Alabama 2022 Regular Session

Alabama House Bill HB227 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 HB227
2	2	2 214974-1
3	3	3 By Representative Simpson
4	4	4 RFD: Judiciary
5	5	5 First Read: 02-FEB-22
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7	7	Page 0 1 214974-1:n:09/13/2021:CMH/bm LSA2021-1918
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13	13	7
14	14	8 SYNOPSIS: Existing law provides for the original and
15	15	9 general jurisdiction of probate courts, including
16	16	10 jurisdiction over the change of name of adults.
17	17	11 This bill would further provide for the
18	18	12 jurisdiction of probate courts to include
19	19	13 jurisdiction over the change of name of minors,
20	20	14 under certain conditions.
21	21	15 Under the Adult Protective Services Act of
22	22	16 1976, only circuit courts have jurisdiction to
23	23	17 preside over protective service proceedings.
24	24	18 This bill would provide probate courts with
25	25	19 concurrent general and original jurisdiction over
26	26	20 protective service proceedings under the Adult
27	27	21 Protective Services Act of 1976.
28	28	22 Under the Elder Abuse Protection Order and
29	29	23 Enforcement Act, circuit court judges along with
30	30	24 certain specially appointed circuit court judges
31	31	25 and district court judges may issue elder abuse
32	32	26 protection orders.
33	33	Page 1 1 This bill would authorize judges of probate
34	34	2 who are members in good standing with the Alabama
35	35	3 State Bar to issue elder abuse protection orders
36	36	4 when authorized to do so by a written standing
37	37	5 order from the presiding circuit court judge.
38	38	6 This bill would also make nonsubstantive,
39	39	7 technical revisions to update existing code
40	40	8 language to current style.
41	41	9
42	42	10 A BILL
43	43	11 TO BE ENTITLED
44	44	12 AN ACT
45	45	13
46	46	14 Relating to probate courts; to amend Sections
47	47	15 12-13-1, 38-9-2, and 38-9F-4, Code of Alabama 1975, and to add
48	48	16 Sections 38-9-3.1 and 38-9-6.1 to the Code of Alabama 1975, to
49	49	17 further provide for the original and general jurisdiction of
50	50	18 probate courts; to provide probate courts with jurisdiction
51	51	19 over certain proceedings under the Adult Protective Services
52	52	20 Act of 1976; to authorize certain judges of probate to issue
53	53	21 elder abuse protection orders under certain conditions; and to
54	54	22 make nonsubstantive, technical revisions to update existing
55	55	23 code language to current style.
56	56	24 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
57	57	25 Section 1. Sections 12-13-1 and 38-9-2, Code of
58	58	26 Alabama 1975, are amended to read as follows:
59	59	27 "§12-13-1.
60	60	Page 2 1 "(a) The probate court shall have original and
61	61	2 general jurisdiction as to all matters mentioned in this
62	62	3 section and shall have original and general jurisdiction as to
63	63	4 all other matters which may be conferred upon them by statute
64	64	5 law, unless the statute law so conferring jurisdiction
65	65	6 expressly makes the jurisdiction special or limited.
66	66	7 "(b) The probate court shall have original and
67	67	8 general jurisdiction over the following matters:
68	68	9 "(1) The probate of wills.
69	69	10 "(2) The granting of letters testamentary and of
70	70	11 administration and the repeal or revocation of the same.
71	71	12 "(3) All controversies in relation to the right of
72	72	13 executorship or of administration.
73	73	14 "(4) The settlement of accounts of executors and
74	74	15 administrators.
75	75	16 "(5) The sale and disposition of the real and
76	76	17 personal property belonging to and the distribution of
77	77	18 intestate's estates.
78	78	19 "(6) The appointment and removal of guardians for
79	79	20 minors and persons of unsound mind.
80	80	21 "(7) All controversies as to the right of
81	81	22 guardianship and the settlement of guardians' accounts.
82	82	23 "(8) The allotment of dower in land in the cases
83	83	24 provided by law.
84	84	25 "(9) The partition of lands within their counties.
