HCS CSSB 101(JUD): "An Act relating to private professional conservators, private and public guardians, and court hearings on the issue of incapacity; and establishing uniform adult guardianship and conservator jurisdiction and procedures."
00 HOUSE CS FOR CS FOR SENATE BILL NO. 101(JUD) 01 "An Act relating to private professional conservators, private and public guardians, and 02 court hearings on the issue of incapacity; and establishing uniform adult guardianship 03 and conservator jurisdiction and procedures." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 08.26.010 is amended to read: 06 Sec. 08.26.010. License required. Except as provided by (b) of this section 07 or AS 08.26.180, a person may not engage in the business of providing services as a 08 private professional guardian or [A] conservator unless the person has a license 09 issued under this chapter. 10 * Sec. 2. AS 08.26.010 is amended by adding a new subsection to read: 11 (b) An individual may be appointed and provide services as a private 12 professional guardian or conservator without a license issued under this chapter and 13 receive compensation approved by a court as long as the individual does not act as a 14 guardian or conservator for more than one person or two people who are related to
01 each other up to and including the fourth degree of consanguinity, whether of the 02 whole or half blood or by adoption, computed under the rules of civil law. 03 * Sec. 3. AS 08.26.020 is amended to read: 04 Sec. 08.26.020. Requirements for [INDIVIDUAL] private professional full 05 and partial guardian licenses [LICENSE]. The department shall issue a [AN 06 INDIVIDUAL] private professional full guardian license to an individual 07 (1) who is at least 21 years of age; 08 (2) who has two or more years of professional client casework 09 experience or at least an associate degree in human services, social work, psychology, 10 sociology, gerontology, special education, or a closely related field; 11 (3) who is certified as a guardian by a nationally recognized 12 organization in the field of guardianships; 13 (4) [WHO PROVIDES PROOF SATISFACTORY TO THE 14 DEPARTMENT THAT THE INDIVIDUAL IS ABLE TO BE BONDED AND 15 INSURED; 16 (5)] whose criminal history record checks under AS 08.26.070 show 17 that the individual has not been convicted of a felony or of a misdemeanor offense in 18 the state or in any other jurisdiction involving fraud, misrepresentation, material 19 omission, misappropriation, theft, conversion, or any other crime the department 20 determines would affect the individual's ability to provide the services of a 21 guardian competently and safely for the protected person [CRIME] within 10 22 years before [OF] the application; 23 (5) [THAT WOULD AFFECT THE INDIVIDUAL'S ABILITY TO 24 PROVIDE THE SERVICES OF A GUARDIAN COMPETENTLY AND SAFELY 25 FOR THE WARD; AND (6)] who satisfies the application requirements of 26 AS 08.26.060; and 27 (6) who satisfies the requirements for obtaining a private 28 professional conservator license under AS 08.26.030. 29 * Sec. 4. AS 08.26.020 is amended by adding a new subsection to read: 30 (b) The department shall issue a private professional partial guardian license 31 to an individual who satisfies the requirements under (a)(1) - (5) of this section. A
01 licensed private professional partial guardian may not perform conservator services. 02 * Sec. 5. AS 08.26.030 is amended to read: 03 Sec. 08.26.030. Requirements for [INDIVIDUAL] private professional 04 conservator license. The department shall issue a [AN INDIVIDUAL] private 05 professional conservator license to an individual 06 (1) who is at least 21 years of age; 07 (2) who has obtained a high school diploma, or a general education 08 development diploma or its equivalent; 09 (3) who has six months' employment experience in a position 10 involving financial management, or has at least an associate degree in accounting or a 11 closely related field; 12 (4) who is certified as a guardian by a nationally recognized 13 organization in the field of guardianships; 14 (5) [WHO PROVIDES PROOF SATISFACTORY TO THE 15 DEPARTMENT THAT THE INDIVIDUAL IS ABLE TO BE BONDED AND 16 INSURED; 17 (6)] whose criminal history record checks under AS 08.26.070 show 18 that the individual [PERSON] has not been convicted of a felony or of a 19 misdemeanor offense in the state or in any other jurisdiction involving fraud, 20 misrepresentation, material omission, misappropriation, theft, conversion, or any 21 other crime that the department determines would affect the individual's ability 22 to provide the services of a conservator competently and safely for the protected 23 person [CRIME] within 10 years before the application [THAT WOULD AFFECT 24 THE INDIVIDUAL'S ABILITY TO PROVIDE THE SERVICES OF A 25 CONSERVATOR COMPETENTLY AND SAFELY FOR THE PROTECTED 26 PERSON]; and 27 (6) [(7)] who satisfies the application requirements of AS 08.26.060. 28 * Sec. 6. AS 08.26.060 is amended to read: 29 Sec. 08.26.060. Application requirements. To apply for a license under this 30 chapter, a person shall submit an application on a form provided by the department 31 and submit
01 (1) two complete fingerprint cards containing fingerprints and other 02 information required by the Department of Public Safety to obtain state and national 03 criminal history record information under AS 12.62 and AS 12.64; [THE 04 FINGERPRINTS MUST BE THE FINGERPRINTS OF THE APPLICANT IF THE 05 APPLICANT IS AN INDIVIDUAL, OR, IF THE APPLICANT IS AN 06 ORGANIZATION, FINGERPRINTS OF THE 07 (A) OFFICERS OF THE ORGANIZATION, IF THE 08 APPLICANT IS A CORPORATION; 09 (B) MEMBERS OF THE ORGANIZATION, IF THE 10 APPLICANT IS A LIMITED LIABILITY COMPANY; 11 (C) PARTNERS OF THE ORGANIZATION, IF THE 12 APPLICANT IS A PARTNERSHIP;] 13 (2) [PROOF OF THE ABILITY TO BE INSURED AND BONDED; 14 (3)] a written waiver of confidentiality signed by the applicant 15 allowing the department to access at any time relevant complaint information made 16 about the applicant to adult protective services, the designated protection and 17 advocacy agency, the long-term care ombudsman, or an entity that certifies or licenses 18 private professional guardians or private professional conservators; 19 (3) [(4)] a written statement signed by the applicant that the applicant 20 will allow immediate access at any time to the department to the file of a ward or 21 protected person and to financial information regarding the applicant, including 22 corporate or other business records; and 23 (4) [(5) A DETAILED RESUME, INCLUDING RELEVANT 24 EXPERIENCE, FOR EACH EMPLOYEE AND CONTRACTOR OF THE 25 APPLICANT WHO MAY PROVIDE SERVICES TO A WARD OR PROTECTED 26 PERSON; 27 (6)] payment of the application fee, any criminal history record 28 information checks fee charged under AS 12.62.160(d), and any other fees required by 29 the department [; AND 30 (7) IF THE APPLICANT IS NOT AN INDIVIDUAL, A COPY OF 31 THE DOCUMENTS UNDER WHICH THE APPLICANT WAS FORMED,
