Chapter 573
2004 -- H 7734
SUBSTITUTE B
Enacted 07/09/04
A N A C T
RELATING
TO PROBATE PRACTICE
Introduced
By: Representatives Lewiss, Fox, Scott, Anguilla, and Gorham
Date
Introduced: February 11, 2004
It
is enacted by the General Assembly as follows:
SECTION
1. Section 33-15-4 of the General Laws in Chapter 33-15 entitled "Limited
Guardianship
and Guardianship of Adults" is hereby amended to read as follows:
33-15-4.
Limited guardianship. -- (a) (1) Absent a finding, based on a
decision-making
assessment
tool, that an individual is totally incapacitated, the court shall limit the
scope of the
powers
and duties of a guardian to the terms best suited to allow the individual found
partially
incapacitated
to participate as fully as possible in decisions affecting him or her. One such
decision-making
assessment tool must be completed by a physician who has examined the
respondent.
The probate court may consider such additional decision-making assessments
tools
signed
and submitted by one or more non-physicians. The court shall not appoint a
guardian or
limited
guardian if the court finds that the needs of the proposed ward are being met
or can be
met
by a less restrictive alternative or alternatives. The court shall authorize
the guardian to make
decisions
for the individual in only those areas where the court finds, based on one or
more
decision-making
assessment tools, that the individual lacks the capacity to make decisions. The
court
must strike a delicate balance between providing the protection and support
necessary to
assist
the individual and preserving, to the largest degree possible, the liberty,
property and
privacy
interests of the individual. The certificate of appointment issued to the
limited guardian
shall
clearly state that it is a limited guardianship. The court order shall clearly
indicate the scope
of
the powers and duties of the limited guardian. The appointment of a limited
guardian shall not
constitute
a finding of legal incompetence. An individual for whom a limited guardian is
appointed
shall retain all legal and civil rights except those which have been
specifically
suspended
by the order.
(2) A decision-making assessment tool, in the form as shown in section
33-15-47, must
be
filed with the petition in each case., provided, that the probate
court may excuse the filing of a
decision-making
assessment tool only on a petition for temporary guardianship in extraordinary
or
emergency circumstances and upon the provision of other competent evidence.
(3) The individual's treating primary care physician must
complete the decision-making
assessment
tool, however, if the individual's primary care physician is not available
or if the
individual
does not have a primary care physician the decision-making assessment tool must
be
completed
by a physician who has examined the individual. Professionals, or
other persons
acquainted
with the individual being assessed, may also complete the additional
decision-making
assessment
tool tools.
(4) Modification. - If, because of a change in the partially incapacitated
individual's level
of
functioning, the scope and duties of the limited guardianship order no longer
meet the needs of
the
individual and/or fail to afford the individual as much autonomy as possible,
modification of
the
limited guardianship order is required.
(i) Modification can be accomplished by agreement of the parties: the partially
incapacitated
individual and his or her counsel, and the limited guardian. This agreement
shall be
submitted
to the court and entered as an order.
(ii) Where no agreement can be reached, any or all of the parties may request a
hearing.
(b) However, provisions of this chapter shall not be construed to mean a person
is in
need
of a guardian or limited guardian solely because he or she is being furnished
or relies upon
treatment
by spiritual means through prayer alone in accordance with the tenets and
practices of a
church
or religious denomination recognized by the laws of this state.
SECTION
2. Sections 33-22-11 and 33-22-17 of the General Laws in Chapter 33-22
entitled
"Practice in Probate Courts" are hereby amended to read as follows:
33-22-11.
Notice by advertisement. -- In all cases in which notice is required
and special
provision
is not made for it, it shall be given by advertisement of a notice for
fourteen (14) days,
once
a week, for at least two (2) weeks, the first advertisement to be
published at least fourteen
(14)
days before the first of any hearing dates contained in such notice, at least, in a
newspaper
printed
in English and published in the county or in a Providence newspaper having
general
circulation
within the county in which the matter is to be acted upon, as the probate court
by
general
rule or special order may designate for that purpose; provided, however, that
when a
probate
court shall give, or order to be given, notice by advertisement in a newspaper
which has
furnished
the court with a definite schedule of prices for this advertising, the court
shall require
the
cost of the advertising to be paid to the clerk of the court in advance, and
the court shall pay
over
each month to the newspaper the sums so paid in, upon proof that the notice has
been
advertised
as ordered; provided, however, that any advertisement affecting probate matters
in the
town
of New Shoreham shall be given in a newspaper printed in English and published
in the
counties
of Washington and/or Providence.
33-22-17.
Representation of unborn, unascertained, and incompetent persons. --
When
before or at the hearing on any proceeding in a probate court it appears to the
court that the
interest
of a person unborn, unascertained, or legally incompetent to act in his or her
own behalf,
is
not fully represented, the court may, and upon the request of any person
interested shall,
appoint
some competent and disinterested person to act as guardian ad litem, or next
friend, for
the
person unborn, unascertained, or legally incompetent, and to represent his or
her interest in
the
case. The person so appointed shall make oath to perform his or her duty
faithfully and
impartially,
and shall be entitled to such reasonable compensation, out of the estate, for
his or her
services,
as the court may allow. In any action involving wills, estates, trusts or
fiduciaries in the
probate
court, a minor, an incapacitated person or an unborn or unascertained person
whose
identity
and location is unknown and not reasonably ascertainable, unless otherwise
represented,
may
be represented by and bound by another having a substantially identical
interest with respect
to
the particular question or dispute, but only to the extent that: (1) the
person’s interest is
adequately
represented; and (2) there is no conflict of interest between the
representative and the
person
represented.