85	85	26 "(10) The change of the name of any person adult
86	86	27 residing in their county, upon his or her filing a declaration
87	87	Page 3 1 in writing, signed by him or her, stating the name by which he
88	88	2 or she is known and the name to which he or she wishes it to
89	89	3 be changed.
90	90	4 "(11) The change of the name of any minor residing
91	91	5 in their county, upon the filing of a declaration in writing,
92	92	6 signed by the parent or legal guardian of the minor, stating
93	93	7 the name by which the minor is known and the name to which it
94	94	8 is to be changed, along with the consent from all persons who
95	95	9 have natural parental or legal rights of the minor. Consent of
96	96	10 the minor is required if the minor is 14 or more years of age.
97	97	11 This subdivision does not apply to a minor who is involved in
98	98	12 a domestic relations matter that is pending in the circuit
99	99	13 court.
100	100	14 "(11) Such other (12) Other cases as jurisdiction is
101	101	15 or may be given to such probate courts by law, in all cases to
102	102	16 be exercised in the manner prescribed by law.
103	103	17 "(c) The probate court and circuit court shall have
104	104	18 concurrent original and general jurisdiction of any
105	105	19 proceedings under Chapter 9 of Title 38.
106	106	20 "(c)(d) All orders, judgments, and decrees of
107	107	21 probate courts shall be accorded the same validity and
108	108	22 presumptions which are accorded to judgments and orders of
109	109	23 other courts of general jurisdiction.
110	110	24 "§38-9-2.
111	111	25 "For the purposes of this chapter, the following
112	112	26 terms shall have the following meanings:
113	113	Page 4 1 "(1) ABUSE. The infliction of physical pain, injury,
114	114	2 or the willful deprivation by a caregiver or other person of
115	115	3 services necessary to maintain mental and physical health.
116	116	4 "(2) ADULT IN NEED OF PROTECTIVE SERVICES. A person
117	117	5 18 years of age or older whose behavior indicates that he or
118	118	6 she is mentally incapable of adequately caring for himself or
119	119	7 herself and his or her interests without serious consequences
120	120	8 to himself or herself or others, or who, because of physical
121	121	9 or mental impairment, is unable to protect himself or herself
122	122	10 from abuse, neglect, exploitation, sexual abuse, or emotional
123	123	11 abuse by others, and who has no guardian, relative, or other
124	124	12 appropriate person able, willing, and available to assume the
125	125	13 kind and degree of protection and supervision required under
126	126	14 the circumstances.
127	127	15 "(3) CAREGIVER. An individual who has the
128	128	16 responsibility for the care of a protected person as a result
129	129	17 of family relationship or who has assumed the responsibility
130	130	18 for the care of the person voluntarily, by contract, or as a
131	131	19 result of the ties of friendship.
132	132	20 "(4) COURT. The circuit court or probate court.
133	133	21 "(5) DEPARTMENT. The Department of Human Resources
134	134	22 of the State of Alabama.
135	135	23 "(6) EMOTIONAL ABUSE. The willful or reckless
136	136	24 infliction of emotional or mental anguish or the use of a
137	137	25 physical or chemical restraint, medication, or isolation as
138	138	26 punishment or as a substitute for treatment or care of any
139	139	27 protected person.
140	140	Page 5 1 "(7) EMPLOYEE OF A NURSING HOME. A person permitted
141	141	2 to perform work in a nursing home by the nursing home
142	142	3 administrator or by a person or an entity with an ownership
143	143	4 interest in the facility, or by both. A person shall be
144	144	5 considered an employee whether or not he or she receives
145	145	6 compensation for the work performed.
