STAND. COM. REP. NO. 597-04
Honolulu, Hawaii
, 2004
RE: H.B. No. 2297
H.D. 1
Honorable Calvin K.Y. Say
Speaker, House of Representatives
Twenty-Second State Legislature
Regular Session of 2004
State of Hawaii
Sir:
Your Committee on Judiciary, to which was referred H.B. No. 2297 entitled:
"A BILL FOR AN ACT RELATING TO GUARDIANSHIP AND PROTECTIVE PROCEEDINGS,"
begs leave to report as follows:
The purpose of this bill is to adopt the Uniform Guardianship and Protective Proceedings Act in place of existing Parts 1 through 4 of Article V of chapter 560, Hawaii Revised Statutes, the Hawaii Uniform Probate Code, relating to guardianship of the persons and property of minors and incapacitated persons. This measure also makes conforming amendments to other statutory sections.
Your Committee received testimony in support of this measure from the Judiciary, the Hawaii Disability Rights Center, and the State Commission to Promote Uniform Legislation. The State Council on Developmental Disabilities (SCDD) submitted testimony in support of the intent of this measure. The Department of Health (DOH) provided testimony in support and offered suggestions.
The Judiciary's Committee on the Uniform Probate Code and Probate Court Practices (Probate Committee) recommended adoption of this measure which is based upon the Uniform Guardianship and Protective Proceedings Act (1998)(UGPPA) adopted by the National Conference of Commissioners on Uniform State Laws in 1997. For future guidance, the Proposed Commentary prepared by the Probate Committee is included as follows:
Commentary on JUD-04-06
A. Background
This proposed Act is based upon the Uniform Guardianship and Protective Proceedings Act (1998), which was adopted by the National Conference of Commissioners on Uniform State Laws in 1997.
The topics covered in this Act include minors’ guardianships, adults’ guardianships, and conservatorships of minors and adults. The Act is divided into four articles. The four articles of the freestanding Act correspond to four "parts" within "article 5" of the Uniform Probate Code. Part 1 contains definitions and general provisions applicable to both guardianships and conservatorships, including provisions that relate to the office of guardian and conservator and to the jurisdiction of the courts, many of which were scattered in different sections of the prior Act. Part 2 contains provisions on guardianships for minors, whether by the court or the parent. Part 3 contains provisions for guardianships for incapacitated persons, who will most often be adults, but who may also be minors whose need for guardianship is unrelated to their age. Part 4 covers conservatorships and other protective arrangements for both minors and adults, including the procedures for appointment of conservators and the process for implementing a protective arrangement.
This revised Act emphasizes limited guardianship and conservatorships and the need to protect the ward’s or protected person’s rights as much as possible. It provides that guardianship and conservatorship should be viewed as a last resort, that limited guardianships and conservatorships should be used whenever possible, and that the guardian or conservator should always consult with the ward or protected person, to the extent feasible, when making decisions.
Among the significant changes in the revised Act is the concept of a "standby" guardian. A parent or spouse may appoint a guardian to take office immediately upon the need. In both Parts 2 and 3 are provisions for a parental or spousal appointment of a "standby" guardian: by a parent for a minor child under Part 2 and by a parent for an adult disabled child or by a spouse for an incapacitated spouse under Part 3. The addition of these provisions was spurred by the increasing number of single-parent families in the United States as well as by the recognition that adults are living longer and may need assistance in their later lives. The standby provisions are available in a wide variety of situations where there is a need for a guardian to step in immediately upon the occurrence of an event, without seeking prior court approval. The appointment may be used by all parents of minor children as well as for the spouse of an incapacitated adult or the parent of an adult disabled child.