SECTION
3. Sections 33-23-9 and 33-23-12 of the General Laws in Chapter 33-23
entitled
"Judicial Review of Probate Court Orders and Decisions" are hereby
amended to read as
follows:
33-23-9.
Assignment day. -- The probate appeal shall, unless otherwise
ordered by the
superior
court, be in order for assignment may be assigned to the formal and
special cause
calendar,
the continuous non-jury trial calendar, or the continuous jury trial calendar,
as the case
may
be, on the assignment day which occurs next after not less
than seventy-five (75) days from
the
date that the probate order or decree appealed was executed by the probate
judge.
33-23-12. Failure to perfect or prosecute appeal. -- If an
appellant, having timely
filed
his or her reasons for appeal, fails to perfect his or her appeal within the
time allowed by law
or
by the superior court, or to prosecute the appeal, the superior court,
on motion of any person
interested,
may affirm the decree or order appealed from or make such other order or decree
as
justice
may require.
SECTION
4. Section 33-26-1 of the General Laws in Chapter 33-26 entitled
"Establishing
a Legislative Commission to Study the Feasibility of Modernizing Probate Law
and
Procedure
to Make Recommendations Therefor" is hereby amended to read as follows:
33-26-1.
Legislative commission established. -- There is hereby established a
special
legislative
commission consisting of twenty-three (23) twenty-one (21)
members: three (3) of
whom
shall be from the house of representatives, not more than two (2) from the same
political
party
to be appointed by the speaker; two (2) of whom shall be from the senate, not
more than one
from
the same political party, to be appointed by the president of the senate; one
of whom shall
be
the president of the Rhode Island Probate Judges Association, or his or her
designee; one of
whom
shall be the president of the Rhode Island Town Clerks Association, or his or
her designee;
five
(5) of whom shall be members in good standing of the Rhode Island Bar
Association with
experience
in probate matters, of whom two (2) three (3) shall be appointed
by the speaker and
one two (2) by the
president of the senate; one of whom shall be a currently serving probate
judge,
to be appointed by the speaker; one two (2) of whom shall be a
currently serving probate
clerk, clerks, one (1)
to be appointed by the speaker and one (1) to be appointed by the president
of
the senate; one of whom shall be the chairperson of the Rhode Island Bar
Association
Committee
on Probate and Trust Law; and one of whom shall be the chairperson, executive
director, or his or her designee,
of the legislative committee of the Rhode Island Chapter of the
American
Association of Retired Persons; alliance for better long-term care; one
of whom shall
be the
chairperson or his or designee, of the legislative committee of Rhode Island
Retired
Teachers
Association
appointed by the director of the department of elderly affairs; one
of whom
shall
be the chairperson or his or her designee, of the Rhode Island Council of
Senior Citizens;
and
one of whom shall be the president, or his or her designee of the Key Council
of Rhode
Island; and four (4) of whom
shall be members of the general public who have an interest in
probate
matters, of whom one shall be appointed by the speaker, one of whom shall be
appointed
by
the house minority leader, and one by the president of the senate and one by
the senate
minority
leader. Each member shall serve for a term of two (2) years, and may be
reappointed. or
until
his or her successor is appointed, whichever occurs later.
In lieu of any appointment of a member of the legislature to a permanent
advisory
commission,
a legislative study commission, or any commission created by a general assembly
resolution,
the appointing authority may appoint a member of the general public to serve in
lieu
of a
legislator, provided that the president of the senate or the minority leader of
the political
party
which is entitled to the appointment consents to the appointment of the member
of the
general
public.
The purpose of said commission shall be to study the feasibility of modernizing
probate
law
and procedure in Rhode Island, including but not limited to the feasibility of
adopting the
Uniform
Probate Code, and to make recommendations therefor.
Forthwith upon passage of this resolution, the members of the commission shall
meet at
the
call of the speaker of the house and organize and shall select from among their
members a
chairperson.
Vacancies in said commission shall be filled in like manner as the original
appointment.
The membership of said commission shall receive no compensation for their
services.
All departments and agencies of the state shall furnish such advice and
information,
documentary
and otherwise, to said commission and its agents as is deemed necessary or
desirable
by the commission to facilitate the purposes of this resolution.
The speaker of the house is hereby authorized and directed to provide suitable
quarters
for
said commission.
The commission shall report its findings and recommendations to the general
assembly
on an
annual basis on or before February 10 of each year.
SECTION
5. This act shall take effect upon passage. The amendments in section 2 herein
to
section 33-22-17 shall apply to all actions involving trusts and trustees
commenced after the
date
of passage.
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LC02149/SUB
B/2
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