the Commonwealth, the conservator appointed in the other state, after giving notice to the

354 appointing court of an intent to register, may register the protective order in the Commonwealth by

355 [ filing as a foreign judgment in a court of the Commonwealth, in any county o.r city in which property

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356 belonging to the protee~t person is looated, certified copies of the order and letters of office and of any

357 bond.

358 § 37.2-1050 (403). Effect of registration.

359 (a) Upon r~ation of a guardianship .~. protective order from another state, the guardian or

360 conservator may exer~s~..in the Commonwealthall powers authorized in the order of appointment

361 except as prghibited under the laws of the Commonwealth, including maintaining aetiorts and

362 proceedingz in flae Commonwealtk and, if the guardian or conservator is not a resident of the

363 Commonwealth, subject to any conditions imposed upon nonresident parties.

364 (b) A court of the commonwealth may grant any rellef available under this Act and other law of

365 the Commonwealth to. enforce a registered order.

366 Article 5..

367 Miscellaneous Provisions.

368 § 37.2-1051 (501). Uniformity of application and construction.

369 In applying and construing this uniform act, consideration shall be given to the need to promote

370 uniformity of the law with respect to its subject matter among states that enact it.

371 § 37.2-I052 (502), Relation to electronic signatures in global and national commerce act,

372 This Act modifies, limits, and supersedes the federal Electronic Signatures in Global and

373 National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede

374 Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of an5’ of the

375 notices described in Section 103(b) of that act, 15 U.S,C. Section 7003(b). -

’376 § 503. Repeals.

377 The following acts and parts of acts are hereby repealed:

378 (1) ........................................

379 (2) ........................................

380 (3) ........................................

381 § 504. Transitional provision.

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date].

(a) This [ae~.], a~lies to-~Siamhip and protective proceedings begun on or after [the effective

(b)-[Arlides] 1, 3, and 4 mad Seefio.ns 501 and 502 apply 3o proceedings begun before [the

effective date], regatflI_ess ot"whether a guardi~hip o.r protective order has been issued.

§~5~)5~ -Effective date.

TI~i~ [act] tal(es..effeet ...............

:-:

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10100375DSENATE BILL NO. 80Off,,red January 13, 2010[~efiled J~uary 5, 2010

BILL-to amend and reenact § sT. 2-1ool of the Code of Hrginia and to amemt the Code of Virginia by adding inTitle 37.2 a chapfer numbered 10. I, containing articles numbered I through 5, consisling of ~ectio/~ numbered37.2-,I 03_~ through 37,2-205--2, relating to the Adult Guardianship and Protective Proceedings Jurisdiction Act.

Patron-- Howell

Referred to Committe~ [’or Courts of’Justice

Be it enacted by the Gener~l Assembly of’Virginla:

I. That § 37.2-10Ol of the Code of Virginla is am~ded and reenacted and that the Code of’Virginia is amended hy¯ adding in Title 37.2 a chapter numbered iO.[, containing articles numbered I through 5, consisting of sections

numbered 37.2-1031 through 37.2-1052, ~ fOllOWS:

§ 27.2-zoo J_. Filing of petition; jurisdiction; instructions to be provided.

A. A petition for the appointment of a guardian or conservator shall be filed with the circuit court ofthe county orcity in which the respondent is a resident or is loczaed or in which the respondent resided immediately Frior tobecoming a patient, voluntarily or involuntarily, in a hospital, including a hospital licensed by the DepartmentHealth pursuant to § ~ or a resident in a nursing facility or nu~ing home, convalescent home, assisted livingfacility as defined in § 63.2-100 or any" other similar institution or, if the petition is for the appointment of aconservator for a nonresident with property in the state, in the city or county in which the respondent’s property islocated.

B. Artfcle 2 (§ 37.2-1037 et .�~c1.) of the Adult Guardianship and Protective Proceedings Jurisdiction Act provides’the exeluMvejurisdietional basis for a court of the Commonwealth to apt?oint a guardian or conservator for anadult.

C Where the pedtion is brought by a parent or guardian of a respondent who is under the age of" 18, the petition maybe filed no earlier than six months prior to the respondent’s eighteenth birthday. Where the petition is brought by anyother person, the petition may be filed no earlier than the respondent’s eighteenth birthday.

~;D. Instructions regarding the duties, powers, and liabiliti~ of guardian~ tw, d comervators shall be provided to ~aehclerk ofceurt by the Office of the Executive Secretary of the Supreme Court, and the clerk shall provide thatinformation to each guardian and conservator upon notice of appointment.