146	146	7 "(8) EXPLOITATION. The expenditure, diminution, or
147	147	8 use of the property, assets, or resources of a protected
148	148	9 person without the express voluntary consent of that person or
149	149	10 his or her legally authorized representative or the admission
150	150	11 of or provision of care to a protected person who needs to be
151	151	12 in the care of a licensed hospital by an unlicensed hospital
152	152	13 after a court order obtained by the State Board of Health has
153	153	14 directed closure of the unlicensed hospital. For the purpose
154	154	15 of this section and Sections 38-9-6 and 38-9-7, the term
155	155	16 "unlicensed hospital" shall have the meaning ascribed to it in
156	156	17 Section 22-21-33, and the term "licensed hospital" shall have
157	157	18 the meaning ascribed to it in Section 22-21-20.
158	158	19 "(9) INTENTIONALLY. A person acts intentionally with
159	159	20 respect to a result or to conduct described by a statute
160	160	21 defining an offense, when his or her purpose is to cause that
161	161	22 result or to engage in that conduct.
162	162	23 "(10) INTERESTED PERSON. Any adult relative, friend,
163	163	24 or guardian of a protected person, or any official or
164	164	25 representative of a public or private agency, corporation, or
165	165	26 association concerned with his or her the welfare of the
166	166	27 protected person.
167	167	Page 6 1 "(11) MISAPPROPRIATION OF PROPERTY OF A NURSING HOME
168	168	2 RESIDENT. The deliberate misplacement or wrongful, temporary,
169	169	3 or permanent use or withholding of belongings or money of a
170	170	4 resident of a nursing home without the consent of the
171	171	5 resident.
172	172	6 "(12) NEGLECT. The failure of a caregiver to provide
173	173	7 food, shelter, clothing, medical services, or health care for
174	174	8 the person unable to care for himself or herself; or the
175	175	9 failure of the person to provide these basic needs for himself
176	176	10 or herself when the failure is the result of the person's
177	177	11 mental or physical inability.
178	178	12 "(13) NEURODEGENERATIVE. Relating to or being a
179	179	13 progressive loss of neurologic function.
180	180	14 "(14) NURSING FACILITY. A facility which that is
181	181	15 licensed as a nursing home by the Alabama Department of Public
182	182	16 Health pursuant to Article 2, Chapter 21, Title 22.
183	183	17 "(15) OTHER LIKE INCAPACITIES. Those conditions
184	184	18 incurred as the result of accident or mental or physical
185	185	19 illness, producing a condition which that substantially
186	186	20 impairs an individual from adequately providing for his or her
187	187	21 own care or protecting his or her own interests or protecting
188	188	22 himself or herself from physical or mental injury or abuse.
189	189	23 "(16) PERSON. Any natural human being.
190	190	24 "(17) PHYSICAL INJURY. Impairment of physical
191	191	25 condition or substantial pain.
192	192	26 "(18) PROTECTED PERSON. Any person over 18 19 years
193	193	27 of age or older subject to protection under this chapter or
194	194	Page 7 1 any person, including, but not limited to, persons with a
195	195	2 neurodegenerative disease, persons with intellectual
196	196	3 disabilities and developmental disabilities, or any person
197	197	4 over 18 19 years of age or older who that is mentally or
198	198	5 physically incapable of adequately caring for himself or
199	199	6 herself and his or her interests without serious consequences
200	200	7 to himself or herself or others.
201	201	8 "(19) PROTECTIVE SERVICES. Those services whose
202	202	9 objective is to protect an incapacitated person from himself
203	203	10 or herself and from others.
204	204	11 "(20) RECKLESSLY. A person acts recklessly with
205	205	12 respect to a result or to a circumstance described by a
206	206	13 statute defining an offense when he or she is aware of and
207	207	14 consciously disregards a substantial and unjustifiable risk
208	208	15 that the result will occur or that the circumstance exists.
209	209	16 The risk shall be of such nature and degree that its disregard
210	210	17 constitutes a gross deviation from the standard conduct that a
211	211	18 reasonable person would observe in the situation. A person who
212	212	19 creates a risk but is unaware of that risk solely by reason of
213	213	20 voluntary intoxication, as defined in subdivision (e)(2) of
214	214	21 Section 13A-3-2, acts recklessly with respect thereto.