Emphasized throughout the Act are the concepts of limited guardianship and limited conservatorship. Only when no alternative to guardianship or conservatorship is available should the court create a guardianship or conservatorship. Courts are directed to tailor the guardianship or conservatorship to fit the needs of the incapacitated person and only remove those rights that the incapacitated person no longer can exercise or manage. (Sections 311(b), 409(b)). If an unlimited guardianship or conservatorship is requested, the petition must state why a limited guardianship or conservatorship is not being sought. (Sections 304(b)(8), 403(c)(3)). The guardian or conservator must take the views of the ward or protected person into account when making decisions. The guardian must maintain sufficient contact with the ward so that the guardian knows of the capabilities, limitations, needs and opportunities of the ward (Sections 207(b)(1), 314(b)(1)). The guardian or conservator must encourage the ward or protected person to participate in decisions, to act on his or her own behalf, and to develop or regain capacity to manage personal or financial affairs. (Sections 314(a), 418(b)). The guardian must consider the ward’s expressed desires and personal values when making decisions (Section 314(a)), while the conservator, in making decisions with respect to the protected person’s estate plan, or the court, in deciding on a protective arrangement, must rely, when possible, on the decision the protected person would have made. (Sections 411(c), 412(b)).
B. Proposed Modifications to Act
The Committee on the Uniform Probate Codes and Probate Practices has made the following recommended changes to the Act.
SECTION 560:5-102. DEFINITIONS.
The definition of "incapacitated person" in subparagraph (5) of Section 102 focuses on the ability to receive and evaluate information or to make or communicate decisions to the point that the person’s ability to care for his or her health, safety or self is compromised. This definition emphasizes the importance of functional assessment and recognizes that the more appropriate measure of a person’s incapacity is a measurement of the person’s abilities. Like other areas of the law where the concept of capacity is used, the required incapacity for the appointment of a guardian is no longer considered an all or nothing proposition but instead it is recognized as having varying degrees. This definition is designed to work with the concepts of least restrictive alternative and limited guardianship or conservatorship – only removing those rights that the incapacitated person cannot exercise, and not establishing a guardianship or conservatorship if a lesser restrictive alternative exists.
This Committee agrees with this definition (and its goals) with one exception. Under the Uniform Act, the court must take into consideration the respondent’s abilities with "appropriate technological assistance," regardless of cost. Therefore, under the Uniform Law, if appropriate technological assistance exists that can meet the respondent’s needs, then that assistance must be treated by the court as meeting the respondent’s needs by a less restrictive means, even if the respondent cannot afford the technological assistance. Under those circumstances, according to the Uniform Law, the guardianship petition must be denied (even if the respondent will not be able to pay for and benefit from the technological assistance).
The result, in this Committee’s opinion, is a catch-22 for the respondent – the respondent needs a guardian because he or she cannot afford a less restrictive measure (the technological assistance) but a guardian cannot be appointed because, if the respondent could afford technological assistance, the respondent could handle his or her personal affairs.
To avoid this result, this Committee has modified the reference to technological assistance such that it must not only be appropriate but also "reasonably available." This modification will allow the court to take into consideration the types and costs of technological assistance available and if it determines that such assistance is not reasonably available, it may grant the petition and appoint a guardian. This same modification is made throughout the Act (see Sections 560:5-311 and 560:5-401).
SECTION 560:5-105. DELEGATION OF POWER BY PARENT OR GUARDIAN.
This section allows for a temporary delegation of powers by a parent or guardian. It does not create a guardianship or give a parent powers the parent does not already have. It simply allows a parent or guardian to use a power of attorney to delegate temporarily their existing powers. Such a delegation would be useful, for example, if a parent becomes ill and needs someone to care for their child temporarily or if a child is living with grandparents or other relatives for various reasons. The delegation will also be useful for parents in the military who are called to duty. Although the Uniform Act limits the delegation to six months, this Committee believes that a one-year limitation is more appropriate and will require fewer renewals, if any. A parent or guardian may also choose a shorter period of time or revoke the delegation before it expires by its own terms.
SECTION 560:5-106. SUBJECT-MATTER JURISDICTION.
Under current law, the Family Court has exclusive jurisdiction over guardianships of the person. Therefore, if both a guardian of the person and a guardian of the property (called a "conservator" under the new Act) are needed, there must be two different hearings in two different courts (especially in the Circuit Court of the First Circuit where the Probate Court Judge is not a Family Court Judge).