DE. The clredit court in which the proceeding is first commenced may order a transfer of venue if it would be in thebest interest of the respondent.

CHAPTER 10. I.ADULT GUARDIdNSHIP AND PROTECTIVE PROCEEDINGS JUR[SDICT[ON ACT.

Article 1.G~neral Provisiona.

§ 37.2-1032. Short title.

This act may be cited as the Uniform Adult Guardians!u’p and Protective Proceedings Jurisdiction.Act.

§ 37.2-t03Z Defmitiom.

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In this act:

"’,4dult’" means an individual who has attained 18 years of age.

"Conservator" mednsa person appointed by the court to administer the property of an adqdt, including a personappointed under Chapter 10 (ff 37.2-1000 et seq.).

"Court" means a cotrrr of competent jMrisdfetion as determined by otherwise applicable ~Trginia law to ~tablish,enforce, or modify a guardianship or conservatorship order or an entiO~ authorized under the law of another state toestablish, enforce, or modify a guardianship or conaervatorship order.

"Guardian" means a person appointed by the court to make decisions regarding the person of an adult, inchding aperson appointed under Chapter 10 (§ 37.2.1o0o et seq.),

"’Guardianship order" means an order appointing a guardian.

"’Guardianship proceeding " means ajudieial proceedMg in which an order for the appointment of a guardian issought or has been issued

"Incapacitated person" means an adult for ~�’hom a guardian has been appointed.

"Party" means the respondent, petitioner, guardian, conservator, or any other person allowed by the court toparticipate in a guardianship or protective proceeding.

"’Pemon, ’" excep* in the term "incapacitated person" or "protected person", means an individua!, corporation,business trust, estate, treat, partnership, limited tiabili~ company, association, joint venture, public corporation,government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entiO~.

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

"Protective order" means an order appointing a conservator.

"Protective proceeding" means ajudieial proceedMg in which a protective order is aought or has been issued.

"Record" means information that is inscribed on a tangible meah’um or that is stored in an eteetronie or othermeditan and is retrievable in perceivable form.

"Respondent " meom an adult for whom a protecti~e order or the appointment of a guardian is sought,

"State" means a state of the United State.s, th~ District of Colurabia, Puerto Rico, the United States V~rgin Islands, a/ederalty recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the UnitedStates.

§ ~. International application of Act.

A court of the Commonwealth may treat a foreign countrp as if it were a state for the purpose ofapplying this articleand Artict~ Z 3, and5.

§ 27.2- 1034. Communication benc’een court~.

(a) A court o]’the Commonwealth may communicate with a court in another store concerning a proceeding arisingunder this Act. The court may allow the parties to participate in the communicaao~ Except as otherwise provided insubsection (b), the court shall make a record of the coramtmication. The record may be limited to the fact that thecommunication occurred.

(b) Courts may communidate concerning schedules, calendars, court records, and other administrative mattera

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without making a record.

§ .3_z.2-~o~5. Cooperation between courts.

(a) In a guardianship or protective proceeding in the Commonwealth, a court in the Common’wealth may request ttteappropriate court of another state to do any of tl~ foliowing.¯

LHold an evidentiary hearing;

Order a person in that state to produce evidence or give testimony purs~tant to procedures of tl~at state,"

3. Order that an evaluation or assessment be made of the respondent:

4.Order any appropriate investigation of a person involved in a proceeding;

5. Forward to the court of the Commonwealth a certified co1~, of the transcript or other record of a hearing undersubdivision I or any other proceeding, any credence otherwise produced tarrier subdivision 2, and any evaluation orassessment prepared in compliance with an order under subdivision 3 or 4;

6. Issue any order necessarJ~ to assure the appearance in the proceeding of a person whose presence is necessary foreither court to make a determination, including the respondent or the incapacitated or protected person; and

Z Issue an order authoriffng the release of medical, financial, criminal, or other relevant infotTnation in that state,includtng protected health information as defined in 45 C.F.t~ Section 164,504, as amended

(b) Ira court of another state in which a guardianship or protective proceeding fs pending requests assistance of thekind provided in subsection (a), a court of the Commonwealth has jun’sdiction for the limited purpose of granting therequest or making reasonable efforts to comply with the request.

§ 37.2oi036, Ta~itlg testimony in another state.

