Chapter 2112. Adult Guardianship and Protective Proceedings Jurisdiction Act
Chapter 2112. of the Revised Code may be cited as the Adult
Guardianship and Protective Proceedings Jurisdiction Act.
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
As used in this chapter:
| (A) |
"Adult" means an individual who is eighteen years of age or older. |
| (B) |
"Guardian" has the same meaning as in section
2111.01 of the Revised Code. |
| (C) |
"Guardian of the person" means a person appointed by the court to make
decisions regarding the support, care, education, health, and welfare of a
ward. "Guardian of the person" does not include a guardian ad litem. |
| (D) |
"Guardian of the estate" means a person appointed by the court to administer
the estate of a ward. |
| (E) |
"Ward"
means any adult who has been adjudicated incompetent and for whom a guardian is
acting or for whom the probate court is acting pursuant to section
2111.50 of the Revised Code. |
| (F) |
"Emergency" means a circumstance that makes it reasonably certain that
immediate action is required to prevent significant injury to a respondent's
health, safety, welfare, or property and for which the appointment of a
guardian or issuance of a protective order is necessary because no other person
has authority and is willing to act on the respondent's behalf. |
| (G) |
"Guardianship order" means an order appointing a guardian. |
| (H) |
"Guardianship proceeding" means a judicial proceeding in which an order for the
appointment of a guardian is sought or has been issued. |
| (I) |
"Home
state" means the state in which the respondent was physically present,
including any period of temporary absence, for at least six consecutive months
immediately before the filing of an application for appointment of a guardian
or the issuance of a protective order or, if none, the state in which the
respondent was physically present, including any period of temporary absence,
for at least six consecutive months ending within the six months prior to the
filing of the application. |
| (J) |
"Party" means the respondent, applicant, guardian, or other person allowed by
the court to participate in a guardianship or protective proceeding. |
| (K) |
"Person," except in the terms guardian of the person and protected person,
means an individual, parent, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, government,
governmental agency or instrumentality, public corporation, or other legal or
commercial entity. |
| (L) |
"Protected person" means an adult for whom a protective order has been
issued. |
| (M) |
"Protective order" means an order appointing a
guardian or other order under division (B)(3) of section
2111.02 of the Revised Code
related to the management of an adult's person, property, or both or an order
under section
2111.022 of the Revised Code
related to the management of an individual's property. |
| (N) |
"Protective proceeding" means a judicial proceeding in which a protective order
is sought or has been issued. |
| (O) |
"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. |
| (P) |
"Respondent" means an adult for whom a protective
order or the appointment of a guardian is sought. |
| (Q) |
"Significant-connection state" means a state, other than the home state, with
which a respondent has a significant connection other than mere physical
presence and in which substantial evidence concerning the respondent is
available. |
| (R) |
"Incompetent" has the same meaning as in section
2111.01 of the Revised Code. |
| (S) |
"State" means a state of the United States, the District of Columbia, Puerto
Rico, the United States Virgin Islands, or any territory or insular possession
subject to the jurisdiction of the United States. "State" includes an Indian
tribe or band that is recognized by federal law or formally acknowledged by a
state. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
A probate court of this state may treat a foreign country
as if it were a state for the purpose of applying this chapter.