01 INCLUDING ARTICLES OF INCORPORATION AND BYLAWS IF THE 02 APPLICANT IS A CORPORATION]. 03 * Sec. 7. AS 08.26.080 is amended to read: 04 Sec. 08.26.080. Annual report. Within 30 days following the end of each 05 calendar year, a licensee shall submit to the office of public advocacy, Department 06 of Administration [DEPARTMENT] 07 (1) evidence of the [INITIAL AND] continuing existence of a court 08 ordered bond, if any, [AND PROFESSIONAL LIABILITY INSURANCE] required 09 by a court to be maintained by the guardian or conservator; 10 (2) a list, including case numbers, of the wards and protected persons 11 for whom the licensee is acting as a private professional guardian or private 12 professional conservator; 13 (3) an accurate financial statement of the licensee, including total fees 14 collected from the protected person, total business expenses, and documents 15 necessary to establish financial solvency of the licensee; 16 (4) a letter stating that the licensee has filed all required court reports 17 in the previous calendar year; and 18 (5) a copy of all of the licensee's federal tax documents filed with the 19 Internal Revenue Service and all of the licensee's correspondence with the Internal 20 Revenue Service for the calendar year [; AND 21 (6) A LIST OF ALL PERSONS CURRENTLY EMPLOYED BY 22 THE LICENSEE IN THE BUSINESS FOR WHICH THE LICENSE WAS ISSUED]. 23 * Sec. 8. AS 08.26.080 is amended by adding a new subsection to read: 24 (b) The office of public advocacy shall notify the department of the licensee's 25 compliance with (a) of this section. 26 * Sec. 9. AS 08.26.100 is amended to read: 27 Sec. 08.26.100. Court appointment. An individual [A PERSON] who 28 engages in the business of providing services as a guardian or conservator may not be 29 appointed as a guardian or a conservator in a court proceeding unless the individual 30 [PERSON] is licensed under this chapter or exempt under AS 08.26.010 or 31 AS 08.26.180.
01 * Sec. 10. AS 08.26.130 is amended to read: 02 Sec. 08.26.130. Grounds for disciplinary action. The department may take 03 disciplinary action against an individual [A PERSON] under AS 08.01.075 or refuse 04 to issue or renew a license if the department determines that the individual 05 [PERSON] 06 (1) obtained or attempted to obtain a license under this chapter through 07 deceit, fraud, or intentional misrepresentation; 08 (2) has not complied with the standards of conduct established by the 09 department under AS 13.26.001; 10 (3) forfeited a license in this or another jurisdiction as a result of 11 deceit, fraud, intentional misrepresentation, or professional incompetence; 12 (4) has been found by a court in this state to have engaged in 13 professional misconduct or incompetence; 14 (5) has advertised the individual's [ITS] services in a false or 15 misleading manner; 16 (6) has been convicted, including a conviction based on a guilty plea or 17 plea of nolo contendere, of a felony or other crime that affects the individual's 18 [PERSON'S] ability to provide [THE LICENSEE'S] services competently and safely 19 for the ward or protected person; 20 (7) has been found to have abandoned, exploited, abused, or neglected 21 a vulnerable adult; in this paragraph, "vulnerable adult" has the meaning given in 22 AS 47.24.900; 23 (8) has failed to comply with this chapter or with a regulation adopted 24 under this chapter; 25 (9) has continued or attempted to practice after becoming unfit due to 26 professional incompetence; 27 (10) has failed to maintain certification by a nationally recognized 28 organization in the field of 29 (A) guardianships, if the individual [PERSON] was issued a 30 [AN INDIVIDUAL] private professional guardian license; or 31 (B) conservatorships, if the individual was issued a [AN
01 INDIVIDUAL] private professional conservator license; or 02 (11) fails to maintain a bond or other surety as required by a court 03 order [IS NOT ABLE TO BE BONDED AND INSURED; OR 04 (12) IF THE LICENSEE HAS AN ORGANIZATIONAL LICENSE, 05 (A) DOES NOT MAINTAIN A PLACE OF BUSINESS IN 06 THIS STATE; 07 (B) IS NOT IN COMPLIANCE WITH THE STATE AND 08 FEDERAL REQUIREMENTS THAT APPLY TO THE ORGANIZATION; 09 OR 10 (C) HAS AN EMPLOYEE WHO PROVIDES THE 11 SERVICES OF A PRIVATE PROFESSIONAL GUARDIAN OR PRIVATE 12 PROFESSIONAL CONSERVATOR FOR THE ORGANIZATION AND IS 13 NOT LICENSED UNDER THIS CHAPTER]. 14 * Sec. 11. AS 08.26.180 is amended to read: 15 Sec. 08.26.180. Exemption. An individual who is employed by a [A] 16 financial institution regulated by the federal government or a financial institution 17 regulated under AS 06 by the department is not required to be licensed under this 18 chapter in order to engage, in the course of the individual's employment by the 19 financial institution, in the business of providing services as a guardian or a 20 conservator or be appointed as a private professional guardian or a private professional 21 conservator by a court. In this section [SUBSECTION], "financial institution" does 22 not include a person who is exempt under AS 06.26.020 or who has received an 23 exemption under AS 06.26.200. 24 * Sec. 12. AS 08.26.190 is amended to read: 25 Sec. 08.26.190. Definitions. In this chapter, 26 (1) "conservator" has the meaning given in AS 13.06.050; 27 (2) "department" means the Department of Commerce, Community, 28 and Economic Development; 29 (3) "guardian" has the meaning given in AS 13.06.050; 30 (4) "licensee" means a person licensed under this chapter; 31 (5) ["ORGANIZATIONAL LICENSE" MEANS A LICENSE