This section would vest the Probate Court with concurrent jurisdiction over guardianships of incapacitated adults so that guardianships of the person and conservatorship of the person’s assets could be heard by the same court at the same time. This would save time and money for the family and be more economical for the courts as well. If a party wishes the Probate Court to consider both matters at the same time, the party should file one petition that requests the appointment of both a guardian and a conservator.
The Family Court would still retain exclusive jurisdiction over guardianships of minors because the Family Court would have the best access to any issues raised in divorce or other family court proceedings involving the minor.
SECTION 560-5:205. JUDICIAL APPOINTMENT OF GUARDIAN PROCEDURE.
This section tracks the Uniform Act except for subsection (a)(3). The Uniform Act would require notice of the proposed guardianship to each living parent of the minor. This Committee, however, believed that it was important that adult relatives on both sides of the family (e.g. a deceased mother’s relatives or a deceased father’s relatives) be given prior notice and an opportunity to be heard at guardianship proceedings. Therefore, this section has been revised to require notice to the closest adult relative of a deceased parent if only one parent is deceased. If both parents are deceased, then notice shall be given to the minor’s adult siblings or, if none, to each parent’s closest adult relative.
SECTION 560:5-209. RIGHTS AND IMMUNITIES OF GUARDIAN.
Although Section 209(a) of the Uniform Act provides that a guardian may be paid reasonable compensation without a court order if a conservator who is not affiliated with the guardian approves the compensation, this committee is concerned about the potential for abuse and, therefore, has deleted that provision. The committee believes that it is in the best interest of the ward if all guardianship compensation is subject to court approval.
This committee has also modified Section 209(b) of the Uniform Act to make it clear that a guardian is not personally liable on contracts entered into in the guardian’s fiduciary capacity.
SECTION 560:5-305. JUDICIAL APPOINTMENT OF GUARDIAN: PRELIMINARIES TO HEARING.
This section describes the circumstances in which the court may appoint a "Kokua Kanawai" to assist in its analysis or an attorney to represent the respondent’s interests at the hearing.
The role of the Kokua Kanawai is to act as the eyes and ears of the court and to provide the court with relevant information to assist it in determining the merits of the guardianship petition. As set forth in the section, the Kokua Kanawai is required to interview the Respondent and determine the Respondent’s views about the proposed guardianship, interview the proposed guardian, and obtain relevant medical information. Although the Uniform Act requires that a Kokua Kanawai (referred to as "visitor" under the Uniform Act) be appointed in all cases, this Committee believes that the appointment of a Kokua Kanawai is not necessary in all cases and would simply add unnecessary expense to the process. For example, if the Respondent is in a coma and the spouse or only adult child is seeking guardianship, then a Kokua Kanawai is probably not necessary. There may be other instances where the incapacity is clear and there is no dispute about the suitability of the proposed guardian. In those cases, a Kokua Kanawai should not be necessary. Therefore, this Committee recommends against the mandatory appointment of a Kokua Kanawai and that, instead, the court have discretion to appoint of a Kokua Kanawai. Paragraph (a), therefore, has been revised accordingly.
The Uniform Law also provides that the Kokua Kanawai be an individual "having training or experience in the type of incapacity alleged" and contemplates the appointment of a physician, psychologist, or social worker as Kokua Kanawai. This Committee was concerned about the availability of doctors and social workers to serve in this capacity and that the Uniform Law as drafted would unnecessarily limit the pool of potential Kokua Kanawai. It is often difficult to find physicians or psychologists who will provide opinions in guardianship proceedings, let alone act as the information–gathering arm of the court. Therefore, subparagraph (a) of Section 305 was revised to state that the Kokua Kanawai "must be an individual having such training or experience as the court deems appropriate." If necessary, a Kokua Kanawai who does not have a medical background could ask the court for authority to retain an independent physician or psychologist to assist it in its analysis of the medical information obtained of the and Respondent’s abilities.
