Chapter 417

2007 -- S 0481

Enacted 07/07/07

A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE - LIMITED GUARDIANSHIP AND GUARDIANSHIP OF ADULTS

Introduced By: Senator John F. McBurney

Date Introduced: February 13, 2007

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 33-15-2, 33-15-4, 33-15-5, 33-15-7, 33-15-18 and 33-15-19 of the

General Laws in Chapter 33-15 entitled "Limited Guardianship and Guardianship of Adults" are

hereby amended to read as follows:

33-15-2. Petition for appointment of a limited guardian or guardian. -- Any person

may file with the probate court clerk, in the city or town where the proposed ward resides or

where an out of state proposed ward has property, a verified petition for the appointment of a

guardian. The petition shall state the following information known to the petitioner:

      (1) The name, age, and post office address of the proposed ward;

      (2) That, based on a functional decision making assessment tool which reflects the

proposed ward's current level of functioning decision making ability:

      (i) The proposed ward needs a limited guardian to provide assistance with decision

making in the following areas of financial, health care, residential and/or relationship matters; or

      (ii) The proposed ward needs a full guardian to provide assistance with decision making

in all areas;

      (3) The guardianship powers being requested;

      (4) The steps which have been taken to utilize less restrictive alternatives to

guardianship; and,

      (5) The qualifications of the individual proposed to serve as limited guardian or

guardian.

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 the respondent's primary care physician,

if one exists and is available, otherwise by a physician who has examined and treated the

respondent. The probate court may consider such additional decision making assessments tools

signed and submitted by one or more non-physicians or consulting 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 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 and treated the individual. Professionals, or other

persons acquainted with the individual being assessed, may also complete additional decision-

making assessment tools.

      (4) Modification. - If, because of a change in the partially incapacitated individual's level

of functioning decision making ability, 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, if any and the limited guardian. This agreement

shall be submitted to the court and entered as an order.

      (ii) Where no agreement can be reached, among these parties 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.

33-15-5. Hearing. -- No limited guardian or guardian shall be appointed until after a

hearing on the petition. The hearing shall be before a judge of the probate court of the city or

town where the petition was filed.

      (1) The respondent shall have the right to be present at the hearing and all other stages of

the proceedings.

      (2) The respondent shall be allowed to:

      (i) Compel the attendance of witnesses;

      (ii) Present evidence; and

      (iii) Confront and cross examine witnesses.

      (3) The standard of proof shall be clear and convincing evidence.

      (4) The Rhode Island rules of evidence shall apply.

      (5) Any professional whose training and experience aid in the assessment of functional

capacity decision making ability and who has so assessed the respondent may be permitted to

provide expert testimony regarding the functional decision making assessment of the respondent.

33-15-7. Guardians ad litem -- Duties -- Legally incapacitated respondents right to

counsel -- Termination of appointment of guardian ad litem. -- (a) Upon filing with the

probate court clerk of a petition for the appointment of a guardian, a guardian ad litem shall be

appointed for each respondent;

      (b) The guardian ad litem need not be an attorney; but shall have sufficient experience

and/or training in dealing with elderly persons and persons with incapacities and/or disabilities

and understanding of his or her role as guardian ad litem to be able to properly discharge such

duties under subsection (c) below. Each probate court shall maintain a list of persons deemed

qualified to serve as a guardian ad litem and shall appoint from that list on a rotating basis. Any

guardian ad litem appointed for a respondent shall be ineligible to serve as legal counsel,

temporary guardian or permanent guardian for that respondent.

      (c) The duties of a guardian ad litem shall include all of the following:

      (1) Personally visiting the respondent;

      (2) Explaining to the respondent the nature, purpose, and legal effect of the appointment

of a guardian;

      (3) Explaining to the respondent the hearing procedure, including, but not limited to, the

right to contest the petition, to request limits on the guardian's powers, to object to a particular

person being appointed guardian, to be present at the hearing, and to be represented by legal

counsel;

      (4) Informing the respondent of the name of the person known to be seeking

appointment as guardian;

      (5) Reviewing the decision making assessment tool(s), petition for guardianship/limited

guardianship, and the notice;

      (6) Interviewing the prospective guardian by telephone or in person; and

      (7) Making determinations, and informing the court of those determinations, on all of the

following:

      (i) Whether the respondent wishes to be present at the hearing.