01 ISSUED UNDER AS 08.26.040; 02 (6)] "private professional conservator" means an individual [A 03 PERSON] who acts as a conservator under AS 13.26.165 - 13.26.320 and receives 04 compensation for acting in that capacity; 05 (6) [(7)] "private professional conservator license" means a license 06 issued under AS 08.26.030; 07 (7) [(8)] "private professional guardian" means an individual [A 08 PERSON] who acts as a guardian under AS 13.26.030 - 13.26.150 [AS 13.26.030 - 09 13.26.155] and receives compensation for acting in that capacity; 10 (8) [(9)] "private professional guardian license" means a license issued 11 under AS 08.26.020; 12 (9) [(10)] "protected person" has the meaning given in AS 13.26.005; 13 (10) [(11)] "ward" has the meaning given in AS 13.26.005. 14 * Sec. 13. AS 13.26.010 is amended by adding a new subsection to read: 15 (c) This section is subject to the requirements of AS 13.27 (Uniform Adult 16 Guardianship and Protective Proceedings Jurisdiction Act). 17 * Sec. 14. AS 13.26.095(d) is amended to read: 18 (d) On the filing with the court in which the will was probated of written 19 objection to the appointment by the person for whom a testamentary appointment of 20 guardian has been made, the appointment is terminated. An objection does not prevent 21 appointment by the court in a proper proceeding of the testamentary nominee or any 22 other suitable person upon an adjudication of incapacity in proceedings under 23 AS 13.26.100 - 13.26.150 [AS 13.26.100 - 13.26.155]. 24 * Sec. 15. AS 13.26.109(b) is amended to read: 25 (b) Statements of a ward or respondent in the course of evaluations, 26 examinations, and treatment under AS 13.26.090 - 13.26.150 [AS 13.26.090 - 27 13.26.155] are privileged, confidential, and not admissible without the ward's or 28 respondent's consent in any civil or criminal proceeding other than proceedings under 29 AS 13.26.090 - 13.26.150 [AS 13.26.090 - 13.26.155]. A ward or respondent at all 30 times has the right to refuse to answer questions if the answers may tend to incriminate 31 the ward or respondent.
01 * Sec. 16. AS 13.26.109(c) is amended to read: 02 (c) During an interview or a testing conducted under AS 13.26.090 - 03 13.26.150 [AS 13.26.090 - 13.26.155], a ward or respondent has the right to be 04 accompanied by an attorney or expert of the ward's or respondent's own choosing. 05 * Sec. 17. AS 13.26.109(d) is amended to read: 06 (d) The court, if requested by a ward or respondent in preparation for and in 07 connection with a hearing held under AS 13.26.090 - 13.26.150 [AS 13.26.090 - 08 13.26.155], shall appoint an expert having expertise in regard to the alleged or 09 admitted incapacity to examine the respondent and testify on the respondent's behalf. 10 The request shall be filed in court at least five days before the hearing. An expert 11 appointed under this subsection may be the same expert appointed under 12 AS 13.26.106(c). 13 * Sec. 18. AS 13.26.113(b) is amended to read: 14 (b) The burden of proof by clear and convincing evidence is upon the 15 petitioner, and a determination of incapacity shall be made before 16 consideration of proper disposition. If the respondent stipulates to 17 incapacity, the court may make a finding of incapacity without obtaining 18 evidence from the expert appointed under AS 13.26.106(c). 19 * Sec. 19. AS 13.26.135(b) is amended to read: 20 (b) Notice shall be served personally, by certified mail, or by any other 21 method authorized by court rule on the ward's or respondent's spouse and parents if 22 they can be found within the state. Except as provided in (a)(1) of this section, notice 23 to the spouse and parents, if they cannot be found within the state, and to all other 24 persons shall be given as provided in AS 13.06.110. 25 * Sec. 20. AS 13.26.145(f) is amended to read: 26 (f) When in the best interest of the incapacitated person, a court may 27 decline to appoint a person who has priority under (d) of this section as 28 guardian of an incapacitated person and may appoint as guardian a person who 29 has a lower priority than another person or who does not have a priority. If the 30 court appoints a person with a lower priority under (d) of this section than 31 another person, the court shall make appropriate written findings related
01 to why the best interests of the respondent require appointment of the 02 person with a lower priority. 03 * Sec. 21. AS 13.26.170 is amended to read: 04 Sec. 13.26.170. Protective proceedings; jurisdiction of affairs of protected 05 persons. Except as otherwise provided under AS 13.27.110, after [AFTER] the 06 service of notice in a proceeding seeking the appointment of a conservator or other 07 protective order and until termination of the proceeding, the court in which the petition 08 is filed has 09 [(1)] exclusive jurisdiction to determine 10 (1) the need for a conservator or other protective order until the 11 proceedings are terminated; and 12 (2) [EXCLUSIVE JURISDICTION TO DETERMINE] how the estate 13 of the protected person that [WHICH] is subject to the laws of this state shall be 14 managed, expended, or distributed to or for the use of the protected person or any of 15 the person's dependents [; 16 (3) CONCURRENT JURISDICTION TO DETERMINE THE 17 VALIDITY OF CLAIMS AGAINST THE PERSON OR ESTATE OF THE 18 PROTECTED PERSON AND THE PERSON'S TITLE TO ANY PROPERTY OR 19 CLAIM]. 20 * Sec. 22. AS 13.26.185(a) is amended to read: 21 (a) On a petition for appointment of a conservator or other protective order, 22 the person to be protected and the person's spouse or, if none, the person's parents, 23 must be served personally, by certified mail, or by any other method authorized by 24 court rule with notice of the proceedings at least 14 days before the date of hearing if 25 they can be found within the state, or, if they cannot be found within the state, they 26 must be given notice in accordance with AS 13.06.110. Waiver by the person to be 27 protected is not effective unless the person to be protected attends the hearing or, 28 unless minority is the reason for the proceeding, waiver is confirmed in an interview 29 with the visitor. 30 * Sec. 23. AS 13.26.210(a) is amended to read: 31 (a) The court may appoint a competent person, including a private