With respect to the appointment of an attorney to act as an advocate for the Respondent, this Committee has adopted the Uniform Law’s alternative 1, which requires the court to appoint counsel for the Respondent if 1) the Respondent requests counsel; 2) the Kokua Kanawai recommends counsel; or 3) the court determines the Respondent needs counsel.
SECTION 560:5-310. WHO MAY BE GUARDIAN: PRIORITIES.
This Committee has made a slight change to the priorities set forth in the Uniform Act, by switching the order of (2) and (3). Under the Uniform Law, a person nominated by the respondent in a durable power of attorney has priority over an agent appointed by the respondent under the Uniform Health-Care Decisions Act. This Committee has reversed this order because the primary role of the guardian is to make health care decisions for the respondent, and thus, it makes better sense to give priority to the agent the respondent named to make health care decisions, rather than to the agent the respondent may have named to make financial decisions. Naturally, if at the time of the hearing, the respondent has sufficient capacity to nominate another guardian, then the court can take such nomination into consideration.
This Committee also revised subparagraph (c) of Section 310 to allow an owner, operator, or employee of a long-term-care institution to act as guardian if the court orders such an appointment. This contrasts with the Uniform Law, which prohibits such an appointment unless the owner, operator, or employee is related to the respondent. The Uniform Law commissioners are concerned about the conflict of interest and potential abuse. While the Committee agrees that there is the potential for a conflict of interest between the long-term-care institution owner/employee and the respondent and that such persons should not be appointed except as a last resort, it is also aware of cases where there is simply no one available to act as guardian and the Office of Public Guardian may not have sufficient resources to act. Therefore, this Committee believes that the court should have discretion to appoint a long-term care owner, operator, or employee as guardian if absolutely necessary.
SECTION 560:5-316. RIGHTS AND IMMUNITIES OF GUARDIAN; LIMITATIONS.
This Committee has modified Section 316(b) to make it clear that a guardian is not personally liable on contracts entered into in the guardian’s fiduciary capacity.
SECTION 560:5-401. PROTECTIVE PROCEEDING.
This section sets forth the standard and burdens of proof necessary to establish a conservatorship of an individual’s property. Like guardianship of the person, the focus is upon the individual’s functional abilities, taking into consideration technological assistance. This Committee has made the same change as in sections 102(5) and 311, modifying the court’s consideration of technological assistance to that which is "reasonably available."
SECTION 560:5-406. ORIGINAL PETITIONS: PRELIMINARIES TO HEARING.
For the reasons set forth in the commentary to section 305, the appointment of a Kokua Kanawai is optional, not mandatory. In addition, the Kokua Kanawai need not be someone with training and experience in the type of incapacity alleged; the court has discretion to appoint individuals with such training and experience as the court deems appropriate.
SECTION 560:5-408. ORIGINAL PETITION: PROCEDURE AT HEARING.
Although the Uniform Act provides that the hearing may be closed only upon request by the respondent, this Committee believed that there may be other valid reasons to close the hearing (such as sensitive business matters) and, therefore, other interested parties (as well as the respondent) should have the right to request a closed hearing.
SECTION 560:5-411. REQUIRED COURT APPROVAL.
This section allows the conservator to make changes to the protected person’s estate plan and beneficiary designations with prior court approval. This Committee has added retirement plans to the list of beneficiary designations that can be changed. Before allowing the conservator to make gifts or any changes to the protected person’s estate plan and beneficiaries, the court must consider what decision the protected person would have made if such person had full capacity.
This committee has deleted subparagraph (d) of the Uniform Act, which does not allow the conservator to revoke or amend any durable powers of attorney of which the protected person was the principal. It is the Committee’s view that the conservator should have the power to revoke financial powers of attorney so that there is no confusion about who has authority and control over the protected person’s assets. The Committee, therefore, has added this express power in Section 421.
