Chapter 2112: Adult Guardianship and Protective Proceedings Jurisdiction Act (§§ 2112.011 - 2112.43)

2112.011 Short title..

Article 1. General Provisions

Chapter 2112. of the Revised Code may be cited as the Adult Guardianship and Protective Proceedings Jurisdiction Act.

Cite as R.C. § 2112.011

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.01 Definitions..

Article 1. General Provisions

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.

Cite as R.C. § 2112.01

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.02 International application of chapter..

Article 1. General Provisions

A probate court of this state may treat a foreign country as if it were a state for the purpose of applying this chapter.

Cite as R.C. § 2112.02

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.03 Communication between courts..

Article 1. General Provisions

(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.

Cite as R.C. § 2112.03

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.04 Cooperation between courts..

Article 1. General Provisions

(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.

Cite as R.C. § 2112.04

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.05 Taking testimony in another state..

Article 1. General Provisions

(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.

Cite as R.C. § 2112.05

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.21 Jurisdiction..

Article 2. Jurisdiction

(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.

Cite as R.C. § 2112.21

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.22 Special jurisdiction..

Article 2. Jurisdiction

(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.

Cite as R.C. § 2112.22

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.23 Exclusive and continuing jurisdiction..

Article 2. Jurisdiction

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.

Cite as R.C. § 2112.23

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.24 Appropriate forum..

Article 2. Jurisdiction

(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.

Cite as R.C. § 2112.24

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.25 Jurisdiction declined by reason of conduct..

Article 2. Jurisdiction

(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.

Cite as R.C. § 2112.25

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.26 Notice of proceeding..

Article 2. Jurisdiction

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.

Cite as R.C. § 2112.26

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.27 Proceedings in more than one state..

Article 2. Jurisdiction

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.

Cite as R.C. § 2112.27

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.31 Transfer of guardianship or conservatorship to another state..

Article 3. Proceedings in More Than One State

(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;

Cite as R.C. § 2112.31

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.32 Accepting guardianship or conservatorship transferred from another state..

Article 3. Proceedings in More Than One State

(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.

Cite as R.C. § 2112.32

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.41 Registration of guardianship orders..

Article 4. Registration and Recognition of Orders from Other States

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.

Cite as R.C. § 2112.41

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.42 Registration of guardianship orders..

Article 4. Registration and Recognition of Orders from Other States

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.

Cite as R.C. § 2112.42

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.

2112.43 Effect of registration..

Article 4. Registration and Recognition of Orders from Other States

(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.

Cite as R.C. § 2112.43

Added by 129th General AssemblyFile No.163, HB 27, §1, eff. 3/22/2013.