01 professional conservator, private professional full guardian under AS 08.26.020, or 02 the public guardian, as the conservator of the estate of a protected person. 03 * Sec. 24. AS 13.26.210(f) is amended to read: 04 (f) When in the best interest of the protected person, a court may decline to 05 appoint a person who has priority under (d) of this section as conservator of the 06 protected person and may appoint as conservator a person who has a lower priority 07 than another person or who does not have a priority. If the court appoints a person 08 with a lower priority under (d) of this section than another person, the court shall 09 make appropriate written findings related to why the best interests of the 10 respondent require appointment of the person with a lower priority. 11 * Sec. 25. AS 13.26.300(a) is amended to read: 12 (a) Subject to AS 13.26.285(e), a [A] conservator shall pay from the estate all 13 just claims against the estate and against the protected person arising before or after 14 the conservatorship was established [BUT BEFORE THE PROTECTED PERSON 15 DIES,] upon their presentation and allowance. A claim is considered presented on the 16 first to occur of receipt of the written statement of claim by the conservator or the 17 filing of the claim with the court. A presented claim is allowed if it is not disallowed 18 by written statement mailed by the conservator to the claimant within 60 days after its 19 presentation. The presentation of a claim tolls any statute of limitations relating to the 20 claim until 30 days after its disallowance. A claim may be presented by either of the 21 following methods: 22 (1) the claimant may deliver or mail to the conservator a written 23 statement of the claim indicating its basis, the name and address of the claimant, and 24 the amount claimed; 25 (2) the claimant may file a written statement of the claim, in the form 26 prescribed by rule, with the clerk of the court and deliver or mail a copy of the 27 statement to the conservator. 28 * Sec. 26. AS 13.26.380 is amended by adding a new subsection to read: 29 (e) The records required to be kept and maintained under (c)(3) of this section 30 are confidential and are not subject to inspection or copying under AS 40.25.110 - 31 40.25.120 unless the records are relevant to an investigation or proceeding involving
01 the public guardian or a case in which the public guardian provided guardianship or 02 conservatorship services. 03 * Sec. 27. AS 13.26.400 is amended to read: 04 Sec. 13.26.400. Staff; delegation of powers and duties. The public guardian 05 may employ staff and delegate to members of the staff or to volunteers the powers and 06 duties as guardian or conservator and other powers and duties under this chapter. 07 However, the public guardian retains responsibility for the proper performance of the 08 delegated powers and duties. The public guardian may only delegate powers and 09 duties under this chapter to an individual who meets [ALL DELEGATIONS 10 SHALL BE TO PERSONS WHO MEET] the eligibility requirements of 11 AS 13.26.145 and has passed the criminal history record information check 12 under AS 08.26.070. In addition, the individual must either hold a current 13 certification as a guardian from a nationally recognized organization at the time 14 of the delegation or apply for and receive that certification within one year of the 15 delegation. 16 * Sec. 28. AS 13.26.410(e) is amended to read: 17 (e) Before the office of public advocacy releases a ward's funds following 18 the termination of the public guardian's appointment, the office may collect from 19 the ward's funds held by the office the [THE] reasonable value of the services 20 rendered without cost to the ward or protected person [SHALL BE ALLOWED AS A 21 CLAIM AGAINST THE ESTATE UPON THE DEATH OF THE WARD OR 22 PROTECTED PERSON]. 23 * Sec. 29. AS 13 is amended by adding a new chapter to read: 24 Chapter 27. Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. 25 Article 1. Application; Cooperation between Courts. 26 Sec. 13.27.010. International application of this chapter. A court of this 27 state may treat a foreign country as if it were a state for the purpose of applying 28 AS 13.27.010 - 13.27.210, 13.27.400, 13.27.410, and 13.27.490. 29 Sec. 13.27.020. Communication between courts. (a) A court of this state may 30 communicate with a court in another state concerning a proceeding arising under this 31 chapter. The court may allow the parties to participate in the communication. Except
01 as otherwise provided in (b) of this section, the court shall make a record of the 02 communication. 03 (b) Courts may communicate concerning administrative matters that involve 04 schedules, calendars, and court records without making a record. 05 Sec. 13.27.030. Cooperation between courts. (a) In a guardianship or 06 protective proceeding in this state, a court may request the appropriate court of another 07 state to 08 (1) hold an evidentiary hearing; 09 (2) order a person in that state to produce evidence or give testimony 10 under procedures of that state; 11 (3) order that an evaluation or assessment be made of the respondent; 12 (4) order any appropriate investigation of a person involved in a 13 proceeding; 14 (5) forward to the court a certified copy of the transcript or other 15 record of a hearing under (1) of this subsection or any other proceeding, any evidence 16 otherwise produced under (2) of this subsection, and any evaluation or assessment 17 prepared in compliance with an order under (3) or (4) of this subsection; 18 (6) issue any order necessary to assure the appearance in the 19 proceeding of a person whose presence is necessary for the court to make a 20 determination, including the respondent or the incapacitated or protected person; 21 (7) issue an order authorizing the release of medical, financial, 22 criminal, or other relevant information in that state, including protected health 23 information as defined in 45 CFR 164.504, as amended. 