(a) In a guardianshfp or protective proceeding, in addition to other procedures that may be available, testimony of awitness who is located in another state may be offered by deposition or other means allowable in the Commonwealthfor testimony taken in another state. The court on its own motion may order that the testimony of a v~itness be takenin another state and may prescribe the manner in which and the terms upon which lhe testimony is to be taken.

(b) In a guardianship or protective proceeding, a court in the Commonwealth may permit a witr~ss located inanother state to be deposed or to testify by telephone or audiov£~uaI or other elgvtronic means. A court in theCommonwealth shall cooperate with the court of the other state in designating an appropriate location for thedeposition or testimony.

(c) Documentary ~,videnee transmitted from another state to a cmtrt of the Commonwealth by technological meansthat do not produce an original writing may not be excluded from evidence on an objection based an the bestevidenc~ rule.

Article 2.Jurisdiction.

§ 37.2-103Z Definitions; significant connection factors.

(a) In this article:

!. "Emergent." means a circumstance that likely will result tn substantial harm to a respondent’s health, safety, orwelfare, and for which the appointment of a guardian is necessary because no other person has authority and iswilling to act on the responde~t’s behalf.

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2. "Home state" means the state in.which the respondent was physically present, including any period of temporao,absence,.[br at least six consecutive months immediately before the fiting of a petition for a protective order or theappointment of a guardian; or if none, the state in which the respondent was physically present, including anyperiod of temporar~absenc~ for at least six consecutive months ending within the six months prior to the filing ofth~ petition.

3. "Significant-connection state " means a state, other than the home state, with which a respondent has a significantconnection other than mere phy~icrd presence and in which substantial evidence concerning the respondent Isavailable.

(b) In determining under ff 37.2-I039 and subsection (e) of§ 37..2-1046 whether a respondent has a significantconnection with a particular state, the court shall consider:

1. The localion of the respondent’s family and other persons required to be notified of the guardianship or protectiveproceeding;

2. The length of time the respondent at any time was physically present in the state and the duration of any absence;

3. The location of the respondent "s properO;; and

4. The extent to which the respondent has ties to the state such as voting registration, state or local ttz~ return f!ling,vehicle registration, driver’s license, social relationship, and receipt of services.

§ 3Z2-1038. Exclusive baMs.

This arIicte provide~ the exclusive jurisdictional basis for a court of the Commonwealth to appoint a guardian orissue a protective order for an adult.

§ 37,271.039. Jurisdiction.

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

1. The Commonwealth is the respandent’s home state;

2. On the date the petition is filed, the Commonwealth is a significant-connection state and:

(d) The respondent does not have a home state or a court of the respondent’s home state has declined to exercise]urtsdiction because the Commorm’ealth is a more appropriate forum; or

(B) The respondent has a home state, a petition for an appointment or order is not pending in a courl of that state oranother significant-connection state, and, before the court makes the appointment or issuer the order:

(ij A petia’on for an appointment or order is not f!led in the respondent’s home state;

(it) An objection to th~ court’s jurisdiction is not filed by a person required to be notified of the proceeding; and

(~ii) The court in the Commonwealth concludes that it is an appropriate_forum under the factors set forth in § 37.2-~042,.

3. The Commonwealth does not have jurisdiction under either subdivision I or 2, the respondent’s home slate andall significant-connection states have declined to .exercise jurisdiction because the Commonwealth is the raor~appropriate forum, andjurisdict~’on in the Commonwealth is consistent with the constitutions of the Commonwealthand the Unfted States: or

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4. The requirements for speclatjurisdietton under § 37.2.104~ are met.

ff 3 z. 2-! ~0. Spe c~ al ju~sdiction.

(a) A c~rt of the Commo~ealth l~Mngjuri~iction ~der the ~ovi~ions of ff 3L 2-~039 h~ s~clal~isdiction todo any of the following:

I. Ap~int a guardi~ in ~ ~e~en~for a te~ not ~eeding 90 d~s for a res~dem who fs p~sically presentin ~he Commo~ealth:

Z Z~st~e aprotec~ve order with res~ct to real or t~glble ~rso~l prop~ l~ated in the Commo~ealth; or

3. Ap~int a g~r~an or co~e~ator for an lnc~c~tated or protected ~rson~r whom a provisio~l or~r to~sfer the pr~e~ingf~m another st~e ha~ been Issued ~der pr~edures s~ilar to ff 3L2-1~a

~) Ira ~tition for the ~poin~ent of a ~ar~ in ~ eme~ is brought in the Commonweal~ ~d theCommonwealth w~ not the res~em’s home slate on the date the ~tion w~ fil~d, the court hha!l dismiss thepr~ng at the req~t of the court of the home state, ~y, wh~her dismi~sal is ~qu~ted before or a~er theemerg~ a~in~ent.

ff 3z2-~1. ~cl~ive ~d continuingj~aion.