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
A probate court of this state may communicate with a
court in another state concerning a proceeding arising under this chapter. The
probate court may allow the parties to participate in the communication. Except
as otherwise provided in division (B) of this section, the probate court shall
make a record of the communication. The record may be limited to the fact that
the communication occurred. |
| (B) |
Probate courts may communicate concerning schedules, calendars, court records,
and other administrative matters without making a record. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
In a guardianship or protective proceeding in this
state, a probate court of this state may request the appropriate court of
another state to do any of the following:
| (1) |
Hold
an evidentiary hearing; |
| (2) |
Order
a person in that state to produce evidence or give testimony pursuant to the
procedures of that state; |
| (3) |
Order
that an evaluation or assessment be made of the respondent; |
| (4) |
Order
any appropriate investigation of a person involved in the proceeding; |
| (5) |
Forward to the probate court of this state a certified copy of the transcript
or other record of a hearing under division (A)(1) of this section or any other
proceeding, any evidence otherwise produced under division (A)(2) of this
section, and any evaluation or assessment prepared in compliance with an order
under division (A)(3) or (4) of this section; |
| (6) |
Issue
any order necessary to assure the appearance in the proceeding of a person
whose presence is necessary for the probate court to make a determination,
including the respondent, ward, or a protected person; |
| (7) |
Issue
an order authorizing the release of medical, financial, criminal, or other
relevant information in that state, including protected health information as
authorized in 45 C.F.R. 164.504, as amended. |
|
| (B) |
If a
court of another state in which a guardianship or protective proceeding is
pending requests assistance of the kind provided in division (A) of this
section, a probate court of this state has jurisdiction for the limited purpose
of granting the request or making reasonable efforts to comply with the
request. A probate court of this state may require an advance deposit for costs
in an amount sufficient to obtain or provide the requested assistance. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
In a guardianship proceeding or protective proceeding,
in addition to other procedures that may be available, the testimony of a
witness who is located in another state may be offered by deposition or other
means allowable in this state for testimony taken in another state. The probate
court on the court's 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 probate court in this state may permit
a witness located in another state to be deposed or to testify by telephone,
audiovisual, or other electronic means. A probate court of this state shall
cooperate with the court of the other state in designating an appropriate
location for the deposition or testimony. |
| (C) |
Documentary evidence transmitted from another state to a probate court of this
state by technological means that do not produce an original writing may not be
excluded from evidence on an objection based on the best evidence rule. |
| (D) |
A
probate court of this state may adopt local rules of practice that promote the
use of any device or procedure to facilitate the expeditious disposition of the
cases. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
A probate court of this state has jurisdiction to
appoint a guardian or issue a protective order for a respondent if any of the
following applies:
| (1) |
This state is the respondent's home state. |
| (2) |
On the
date that the application is filed, this state is a significant-connection
state, and either of the following applies:
| (a) |
The
respondent does not have a home state, or a court of the respondent's home
state has declined to exercise jurisdiction because this state is a more
appropriate forum. |
| (b) |
The
respondent has a home state, a petition for an appointment or order is not
pending in a court of that state or another significant-connection state, and
before the probate court makes the appointment or issues the order all of the
following apply:
| (i) |
An application for an appointment or order is not
filed in the respondent's home state. |
| (ii) |
An
objection to the probate court's jurisdiction is not filed by a person required
to be notified of the proceeding. |
| (iii) |
The
probate court in this state concludes that the probate court is an appropriate
forum under the factors set forth in section
2112.24 of the Revised Code. |
|
|
| (3) |
This state does not have jurisdiction under division
(A) or (B) of this section, the respondent's home state and all
significant-connection states have declined to exercise jurisdiction because
this state is the more appropriate forum, and jurisdiction in this state is
consistent with the constitutions of this state and the United States. |
| (4) |
The
requirements for special jurisdiction under section
2112.22 of the Revised Code are
met. |
|
| (B) |
In determining whether a respondent has a significant
connection with a particular state for purposes of this section, the probate
court may consider any of the following:
| (1) |
The
location of the respondent's family and other persons required to be notified
of the guardianship or protective proceeding; |
| (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 property; |
| (4) |
The
extent to which the respondent has ties to the state, including, but not
limited to, voting registration, state or local tax return filing, vehicle
registration, driver's license, social relationships, and receipt of
services. |
|
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
A probate court of this state lacking jurisdiction
under section
2112.21 of the Revised Code has
special jurisdiction to do any of the following:
| (1) |
Appoint a guardian in an emergency for a respondent who is physically present
in this state; |
| (2) |
Issue a protective order in an emergency with respect
to the adult or to the real or tangible personal property located in this
state; |
| (3) |
Appoint a guardian for a ward or protected person for
whom a provisional order to transfer the proceeding from another state has been
issued under procedures similar to section
2112.31 of the Revised Code. |
|
| (B) |
If an application for the appointment of a guardian in
an emergency is brought in this state and this state was not the respondent's
home state on the date that the application was filed, the probate court shall
dismiss the proceeding at the request of the court of the home state, if any,
whether dismissal is requested before or after the emergency appointment. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
Except as otherwise provided in section
2112.22 of the Revised Code, a
probate court that has appointed a guardian or issued a protective order
consistent with this chapter has exclusive and continuing jurisdiction over the
proceeding until it is terminated by the probate court or the appointment or
order expires by the appointment's or order's own terms.