      (ii) Whether the respondent wishes to contest the petition.

      (iii) Whether the respondent wishes limits placed on the guardian's powers; and

      (iv) Whether the respondent objects to a particular person being appointed guardian;

      (v) Whether the respondent wishes to be represented by legal counsel.

      Unless waived by the court, at least three (3) days prior to the hearing, the guardian ad

litem shall file a report substantially in the form as set forth in section 33-15-47 with the court and

shall mail or hand deliver a copy to each attorney of record.

      (d) If the respondent wishes to contest the petition, to have limits placed on the

guardian's powers, or to object to a particular person being appointed guardian, and, if legal

counsel has not been secured, the court shall appoint legal counsel. If the respondent is indigent,

the state shall bear the expense of legal counsel.

      (e) If the respondent requests legal counsel, or if the guardian ad litem determines it is in

the best interest of the respondent to have legal counsel, and if legal counsel has not been secured,

the court shall appoint legal counsel. If the respondent is indigent, the state shall bear the expense

of legal counsel.

      (f) If the respondent has legal counsel independently or appointed pursuant to subsection

(d) or (e), the appointment of a guardian ad litem shall terminate. except insofar as informing the

court of the respondent's wishes and objections determined pursuant to subsection (c) above.

(g) The guardian ad litem shall not interfere with interested parties and their counsel in

gathering and presenting evidence according to court orders and rules of discovery and evidence.

The guardian ad litem may be called and confronted as a witness regarding his or her conclusions

as submitted by report and the extent of his or her personal knowledge concerning the respondent.

(h) Court awarded guardian ad litem fees shall not exceed four hundred dollars ($400)

which shall be paid by the petitioner for guardianship if a permanent guardian is not appointed for

the respondent or by the guardian of the ward's estate if a permanent guardian is appointed. The

court has discretion to award guardian ad litem fees in excess of the cap if the circumstances

warrant.

33-15-18. Removal of limited guardian or guardian or conservator -- Resignation. --

(a) Removal may be requested by the ward or anyone acting on behalf of the ward, including the

limited guardian, guardian or conservator. The ward may retain counsel for this purpose.

      (1) The court shall remove any limited guardians, guardian or conservator appointed or

approved by it upon finding that the limited guardian, guardian or conservator has not fulfilled, or

is no longer able to fulfill, the duties of the appointment as set forth by the order itself and/or the

limited guardianship and guardianship law.

      (2) The court shall remove any limited guardian or guardian or conservator upon finding

that the ward, based on a functional decision making assessment tool, has the capacity to make

decisions regarding his or her health care, finances, residence, and/or relationships.

      (b) A limited guardian or guardian or conservator may resign. The court shall accept the

resignation of any limited guardian or guardian or conservator after he or she has accounted with

the court for the estate of his or her ward in his or her possession and filed a report regarding the

status of the ward including the ward's current residence and condition.

33-15-19. Inventory and appraisement of estate. -- (a) Within thirty (30) days after his

or her appointment, or any longer time that may be allowed by the probate court, a temporary

guardian, guardian, or limited guardian shall return to the probate court, under oath, an inventory

and appraisement of all the real and personal property of his or her ward, as of the date of the

guardian's qualification to be made by either the guardian and/or a suitable, disinterested person

or persons appointed by the court, which shall fix the number of appraisers at one or three (3) in

its discretion. The appraisers shall be sworn to the faithful discharge of their trust.

      (b) In appraising the ward's interest in any assets held by the ward jointly or in some

other form of concurrent ownership with another party, the appraiser shall include on the

inventory an explanation for the basis for appraising the inventory, as either all, none, or a portion

of the value of the assets.

     SECTION 2. This act shall take effect upon passage.

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LC01982

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