~ept ~ othe~ise pr~lded ~ ~ 37.2-20~, o COUa that ~ ~m~ a ~di~ or i~sued a protec~iv~ orderco~istent with this Act ~s ~cl~ive ~d com~uingj~isdiction ~er the preceding ~til it ~ te~inated by thecourt or the ap~intment or order ~pire~ by its own terms.

ff 3 z 2- 1042. Appropdate fo~

(a) A c~rt of the Commo~ealth h~ngfl~tsd~tion ~der ff ~ to ap~t a g~rdi~ or issue a protec~veorder m~ decline to ~erc~e it~juri~diction ~ de~in~ at ~y ~me I~t a c~ of ~other state is a morea~rop~am fo~m.

~) ]fa co~t of the C~nweatth declines to ~erc~e ltsjurisdicdon ~d~ s~ection (a), it shall either dism~sor ~tay the pr~e~g. ~ c~ ~ im~e any co,ilion the co~t cons~ersj~t ~d pro~r, incl~ingcondition that a peH~on ~r the ap~in~ent of a ~rdian or ~su~ce of a protective order be filed promptly in~other slate.

(c) In dete~ining whether it is an approp~ate fo~, t~ co~t s~li c~i~r aH refevant f~tors, ine!~ing:

1. ~ny expressed preference of the r~ent;

2. W~ther ab~e, neglect, or ~ploitaffon of the res~ndem h~ ~c~red or is 1i~t~ to ~cur ~ w~ch state co~dbest protect the res~nt~om the able, negl~t, or ~loitati~;

3. ~e l~gth of time the res~n~ w~ ~ysfcally pr~ent ~ or w~ a legal r~Ment of the Commo~ealth or~other state;

4. ~e dist~ce of the res~ndent from the court in each

L ~e financ~l drc~sta~ of the resp~ent’s ~tate;

6. ~e nat~e and loc~ion of the evMe~e;

Z ~e abili~ of the court in ~ch state to dec~ the ~sue ~p~ifio~ly a~ the pr~ necess~ to present~iden~;

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8. The fctmiliarity of the court of each state with the facts and issues in the proceeding; and

9. If an appointment were made, the court’s ability to monitor the conduct of the guardian or conservator.

§ 37.2-1043. durfsdi’ction declined by reason of conduct.

(a) If at any time a court of the Commonwealth determines that it acquired jurisdiction to appoint a guardian orissue a protective order because a person seeking to invoke its jurisdiction has engaged in unfustifiable conduct, theeO~t trta2/:

I. Decline to exercise jurisdiction;

Z Exercise jurisdiction for the limited purpose offashianing an appropriate remedy to ensure the health, safety, andwelfare of the respondent or the protection of the respondent’s property or prevent a repetition of the unjustifiableconduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of aprotective order is filed in a court of another state having jurisdiction; or

3. Continue to exercise jurisdiction after considering:

(d) The extent to which the respondent and all persons required to be notified of the proceedings have acquiesced inthe exercise of ttte court "s ]uri~dietion,"

(B) 14/’hether it is a more appropriate forum than the court of any other state under the factom set forth in subsection(c) of§ 37.2-1042.; and

(C) Whether the court of any other state would have jurisdiction under factual circutra¢tances in substantialconformity with thejur~dictionat standards of§ 3z2-1039.

(b) lf a court of the Commonwealth determines that it acqudredjurisdiclion to appoint a guardian or issue aprotective order because a party seeking to invoke its jurisdiction engaged in unjta~tifiable conduct, it may assessagainst that party necessary and reasonable expenses, including attorney fees, investigative fees, court costs,communication expenses, witness fees and expe~es, and travel expenses. The court may not assess fees, costs, orexpenses of any kind against the Commomveatth or a governmental subdivision, agency, or instrumentality of theCommonwealth unless authorized by law other than Ibis Act.

.o44. Notice of proceeding.