215	215	22 "(21) SERIOUS PHYSICAL INJURY. Physical injury which
216	216	23 that creates a risk of death, or which that causes serious and
217	217	24 protracted disfigurement, protracted impairment of health,
218	218	25 protracted loss of the function of any bodily organ, or the
219	219	26 impairment of the function of any bodily organ.
220	220	Page 8 1 "(22) SEXUAL ABUSE. Any conduct that is constitutes
221	221	2 a crime as defined in Sections 13A-6-60 to 13A-6-70, inclusive
222	222	3 under Article 4 of Chapter 6 of Title 13A."
223	223	4 Section 2. Section 38-9-3.1 is added to the Code of
224	224	5 Alabama 1975, to read as follows:
225	225	6 §38-9-3.1.
226	226	7 The probate court and circuit court shall have
227	227	8 concurrent original and general jurisdiction as to all matters
228	228	9 mentioned in this chapter.
229	229	10 Section 3. Section 38-9-6.1 is added to the Code of
230	230	11 Alabama 1975, to read as follows:
231	231	12 §38-9-6.1.
232	232	13 (a) Nothing in this section applies to actions
233	233	14 pending in a probate court where the judge of probate is a
234	234	15 member in good standing with the Alabama State Bar.
235	235	16 (b) At any time after the filing of a petition, but
236	236	17 before a hearing contemplated in Section 38-9-6, any protected
237	237	18 person, interested person, or party to an action under this
238	238	19 chapter may remove the action from the probate court to the
239	239	20 circuit court for the county in which the probate court is
240	240	21 located by doing all of the following, which shall effect the
241	241	22 removal:
242	242	23 (1) Filing in the circuit court a notice of removal
243	243	24 together with a copy of all processes, pleadings, and orders
244	244	25 filed in the probate court.
245	245	26 (2) Serving all parties to the action with a copy of
246	246	27 the removal notice.
247	247	Page 9 1 (3) Filing a copy of the removal notice with the
248	248	2 clerk of the probate court.
249	249	3 (c) Upon the removal of an action pursuant to
250	250	4 subsection (b), the probate court shall proceed no further.
251	251	5 Section 4. Section 38-9F-4, Code of Alabama 1975, is
252	252	6 amended to read as follows:
253	253	7 "§38-9F-4.
254	254	8 "(a) The following courts shall have jurisdiction to
255	255	9 issue elder abuse protection orders under this chapter:
256	256	10 "(1) Circuit courts.
257	257	11 "(2) A special circuit court judge appointed
258	258	12 pursuant to Section 12-1-14 or 12-1-14.1.
259	259	13 "(3) A district court judge designated by a written
260	260	14 standing order from the presiding circuit court judge.
261	261	15 "(4) A judge of probate designated by a written
262	262	16 standing order from the presiding circuit court judge, where
263	263	17 the judge of probate is a member in good standing with the
264	264	18 Alabama State Bar.
265	265	19 "(b) An elder abuse protection order may be
266	266	20 requested in any pending civil or domestic relations action,
267	267	21 as an independent civil action, or in connection with the
268	268	22 preliminary, final, or post-judgment relief in a civil action.
269	269	23 "(c) A petition for an elder abuse protection order
270	270	24 may be filed in any of the following locations:
271	271	25 "(1) Where the plaintiff or defendant resides.
272	272	Page 10 1 "(2) Where the plaintiff is temporarily located if
273	273	2 he or she has left his or her residence to avoid further
274	274	3 abuse.
275	275	4 "(3) Where the abuse occurred.
276	276	5 "(d) There is no minimum period of residence for the
277	277	6 plaintiff in the State of Alabama or in the county in which a
278	278	7 case is filed.
279	279	8 "(e) An elder abuse protection order shall be a
280	280	9 status order that is specifically designed to protect the
281	281	10 elderly person, and in personam jurisdiction over the
282	282	11 defendant shall not be required in order to issue an ex parte
283	283	12 or final order under this chapter."
284	284	13 Section 5. This act shall become effective on the
285	285	14 first day of the third month following its passage and
286	286	15 approval by the Governor, or its otherwise becoming law.
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