24 (b) If a court of another state in which a guardianship or protective proceeding 25 is pending requests assistance of the kind provided in (a) of this section, a court of this 26 state has jurisdiction for the limited purpose of granting the request or making 27 reasonable efforts to comply with the request. 28 Sec. 13.27.040. Taking testimony in another state. (a) In a guardianship or 29 protective proceeding, in addition to other procedures that may be available, testimony 30 of a witness who is located in another state may be offered by deposition or other 31 means allowable in this state for testimony taken in another state. The court on its own
01 motion may request that the testimony of a witness be taken in another state and may 02 prescribe the manner in which and the terms on which the testimony is to be taken. 03 (b) In a guardianship or protective proceeding, a court in this state may permit 04 a witness located in another state to be deposed or to testify by telephone or 05 audiovisual or other electronic means. A court of this state shall cooperate with the 06 court of the other states in designating an appropriate location for the deposition or 07 testimony. 08 Article 2. Jurisdiction. 09 Sec. 13.27.100. Exclusive basis. AS 13.27.100 - 13.27.180 provide the 10 exclusive basis for subject matter jurisdiction for a court of this state to appoint a 11 guardian or issue a protective order for an adult. 12 Sec. 13.27.110. Jurisdiction. A court of this state has jurisdiction to appoint a 13 guardian or issue a protective order for a respondent if 14 (1) this state is the respondent's home state; 15 (2) on the date the petition is filed, this state is a significant-connection 16 state, and 17 (A) the respondent does not have a home state or a court of the 18 respondent's home state has declined to exercise jurisdiction because this state 19 is a more appropriate forum; or 20 (B) the respondent has a home state, a petition for an 21 appointment or order is not pending in a court of that state or another 22 significant-connection state, and, before the court makes an appointment or 23 issues an order, 24 (i) a petition for an appointment or order is not filed in 25 the respondent's home state; 26 (ii) an objection to the court's jurisdiction is not filed by 27 a person required to be notified of the proceeding; and 28 (iii) the court in this state concludes that it is an 29 appropriate forum under the factors set out in AS 13.27.140; 30 (3) this state does not have jurisdiction under either (1) or (2) of this 31 section and the respondent's home state and all significant-connection states have
01 declined to exercise jurisdiction under AS 13.27.140 because 02 (A) this state is the more appropriate forum; and 03 (B) jurisdiction in this state is consistent with the constitutions 04 of this state and the United States; or 05 (4) the requirements for special jurisdiction under AS 13.27.120 are 06 met. 07 Sec. 13.27.120. Special jurisdiction. (a) A court of this state lacking 08 jurisdiction under AS 13.27.110 has special jurisdiction to 09 (1) appoint a guardian in an emergency for a term not exceeding 90 10 days for a respondent who is physically present in this state; 11 (2) issue a protective order with respect to real or tangible personal 12 property located in this state; 13 (3) appoint a guardian or conservator for an incapacitated or protected 14 person for whom a provisional order to transfer the proceeding from another state has 15 been issued under procedures similar to AS 13.27.200. 16 (b) If a petition for the appointment of a guardian in an emergency is brought 17 in this state and this state was not the respondent's home state on the date the petition 18 was filed, the court shall dismiss the proceeding at the request of the court of the home 19 state, if any, whether dismissal is requested before or after the emergency 20 appointment. 21 Sec. 13.27.130. Exclusive and continuing jurisdiction. Except as otherwise 22 provided in AS 13.27.120, a court that has appointed a guardian or issued a protective 23 order consistent with this chapter has exclusive and continuing jurisdiction over the 24 proceeding until it is terminated by the court or the appointment or order expires by its 25 own terms. 26 Sec. 13.27.140. Appropriate forum. (a) A court of this state having 27 jurisdiction under AS 13.27.110 to appoint a guardian or issue a protective order may 28 decline to exercise its jurisdiction if it determines at any time that a court of another 29 state is a more appropriate forum. 30 (b) If a court of this state declines to exercise its jurisdiction under (a) of this 31 section, it shall either dismiss or stay the proceeding. The court may impose any
01 condition the court considers just and proper, including the condition that a petition for 02 the appointment of a guardian or issuance of a protective order be filed promptly in 03 another state. 04 (c) In determining whether it is an appropriate forum, the court shall consider 05 all relevant factors, including 06 (1) any expressed preference of the respondent; 07 (2) whether abuse, neglect, or exploitation of the respondent has 08 occurred or is likely to occur and which state could best protect the respondent from 09 the abuse, neglect, or exploitation; 10 (3) the length of time the respondent was physically present in or was a 11 legal resident of this or another state; 12 (4) the distance of the respondent from the court in each state; 13 (5) the financial circumstances of the respondent's estate; 14 (6) the nature and location of the evidence; 15 (7) the ability of the court in each state to decide the issue 16 expeditiously and the procedures necessary to present evidence; 17 (8) the familiarity of the court of each state with the facts and issues in 18 the proceeding; and 19 (9) if an appointment were made, the court's ability to monitor the 20 conduct of the guardian or conservator. 21 Sec. 13.27.150. Jurisdiction declined by reason of conduct. (a) If at any time 22 a court of this state determines that it acquired jurisdiction to appoint a guardian or 23 issue a protective order because of unjustifiable conduct, the court may 24 (1) decline to exercise jurisdiction; 25 (2) exercise jurisdiction for the limited purpose of fashioning an 26 appropriate remedy to ensure the health, safety, and welfare of the respondent or the 27 protection of the respondent's property or prevent a repetition of the unjustifiable 28 conduct; the exercise of limited jurisdiction under this paragraph may include staying 29 the proceeding until a petition for the appointment of a guardian or issuance of a 30 protective order is filed in a court of another state having jurisdiction; or 31 (3) continue to exercise jurisdiction after considering
