2008 -- S 2743

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LC02325

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2008

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A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE - GUARDIANSHIP OF MINORS

     Introduced By: Senator John F. McBurney

     Date Introduced: February 26, 2008

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 33-15.1-4.1 of the General Laws in Chapter 33-15.1 entitled

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"Guardianship of Minors" is hereby repealed.

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     33-15.1-4.1. Waiver of guardian ad litem report -- Parent as petitioner. -- Pursuant to

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a petition by a parent for guardianship of a minor or adult child, the requirement that a guardian

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ad litem file a report shall be waived unless specifically ordered by the probate court.

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     SECTION 2. Section 33-15.1-27 of the General Laws in Chapter 33-15.1 entitled

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"Guardianship of Minors" is hereby amended to read as follows:

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     33-15.1-27. Investment of surplus funds -- Relief from bond requirements. --

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Guardians may be authorized to invest any money in their hands, not needed for the payment of

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debts, or for the support or education of their wards, in notes secured by mortgage upon

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unincumbered unencumbered, improved real estate situated in this state, or in the bonds or other

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indebtedness of the United States, or of this state, or in the bonds or notes of any city or town in

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this state, or in the stock of any domestic building and loan association or federal savings and

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loan association doing business in this state approved by the probate court, or to make deposits of

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money in any savings bank or trust company in this state approved by the probate court, as he or

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she shall deem best for the interest of his or her ward; and may also, under the direction of the

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probate court, invest any money in real estate or bank stocks in this state or in other safe income

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producing securities as the probate court may approve; and if a guardian has so deposited any

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money in any savings bank or trust company or invested the money in stock of any association

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and deposited with the clerk of the probate court the savings bankbook, share certificate or other

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evidence of the deposit or investment, to be held subject to the order of the court, the probate

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court in its discretion may relieve the guardian of the requirement of surety on his or her bond. if

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the deposit or investment is not in excess of ten thousand dollars ($10,000) and constitutes all of

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the property of his or her ward, or if there be other property, reduce the amount of his or her bond

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by the amount of the deposit or investment, but by not in excess of ten thousand dollars

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($10,000).

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     SECTION 3. Sections 33-15-4.1 and 33-15-17.1 of the General Laws in Chapter 33-15

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entitled "Limited Guardianship and Guardianship of Adults" are hereby amended to read as

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follows:

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     33-15-4.1. Good Samaritan guardians. -- (a) Any person who files a petition for a

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guardianship of the person pursuant to the provisions of this chapter may also file to be qualified

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as a good Samaritan guardian. A good Samaritan guardian may be appointed by the probate court

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in those instances where the court determines that the estate of a proposed ward is insufficient to

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pay for the services of a guardian and that such an appointment would otherwise be in the best

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interests of the individual for whom the guardianship is proposed.

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      (b) A person filing for appointment of a good Samaritan guardianship shall file all the

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forms required by this chapter to initiate a guardianship petition and shall file an additional form

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setting forth the qualifications of the proposed guardian to serve as a good Samaritan guardian.

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Such forms shall be prepared by the probate court and shall include, but not be limited to, the

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following information:

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      (1) The experience, if applicable, of the proposed guardian;

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      (2) The willingness of the proposed guardian to serve as said good Samaritan guardian;

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and

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      (3) A statement that if appointed as a good Samaritan guardian, such person shall not

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seek any fees and/or monetary compensation for their services as a good Samaritan; provided,

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that this shall not be construed to prohibit the good Samaritan guardian from soliciting and/or

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utilizing charitable donations for and on behalf of the individual under guardianship.

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      (c) The appointment of a good Samaritan guardian shall be in the discretion of the

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probate court.

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      (d) Except as otherwise provided for herein, hearings on and notice of the application for

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and appointment of a good Samaritan guardianship shall proceed in the same manner as any other

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petition for guardianship pursuant to the provisions of this chapter.