[f a petition for the appointment of a guardian or issuance of a protective order is brought in the Commorm’ealthand the Commonwealth was not the respondent’s home state on the date the peti~’on was filed~ in addition tocomplying with the notice requirements of the Commonwealth, notice of the.petition shall be given to those personswho would be entitled to notice of the petition if a proceeding were brought in the respondent’s home state. Thenotice shall be given in the same manner as notice is required to be given in the Commonwealth.

§ ~_Z2-1045. Proceedings in more than one state.

Except for a petition for the appolntment of a guardian in an emergency or issuartce of a protective order limitedproperty located in the Commortweatth under subdivision (a)(1) or (a)(2) of§ 3;’.2-1o40, i.f a petition for theappointment of a guardian or issuance of a protecl~ve order is filed in the Commonwealth and in another state andneither petition ]zas been dismissed or withdraavn, the following rudes apply:

1. If the court in the Commonwealth has Jurisdiction under ff 37.2-1039 it tt~ay proceed with the ease unless a courtin another state acquires jurisdiction under provisions similar to § 37.2-1039 before the appointment or issuance ofthe order.

Z If the court in the Commonwealth does not have jurisdiction under § 37.2-1o39, whether at the time thepetition is~qled or at any time before the appointment or issuance of the order, the court shall stay the proceeding and

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communicate with the court lit the other grate. If the court in the other state haa ]urisdtction, the court in theCommonwealth shall dismiss lh¢ petitibn unleas the court in the other state determines rhat the court in theCommonwealth is a more appropriate forum.

Article 3.Transfer of Guara~anship or Conservator~hip.

ff _37.2-l Oa6. Transfer of guardiamhip or conservatorship to another state.

(a) A guardian or conservator appointed in the Commonwealth may peation the court to tramfir the guardianshipor conservatorship to another state.

(b) Notice of a petition under subsection (a) shall be g~ven to the persons that would be entitled to notice of apetition in the Commonwealth for the appointment of a guardian or conservator,

(c) On the court ’~ own motion or on request of the guardian or conservator, the incapacitated or protecged person.or other person required to be nottfied of the petition, the court shall hold a hearing on a petition filed pursuant to.,ubsecfion (a).

(d) The court shall issue an order provisionally granting a petilion to transfer a guardia~ship and shall direct theguardian to petition for guardianship in the other state i_t’the court is ~atisfied that the guardianship wtll be acceptedby the court in the other scare and the court find~ that:

(1) The incapacitated person is physically present in or is reasonably expected to move permanently to the other~tate;

(2) An objection to the transfer has not been made or, if an obJection has been made, the objector has not establishedthat the transfer would be contrary to the interests of the ineapaeitated person; and

(3) Plans for care and services for the incapacitated person in the other state are reasonable and sttfficient.

(e) The court she1! iasue a provisional order granting a pe~tion to transfer a conservatorship and shall direct theconservator to petition for conservatorship in the other state if the court is sattsfied that the eonservatorship will beaccepted by the court of the other state and the eourt findr that:

(I) The protected person is physically present in or is reasonably evcpected to move permanently to the other state, orthe protected person has a significant connecaon to the other state considering the factors in subsection (b) of§3z2-to~z:

(2) An objects’on to the transfer has not been made or, i.fan objection has been made, the objector h~ not establishedthat the transfer would be contrary to the interests of the protected peraon; and

(3)/Idequate arrangements will be made for management of the protected person "s property.

69 The caurt of the Commonwealth shall iasue a final order confirming the transfer and terminating theguardianship or conservatorship subject to it~ receipt off

L A provisional order accepting the proceeding from the court to which the proceeding is to be tramflerred which isL, sued trader provisions similar to § 3z2-1047; and

2 The performance ofali actions by the guardian or conservator and receipt by the court ofthe Commotm’ealth ofall documents required to terrainate a guardianship or conservatorshtp in the Commonwealth.

§ 37.2-1047..4ccepting guardianship or conservatorship trtrasferredfrora another state.

(a) To confirm transfer of a guardianship or conservatorship transferred to the Commonwealth under provisions

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similar to § 37. 2-i..046, tile guardian or. conservator shall petition the court in the Commonwealth to accept theguardianship or consetwatorship, The petition shall include a certified copy of the other state’s provisional order of

(b) Notice of a petition under subsection (to shall be given to those persons that would be entitled to notice if lhepetition were a l:~tition for the appointment of a guardian or issuance of a protective order in both the transferringstate and the Commonwealth. The notice sha!l be given in the same manner as notice is required to be given in theCommonwealth.