01 (A) the extent to which the respondent and all persons required 02 to be notified of the proceedings have acquiesced in the exercise of the court's 03 jurisdiction; 04 (B) whether it is a more appropriate forum than the court of any 05 other state under the factors set out in AS 13.27.140(c); and 06 (C) whether the court of any other state would have jurisdiction 07 under factual circumstances in substantial conformity with the jurisdictional 08 standards of AS 13.27.110. 09 (b) If a court of this state determines that it acquired jurisdiction to appoint a 10 guardian or issue a protective order because a party seeking to invoke its jurisdiction 11 engaged in unjustifiable conduct, it may assess against that party necessary and 12 reasonable expenses, including attorney fees, investigative fees, court costs, 13 communication expenses, witness fees and expenses, and travel expenses. The court 14 may not assess fees, costs, or expenses of any kind against this state or a governmental 15 subdivision, agency, or instrumentality of this state unless authorized by law other 16 than this chapter. 17 Sec. 13.27.160. Notice of proceeding. If a petition for the appointment of a 18 guardian or issuance of a protective order is brought in this state and this state was not 19 the respondent's home state on the date the petition was filed, in addition to complying 20 with the notice requirements of this state, notice of the petition must be given to those 21 persons who would be entitled to notice of the petition if a proceeding were brought in 22 the respondent's home state. The notice must be given in the same manner as notice is 23 required to be given in this state. 24 Sec. 13.27.170. Proceedings in more than one state. Except for a petition for 25 the appointment of a guardian in an emergency or issuance of a protective order 26 limited to property located in this state under AS 13.27.120(a)(1) or (2), if a petition 27 for the appointment of a guardian or issuance of a protective order is filed in this state 28 and in another state and neither petition has been dismissed or withdrawn, the 29 following rules apply: 30 (1) if the court in this state has jurisdiction under AS 13.27.110, it may 31 proceed with the case unless a court in another state acquires jurisdiction under
01 provisions similar to AS 13.27.110 before the appointment or issuance of the order; 02 (2) if the court in this state does not have jurisdiction under 03 AS 13.27.110, whether at the time the petition is filed or at any time before the 04 appointment or issuance of the order, the court shall stay the proceeding and 05 communicate with the court in the other state; if the court in the other state has 06 jurisdiction, the court in this state shall dismiss the petition unless the court in the 07 other state determines that the court in this state is a more appropriate forum. 08 Sec. 13.27.180. Definitions for AS 13.27.100 - 13.27.180. In AS 13.27.100 - 09 13.27.180, 10 (1) "emergency" means a circumstance that likely will result in 11 substantial harm to a respondent's health, safety, or welfare, and for which the 12 appointment of a guardian is necessary because no other person has authority and is 13 willing to act on the respondent's behalf; 14 (2) "home state" means the state in which the respondent was 15 physically present, including any period of temporary absence, for at least six 16 consecutive months immediately before the filing of a petition for a protective order or 17 the appointment of a guardian; or, if none, the state in which the respondent was 18 physically present, including any period of temporary absence, for at least six 19 consecutive months ending with the six months before the filing of the petition; 20 (3) "significant-connection state" means a state, other than the home 21 state, with which a respondent has a significant connection other than mere physical 22 presence and in which substantial evidence concerning the respondent is available; in 23 determining whether a respondent has a significant connection with a particular state, 24 the court shall consider 25 (A) the location of the respondent's family and others required 26 to be notified of the guardianship or protective proceeding; 27 (B) the length of time the respondent at any time was 28 physically present in the state and the duration of any absences; 29 (C) the location of the respondent's property; and 30 (D) the extent to which the respondent has other ties to the state 31 such as voting registration, filing of state or local tax returns, vehicle