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
A probate court of this state having jurisdiction
under section
2112.21 of the Revised Code to
appoint a guardian or issue a protective order may decline to exercise the
court's jurisdiction if the probate court determines at any time that a court
of another state is a more appropriate forum. |
| (B) |
If a
probate court of this state declines to exercise the court's jurisdiction under
division (A) of this section, the probate court shall either dismiss or stay
the proceeding. The probate court may impose any condition that the probate
court considers just and proper, including the condition that an application
for the appointment 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 probate court shall
consider all relevant factors, including, but not limited to, the
following:
| (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; |
| (3) |
The
length of time the respondent was physically present in or was a legal resident
of this or another state; |
| (4) |
The
distance of the respondent from the court in each state; |
| (5) |
The
financial circumstances of the respondent's estate; |
| (6) |
The
nature and location of the evidence; |
| (7) |
The
ability of the court in each state to decide the issue expeditiously and the
procedures necessary to present evidence; |
| (8) |
The
familiarity of the court of each state with the facts and issues in the
proceeding; |
| (9) |
The probate court's ability, if an appointment were
made, to monitor the conduct of the guardian; |
| (10) |
Any
other factors that the probate court considers relevant. |
|
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
If at any time a probate court of this state
determines that the probate court has acquired jurisdiction to appoint a
guardian or issue a protective order because of unjustifiable conduct, the
probate court may do any of the following:
| (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 to prevent a repetition of the
unjustifiable conduct, including staying the proceeding until an application
for the appointment of a guardian or issuance of a protective order is filed in
a court of another state having jurisdiction; |
| (3) |
Continue to exercise jurisdiction after considering all of the following:
| (a) |
The
extent to which the respondent and all persons required to be notified of the
proceedings have acquiesced in the exercise of the probate court's
jurisdiction; |
| (b) |
Whether the probate court is a more appropriate forum
than the court of any other state under the factors set forth in division (C)
of section
2112.24 of the Revised Code; |
| (c) |
Whether the court of any other state would have jurisdiction under factual
circumstances in substantial conformity with the jurisdictional standards of
section 2112.21 of the Revised Code. |
|
|
| (B) |
If a probate court of this state determines that the
probate court has acquired jurisdiction to appoint a guardian or issue a
protective order because a party seeking to invoke the court's jurisdiction
engaged in unjustifiable conduct, the probate court may assess against that
party necessary and reasonable expenses, including, but not limited to,
attorney's fees, investigative fees, court costs, communication expenses,
witness fees and expenses, and travel expenses. Except as otherwise provided by
any provision of the Revised Code, the probate court may not assess fees,
costs, or expenses of any kind against this state or a governmental
subdivision, agency, or instrumentality of this state. |
| (C) |
As
used in this section, "unjustifiable conduct" includes, but is not limited to,
conduct by a person that attempts to create jurisdiction in this state by
removing the adult from the adult's home state, secreting the adult, retaining
the adult, or restraining or otherwise preventing the adult from returning to
the adult's home state in order to prevent or deprive a court of the adult's
home state from taking jurisdiction. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
If an application for the appointment of a guardian or
issuance of a protective order is brought in this state and this state was not
the respondent's home state on the date that the application was filed, in
addition to complying with the notice requirements of this state, the applicant
shall give notice of the application to those persons who would be entitled to
notice of the application if a proceeding were brought in the respondent's home
state. The notice must be given in the same manner as notice is required to be
given in this state.
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
Except for an application for the appointment of a guardian
in an emergency or issuance of a protective order in an emergency, if an
application for the appointment of a guardian or issuance of a protective order
is filed in this state and in another state and neither application has been
dismissed or withdrawn, the following rules apply:
| (A) |
If the
probate court in this state has jurisdiction under section
2112.21 of the Revised Code, the
probate court may proceed with the case unless a court in another state
acquires jurisdiction under provisions similar to section
2112.21 of the Revised Code before
the appointment or issuance of the order. |
| (B) |
If the
probate court in this state does not have jurisdiction under section
2112.21 of the Revised Code,
whether at the time the application is filed or at any time before the
appointment or issuance of the order, the probate court shall stay the
proceeding and communicate with the court in the other state. If the court in
the other state has jurisdiction, the probate court in this state shall dismiss
the application unless the court in the other state determines that the probate
court in this state is a more appropriate forum. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
A guardian appointed in this state may petition the
probate court to transfer the guardianship to another state. |
| (B) |
Notice
of a petition under division (A) of this section must be given by the guardian
to the persons that would be entitled to notice of an application in this state
for the appointment of a guardian. |
| (C) |
On the
probate court's own motion or on request of the guardian, ward, protected
person, or other person required to be notified of the petition, the probate
court shall hold a hearing on a petition filed pursuant to division (A) of this
section. |
| (D) |
The probate court shall issue a provisional order
granting a petition to transfer a guardianship of the person and shall direct