(¢) On the court’s own motion or on request of the guardiat~ 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 petttian filed tzrursuatltto subsection (a).

(d) The court shati issue an order provisionally granting a petition filed under subse~’tion (aj unless:

(1) An objection is made and the obje¢’tor establishe~ Ihat transfer of the proceeding would be contrary to theinterests of the incapacitated or proteetedperson; or

(2) The guardian or conservalor is ineligible for appointment in the Commomvealth.

(e) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator asguardian or conservator in the Commonwealth upon it,� receipt from the court from which the proceeding is beingtra~ttferred of a final order issued under provisions similar to § 37.2-1046 transferring the proceeding to theCommonwealth.

7"he final order accepting transfer of a guardianship or conservatorghip shall contain a determination of whether theguardianship or eonservatorship needs to be modified to conform to the law of the Commonwealth.

09 In granting a petilion under this section, the court shall recognize a guardianship or conservatorship order fromthe other state, including the determination of the incapacitated or protected person ’s incapacity and theappointment of the guardian or conservator.

(g) The denial by a court of the Commonwealth of a petition to accept a guardianship or conservatorship transferredfrom another state does not affect the ability of the guardian or conservator to seek appointment as guardian orconservator in the Commonwealth under Chapter 10 (§ 3z2-2000 et seq.) if the court hasjurisdiction to make anappointment other than by reason of the provisionat order of trarmftr.

Article 4.Registration and Recognition of Orders from Other States.

§ 37.2-I04& Registration ofguardianship orders.

Ira guardian has been appointed in another state and a petition for the appointment of a guardian is not pending inthe Commonwealth, the guardian appointed in the other state, after giving notice to the appointing court of an intentto register, may register the guardianship order in the Commonweallh by filing as a foreign judgraent in a court, inany appropriate coumy or ci~ of the Commottwealth, certified copies of the order and letters of office.

§ 37.2-1049. Registration ofprotective orders.

]fa conservator has been appointed in another state and a petition for a protective order is not pending in theCommonwealth, the conservator appointed in the other state, after giving notice to the appointing court of an intentto register, may register the protective order in the Commonwealth by f!ling as a foreign judgment in a court of theCommonwealth, in any county or city in which properO~ belonging to the protected person is located, certified copiesof the order and letters of office and of any bond.

37.2-I050. Effect of registration.

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(a) Upon registration of a guardiansh¢p or protective order from another state, the guardian or conser~,ator mayexercfse tn the Commonwealth all powers authorized in the order of appointment except as prohibited under thelaws of the Commonwealth, including maintaining actions and proceedings in the Commonwealth and, if theguardian or cort~ervator is not a resident of the Commonwealth, subfect to any ¢ondi~ons imposed upon nonresidentparties.

(b) A court of the Commonwealth may grant any relfef available under this Act and other law of the Commonwealthto enforce a registered order.

~lrHcle

Miscellaneous Provisions.

§ 3_7. 2-1 o 51. Uniformity of application and construction.

In applying and construing thb uniform act, consideration shall be given to the need to promote uniformity of thelaw with respect to its subject mailer among states that enact it.

37.2-1052. Relaff’on to electronic signalures in global and national commerce act.

This Act modtfies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce.4ct,15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede ~ection 101(c) of that act, 15 U.S.C. Section7001(c), or authorize electronic delivery of any of the notice~ de~cribe~! in Section 103(b) of that act, 15 U.~.C.Section 7003(b),

Legislative Znformation Sys-I~m

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UNIFORM ADULT GUARDIANSHIP AND PROTECTIVEPROCEEDINGS JURISDICTION ACT (2007)

David EnglishReporter for Act

Current to 10/5/2007

The Uniform Guardianship and Protective Proceedings Act (UGPPA), which waslast revised in 1997, is a comprehensive act addressing all aspects of guardianships andprotective proceedings for both minors and adults. The Uniform Adult Guardianship andProtective Proceedings Jurisdiction Act (UAGPPJA) has a much narrower scope, dealingonly with jurisdiction and related issues. The new UAGPPJA addresses many problemsrelating to multiple jurisdiction, transfer, and out of state recognition. It has beenendorsed by the National Guardianship Foundation and the National College of ProbateJudges. Endorsement by the American Bar ,~ssociation is expeeted at the 2008 Mid-YearMeeting

Due to increasing population mobility, cases involving simultaneous andconflicting jurisdiction over guardianship are increasing. Even when all parties agree,steps such as transferring a guardianship to another state can require that the parties startover from scratch in the second state. Obtaining recognition of a guardian’s authority inanother stale in order to sell property or to arrange for a residential placement is oftenimpossible. The UAGPPJA will, when enacted, help effectively to address theseproblems.