SECTION 560:5-413. WHO MAY BE CONSERVATOR: PRIORITIES.
For the reasons set forth in the commentary to section 310, this Committee believes that the court should have discretion to appoint a long-term care provider as conservator if no one else is available to act.
SECTION 560:5-416. TERMS AND REQUIREMENTS OF BOND.
This section has been clarified to state that sureties and conservators are jointly and severally liable, no matter what their contract may state.
SECTION 560:5-418. GENERAL DUTIES OF CONSERVATOR.
The Uniform Act requires a conservator to not only file a financial plan with the court, but also a plan that includes "steps to develop or restore the person’s ability to manage the person’s property." This Committee has deleted these requirements for two reasons. First, the Hawaii Probate Rules presently provide that the proposed conservator must file a proposed budget with the initial petition seeking appointment. Therefore, the conservator should not be required to file another financial plan or budget after appointment. Second, while this Committee appreciates the goal of the Uniform Act to help the protected person regain the ability to handle his or her financial affairs, it believes that an additional reporting requirement will not necessarily promote that goal and will only add additional expense. Subparagraph (b) of this section requires the conservator to encourage the protected person to develop or regain the ability to manage the person’s estate and the conservator should report to the court any progress in this regard when submitting its accounts for approval. However, requiring a separate report on this particular aspect of the conservatorship does not appear necessary.
SECTION 560:5-421. TITLE BY APPOINTMENT.
This section has been modified to make it clear that the conservator’s authority and title to property supercedes that of a previously-appointed attorney-in-fact and that all agents must account to the conservator for their actions. An agent under a power of attorney is entitled to notice of the conservatorship and, other than a previously-appointed conservator, has priority to appointment as conservator. Presumably, if the court appoints someone other than the agent as conservator, it has valid reasons for doing so and the agent should no longer have any authority to act unless expressly authorized by the conservator. This section, as modified, is intended to avoid the confusion that would undoubtedly occur if both the conservator and a previously-appointed agent had control and authority over the protected person’s assets.
SECTION 560:5-425. POWERS OF CONSERVATOR IN ADMINISTRATION.
Subparagraph (7) has been revised to make it clear that sales of real property must be confirmed pursuant to Haw. Rev. Stat. §531-29 (as is the current law).
This Committee has also followed Colorado’s lead by adding subparagraph (c), which states that the conservator shall consider the person’s estate plan in making investment and distribution decisions.
SECTION 560:5-428. DEATH OF AN INCAPACITED PERSON.
The Uniform Act includes a procedure that would allow the conservator to be appointed as Personal Representative of the deceased incapacitated person’s estate and continue to administer the estate in the conservatorship proceeding. This Committee did not adopt those provisions because the provisions are not clear about the applicable procedures. The Committee also believes that all probates should be handled as probate proceedings. Therefore, the Committee retained existing law, which requires the conservator to deliver the will to any person who can secure its probate or, if none, to the court.
SECTION 560:5-429. PRESENTATION AND ALLOWANCE OF CLAIMS.
This section provides for a procedure for the expeditious resolution and payment of claims. Subparagraph (g) – which pertains to mortgage and liability insurance – has been added to be consistent with the claims procedure for decedent’s estates.
Your Committee has amended this measure by:
(1) Inserting "but only" in section 560:5-209(a) to stress that a guardian's compensation, if any, is subject to court approval;
(2) Adding to section 560:5-310(c) the owner, operator, or employee of an "other licensed care home" in addition to "long-term care institution" as a person ineligible to serve as a guardian, as requested by DOH;
(3) Deleting an obsolete reference to Waimano Training School and Hospital from section 333F-11(a)(3), as requested by DOH and SCDD because that facility was closed; and
(4) Making technical, nonsubstantive amendments for clarity, consistency, and style.
As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 2297, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2297, H.D. 1, and be placed on the calendar for Third Reading.
Respectfully submitted on behalf of the members of the Committee on Judiciary,
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____________________________ ERIC G. HAMAKAWA, Chair |
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