the guardian to petition for guardianship in the other state if the probate
court is satisfied that the guardianship will be accepted by the court in the
other state, and the probate court finds all of the following:
| (1) |
The
ward 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 ward. |
| (3) |
Plans
for care and services for the ward in the other state are reasonable and
sufficient. |
|
| (E) |
The
probate court shall issue a provisional order granting a petition to transfer a
guardianship of the estate and shall direct the guardian to petition for a
guardianship of the estate in the other state if the probate court is satisfied
that the guardianship of the estate will be accepted by the court of the other
state, and the probate court finds all of the following:
| (1) |
The
ward is physically present in or is reasonably expected to move permanently to
the other state, or the ward has a significant connection to the other state
and meets the requirements of division (A)(2) of section
2112.21 of the Revised Code. |
| (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 protected person. |
| (3) |
Adequate arrangements will be made for management of the ward's property. |
|
| (F) |
The probate court shall issue a final order confirming
the transfer and terminating the guardianship upon the probate court's receipt
of both of the following:
| (1) |
A provisional order accepting the proceeding from the
court to which the proceeding is to be transferred and that is issued under
provisions similar to section
2112.32 of the Revised Code; |
| (2) |
The
documents required to terminate a guardianship in this state. |
|
| (G) |
In
determining whether a respondent has a significant connection with a particular
state for purposes of this section, the probate court may consider any of the
following:
| (1) |
The
location of the respondent's family and other persons required to be notified
of the guardianship or protective proceeding; |
| (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 property; |
| (4) |
The
extent to which the respondent has ties to the state, including, but not
limited to, voting registration, state or local tax return filing, vehicle
registration, driver's license, social relationships, and receipt of
services. |
|
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
To confirm transfer of a guardianship transferred to
this state under provisions similar to section
2112.31 of the Revised Code, the
guardian shall petition the probate court in this state to accept the
guardianship of the person, guardianship of the estate, or both. The petition
must include a certified copy of the other state's provisional order of
transfer. |
| (B) |
Notice of a petition under division (A) of this
section must be given by the guardian to those persons that would be entitled
to notice if the petition were an application for the appointment of a guardian
or issuance of a protective order in both the transferring state and this
state. The notice must be given in the same manner as notice is required to be
given in this state. |
| (C) |
On the
probate court's own motion or on the request of the guardian, ward, protected
person, or other person required to be notified of the proceeding, the probate
court shall hold a hearing on a petition filed pursuant to division (A) of this
section. |
| (D) |
The probate court shall issue a provisional order
granting a petition filed under division (A) of this section unless either of
the following applies:
| (1) |
An objection is made, and the objector establishes
that transfer of the proceeding would be contrary to the interests of the ward
or protected person. |
| (2) |
The
guardian is ineligible for appointment in this state. |
|
| (E) |
The
probate court shall issue a final order accepting the proceeding and appointing
the guardian as a guardian in this state upon the probate court's receipt from
the court from which the proceeding is being transferred of a final order
transferring the proceedings to this state issued under provisions similar to
section 2112.31 of the Revised Code. |
| (F) |
In
granting a petition under this section, the probate court shall recognize a
guardianship order from the other state, including the determination of the
incompetence of the ward and the appointment of the guardian. Nothing in this
section shall limit the probate court's authority under Chapter 2111. of the
Revised Code. |
| (G) |
The denial by a probate court of this state of a
petition to accept a guardianship transferred from another state does not
affect the ability of the guardian to seek appointment as a guardian in this
state under section
2111.02 of the Revised Code if the
probate court has jurisdiction to make an appointment other than by reason of
the provisional order of transfer. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
If a guardian has been appointed in another state and an
application for the appointment of a guardian of the person is not pending in
this state, the guardian appointed in the other state, after giving notice to
the appointing court of an intent to register, may register the guardianship
order in this state by filing as a foreign judgment in a probate court, in any
appropriate county of this state, certified copies of the order and letters of
office.
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
If a guardian of the estate has been appointed in another
state and an application for the appointment of a guardian of the estate is not
pending in this state, the guardian of the estate appointed in the other state,
after giving notice to the appointing court of an intent to register, may
register a protective order or guardianship in this state by filing as a
foreign judgment in a probate court of this state, in any county in which
property belonging to the ward or protected person is located, certified copies
of the order and letters of office and of any bond.
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.
| (A) |
Upon the registration of a guardianship or protective
order from another state, the guardian may exercise in this state all powers
authorized in the order of appointment except as prohibited under the laws of
this state, including maintaining actions and proceedings in this state and, if
the guardian is not a resident of this state, subject to any conditions imposed
upon nonresident parties. |
| (B) |
A
probate court of this state may grant any relief available under the Revised
Code to enforce a registered order. |
Added by
129th General AssemblyFile No.163, HB 27,
§1, eff.
3/22/2013.