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     33-15-17.1. Notice. -- (a) Except for the appointment of a temporary guardian, no

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petition for limited guardian or guardian shall be heard and no person shall be appointed limited

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guardian or guardian of an individual unless notice of the petition for appointment of a limited

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guardian or guardian and a copy of the petition itself shall be served upon the respondent in

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person at least fourteen (14) days prior to any hearing on the petition. If the hearing date is

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continued by the probate court for any reason after service on the respondent and no objection to

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the petition is filed by or on behalf of the respondent, no further service on the respondent shall

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be required. The probate court, in its discretion, may require further notice to the respondent in

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such manner as prescribed by the court.

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      In the case of a petition for the appointment of a temporary guardian, such fourteen (14)

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day notice period shall be reduced to five (5) days, unless a shorter period is ordered by the court.

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      (b) This notice shall be in plain language, large type and shall include the time and place

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of the hearing, the possible loss of liberty if the petition is granted, and shall inform the

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respondent of his or her rights including: the court appointment of a guardian ad litem, the right to

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a hearing and to be present at the hearing to confront witnesses, present evidence, contest the

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petition, object to the appointment of a particular individual as guardian, request that limits be

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placed on the guardian's powers, and the right to counsel. Notice shall be served upon the

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respondent by a process server duly authorized and licensed under Rhode Island law, except for

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"Good Samaritan" guardianships under section 33-15-4.1 in which case notice may be served

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upon the respondent by the guardian ad litem appointed by the court (hereinafter referred to as

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"court officer").

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      (c) The court officer that serves this notice shall be dressed in plain clothes. He or she

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shall have experience dealing with individuals who may lack decision making ability.

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      (d) The court officer shall present the written notice and shall also read the notice to the

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respondent.

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      (e) Except for a petition for the appointment of a temporary guardian, notice shall be

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given by the petitioner, or his or her attorney, at least ten (10) days before the date set for hearing

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on the petition by regular mail, postage prepaid, addressed to (1) the respondent's spouse and

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heirs at law (under the rules of descent) as set forth in section 33-1-1 only at their last known

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addresses; and (2) the administrator of any care and treatment facility where the respondent

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resides or receives primary services; and (3) any individual or entity known or reasonably known

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to the petitioner to be regularly providing protective services to the respondent. In the case of a

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petition for the appointment of a temporary guardian, such ten (10) day notice period is reduced

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to five (5) days, unless a shorter period is ordered by the court, with the petitioner required to use

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reasonable efforts in identifying and noticing those individuals described in the immediately

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preceding sentence within the limitations of investigation of identity of addresses of such

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individuals inherent in a temporary guardianship proceeding. The petitioner or his or her attorney,

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shall at or prior to the hearing file or leave to be filed an affidavit that notice was given setting

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forth the names and post office addresses of the persons to whom the notice was sent and the date

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of mailing, together with a copy of the notice.

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      (f) Should the petitioner have no knowledge of the existence or whereabouts of any of

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the persons required to be notified pursuant to subparagraph (e) above, an affidavit to that effect

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filed with the court shall satisfy this notice requirement.

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      (g) Notwithstanding any notice requirement of the petitioner, and except for a petition

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for appointment of a temporary guardian the court shall give notice of the petition by

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advertisement.

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     SECTION 4. This act shall take effect upon passage.

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LC02325

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE - GUARDIANSHIP OF MINORS

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     This act would repeal provisions for the waiver of a guardian ad litem report when a

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parent is petitioning for guardianship of a minor or adult child. It would allow for the waiver of

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surety on the guardian's bond regardless of the value of the ward's estate. It would eliminate the

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requirement that the probate court prepare the forms for a "good samaritan" guardianship and

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allows for service by the guardian ad litem for "good samaritan" guardianship. The act would also

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eliminate the need for further service of notice to respondents upon continuance of hearing date

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by the probate court.

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     This act would take effect upon passage.

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LC02325

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