01 registration, driver's license, social relationships, and receipt of services. 02 Article 3. Transfer of Guardianship or Conservatorship. 03 Sec. 13.27.200. Petition to transfer guardianship or conservatorship to 04 another state. (a) A guardian or conservator appointed in this state may petition the 05 court to transfer the guardianship or conservatorship to another state. 06 (b) Notice of a petition to transfer a guardianship or conservatorship under (a) 07 of this section must be given to the persons who would be entitled to notice of a 08 petition in this state for the appointment of a guardian or conservator. 09 (c) On the court's own motion or on request of the guardian or conservator, the 10 incapacitated or protected person, or other person required to be notified of the 11 petition, the court shall hold a hearing on a petition filed under (a) of this section. 12 (d) The court shall issue an order provisionally granting a petition to transfer a 13 guardianship and shall direct the guardian to petition for guardianship in the other state 14 if the court is satisfied that the guardianship will be accepted by the court in the other 15 state and the court finds that 16 (1) the incapacitated person is physically present in or is reasonably 17 expected to move permanently to the other state; 18 (2) an objection to the transfer has not been made or, if an objection 19 has been made, the objector has not established that the transfer would be contrary to 20 the interests of the incapacitated person; and 21 (3) plans for care and services for the incapacitated person in the other 22 state are reasonable and sufficient. 23 (e) The court shall issue a provisional order granting a petition to transfer a 24 conservatorship and shall direct the conservator to petition for conservatorship in the 25 other state if the court is satisfied that the conservatorship will be accepted by the 26 court of the other state and the court finds that 27 (1) the protected person is physically present in or is reasonably 28 expected to move permanently to the other state, or the protected person has a 29 significant connection to the other state considering the factors set out in 30 AS 13.27.180(3); 31 (2) an objection to the transfer has not been made or, if an objection
01 has been made, the objector has not established that the transfer would be contrary to 02 the interests of the protected person; and 03 (3) adequate arrangements will be made for management of the 04 protected person's property. 05 (f) The court shall issue a final order confirming the transfer and terminating 06 the guardianship or conservatorship if the court receives 07 (1) a provisional order issued under provisions similar to AS 13.27.210 08 accepting the proceeding from the court to which the proceeding is to be transferred; 09 and 10 (2) the documents required to terminate a guardianship or 11 conservatorship in this state. 12 Sec. 13.27.210. Accepting guardianship or conservatorship transferred 13 from another state. (a) To confirm transfer of a guardianship or conservatorship 14 transferred to this state under provisions similar to those in AS 13.27.200, the guardian 15 or conservator must petition the court in this state to accept the guardianship or 16 conservatorship. The petition must include a certified copy of the other state's 17 provisional order of transfer. 18 (b) Notice of a petition under (a) of this section must be given to those persons 19 that would be entitled to notice if the petition were a petition for the appointment of a 20 guardian or issuance of a protective order in both the transferring state and this state. 21 The notice must be given in the same manner as notice is required to be given in this 22 state. 23 (c) On the court's own motion or on request of the guardian or conservator, the 24 incapacitated or protected person, or other person required to be notified of the 25 proceeding, the court may hold a hearing on a petition filed under (a) of this section. 26 (d) The court shall issue a provisional order granting a petition filed under (a) 27 of this section unless 28 (1) an objection is made and the objector establishes that transfer of the 29 proceeding would be contrary to the interests of the incapacitated or protected person; 30 or 31 (2) the guardian or conservator is ineligible for an appointment in this
01 state. 02 (e) The court shall issue a final order accepting the proceeding and appointing 03 the guardian or conservator as guardian or conservator in this state on its receipt from 04 the court from which the proceeding is being transferred of a final order issued under 05 provisions similar to AS 13.27.200 transferring the proceeding to this state. 06 (f) Not later than 90 days after issuance of a final order accepting transfer of a 07 guardianship or conservatorship, the court shall determine whether the guardianship or 08 conservatorship needs to be modified to conform to the law of this state. 09 (g) In granting a petition under this section, the court shall recognize a 10 guardianship or conservatorship order from the other state, including the determination 11 of the incapacitated or protected person's incapacity and the appointment of the 12 guardian or conservator. 13 (h) The denial by a court of this state of a petition to accept a guardianship or 14 conservatorship transferred from another state does not affect the ability of the 15 guardian or conservator to seek appointment as guardian or conservator in this state 16 under AS 13.26.116 or 13.26.165 if the court has jurisdiction to make an appointment 17 other than by reason of the provisional order of transfer. 18 Article 4. Registration and Recognition of Orders from Other States. 19 Sec. 13.27.300. Registration of guardianship orders. If a guardian has been 20 appointed in another state and a petition for the appointment of a guardian is not 21 pending in this state, the guardian appointed in the other state, after giving notice to 22 the appointing court of an intent to register, may register the guardianship order in this 23 state by filing as a foreign judgment in a court, in any appropriate judicial district of 24 this state, certified copies of the order and letters of office. 25 Sec. 13.27.310. Registration of protective orders. If a conservator has been 26 appointed in another state and a petition for a protective order is not pending in this 27 state, the conservator appointed in the other state, after giving notice to the appointing 28 court of an intent to register, may register the protective order in this state by filing as 29 a foreign judgment in a court of this state, in any judicial district in which property 30 belonging to the protected person is located, certified copies of the order and letters of 31 office and of any bond.