The Problem of Multiple Jurisdiction

Because the US has 50 plus guardianship systems, problems of determiningjurisdiction are frequent. Questions of which state has jurisdiction to appoint a guardianor conservator can arise between an American state and another country. But morefrequently problems arise because the individual has contacts with more than oneAmerican state.

in nearly all American states, a guardian may be appointed by a court in a state inwhich the individual is domiciled or is physically present In nearly all American states, aconservator may be appointed by a court ~n a sta~e in which the individual is domiciled orhas property.. Contested cases in which courts in more than one state have jurisdiction arebecoming more common. Sometimes these cases arise because the adult is physicallylocated in a state other than the adult’s domicile. Sometimes the case arises because ofuncertainty as to the adult’s domicile, parlieularly if the adult owns a va~tion home in

another state. There is a need for an effective mechanism for resolving multi-jurisdictk)nal disputes.

The Problem of Transfer

Oftentimes, problems arise even absent a dispute. Even if everyone is agreed thata guardianship or conservatorship should be moved to another state, few states havestreamlined procedures for transferring a proceeding to another state or for acceptingsuch a transfer. In most states, all oft.he procedures for an original appointment must berepeated, a time consuming and expensive prospect.

The Problem of Out-of-State Recognition

The Full Faith and Credit Clause of the US Constitution requires that court ordersin one state be honored in another state. But there are exceptions to the full Faith andccedit doctrine, of which guardianship and protective proceedings law is one. Sometimes,guardianship or protective proceedings must be initiated in a second state because of’therefusal of financial institutions, care facilities, and the courts to recognize a guardianshipor protective order issued in another state.

The Proposed Uniform Law and the Child Custody Analogy

Similar problems of jurisdiction existed for many years in the US in connectionwith child custody determinations. If one parent lived in one state and the other parentlived in another state, frequently courts in more that one state had jurisdiction to entercustody orders. But the Uniibrm Law Confewnce has approved two uniform acts thathave effectively minimized the problem of multiple court jurisdiction in child custodymatters; the Uniform Child Custody Jurisdiction Act (UCCJA), approved in 1968,succeeded by the Uniform Child Custody Jurisdiction and Enforee~nent Act (UCCJEA),approved in 1997. The drat%ers of the UAGPPJA have elected to model Article 2 andportions of Article I of their Act after these child custody analogues. However, theUAGPPJA applies only to adult proceedings. The UAGPPJA is limited to adults in partbeeanse most jurisdictional issues involving guardianships for minors are subsumed bythe UCCJEA.

The Objectives and Key Concepts of the Proposed UAGPPJA

The UAGPPJA is organized into five articles. Article 1 contains definitions andprovisions designed to facilitate cooperation between courts in different states. Article 2is the heart of the Act, speci~ing which court has jurisdiction to appoint a guardian orconservator. Its overall objective is to locate jurisdiction in one and only one state exceptin cases of emergency or in situations where the individual owns property located inmultiple states. Article 3 specifies a procedure for transferring a guardianship orconservatorship proceedings from one state to another. Article 4 deals frith enforeeraent

of guardi .unship and protective orders in other slates. Article 5 contains beilerplateprovisions common to all uniform acts.

Key Definitions and Terminoilogy (Section 102)To determine which court has primary jurisdiction under the UAGPPJA, the key

factors are to determine the individual’s "home state" and "significant-connection state."A "home state" is the st~e in which the individual was physically present for at least sixconsecutive momhs immediately before the commencement of the guardianship orprotective proceeding (Section 102(6)). A "significant-connection state," which is apotentially broader concept, means the state in which the individual has a significantconnection other than men: physical presence, and where substantial evidence concerningthe individual is available ($oztion 102(15)). Factors that may be considered in decidingwhether a particular respondent has a significant connection include:

the location of the re.spondcnt’s family and others required to be notified of theguardianship or protective proceeding;the length of time the respondent was at any time physically present in the stateand the duration of any absences;the location of the respondent’s property; andthe extent to which the respondent has oth~r ties to the state such as votingregistration, filing of state or local tax returns, vehicle registration, driver’slicense, social relationships, and receipt of services.