01 Sec. 13.27.320. Effect of registration. (a) On registration of a guardianship or 02 protective order from another state, the guardian or conservator may exercise in this 03 state all powers authorized in the order of appointment except as prohibited under the 04 laws of this state, including maintaining actions and proceedings in this state and, if 05 the guardian or conservator is not a resident of this state, subject to any conditions 06 imposed on nonresident parties. 07 (b) A court of this state may grant any relief available under this chapter and 08 other law of this state to enforce a registered order. 09 Article 5. Miscellaneous Provisions. 10 Sec. 13.27.400. Uniformity of application and construction. In applying and 11 construing this chapter, consideration shall be given to the need to promote uniformity 12 of the law with respect to its subject matter among states that enact it. 13 Sec. 13.27.410. Relation to Electronic Signatures in Global and National 14 Commerce Act. This chapter modifies, limits, and supersedes 15 U.S.C. 7001, et seq. 15 (Electronic Signatures in Global and National Commerce Act), but does not modify, 16 limit, or supersede 15 U.S.C. 7001(c), or authorize electronic delivery of any of the 17 notices described in 15 U.S.C. 7003(6). 18 Sec. 13.27.420. Relation to AS 13.26. Nothing in this chapter limits the rights 19 of an incapacitated person available in a guardianship or conservatorship proceeding 20 in this state under AS 13.26. 21 Article 6. General Provisions. 22 Sec. 13.27.490. Definitions. In this chapter, 23 (1) "adult" means an individual who has reached 18 years of age; 24 (2) "conservator" means a person appointed by the court to administer 25 the property of an adult, including a person appointed under AS 13.26.165; 26 (3) "guardian" means a person appointed by the court to make 27 decisions regarding the person of an adult, including a person appointed under 28 AS 13.26.116; however, if the person was appointed as a full guardian under 29 AS 13.26, the person has the powers and duties set out under AS 13.26.150; 30 (4) "guardianship order" means an order appointing a guardian; 31 (5) "guardianship proceeding" means a judicial proceeding in which an
01 order for the appointment of a guardian is sought or has been issued; 02 (6) "incapacitated person" means an adult for whom a guardian has 03 been appointed; 04 (7) "party" means the respondent, petitioner, guardian, conservator, or 05 any other interested person allowed by the court to participate in a guardianship or 06 protective proceeding; 07 (8) "person" means, except in the terms incapacitated person or 08 protected person, an individual, corporation, business trust, estate, trust, partnership, 09 limited liability company, association, joint venture, public corporation, government 10 or governmental subdivision, agency, or instrumentality, or any other legal or 11 commercial entity; 12 (9) "protected person" means an adult for whom a protective order has 13 been issued; 14 (10) "protective order" means an order appointing a conservator or 15 other court order related to management of an adult's property; 16 (11) "protective proceeding" means a judicial proceeding in which a 17 protective order is sought or has been issued; 18 (12) "record" means information that is inscribed on a tangible 19 medium or that is stored in an electronic or other medium and is retrievable in 20 perceivable form; 21 (13) "respondent" means an adult for whom a protective order or the 22 appointment of a guardian is sought; 23 (14) "state" means a state of the United States, the District of 24 Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular 25 possession subject to the jurisdiction of the United States. 26 Sec. 13.27.495. Short title. This chapter may be cited as the Uniform Adult 27 Guardianship and Protective Proceedings Jurisdiction Act. 28 * Sec. 30. AS 47.10.115(c) is amended to read: 29 (c) Notwithstanding (b)(1) - (3) of this section, the department may not 30 distribute the proceeds of a trust under this section if the payment would be made to a 31 guardian of a child who had been in the custody of the department immediately before
01 the establishment of the guardianship, unless the guardianship was established under 02 AS 13.26.090 - 13.26.150 [AS 13.26.090 - 13.26.155]. 03 * Sec. 31. AS 08.26.040 and AS 13.26.155 are repealed. 04 * Sec. 32. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 APPLICABILITY. (a) Except as provided in (b) of this section, AS 13.27, enacted by 07 sec. 29 of this Act, applies to guardianship and protective proceedings that begin on or after 08 the effective date of this Act. 09 (b) For guardianship and protective proceedings begun before the effective date of 10 this Act, regardless of whether a guardianship or protective order has been issued, 11 AS 13.27.010 - 13.27.040, 13.27.200, 13.27.210, 13.27.300 - 13.27.320, 13.27.400, 12 13.27.410, and 13.27.490, as enacted by sec. 29 of this Act, apply. 13 * Sec. 33. The uncodified law of the State of Alaska is amended by adding a new section to 14 read: 15 TRANSITION. A person who is not an individual who, on the effective date of this 16 Act, has a current organizational license issued by the Department of Commerce, Community, 17 and Economic Development under AS 08.26.040 may continue to provide guardianship and 18 conservatorship services under the requirements of AS 08.26 until the license expires. Each 19 individual who, on the effective date of this Act, performs guardianship or conservatorship 20 services under a current organizational license must apply for and receive an individual 21 license issued under AS 08.26 within 60 days after the expiration of the organizational license 22 in order to continue to provide guardianship or conservatorship services.