States dif�er on terminology for the person appointed by the court to handle thepersonal and financial affairs era minor or incapacitated adult. Under the UGPPA and ina majority of Araefican states, a"guardian" is appointed to make decisions regarding theperson of an "incapacitated person." A "conservator" is appointed in a "protectiveproceeding" to manage the property era "protected person." But in many states, only a"guardian" is appointed, either a guardian of the person or guardian of the estate, and in afew states, the terms guardian and conservator are used bu~ with different meanings. TheUAGPPJA adopts the terminology as used in the UGPPA. States employing differentterms or the same terms but with different meanings may amend the Act to conform tolocal usage.

Jurisdiction (Article 2)

Section 203 is the principal provision governing jurisdiction, creating a threa-level priority; the home state, followed by a significam-connection state, followed byother jurisdictions:

Home State: The home state has primary jurisdiction to appoint a guardian orconservator or eater another protective order, a priority that continues for up to sixmonths t’ollowing a move to another state.Significant-connection State: A significant-connection state hasj~risdiction if:

individual has not had a home stme within the past six month or the home stat~s isd~elined jurisdiction. To facilitate appointments in the average ease wherejurisdiction is not in dispute, a significant-connection state also has jurisdiction it"no proceeding has been commenced in the respondem’s home state or anothersignificant-connection state, no objection to the court’s jurisdiction has been filed,and the court concludes that it is a more appropriate forum than tl~e court inanother state.

Another Stale: A court in another state has jurisdiction if the home state and allsignificant-connection states have declinedjurisdiction or the individual does nothave a home state or sigaaificant-connection mate.

Section 204 addresses special cases. Regardless of whether it has jurisdictionunder the general principles slated in Section 203, a court in the state where theindividual is currently physically present has jurisdiction to appoint a guardian in anemergency, and a court in a slate where an individual’s real or tangible personal propertyis located has jurisdiction to appoint a conservator or issue another protective order withrespect to that property. In addition, a court not otlaerwise having jurisdiction underSection 203 has jurisdiction to consider a petition to accept the transfer of an alreadyexisting guardianship or eonservatorship from another state.

The remainder of Article 2 elaborates on these core concepts. Section 205provides that once a court has jurisdiction, this jurisdiction continues until the proceedingis terminated or transferred. Section 206 authorizes a court to decline jurisdiction if itdetermines that the court of another state is a more appropriate forum, and specifies thefactors to be token into account in making this determination. Section 207 authorizes acourt to decline jurisdiction or fashion another appropriate remedy ifjurisdietion wasacquired because of unjustifiable conduct. Section 208 prescribes special noticerequirements ira proceeding is brought in a sta~ other than the respondent’s home state.Section 209 specifies a procedure for resolving jurisdictional issues if petitions arep~ndiag in more than one state. The UAGIaPJA also includes provisions regardingcommunication between courts in different states and taking testimony in another state(Sections ] 04-106).

Transfer to Another State (Article 3)

Article 3 specifies a procedure for transferring a guardianship or conservatorshipto another state. To make the transfer, court orders are necessary both from the courttransferring the ease and from the court accepting the case. Generally, to trans~’er thecase, the transferring court must find that the individual will move permanently toanother state, that adequate arrangements have been made for the individuaI or theindividual’s property in the other state, and that the court is satisfied the ease will beaccepted by the court in the new state. To assure continuity, the court in the original statecannot dismiss the local proceeding until the order from the other state accepting the caseis filed with the original court. To expedite the transfer process, the coui, t in the acceptingstate must give deference to the transferring court’s finding of incapacity and selection of

the guardian or conservator. Much of Article 3 is based on the pioneering work of theNational Probate Court Standards, a 1993 joint project of the National College of ProbateJudges aad the National Center for State Courts.

Out of State Eaforcement (Article 4)

To facilitate enforcemenl of guardianship and protective orders in other states,Article 4 authorizes a guardian or conservator to register these orders in other states.Upon registration, the guardian or conservator may exercise all powers au~orized in theorder except as prohibited by the laws of the registration slate. The Act also addressesenforcement ot" i nternatio hal orders. To the extenl the fore ign order violates fundamentalprinciples of hurnart rights, Section I04 permits a court ol~an American state that hasenacted the A~t to recognize an order entered in another country to the same extent as if itwere an order entered in another US state.